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

ORDER OF THE PRESIDENT OF THE GENERAL COURT

12 December 2019(*)

(Decision to launch administrative investigation — Application for suspension of a decision — Application for interim measures — Inadmissibility — No urgency)

In Case T‑619/19 R,

KF, represented by A. Kunst, lawyer, and N. Macaulay, Barrister,

applicant,

v

European Union Satellite Centre (SatCen), represented by A. Guillerme, acting as Agent,

defendant,

APPLICATION pursuant to Articles 278 and 279 TFEU seeking the suspension of the operation of the decision of the Director of SatCen of 3 July 2019 to reopen an administrative investigation against KF,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

 Background to the dispute, procedure and forms of order sought

1        The applicant, KF, was a staff member of the European Union Satellite Centre (SatCen). Following an administrative investigation, on 5 July 2013 the Director of SatCen decided, first, to initiate disciplinary proceedings against the applicant before the Disciplinary Board (‘the decision to initiate disciplinary proceedings’) and, secondly, to suspend the applicant from her duties (‘the suspension decision’).

2        On 28 August 2013, the applicant lodged an administrative complaint with the Director of SatCen against, inter alia, the decision to initiate disciplinary proceedings, the suspension decision, and against another decision by which the Director of SatCen, by implication, rejected her request for assistance in respect of alleged psychological harassment.

3        By letter of 4 October 2013, the Director of SatCen rejected the administrative complaint lodged by the applicant on 28 August 2013.

4        On 2 December 2013, the applicant lodged an appeal before the Appeals Board against, inter alia, the decision of the Director of SatCen of 4 October 2013 rejecting her complaint against the suspension decision.

5        On 4 February 2014, the Disciplinary Board gave a reasoned opinion in which it, first, considered unanimously that the applicant had failed to comply with her professional obligations and, secondly, recommended that she be demoted by at least two grades, so that she would no longer hold a position with managerial responsibilities.

6        By decision of 28 February 2014, taking effect one month after that date, the Director of SatCen removed the applicant from her post for disciplinary reasons and terminated her contract with SatCen (‘the removal decision’).

7        On 17 April 2014, the applicant lodged an administrative complaint against the removal decision. The administrative complaint was rejected by decision of the Director of SatCen of 4 June 2014. On 12 June 2014 the applicant contested the removal decision before the Appeals Board.

8        By decision of 26 January 2015 (‘the decision of the Appeals Board’), the Appeals Board rejected the forms of order sought by the applicant seeking inter alia the annulment the decision to initiate disciplinary proceedings and of the suspension decision. Moreover, after rejecting all the applicant’s submissions raised against the removal decision, the Appeals Board partially annulled that decision, solely because its date of effect had been set as 31 March 2014 and not as 4 April 2014.

9        By application lodged at the Registry of the General Court on 28 May 2015 the applicant brought an action for annulment against, inter alia, the decision to initiate disciplinary proceedings, the suspension decision, the removal decision and the decision of the Appeals Board.

10      By judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718), the General Court annulled the decision of the Appeals Board of 26 January 2015, the suspension decision and the removal decision based on the fact that SatCen had infringed the obligation to conduct the administrative investigation with care and impartiality and infringed the applicant’s right to be heard and her right of access to her file.

11      On 10 January 2019, SatCen lodged an appeal against the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718). The appeal was registered at the Registry of the Court as Case C‑14/19 P.

12      On 3 July 2019, the Director of SatCen decided to reopen the administrative investigation (‘the decision to reopen the administrative investigation’) against the applicant in order to comply with the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718).

13      On 16 July 2019, the applicant lodged an internal complaint against the decision to reopen the administrative investigation. By decision of 2 August 2019, the Director of SatCen rejected the internal complaint as inadmissible and, in any case, unfounded (‘the decision rejecting the internal complaint’).

14      By application lodged at the Registry of the General Court on 17 September 2019, the applicant, first, brought an action against the decision to reopen the administrative investigation and the decision rejecting the internal complaint and, secondly, sought damages pursuant to Article 340 TFEU.

15      By separate document lodged at the Registry of the General Court on the same day, the applicant brought the present application for interim measures, in which it claims in essence that the President of the General Court should:

–        order the suspension of the application of the decision of the Director of SatCen of 3 July 2019;

–        prescribe any other appropriate interim measure;

–        reserve the costs.

16      In its observations on the application for interim measures, lodged at the Court Registry on 30 September 2019, SatCen contends that the President of the General Court should:

–        reject the application as inadmissible;

–        on a subsidiary basis, reject the application as unfounded;

–        reserve the costs.

 Law

17      It is apparent from a combined reading of Articles 278 and 279 TFEU, on the one hand, and Article 256(1) TFEU, on the other, that the judge hearing the application for interim measures may, if he considers that circumstances so require, order that application of an act contested before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that a judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe interim measures (see order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

18      The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures must state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.

19      Accordingly, the judge hearing an application for interim relief may order the suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative and, consequently, an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P‑R, EU:C:2016:142, paragraph 21 and the case-law cited).

20      In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

21      Having regard to the material in the case file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.

22      In the circumstances of the present case, it is appropriate to examine, first of all, the issues of admissibility raised by SatCen.

23      According to SatCen, the application for interim measures is inadmissible in so far as the application in the main proceedings, to which it is attached, should be dismissed as being manifestly inadmissible.

24      SatCen claims in essence that the decision to reopen the administrative investigation is a mere preparatory act and can therefore only be contested incidentally in an action against the final measures.

25      It is settled law that the question of the admissibility of the main action is not to be examined in proceedings for interim relief but is to be reserved for the examination of the main action, unless it is apparent at first sight that the main action is manifestly inadmissible. To determine admissibility at the interlocutory stage in cases where the admissibility of the main action cannot prima facie be ruled out would be tantamount to prejudging the General Court’s decision on the main action (see order of 4 February 1999, Peña Abizanda and Others v Commission, T‑196/98 R, EU:T:1999:18, paragraph 10 and the case-law cited).

26      In the main action, the applicant, first, contests the decision to reopen the administrative investigation, together with the decision rejecting the internal complaint and, secondly, seeks damages pursuant to Article 340 TFEU. Nevertheless, the application for interim measures is simply an adjunct to the main action in so far as that action seeks annulment of the contested decisions.

27      The applicant claims that the action for annulment against the decision to reopen the administrative investigation is admissible as it amounts to a failure, as well as an unwillingness, to comply with the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718).

28      According to settled case-law, an action for annulment is available against all measures adopted by the institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in its legal position (see judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 51; and of 19 December 2012, Commission v Planet, C‑314/11 P, EU:C:2012:823, paragraph 94). In the case of acts or decisions adopted by a procedure involving several stages it is clear from the same case-law that in principle an act is open to review only if it is a measure definitively laying down the position of an institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision (see judgment of 15 July 1993, Camara Alloisio and Others v Commission, T‑17/90, T‑28/91 and T‑17/92, EU:T:1993:69, paragraph 39).

29      Neither the existence, even if established, of infringements of the rights of the defence nor the fact that internal investigations are conducted show in themselves that a measure having an adverse effect, that is to say a measure open to appeal, has been adopted (see order of 8 April 2003, Gómez-Reino v Commission, C‑471/02 P(R), EU:C:2003:210, paragraph 65).

30      In the present case, the decision to reopen the administrative investigation constitutes a provisional measure intended to pave the way for the final decision. The effects of the decision to reopen the administrative investigation do not go beyond those intrinsic to an intermediate procedural act and do not affect the legal position of the applicant. In any event, pursuant to Article 266 TFEU, SatCen is obliged to adopt the measures necessary to comply with the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718) (see to that effect, judgment of 15 July 1993, Camara Alloisio and Others v Commission, T‑17/90, T‑28/91 and T‑17/92, EU:T:1993:69, paragraph 41).

31      That finding cannot be invalidated by the applicant’s claim that the administrative investigation is unlawful and flawed. It follows indeed from the case-law that the gravity of the alleged infringement could not, in any event, set aside the rules for admissibility expressly laid down by the Treaty (see order of 10 May 2001, FNAB and Others v Council, C‑345/00 P, EU:C:2001:270, paragraph 40; judgment of 15 January 2003, Philip Morris International v Commission, T‑377/00, T‑379/00, T‑380/00, T‑260/01 and T‑272/01, EU:T:2003:6, paragraph 87; and order of 21 June 2017, Inox Mare v Commission, T‑289/16, EU:T:2017:414, paragraph 43).

32      In conclusion, the above findings and considerations are a sufficient basis for holding that there are serious doubts concerning the admissibility of the main action for annulment. Nevertheless, in the circumstances of the present case, it is not necessary to proceed to the examination of the condition relating to a prima facie case as, in any event, the application for interim measures also fails to comply with the requirements relating to the condition of urgency.

33      In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Court. To attain that objective, urgency must be assessed in the light of the need for an interlocutory order to avoid serious and irreparable damage to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).

34      In order to demonstrate that the urgency criterion is fulfilled, the applicant contends, first, that without the granting of the interim measure she would be subjected to an administrative investigation contrary to the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718) which has no other purpose but to harm and humiliate her. In that regard, the applicant claims that her due process rights will be violated again and the costs already incurred to obtain justice would become disproportionate and oppressive.

35      Second, the applicant contends that the decision to reopen the administrative investigation causes a serious harm to her psychological well-being and further damage to her reputation and career prospects.

36      Those arguments lack conviction and cannot be accepted.

37      First, as regards the arguments alleging the unlawfulness of the administrative investigation, it must be pointed out that, however relevant these arguments may be, they do not demonstrate that the applicant cannot await the outcome of the main proceedings without suffering serious and irreparable damage.

38      Moreover, these arguments do not relate to the demonstration of serious and irreparable damage but merely reiterate the arguments challenging the legality of the contested decisions.

39      Second, the applicant does not adduce any evidence to sustain the claim that her costs to obtain justice would become disproportionate and oppressive. Moreover, it is well established in the case-law that purely financial damage cannot, in principle, be regarded as irreparable, or even difficult to repair, as financial compensation can be made for it subsequently (order of 30 November 1993, D. v Commission, T‑549/93 R, EU:T:1993:109, paragraph 45 and the case-law cited).

40      Third, as regards the alleged harm to the applicant’s well-being, the mere suspension of the decision to open an administrative inquiry cannot have the claimed therapeutic effect on the applicant’s well-being as it does not allow the applicant to put the issue behind her and gain closure. Moreover, the applicant does not adduce any evidence in support of that claim.

41      Fourth, as regards the damage to the applicant’s reputation, professional integrity and career prospects, if such damage is assumed to be established, it must be pointed out that the damage has essentially already materialised. The applicant herself contends that her professional reputation amongst staff of the SatCen had already been destroyed beyond repair. In any event the suspension of the decision to reopen the administrative investigation would not restore her reputation, professional integrity and career prospects more appreciably than the possible future annulment of the decision at the end of the main action.

42      Contrary to the applicant’s interpretation, the judgment of 25 October 2018, KF v SatCen (T‑286/15, EU:T:2018:718) cannot be considered as restoring her professional reputation, as no position was taken in this judgment concerning the applicant’s alleged professional misconduct. It is precisely the purpose of the administrative investigation opened by the administration to shed light, by the findings of the investigation, on the disputed facts, so that the administration may adopt a definitive position in that regard. Moreover, the conduct of an administrative investigation may make it possible to disprove the allegations made, thereby making it possible to repair the damage which such an accusation, should it prove to be unfounded, may have caused to the applicant (see to that effect, judgment of 13 July 2018, SQ v EIB, T‑377/17, EU:T:2018:478, paragraph 156).

43      Furthermore, the applicant does not adduce solid evidence to support the claim that the contested decisions currently affects her career prospects.

44      It must therefore be held, without there being any need to examine the condition relating to a prima facie case in the main proceedings, that the conditions in law for granting the interim measures sought are not fulfilled and that the present application must consequently be dismissed.

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

1.      The application for interim measures is dismissed.

2.      The costs are reserved.

Luxembourg, 12 December 2019.

*      Language of the case: English.

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