Parties
Grounds
Operative part
Keywords
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APPLICATION FOR INTERIM MEASURES - SUSPENSION OF A PROCEDURE - CONDITIONS FOR GRANTING - IRREPARABLE DAMAGE
( RULES OF PROCEDURE, ART . 83*(2 )*)
Parties
IN CASE 161/87*R
GERT MUYSERS AND WALTER TUELP, OFFICIALS OF THE COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, REPRESENTED BY VICTOR BIEL, OF THE LUXEMBOURG BAR, 18 A RUE DES GLACIS,
APPLICANTS,
V
COURT OF AUDITORS OF THE EUROPEAN COMMUNITIES, REPRESENTED BY M . BECKER, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF THE COURT OF AUDITORS, 29 RUE ALDRINGEN,
DEFENDANT,
APPLICATION FOR THE SUSPENSION, AS AN INTERIM MEASURE, OF THE PROCEDURE IN COMPETITION NO CC/A/8/85,
THE PRESIDENT OF THE SECOND CHAMBER
ACTING UNDER ARTICLES 9 ( 4 ) AND 96 OF THE RULES OF PROCEDURE,
MAKES THE FOLLOWING
ORDER
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 1 JUNE 1987, GERT MUYSERS AND WALTER TUELP, OFFICIALS OF THE COURT OF AUDITORS, BROUGHT AN ACTION SEEKING THE ANNULMENT OF THE DECISION OF THE COURT OF AUDITORS OF 29 APRIL 1987 REFUSING TO ALLOW THEM TO TAKE PART IN A COMPETITION ( COMPETITION NO CC/A/8/85 ).
2 BY AN APPLICATION FOR INTERIM MEASURES LODGED ON THE SAME DAY, THE APPLICANTS, PURSUANT TO ARTICLE 83 OF THE RULES OF PROCEDURE, SOUGHT THE SUSPENSION OF THE PROCEDURE IN COMPETITION NO CC/A/8/85 UNTIL THE DELIVERY OF JUDGMENT IN THE MAIN ACTION .
3 THE APPLICATION FOR INTERIM MEASURES WAS SERVED ON THE COURT OF AUDITORS . THE PARTIES WERE SUMMONED TO APPEAR ON 3 JUNE 1987 AND SUBMITTED THEIR OBSERVATIONS AT THAT TIME .
4 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE APPLICANTS AND 12 OTHER OFFICIALS APPLIED TO TAKE PART IN INTERNAL COMPETITION NO CC/A/8/85 FOR THE RECRUITMENT OF AN ADMINISTRATOR IN CAREER BRACKET A*7/A*6 . HOWEVER, BY LETTERS DATED 28 OCTOBER 1985 THE SELECTION BOARD INFORMED THEM THAT THEY COULD NOT BE ADMITTED TO THE TESTS IN THE COMPETITION . FOUR OF THOSE OFFICIALS BROUGHT ACTIONS AGAINST THE DECISIONS OF THE SELECTION BOARD WHEREBY IT REFUSED TO ALLOW THEM TO TAKE PART IN THE COMPETITION . BY JUDGMENTS OF 23 OCTOBER 1986 IN CASE 321/85 SCHWIERING AND IN JOINED CASES 322 AND 323/85 HOYER AND NEUMANN AND OF 4 FEBRUARY 1987 IN CASE 417/85 MAURISSEN THE COURT ANNULLED THE AFOREMENTIONED DECISIONS .
5 CONSEQUENTLY, THE COMPETITION PROCEDURE, WHICH HAD BEEN SUSPENDED ON 30 OCTOBER 1985 BY THE PRESIDENT OF THE COURT OF AUDITORS PENDING THE POSSIBLE INSTITUTION OF COURT PROCEEDINGS, WAS RESUMED; HOWEVER, THE APPLICATIONS OF MR MUYSERS AND MR TUELP WERE NOT CONSIDERED .
6 BY A LETTER DATED 31 MARCH 1987 THE APPLICANTS REQUESTED THAT THEIR APPLICATIONS SHOULD BE CONSIDERED . THAT REQUEST WAS REJECTED BY A MEMORANDUM OF THE PRESIDENT OF THE COURT OF AUDITORS DATED 29 APRIL 1987 .
7 ON 14 MAY 1987 THE APPLICANTS LODGED A COMPLAINT WHICH WAS REJECTED BY THE COURT OF AUDITORS ON 26 MAY 1987 .
8 THE APPLICANTS TOOK THE VIEW THAT THE REFUSAL TO ALLOW THEM TO TAKE PART IN THE COMPETITION AND THE REJECTION OF THEIR COMPLAINT WERE UNLAWFUL AND INFRINGED ARTICLE 176 OF THE EEC TREATY INASMUCH AS THE COURT OF AUDITORS, BY FAILING TO RESUME THE COMPETITION PROCEDURE IN ITS ENTIRETY, HAD FAILED TO COMPLY WITH THE AFOREMENTIONED JUDGMENTS OF 23 OCTOBER 1986; THEY THEREFORE BROUGHT THE AFOREMENTIONED ACTION AND THIS APPLICATION FOR AN INTERIM MEASURE .
9 ARTICLE 83*(2 ) OF THE RULES OF PROCEDURE REQUIRES THE APPLICANTS TO STATE THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR .
10 IN THAT CONNECTION THE APPLICANTS REFER TO THE SUBMISSIONS PUT FORWARD IN THE MAIN ACTION AND EMPHASIZE THAT THE REQUIREMENT OF URGENCY WITHIN THE MEANING OF THE ABOVEMENTIONED PROVISION IS SATISFIED BECAUSE THE WRITTEN TESTS WERE TO TAKE PLACE ON 4 JUNE 1987 . THE DAMAGE SUFFERED BY THE APPLICANTS IF THE COMPETITION PROCEDURE WERE CONTINUED WOULD NOT BE REPAIRED BY A SUCCESSFUL OUTCOME OF THE MAIN ACTION . IN ADDITION, THEY POINT OUT THAT IF THE COURT RULED IN THEIR FAVOUR ON THE SUBSTANCE OF THE ACTION, ALL THE STEPS IN THE COMPETITION WOULD HAVE TO BE RECOMMENCED, AND IT WOULD THEREFORE BE PREFERABLE TO SUSPEND THE COMPETITION UNTIL THE COURT HAS GIVEN JUDGMENT ON THE SUBSTANCE OF THE CASE .
11 IN ITS OBSERVATIONS THE COURT OF AUDITORS CONTENDS THAT THE COURT SHOULD DISMISS THE APPLICATION FOR INTERIM MEASURES . IT EMPHASIZES IN THAT RESPECT THAT IT IS NOT POSSIBLE AT THIS STAGE OF THE PROCEEDINGS TO PREJUDGE THE DECISION OF THE COURT ON THE MATTERS RAISED IN THE MAIN ACTION . MOREOVER, IN ITS VIEW THE APPLICANTS HAVE NOT DISCHARGED THE REQUIREMENT OF STATING THE CIRCUMSTANCES GIVING RISE TO URGENCY WHICH WOULD JUSTIFY THE ADOPTION OF THE INTERIM MEASURE SOUGHT .
12 IN ORDER TO RESOLVE THE PROBLEM RAISED BY THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IT MUST BE STATED THAT THE APPLICANTS HAVE NOT SHOWN IN WHAT WAY THE CONTINUATION OF THE COMPETITION PROCEDURE WOULD CAUSE THEM IRREPARABLE HARM . EVEN ON THE ASSUMPTION THAT THEIR APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS SUCCESSFUL AND THAT THE COURT ORDERS THE SUSPENSION OF THAT PROCEDURE, THE APPLICANTS MUST IN ANY EVENT AWAIT THE JUDGMENT OF THE COURT ON THE SUBSTANCE OF THE CASE, WHICH ALONE CAN DETERMINE WHETHER OR NOT THE DECISION AT ISSUE IS LAWFUL, AND THEREFORE WHETHER OR NOT THEY SHOULD BE ADMITTED TO THE COMPETITION . THEIR POSITION IN THAT RESPECT IS THE SAME IF THE APPLICATION FOR INTERIM MEASURES IS DISMISSED .
13 ACCOUNT MUST ALSO BE TAKEN OF THE FACT THAT SUSPENSION OF THE TESTS WOULD CAUSE DIFFICULTIES AND WOULD HAVE HARMFUL CONSEQUENCES FOR THE COURT OF AUDITORS AND FOR THE CANDIDATES WHO ARE TO TAKE THE TESTS .
14 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE APPLICATION FOR INTERIM MEASURES MUST BE DISMISSED .
Operative part
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER
by way of interim measure,
after hearing the views of the Advocate General,
hereby orders as follows :
( 1 ) The application for interim measures is dismissed;
( 2 ) The costs are reserved .
Luxembourg, 3 June 1987 .
Full & Egal Universal Law Academy