Parties
Grounds
Operative part
Keywords
++++
Application for interim measures - Interim measures - Conditions for granting - Measures not prejudging the decision on the substance of the case
( Rules of Procedure, Art . 83 ( 2 ) )
Parties
In Case 321/88 R
Juergen Sparr, represented by Schulze and Meyer, Rechtsanwaelte of Hamburg, with an address for service in Luxembourg at the office of Gerd Recht, c/o Fulton Prebon SA, 25 rue Notre-Dame,
applicant,
v
Commission of the European Communities, represented by Henri Etienne, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, also a member of its Legal Department, Wagner Centre, Kirchberg,
defendant,
APPLICATION for interim measures permitting the applicant to be admitted to a test corresponding to that in Competition No COM/A/621 ( Administrators, Grades A 7/A 6 ) or, in the alternative, to a test corresponding to that in Competition No COM/A/622 ( Assistant Administrators, Grade A 8 ),
The President of the Third Chamber of the
Court of Justice of the European Communities,
hearing the case 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 14 November 1988, Mr Juergen Sparr brought an action in which his claims are, first, that the Court should annul the decision of 18 July 1988, confirmed on 6 October 1988, whereby the Commission' s Director for Recruitment informed him that he had not been admitted to the tests in Competition COM/A/621, organized in order to constitute a reserve of administrators in career bracket A 7/A 6 ( Notice of Competition, Official Journal C 54, 25.2.1988, p . 21 ) and, secondly, that it should order the Commission to admit the applicant to a test corresponding to that in Competition COM/A/621 or, in the alternative, to a test corresponding to that in Competition COM/A/622, for Assistant Administrators in Grade 8, organized concurrently with Competition COM/A/621 ( Official Journal C 54, 25.2.1988, p . 26 ) and that such tests should not take place at the same time as any other competition open to lawyers .
2 The disputed decision is based on the fact that the applicant allegedly does not fulfil the conditions set out in section II ( B ) ( 2 ) ( b ) of the notice of competition which provides that :
"By the closing date for submission of applications candidates must :
( a ) have completed a course of university education and obtained a degree or diploma ( the Selection Board will allow for differences between education systems );
( b ) have at least two years' experience since obtaining the degree or diploma referred to at ( a ) commensurate with the duties described at I above and relevant to one of the fields covered by the competition;
..."
3 According to section I of the notice of competition the duties in question are administrative, advisory and supervisory duties, following general guidelines, in one of the three fields of Community activity mentioned therein and from which the applicant had chosen external relations .
4 When he submitted his application the applicant was a "Referendar" which, in the Federal Republic of Germany, meant that he had passed the first "Staatsexamen" in law, which is normally obtained after three years of university studies, and as such was undergoing periods of practical training which, at the end of two-and-a-half years, lead to the second Staatsexamen in law, which evidences the completion of a course of university education in that subject . It is apparent from the documents before the Court that the applicant has been a Referendar since 1984 but has not passed the second Staatsexamen .
5 The Commission took the view that the periods of practical training completed as a Referendar represented preparatory training and could not be regarded as experience for the purposes of section II ( B ) ( 2 ) ( b ) of the notice of competition, inasmuch as the applicant had not passed the second Staatsexamen .
6 By a separate document lodged on the same day the applicant claims on the basis of Article 83 ( 2 ) of the Rules of Procedure that, in order to prevent irreparable damage pending the delivery of the judgment, the Court should provisionally adopt the measures already partially applied for in the main application, that is to say, the Court should order the Commission to admit the applicant to a test corresponding to that in Competition COM/A/621 or, in the alternative, to a test correponding to that in Competition COM/A/622 and to adopt those measures under conditions to be determined by the Court in order to ensure that vis-à-vis the applicant they are effective and objective .
7 The Commission contends that the application for interim measures should be dismissed .
8 Under Article 83 ( 2 ) of the Rules of Procedure the applicant is required 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 .
9 It is not necessary to examine in this case whether those conditions are fulfilled . In both his main and alternative conclusions the applicant does not claim that the Court should order measures limited to preserving his position pending the judgment on the substance of his main application but that it should order the administrative authority - for which the Court may not substitute itself - to take positive decisions making it possible forthwith to allow him to take part in the competitions, which was refused by the decision that is contested in the main action; the application brought in respect of that decision would thus become devoid of purpose . If the refusal to admit the applicant to the tests is annulled, it will be for the Commission to take the necessary measures to comply with the Court' s judgment, in accordance with Article 176 of the Treaty . Consequently, the Court cannot order the measures applied for by Mr Sparr without trespassing on rights and powers of the administrative authority and prejudging the claims submitted by him in his main application .
10 In the light of the foregoing the application for interim measures must be dismissed .
Operative part
On those grounds,
the President of the Third Chamber,
by way of interim decision,
after hearing the Advocate General,
hereby orders :
( 1 ) The application for interim measures is dismissed;
( 2 ) Costs are reserved .
Luxembourg, 13 December 1988 .
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