Order of the President of the Third Chamber of the Court of 20 July 1981 José Alvarez y European Parliament Officials — Dismissal Case 206/81 R
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Address https://gelex.eu/eli/EU/judgment/61981O0206@1981-07-20/en
In Case 206/81 R, José Alvarez, a probationary official of the European Parliament, of 83 Rue de la Semois, Luxembourg, represented by Victor Biel, 18A Rue des Glacis, with an address for service in Luxembourg at the latter's Chambers, applicant,v European Parliament, represented by Martin Schmidt, Director of Personnel and Social Affairs, acting as Agent, defendant, the President of the Third Chamber of the Court of Justice of the European Communities makes the following
ORDER
Facts and Issues
José Alvarez, who was a member of the auxiliary staff of the European Parliament from 26 March 1979 to 30 September 1980, became on 1 October 1980 a probationary official of that institution. By a letter of 19 June 1981 the Secretary General of the European Parliament informed Mr Alvarez that the report drawn up by his superior officers at the end of the period of probation was unfavourable and that he would be dismissed on 15 July 1981.
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sec_1 I —
Previous history of the dispute
By application lodged at the Court Registry on 8 July 1981 the applicant brought an action primarily for the annulment of the probation report and the decision to dismiss him, based thereon. According to the applicant the probation report is insufficiently reasoned, inaccurate and was drawn up without any objective check. He states that the probation report and the decision to dismiss him were drawn up with the deliberate intention of removing a person who is too involved in trade-union activities. By a separate document accompanying the main application the applicant also submitted, in pursuance of Article 83 of the Rules of Procedure, an application for the adoption of interim measures. That second application is for a suspension of the operation of the decision to dismiss him on the basis of his probation report.
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Written procedure
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Submissions and arguments of the parties
The applicant claims that his dismissal on 15 July would result in making any reparation for the damage suffered ineffective. In reality the applicant is scarcely interested in obtaining compensation in the form of damages but is anxious above all that his career with the Parliament should be preserved, which would become very difficult once the dismissal had taken effect. He states that the Parliament cannot claim against him that an interlocutory decision could hamper it in the proper administration of its business.
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(a) The applicant's observations
The defendant considers that the applicant has not demonstrated the existence of circumstances giving rise to urgency or the factual and legal grounds establishing a prima facie case for the adoption of an interim measure. On the one hand the applicant has not demonstrated that the execution of the contested decision would cause him serious or irreparable damage. On the contrary, the applicant does not deny that if he is successful in his action he may receive damages. As to his anxiety that his career should be preserved, the defendant points out that if the Court annuls the decision to dismiss him, the fact that it has been either executed or suspended will no longer be material. On the other hand a suspension of the operation of the decision to dismiss him would usher in a period of uncertainty which would have repercussions on the applicant's official career. Furthermore the arguments put forward by the applicant do not show that his action is well founded. The facts alleged by him in support of his action are moreover contradicted by various internal memoranda a copy of which is appended to the defendant's observations. Finally the defendant stresses that, in view of the serious incidents on which the decision to dismiss the applicant was based, a suspension of its operation would have serious effects on its authority in respect of its staff. Further, it is by no means impossible, regard being had to his attitude in the past, that the applicant might provoke fresh incidents.
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(b) The defendant's observations
The parties were duly summoned and presented oral argument at the hearing of the application for the adoption of an interim measure on 16 July 1981.
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Oral procedure
Decision
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1 According to Article 185 of the Treaty actions brought before the Court of Justice do not have suspensory effect. However, the Court may, if it thinks that the circumstances so require, order the suspension of the operation of the contested decision. It may also prescribe any other necessary interim measure.
2 Article 91 (4) of the Staff Regulations of Officials of the European Communities provides that ari official may, after submitting a complaint to the appointing authority pursuant to Article 90 (2), immediately file an appeal with the Court of Justice, provided that such appeal is accompanied by an application either for a stay of execution of the contested act or for the adoption of interim measures.
3 By letter of 19 June 1981 the Secretary General of the European Parliament informed José Alvarez, a probationary official of the Parliament, that in view of the unfavourable probation report made in respect of him he would be dismissed on 15 July 1981.
4 By an application, registered on 8 July 1981, José Alvarez brought an action under Article 179 of the EEC Treaty seeking primarily the annulment of his probation report and of the subsequent decision to dismiss him. By a separate document, registered on the same day, Mr Alvarez made an application for the adoption of an interim measure seeking the suspension of the operation of the decision to dismiss him.
5 Under Article 83 (2) of the Rules of Procedure of the Court a suspension of operation and a decision ordering interim measures are subject to the existence of circumstances giving rise to urgency and grounds establishing a prima facie case for the grant of such measures.
6 According to the Court's consistent case-law measures of this kind may be adopted by the judge hearing the application for such measures if it is established that their adoption is prima facie justified in fact and in law, if they are urgent in the sense that it is necessary, in order to avoid serious and irreparable damage, that they should be laid down, and should take effect, before the decision of the Court on the substance of the action and if they are provisional in the sense that they do not pre-judge the decision on the substance of the case, that is to say that they do not at this stage decide disputed points of law or of fact or neutralize in advance the consequences of the decision to be given subsequently on the substance of the action.
7 The damage which may be caused to the applicant does not satisfy the conditions set out above. In fact, even on the supposition that his action is well founded the damage which would arise from the application of the contested decision during the time necessary for the Court to deliver judgment could be made good by the grant of compensation, including, if appropriate, in view of the serious allegations made by the applicant, the grant of compensation for non-material damage.
8 On the other hand, if the unfavourable statements made in the report drawn up at the expiration of the probationary period are correct, the suspension of operation of the decision to dismiss the applicant would require the defendant to employ and pay, with no opportunity to recoup the sums thus expended, an employee whose presence in its administration would be contrary to the interests of the service.
9 For the reasons indicated above it is therefore impossible to grant the measure applied for.
Costs
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10 In the circumstances the costs should be reserved.
On those grounds, the President of the Third Chamber, by way of an interlocutory decision, hereby orders as follows:
1. The application for the adoption of an interim measure is dismissed.
2. Costs are reserved.
Luxembourg, 20 July 1981. For the Registrar J. A. Pompe Deputy Registrar A. J. Mackenzie Stuart President of the Third Chamber