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

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Application for interim measures - Action brought by an official - Application for interim measures having a purpose different from that of the main action and not preceded by a prior administrative complaint - Inadmissible
(EEC Treaty, Art. 186; Rules of Procedure, Art. 83(2); Staff Regulations of Officials, Arts 90 and 91)

In Case T-10/91 R,
Léon Bodson, an official of the European Parliament, residing in Luxembourg, represented by Jean-Noël Louis, of the Brussels Bar, with an address for service in Luxembourg at the office of Fiduciaire Myson Sàrl, 1 rue Glesener,
applicant,
v
European Parliament, represented by Jorge Campinos, Jurisconsult, and Manfred Peter, Head of Division, acting as Agents, with an address for service in Luxembourg at the General Secretariat of the European Parliament,
defendant,
APPLICATION for interim relief in the form of an order that the applicant be relieved of his obligation to comply with the conditions of employment laid down in the Staff Regulations until such time as he has been assigned to a post with real duties,
The President of the Court of First Instance
makes the following
Order

Facts
1 By an application lodged at the Registry of the Court of First Instance of the European Communities on 7 February 1991, the applicant brought an action for the annulment of the decision of the European Parliament refusing to assign him to a post with real duties and requested that the European Parliament be ordered to pay the sum of ECU 100 per day from 31 January 1991 until such time as the applicant should be reassigned to a post with real duties.
2 By a separate document lodged at the Registry of the Court of First Instance on the same day, the applicant requested that he be released from all obligations imposed by the Staff Regulations on serving officials until his assignment to a post with real duties, pursuant to Article 185 of the EEC Treaty and Article 83(2) of the Rules of Procedure of the Court.
3 The European Parliament submitted its observations on 20 February 1991.
4 Before examining whether the present application for interim measures is well founded, it is necessary to outline the facts which gave rise to the main action.
5 The applicant, who is an official with the European Parliament, was seconded in 1980 to the office responsible for settling claims of the Sickness Fund in Luxembourg, the operation of which is the responsibility of the Commission. That assignment ended on 20 December 1988 and the applicant was reassigned to the European Parliament with effect from 1 January 1989.
6 After having been given various tasks within the institution the applicant took the view that he had been without a proper post since 5 February 1990, despite all the efforts which he had made to be assigned to a post corresponding to his grade and experience; he accordingly lodged a complaint under Article 90(2) of the Staff Regulations of Officials of the European Communities (hereinafter referred to as "the Staff Regulations") against the refusal on the part of the institution to assign him to a post with real duties.
7 By letter of 18 July 1990 the Secretary-General of the European Parliament informed the applicant that he considered his complaint to be admissible and well founded in so far as the applicant, relying on Article 7 of the Staff Regulations, complained that he had not been assigned to a post since 5 February 1990. The Secretary-General of the Parliament added that he had issued the necessary instructions to the competent departments to ensure that the applicant would be assigned to a post, although he also stressed in this regard that this would require an attitude of good will and cooperation with the administration on the part of the official in question.
8 On 23 January 1991 the applicant, who considered that he had still not been assigned to a new post, lodged a fresh complaint against the implied decision by the institution not to assign him to a post with real duties. On 1 February he introduced a supplementary complaint in which he requested payment of ECU 100 per day as compensation for the damage which he claimed to be suffering by reason of his administrative position.
Law
9 Pursuant to Article 83(2) of the Rules of Procedure of the Court of Justice, which is applicable mutatis mutandis to proceedings before the Court of First Instance, it is for the applicant 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 With regard to the grounds establishing a prima facie case for the interim measures applied for, the applicant believes that the requirement of a prima facie case is satisfied by the fact that the Secretary-General of the Parliament accepted that there was an infringement of Article 7 of the Staff Regulations in so far as the applicant had not been assigned to a post with real duties since 5 February 1990.
11 With regard to the question of urgency, the applicant claims that the refusal by the institution to accede to his requests for assistance and assign him to a post with real duties has had particularly serious repercussions on his health. He points out in this connection that the constant anxiety and uncertainty as to his professional future have given rise to unbearable stress, which greatly increases the risks of a heart attack. In order to minimize this risk, the applicant claims that, until such time as the defendant complies with its obligations towards him, it is necessary to limit the conflict situations with which he may be faced and, in particular, those arising from compliance with the obligations imposed by the Staff Regulations on serving officials.
12 The defendant contends that the application for interim measures should be dismissed. It disputes the facts relied on by the applicant, even though it does not examine them in detail, and argues in particular that there is no logical connection between the version of the facts given by the applicant and the application for interim measures.
13 The European Parliament also takes the view that the applicant' s claim in the proceedings for interim relief is inadmissible in so far as it fails to fulfil the conditions set out in Article 83 of the Rules of Procedure of the Court and the applicant is unable to show that he has an interest in applying for the interim measure sought. In the defendant' s view, to uphold the application for interim measures would entail the complete inversion of the main proceedings, since the interim measure sought seeks to attain an objective which is contrary to the pleas submitted in the main application.
14 With regard to the question of urgency, the defendant considers that although the arguments relied on by the applicant might possibly demonstrate the urgency of assigning him to a post with real duties, the fact remains that there is no connection between the facts alleged and the applicant' s request that he be relieved of all obligations under the Staff Regulations.
15 It should be observed that whereas in his main application the applicant seeks the annulment of an alleged decision by the Parliament not to assign him to a post with real duties, the application for interim measures seeks an order that the applicant be released from all obligations imposed by the Staff Regulations on serving officials until such time as he has been reassigned to a post with real duties.
16 Furthermore, the application for interim measures represents a new application which goes beyond the scope of the complaints submitted by the applicant to the appointing authority, which were directed against the decision of that authority not to assign him to a post with real duties.
17 The real purpose of the applicant' s request for interim measures is to obtain from the Court of First Instance a result which he ought to have pursued in accordance with the procedure set out in Article 90 of the Staff Regulations. Under Article 90(1) of the Staff Regulations, the applicant should have submitted a prior request to the appointing authority that he be released from his obligations under those Regulations, and then, if necessary, lodged a complaint under Article 90(2) against a decision refusing his request. As is clear from Article 91(4) of the Staff Regulations, it is only if such a complaint had previously been lodged with the appointing authority that an application to the Court for an order suspending the implementation of the contested act or for the adoption of interim measures could have been admissible, even in the absence of an express or implied decision rejecting the complaint.
18 With regard to the risk of serious and irreparable harm and, in particular, the health reasons alleged by the applicant to be of such a nature as to justify his release from his obligations under the Staff Regulations until the Court has given its ruling on the substance of the case, it may be added that under Article 59 of the Staff Regulations "an official who provides evidence of incapacity to perform his duties because of sickness ... shall automatically be entitled to sick leave". If there is a risk of serious and irreparable harm to the applicant' s health, it ought to be possible to avoid such harm by applying the appropriate provisions of the Staff Regulations.
19 In view of the foregoing considerations, it would appear that the application for interim measures brought before the Court of First Instance constitutes a misuse of procedure; such an application must accordingly be dismissed as inadmissible.

On those grounds,
The President of the Court of First Instance,
by way of an interlocutory ruling,
hereby orders:
(1) The application for interim measures is dismissed as inadmissible;
(2) Costs are reserved.
Luxembourg, 11 March 1991.