BIB.ORDER
T-159/97 R61997B01590014.000110511106010TORDER OF 19. 6.1997— CASE T-159/97 R
CHAVES FONSECA FERRÃO v OHIM
Order of the President of the Court of First Instance
19 June 1997(*)
In Case T-159/97 R,
Luis Manuel Chaves Fonseca Ferrão, a member of the First Board of Appeal of the Office for Harmonization in the Internal Market (trade marks and designs), residing in Campello, Alicante (Spain), represented by Roland Assa, of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 1 Rue Jean-Pierre Brasseur,
Office for Harmonization in the Internal Market (trade marks and designs), represented by Oreste Montako, Director of its Legal Department, and João Paulo Miranda de Sousa, of its Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of the Legal Service of the Commission of the European Communities, Wagner Centre, Kirchberg,
defendant,APPLICATION for suspension of the operation of Decision ADM-97-3 of the President of the Office for Harmonization in the Internal Market (trade marks and designs) of 21 February 1997 concerning the organisation of the Boards of Appeal,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Facts and procedure
1The Office for Harmonization in the Internal Market (trade marks and designs) (‘the Office’) was established by Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1). The composition and organisation of the Office are more specifically governed by Title XII (Articles 111 to 139) of that regulation.
2The Office has several Boards of Appeal which are responsible for deciding on appeals from certain decisions taken by the Office. Each Board of Appeal consists of one chairman and two members. Provision was made for the setting up of three Boards of Appeal in the initial period.
3Article 119(2) (a) of Regulation No 40/94 provides that the President of the Office, who is responsible for its management, is to ‘take all necessary steps, including the adoption of internal administrative instructions and the publication of notices, to ensure the functioning of the Office’.
4On the basis of the abovementioned provision, the President of the Office adopted on 21 February 1997 Decision ADM-97-3 concerning the organisation of the Boards of Appeal (‘the contested decision’). Article 2 of that decision provides:
‘1.The Vice-President for Legal Affairs shall be the immediate superior of the chairmen of the Boards of Appeal.2.The chairmen of the Boards of Appeal shall be the immediate superiors of the members of the Boards of Appeal to which they are designated. Where a member is designated to more than one Board of Appeal, the immediate superior shall be the chairman of the Board of the principal assignment.’
5By request dated 6 March 1997, the applicant, a member of the first Board of Appeal of the Office since 1 February 1996, asked the Commission of the European Communities to examine the legality of the contested decision, pursuant to Article 118 of Regulation No 40/94. By decision of 18 April 1997, communicated to the applicant by letter SG(97)D/3132 of 23 April 1997, the Commission rejected the request as inadmissible.
6By memorandum of 22 April 1997 the applicant lodged a complaint with the President of the Office, as appointing authority, under Article 90(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), seeking the revocation of the contested decision, in particular Article 2 thereof.
7On the basis of Article 179 of the EC Treaty and Article 91(4) of the Staff Regulations, the applicant, after lodging his complaint, immediately brought before the Court of First Instance, by application lodged with the Registry on 21 May 1997, an action for the annulment of the contested decision together with an application for interim relief seeking, pursuant to Article 185 of the EC Treaty, suspension of the operation of the aforementioned decision.
8The Office submitted written observations on the application for interim relief by document lodged with the Court Registry on 9 June 1997.
9Having regard to the documents in the case, the President considered that he had all the information needed to decide the present application for interim relief, without there being any need first to hear argument from the parties.
Law
10Under the combined provisions of Article 185 of the Treaty and Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance (OJ 1988 L 319, p. 1), as amended by Council Decisions 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21) and 94/149/ECSC, EC of 7 March 1994 (OJ 1994 L 66, p. 29), the Court may, if it considers that circumstances so require, order operation of the contested act to be suspended.
11The first paragraph of Article 104(1) of the Rules of Procedure of the Court of First Instance provides that an application to suspend operation of a measure is admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. Article 104(2) provides that applications for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Such measures must be provisional in the sense that they do not prejudge the decision on the substance of the case (see the order of the President of the Court of First Instance in Case T-191/96 R CAS Succhi di Frutta v Commission [1997] ECR II-211, paragraph 13).
12The present application is for an order of the Court suspending operation of the contested decision. In order to give a decision on such an application, the applicant's arguments as to the risk of harm in the event of delay must first be considered.
The risk of harm if interim measures are not granted
Arguments of the parties
13The applicant considers that Article 2 of the contested decision creates a twofold hierarchical subordination with respect to the members of the Boards of Appeal of the Office; they are hierarchically subordinate to the chairmen of the Boards of Appeal, who are themselves subordinate to the Vice-President for Legal Affairs of the Office.
14According to the applicant, that twofold hierarchical subordination is such as to interfere with the independence inherent in the duties incumbent on the members of the Boards of Appeal, ‘by virtue of the wide discretion which a superior is called upon to exercise when taking all kinds of administrative decisions within a hierarchical structure’. That independence, expressly conferred on the members of the Boards of Appeal by Article 131 of Regulation No 40/94 should, rather, be shielded from ‘any outside interference’ throughout the duration — five years — of each member's term of office without interruption.
15The applicant states that several years will be required before the procedure before the Community judicature can culminate in a definitive decision as to the legality of the contested decision, which will continue, in the meantime, to be applied fully ‘by virtue of the presumption of validity enjoyed by acts of the administration’. Any annulment of the abovementioned decision might thus be of no use to the applicant, whose independence — to be understood as precluding the hierarchical subordination at issue — could not be retrospectively re-established and would thus be permanently and irreversibly affected. In particular, the applicant points out that he ‘would suffer serious harm should he be obliged to complete his term of office fettered by a hierarchical subordination incompatible with the duties with which the Boards of Appeal are entrusted and with their collegiate nature, while it would hardly be possible for whatever decision is finally taken in the main proceedings to make good that damage, which of course is of a purely non-material kind’.
16The defendant avers that the applicant enjoys full independence in practice and that ‘he is subject to the Office's hierarchy exclusively with regard to the purely administrative aspects of his employment relationship’, such as leave or missions. The provisions of the contested decision are dictated only by the need to ensure the proper functioning of the Office and thus do not undermine in any way the status of the members of the Boards of Appeal.
17Moreover, the defendant points out that any alleged damage to the applicant's independence could derive only from specific decisions taken by the Office on the basis of the contested act, such as a systematic refusal by his superiors to grant him permission to participate in seminars or to take leave in order to exert psychological pressure on him with the aim of having certain cases decided in a certain manner. In such an event, the applicant could bring an action before the Community judicature in order to defend his independence against the prejudice caused by any such misuse of power.
18The defendant considers, furthermore, that the non-material damage alleged by the applicant could be fully compensated if the contested decision were annulled. On the other hand, if operation of that decision were to be suspended, it could give rise to serious repercussions on the proper working of the Boards of Appeal, whose members would be faced with ‘anarchy with regard to taking leave, participating in missions or conferences/seminars or being physically present ... at the Office’, and could also lead to unjustified delays in dealing with contested cases.
Findings of the President
19According to well-established case-law, the urgency of the adoption of interim measures must be considered by examining whether the implementation of the contested measures, prior to the adoption of the decision of the Court on the main issue, is such as to give rise, for the party requesting the measures, to serious and irreversible harm which could not be made good if the contested decision were annulled or which, despite its interim nature, would be disproportionate to the defendant's interest in having the measures implemented, even when they are the subject of legal proceedings. It is for the applicant to prove that those conditions are satisfied (see the order in CAS Succhi di Frutta v Commission, cited above, paragraph 31).
20In the present case, the risk of serious and irreparable harm should the decision be immediately implemented arises, according to the applicant, from the adverse effect which the hierarchical subordination laid down by the contested decision for the members of the Boards of Appeal of the Office could have on their independence throughout the duration of their term of office, without the potential annulment of the act in issue being able retroactively to compensate the persons concerned.
21The members of the Boards of Appeal are accorded independence by Regulation No 40/94, Article 131(2) of which provides: ‘The members of the Boards of Appeal shall be independent. In their decisions they shall not be bound by any instructions.’
22The applicant has adduced no evidence to prove that the effect of the contested decision, and in particular Article 2 thereof, will, if its operation is not suspended for the duration of the main proceedings before the Court, undermine the independence which must be inherent in the decision-making duties with which the members of the Boards of Appeal are entrusted. On the contrary, he merely affirms that the contested decision is ‘such as to interfere with the independence’ of the members of the Boards of Appeal, that ‘the independent status ... would be affected’, that he ‘would suffer serious harm should he be obliged to complete his term of office fettered by a hierarchical subordination incompatible with the duties with which the Boards of Appeal are entrusted' and, finally, that ’the very functioning and credibility of the system of independent internal review of the decisions of the Office ... would be inevitably affected by the implementation ... of the contested decision'. He puts forward no specific evidence to support his allegations.
23Consequently, the harm which the applicant, as member of a Board of Appeal, contemplates in his application for interim relief appears to be of a purely potential nature.
24The risk that the applicant's independence might in fact be impaired could materialize as actual damage only if acts adopted pursuant to the contested decision interfered with the independence he enjoys during his term of office. However, until now, there has been no act of the Office adopted pursuant to the contested decision which actually impairs the independence of the applicant, nor has he adduced any evidence which might imply the existence of such a risk.
25The principle laid down in Article 131 of Regulation No 40/94 is, therefore, applicable in the present case, as confirmed by the sixth recital in the preamble to the contested decision and as confirmed by its author, the President of the Office, who, in his internal memorandum of 10 June 1996 to the chairman and members of the First Board of Appeal, guaranteed that the independence of the officials concerned would be respected in the following terms: ‘I can assure you that at no time have I had any intention of undermining your independence which is in actual fact your freedom of decision.’ Even if the competent authority under Article 2 of the contested decision subsequently adopted measures likely to undermine the applicant's independence, he could in that event bring an action before the Community judicature for annulment of that measure, coupled with an application for interim relief.
26It is clear from the foregoing considerations that suspension of the operation of the contested decision is not, in fact, in any way a matter of urgency.
27The conditions for suspending operation of the contested decision are thus not fulfilled. The present application must therefore be dismissed, without it being necessary to consider whether the pleas in law and arguments relied upon by the applicant constitute a prima facie case.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
- 1.The application for interim measures is dismissed.
- 2.Costs are reserved.