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

ORDER OF THE PRESIDENT OF THE GENERAL COURT

23 February 2022 (*)

(Application for interim measures – Law governing the institutions – Enhanced cooperation on the establishment of the European Public Prosecutor’s Office – Regulation (EU) 2017/1939 – Appointment of the European Delegated Prosecutors of the European Public Prosecutor’s Office – Appointment of one of the candidates nominated by Lithuania – Application for suspension of operation of a measure – Failure to comply with procedural requirements – Inadmissibility)

In Case T‑603/21 R,

WO, represented by V. Vitkovskis, lawyer,

applicant,

v

European Public Prosecutor’s Office (EPPO),

defendant,

APPLICATION under Articles 278 and 279 TFEU for suspension of operation of Decision No 28/2021 of the College of the European Public Prosecutor’s Office of 21 April 2021 rejecting the applicant’s candidacy for the position of European Delegated Public Prosecutor,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

 Background, procedure and forms of order sought by the parties

1        The applicant, WO, holds the position of Prosecutor of the Republic of Lithuania.

2        On 23 December 2020, the Republic of Lithuania nominated four prosecutors, including the applicant, as candidates for the positions of European Delegated Prosecutors of the European Public Prosecutor’s Office (EPPO), pursuant in particular to Article 86 TFEU and Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ 2017 L 283, p. 1).

3        On 21 April 2021, the College of the EPPO adopted Decision No 28/2021, rejecting the applicant’s candidacy for the position of European Delegated Public Prosecutor (‘the contested decision’).

4        By application lodged at the Court Registry on 14 September 2021, the applicant brought an action for annulment of the contested decision and for compensation for the harm allegedly suffered as a result of that decision.

5        By separate document lodged at the Court Registry on 14 December 2021, the applicant brought the present application for interim measures, in which he claims that the President of the General Court should suspend the operation of the contested decision pending final judgment in the main case.

 Law

6        It is apparent from Articles 278 and 279 TFEU, read in conjunction with Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, having regard to the rules of admissibility laid down in Article 156 of the Rules of Procedure of the General Court.

7        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’.

8        The judge hearing an application for interim measures may order 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 measures 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).

9        Furthermore, under Article 156(5) and Article 76(d) of the Rules of Procedure, an application for interim measures must, inter alia, be made by a separate document, indicate the subject matter of the proceedings and contain a summary of the pleas in law and arguments relied on.

10      It follows from a combined reading of those provisions of the Rules of Procedure that an application for interim measures must be sufficient in itself to enable the defendant to prepare its defence and the judge hearing the application to rule on it, where necessary, without other supporting information. In order to ensure legal certainty and the proper administration of justice, it is necessary, if such an application is to be admissible, that the essential elements of fact and law on which it is founded be set out coherently and comprehensibly in the application for interim measures itself. While the application may be supported and supplemented on specific points by references to particular passages in documents which are annexed to it, a general reference to other written documentation, even if annexed to the application for interim measures, cannot make up for the absence of essential elements in that application (see order of 4 December 2015, E-Control v ACER, T‑671/15 R, not published, EU:T:2015:975, paragraph 8 and the case-law cited).

11      Moreover, paragraph 223 of the Practice Rules for the Implementation of the Rules of Procedure expressly states that the application for interim measures must be intelligible in itself, without necessitating reference to the application lodged in the main proceedings, including the annexes thereto.

12      Since failure to comply with the Rules of Procedure constitutes an absolute bar to proceedings, it is for the judge hearing the application for interim measures to examine of his or her own motion, if necessary, whether the applicable provisions of those rules have been complied with (see order of 14 February 2020, Vizzone v Commission, T‑658/19 R, not published, EU:T:2020:71, paragraph 11 and the case-law cited).

13      In the present case it must be noted that, in the application for interim measures, the applicant makes no argument in respect of the prima facie case requirement or the balancing of competing interests.

14      As regards the prima facie case requirement, it should be noted that the extremely laconic argument set out by the applicant in the application for interim measures does not allow the President of the Court to make a legal assessment of whether the pleas for annulment put forward in the main action are prima facie well founded.

15      The application for interim measures does not mention any provision of EU law which the College of the EPPO has allegedly infringed and, a fortiori, fails to specify the causal link between that alleged infringement and the alleged damage. It follows that the application for interim measures is not intelligible in itself without referring to the application in the main proceedings.

16      That absence of sufficient explanation, in the application for interim measures, of the constituent elements of a possible prima facie case cannot be compensated for by the reference made to the application in the main proceedings.

17      In that regard it is sufficient to note that it is not for the judge hearing the application for interim measures to seek, in place of the party concerned, those matters contained in the annexes or in the main application which would support the application for interim measures. For such an obligation to be imposed on the judge hearing the application for interim measures would, moreover, render ineffective the provision of the Rules of Procedure which requires that the application for interim measures be made by a separate document (see order of 29 July 2010, Cross Czech v Commission, T‑252/10 R, not published, EU:T:2010:323, paragraph 15 and the case-law cited).

18      It follows that, as regards the prima facie case requirement, the present application for interim measures does not comply with the requirements of Article 156(4) of the Rules of Procedure and that, as a result, it must be dismissed as inadmissible, without there being any need to serve it on the defendant.

19      Pursuant to Article 158(5) of the Rules of Procedure, the costs must be reserved.

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, 23 February 2022.

*      Language of the case: English.

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