Summary
Parties
Grounds
Operative part
Keywords
APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF OPERATION - INTERIM MEASURES - CONDITIONS FOR GRANTING
( RULES OF PROCEDURE , ART . 83 ( 2 ))
Summary
THE SUSPENSION OF OPERATION OF A MEASURE AND OTHER INTERIM MEASURES WHICH THE COURT MAY ORDER MAY BE CONSIDERED ONLY IF THE FACTUAL AND LEGAL CIRCUMSTANCES RELIED UPON TO JUSTIFY THEM ESTABLISH A PRIMA FACIE CASE FOR THEIR ADOPTION . IN ADDITION THEY MUST BE URGENT IN THE SENSE THAT IT IS NECESSARY , SO AS TO AVOID GRAVE AND IRREPARABLE HARM TO THE PARTY MAKING THE APPLICATION , FOR THEM TO BE ADOPTED AND TAKE EFFECT PRIOR TO THE DECISION OF THE COURT ON THE SUBSTANTIVE ACTION ; FINALLY THEY MUST BE PROVISIONAL IN THE SENSE THAT THEY DO NOT PREJUDGE THE SUBSTANTIVE DECISION .
Parties
IN CASE 293/82 R
HENRI DE COMPTE , FORMER HEAD OF THE TREASURY AND ACCOUNTS DIVISION AND AN ACCOUNTING OFFICER OF THE EUROPEAN PARLIAMENT , RESIDING IN LUXEMBOURG , AT 10 AVENUE GUILLAUME , REPRESENTED BY GASTON VOGEL , OF THE LUXEMBOURG BAR ,
APPLICANT ,
V
EUROPEAN PARLIAMENT , REPRESENTED BY M . PETER , HEAD OF THE LEGAL AND ADMINISTRATIVE QUESTIONS DIVISION , ACTING AS AGENT , ASSISTED BY ALEX BONN OF THE LUXEMBOURG BAR ,
DEFENDANT ,
Grounds
1 ACCORDING TO ARTICLE 185 OF THE TREATY , ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE DO NOT HAVE SUSPENSORY EFFECT . THE COURT OF JUSTICE MAY , HOWEVER , IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE , ORDER THAT APPLICATION OF THE CONTESTED MEASURES BE SUSPENDED . PURSUANT TO ARTICLE 186 OF THE TREATY , THE COURT MAY ALSO PRESCRIBE ANY NECESSARY INTERIM MEASURES .
2 ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE MAKES THE SUSPENSION OF THE OPERATION OF A MEASURE AND THE DECISION TO ADOPT INTERIM MEASURES SUBJECT TO THE EXISTENCE OF CIRCUMSTANCES WHICH GIVE RISE TO URGENCY AND GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE ADOPTION OF SUCH MEASURES .
3 IT FOLLOWS FROM THE WELL-ESTABLISHED CASE-LAW OF THE COURT THAT THE ADOPTION OF MEASURES OF THIS KIND MAY BE CONSIDERED ONLY IF THE FACTUAL AND LEGAL CIRCUMSTANCES UPON WHICH THE APPLICATION RELIES ESTABLISH A PRIMA FACIE CASE FOR THEIR ADOPTION . IN ADDITION , THEY MUST BE URGENT IN THE SENSE THAT IT IS NECESSARY THAT THEY BE ADOPTED AND BECOME OPERATIVE PRIOR TO THE COURT ' S DECISION ON THE SUBSTANCE OF THE CASE IN ORDER TO PREVENT GRAVE AND IRREPARABLE HARM TO THE PARTY MAKING THE APPLICATION ; FINALLY THEY MUST BE INTERIM MEASURES INASMUCH AS THEY DO NOT PREJUDICE JUDGMENT ON THE SUBSTANCE OF THE CASE .
4 THE APPLICANT ' S REQUEST FOR A SUSPENSION MUST , THEREFORE , BE EXAMINED IN THE LIGHT OF THOSE CONSIDERATIONS .
5 ARTICLE 87 OF THE STAFF REGULATIONS AND ANNEX IX THERETO PROVIDE THAT THE SERIOUS MEASURES ENVISAGED IN ARTICLE 86 ( 2 ) ( C ) TO ( G ) MAY BE IMPOSED ONLY AFTER THE DISCIPLINARY BOARD HAS DELIVERED ITS REASONED OPINION . THE SECOND PARAGRAPH OF ARTICLE 87 PROVIDES THAT THE PROCEDURE IS TO BE INITIATED BY THE APPOINTING AUTHORITY AFTER HEARING THE OFFICIAL CONCERNED .
6 IN THE COURSE OF THE INTERLOCUTORY HEARING THE PARTIES SUBMITTED TWO RADICALLY DIFFERENT INTERPRETATIONS OF THE ABOVE-MENTIONED PROVISION . IN THE OPINION OF THE APPLICANT , THE HEARING MUST BE HELD SPECIFICALLY FOR THE PURPOSES OF SATISFYING ARTICLE 87 , AND THE OFFICIAL MUST BE HEARD EITHER BY THE APPOINTING AUTHORITY ( IN THIS CASE , THE PRESIDENT OF THE PARLIAMENT ), OR BY A PERSON WHO HAS BEEN SPECIFICALLY DELEGATED FOR THAT PURPOSE . THE APPLICANT ALLEGES THAT NEITHER OF THOSE CONDITIONS WAS SATISFIED . THE APPLICANT HAD , INDEED , HELD DISCUSSIONS WITH HIS IMMEDIATE SUPERIORS ON VARIOUS POINTS ; BUT THAT WAS IN THE CONTEXT OF AN ADMINISTRATIVE INQUIRY THE PURPOSE OF WHICH WAS TO ENABLE THE PARLIAMENT TO REPLY TO THE CRITICISMS RAISED BY THE COURT OF AUDITORS AND TO CARRY OUT INTERNAL REORGANIZATION , AND WAS NOT A STEP IN DISCIPLINARY PROCEEDINGS . IN ADDITION , THE PARLIAMENT HAS NEVER GIVEN THE APPLICANT AN OPPORTUNITY TO BE HEARD CONCERNING A PRINCIPAL ASPECT OF THE FILE ON WHICH THE DISCIPLINARY PROCEEDINGS WERE BASED , NAMELY THE REPORT OF THE CHARTERED ACCOUNTANTS MORET AND LIMPERG , OF WHICH HE WAS NOTIFIED ONLY BY THE PRESIDENT ' S LETTER OF 30 SEPTEMBER 1982 .
7 THE PARLIAMENT CONTENDS THAT IT IS SUFFICIENT THAT THE HEARING BE GIVEN DURING THE PRELIMINARY INVESTIGATIONS ON THE BASIS OF WHICH THE AUTHORITY DECIDES TO INITIATE THE DISCIPLINARY PROCEEDINGS .
8 THE DISCIPLINARY PROCEDURE IS SURROUNDED BY SAFEGUARDS . WHERE SERIOUS MEASURES ARE CONCERNED , THE OFFICIAL HAS THE RIGHT TO DEFEND HIMSELF THREE TIMES , THE FIRST TIME BEFORE , THE SECOND TIME DURING AND THE THIRD TIME AFTER THE MEETING OF THE DISCIPLINARY BOARD . THE WORDING OF THE STAFF REGULATIONS CLEARLY IMPOSES AN IMPERATIVE DUTY TO GIVE THE OFFICIAL A HEARING PRIOR TO THE DECISION TO INITIATE DISCIPLINARY PROCEEDINGS . FOR THAT HEARING , IT IS NECESSARY NOT ONLY THAT THE OFFICIAL BE ALLOWED TO COMMENT ON DIFFERENT POINTS BUT ALSO THAT HE BE AWARE OF THE FACT THAT HE IS DOING SO AS A STEP IN THE DISCIPLINARY PROCEEDINGS AND THAT IT IS NOT MERELY A ROUTINE DISCUSSION WITH HIS SUPERIORS .
9 IN THIS CASE , THE PARLIAMENT WAS ASKED WHETHER DURING THE PRELIMINARY INVESTIGATIONS THE APPLICANT HAD BEEN INFORMED OF THE POSSIBILITY THAT THE PARLIAMENT MIGHT INSTITUTE DISCIPLINARY PROCEEDINGS AGAINST HIM AND THAT WHAT HE SAID MIGHT BE TAKEN DOWN IN ORDER TO DECIDE WHETHER SUCH PROCEEDINGS SHOULD BE ENGAGED OR NOT , BUT WAS UNABLE TO PROVIDE AN ANSWER TO THAT QUESTION .
10 THE ABSENCE OF AN AFFIRMATIVE REPLY AT THIS STAGE OF THE PROCEEDINGS INTRODUCES AN ELEMENT OF UNCERTAINTY INTO AN IMPORTANT AREA OF THE CASE . IT IS THEREFORE A MATTER WHICH MUST BE DECIDED BY THE COURT IN THE MAIN PROCEEDINGS AND NOT IN THE INTERLOCUTORY PROCEEDINGS . A FINDING IN FAVOUR OF THE APPLICANT WOULD INTERFERE WITH THE JURISDICTION OF THE COURT IN THE MAIN PROCEEDINGS AND PREJUDICE JUDGMENT ON THE SUBSTANCE OF THE CASE .
11 MOREOVER , DISCIPLINARY PROCEEDINGS OF THIS KIND ARE DESIGNED TO ENABLE THE INSTITUTION TO DISCLOSE THE ALLEGED MISCONDUCT AND THE OFFICIAL TO ASSERT HIS RIGHTS OF DEFENCE AND IF POSSIBLE TO CLEAR HIMSELF OF THE CHARGES FACING HIM . IN THE PRESENT CASE , THERE IS NO MANIFEST AND SERIOUS BREACH OF A SUPERIOR RULE OF LAW AND THEREFORE NO GRAVE AND IRREPARABLE HARM SUCH AS MIGHT JUSTIFY THE MEASURES SOUGHT . IT SHOULD BE NOTED THAT ALL THE APPLICANT ' S ARGUMENTS RELATING TO THE ABSENCE OF A HEARING WITHIN THE TERMS OF ARTICLE 87 AND THE LEGAL CONSEQUENCES THEREOF WILL STILL BE AVAILABLE TO HIM , IF A DISCIPLINARY MEASURE IS ORDERED AGAINST HIM .
12 EVEN THOUGH , AS THE APPLICANT HAS MAINTAINED , IT IS CLEARLY NOT IN THE INTERESTS OF EFFICIENT ADMINISTRATION THAT DISCIPLINARY PROCEEDINGS SHOULD BE ANNULLED , ONCE THEY HAVE BEEN CONCLUDED , ON THE GROUND OF PROCEDURAL IRREGULARITY WHICH OCCURRED IN THE PRELIMINARY STAGES , A COMMUNITY INSTITUTION CANNOT BE PREVENTED BY MEANS OF AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES FROM INCURRING SUCH A RISK . ON THE OTHER HAND , CONTRARY TO WHAT THE PARLIAMENT HAS SUGGESTED , IT MAY , IF IT CONSIDERS IT TO BE APPROPRIATE IN THE LIGHT OF THE CONSIDERATIONS CITED ABOVE , REVERSE ITS DECISION TO INITIATE DISCIPLINARY PROCEEDINGS , SINCE IT IS WELL ESTABLISHED IN THE CASE-LAW OF THE COURT THAT ANY LEGAL DECISION WHICH HAS NOT GIVEN RISE TO ACQUIRED RIGHTS MAY BE WITHDRAWN .
Operative part
ON THOSE GROUNDS ,
THE ACTING PRESIDENT OF THE THIRD CHAMBER OF THE COURT
HEREBY ORDERS AS FOLLOWS :
1 . THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS DISMISSED .
2.THE COSTS ARE RESERVED .
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