Court of Justice of the European Communities (including Court of First Instance Decisions)

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61979O0051(01)
Order of the President of the Court of 10 July 1979.
Robert Buttner and others v Commission of the European Communities.
Case 51/79 R II.
European Court reports 1979 Page 02387

IN CASE 51/79 R II
ROBERT BUTTNER , MICHEL COLIN AND GIANMARIO FASSONE , OFFICIALS OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY VICTOR BEAL , OF THE LUXEMBOURG BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS , 18A RUE DES GLACIS ,
APPLICANTS ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER , RAYMOND BAEYENS , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , MARIO CERVINO , JEAN MONNET BUILDING ,
DEFENDANT ,

APPLICATION :
PRIMARILY FOR THE ADOPTION OF INTERIM MEASURES BY WAY OF AMENDMENT OF THE ORDER OF 3 MAY 1979 IN THE SAME CASE : ( A ) TO PREVENT THE DISSEMINATION AND USE BY THE COMMISSION OF THE REPORT OF A STUDY CARRIED OUT AT ITS REQUEST BY P . A . INTERNATIONAL CONSULTANTS LTD . ( PACTEL ); AND ( B ) TO PROHIBIT ANY RESTRUCTURING OF THE COMPUTER OPERATION DIVISION IN LUXEMBOURG ; AND
IN THE ALTERNATIVE FOR THE APPOINTMENT OF A GROUP OF EXPERTS SELECTED FROM AMONGST THE OFFICIALS OF THE COMMUNITY INSTITUTIONS ,

1 UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT , THE ADOPTION OF INTERIM MEASURES BY MEANS OF AN INTERLOCUTORY ORDER IS SUBJECT TO THE EXISTENCE OF CIRCUMSTANCES GIVING RISE TO URGENCY AND TO FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR . UNDER ARTICLE 88 OF THE RULES OF PROCEDURE THE REJECTION OF AN APPLICATION FOR AN INTERIM MEASURE IS NOT TO BAR THE PARTY WHO MADE IT FROM MAKING A FURTHER APPLICATION ON THE BASIS OF NEW FACTS .

2 IN SUPPORT OF THEIR FURTHER APPLICATION THE APPLICANTS CLAIM THAT THE REPORT IN QUESTION HAS IN THE MEANTIME BECOME DEFINITIVE AND THAT THE DISPUTED RESTRUCTURING OF THE DEPARTMENT HAS BEEN COMMENCED . THE SIEMENS COMPUTER HAS BEEN TRANSFERRED TO ANOTHER BUILDING BELONGING TO THE DEFENDANT AND STAFF FROM OUTSIDE THE COMMISSION HAS ALREADY BEEN OR WILL SHORTLY BE PUT AT ITS DISPOSAL BY PRIVATE UNDERTAKINGS . THEY MAINTAIN THAT IT IS URGENT TO PUT AN END TO SUCH REORGANIZATION BECAUSE ' ' OFFICIALS APPOINTED UNDER THE STAFF REGULATIONS ARE BEING DEPRIVED OF THEIR FORMER DUTIES AND RESPONSIBILITIES ' ' .

3 THE COMMISSION REPLIES THAT THE RESTRUCTURING OF THE DEPARTMENT IN QUESTION CANNOT BE SUBJECT TO THE CONCLUSIONS IN THE AUDIT CRITICIZED BY THE APPLICANTS WHICH , IN ANY CASE , HAS NOT YET BEEN APPROVED BY IT SO THAT IT CANNOT CONSTITUTE AN ACT ADVERSELY AFFECTING ANY PERSON . IT EXPLAINS THAT ALTHOUGH THE SIEMENS COMPUTER HAS BEEN REMOVED FROM THE COMPUTER CENTRE TO ANOTHER BUILDING THAT IS BECAUSE ROOM HAD TO BE MADE FOR A NEW ICL COMPUTER . IT ADDS THAT THE USE OF THE SIEMENS COMPUTER TOGETHER WITH THE NEW ICL COMPUTER HAS MADE NECESSARY AN INCREASE IN STAFF . AS THE NECESSARY POSTS HAVE NOT YET BEEN ALLOTTED TO IT BY THE BUDGETARY AUTHORITIES IT HAS HAD RECOURSE TO EXTERNAL TECHNICAL ASSISTANCE AND IS THUS USING , PROVISIONALLY , STAFF MADE AVAILABLE TO IT BY PRIVATE UNDERTAKINGS . IT STATES THAT THESE CIRCUMSTANCES BRING ABOUT NO CHANGE IN RELATION TO THE SITUATION IN RESPECT OF WHICH THE ORDER OF 3 MAY 1979 WAS MADE AND THAT THEY ARE NOT CALCULATED TO CAUSE THE APPLICANTS ANY SERIOUS OR , A FORTIORI , IRREPARABLE DAMAGE . FINALLY , IT TAKES THE VIEW THAT THE APPLICATION FOR THE APPOINTMENT OF A GROUP OF EXPERTS IS INADMISSIBLE AND CONTENDS THAT IT SHOULD BE DISMISSED .

4 CONSIDERATION OF THE FACTS RELIED ON BY THE APPLICANTS SHOWS THAT NONE OF THEM , THAT IS TO SAY NEITHER THE REMOVAL OF THE COMPUTER NOR RECOURSE TO OUTSIDE STAFF TO CARRY OUT SPECIFIC DUTIES FOR A LIMITED PERIOD , NOR THE FACT , WHICH MOREOVER HAS NOT BEEN PROVED , THAT THE PACTEL REPORT HAS BEEN DRAWN UP IN ITS DEFINITIVE VERSION , CAN JUSTIFY THE MEASURES REQUESTED .

5 NONE OF THOSE CIRCUMSTANCES MAKES IT POSSIBLE TO ARRIVE AT AN ADVANCE VIEW THAT MEASURES ADVERSELY AFFECTING THE RIGHTS OF THE APPLICANTS ARE IMMINENT OR THAT THEY ARE THREATENED WITH DAMAGE MAKING NECESSARY THE ADOPTION OF URGENT MEASURES . THE APPLICANTS ' FEARS WITH REGARD TO THE FUTURE PROGRESS OF THEIR CAREERS RIGHTLY OR WRONGLY ORIGINATE IN CERTAIN STATEMENTS IN THE PACTEL REPORT BUT , AS WAS STATED IN THE ORDER OF 3 MAY 1979 , THAT REPORT , WHATEVER STAGE MAY HAVE BEEN REACHED IN ITS DRAFTING , DOES NOT BIND THE FUTURE BEHAVIOUR OF THE COMMISSION . THE SITUATION RELIED ON BY THE APPLICANTS TO JUSTIFY THEIR FRESH APPLICATION IS NO DIFFERENT , AS REGARDS THE PROTECTION OF THEIR RIGHTS , FROM THAT IN RESPECT OF WHICH THE ORDER OF 3 MAY 1979 WAS MADE .

6 ANY MEASURE ADVERSELY AFFECTING THE RIGHTS OF THE APPLICANTS UNDER THE STAFF REGULATIONS IS CAPABLE OF BEING AT THE APPROPRIATE TIME THE SUBJECT OF COMPLAINTS AND APPLICATIONS INSTITUTED IN ORDER TO PROTECT OFFICIALS AND OTHER SERVANTS OF THE COMMUNITIES . THE POSSIBILITY THAT ANY SUCH MEASURE MAY BE ADOPTED , EVEN IF IT WERE MORE SUBSTANTIAL THAN EMERGES FROM THE APPLICANTS ' ALLEGATIONS , CANNOT JUSTIFY INJUNCTIONS AND MEASURES OF THE KIND APPLIED FOR EITHER PRIMARILY OR IN THE ALTERNATIVE , WHICH WOULD MANIFESTLY EXCEED THE BOUNDS OF THE URGENT AND PROVISIONAL MEASURES TO WHICH THE PROCEDURE RELATING TO THE ADOPTION OF INTERIM MEASURES MUST BE RESTRICTED .

7 THE APPLICATION MUST THEREFORE BE DISMISSED .

COSTS
8 IN THE CIRCUMSTANCES COSTS MUST BE RESERVED .

ON THOSE GROUNDS ,
THE PRESIDENT OF THE FIRST CHAMBER OF THE COURT ACTING AS PRESIDENT ,
AS AN INTERLOCUTORY DECISION ,
HEREBY ORDERS AS FOLLOWS :
1 . THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS DISMISSED .

2 . COSTS ARE RESERVED .