Corte di giustizia UE/2020

[OSCURATO:PERSONA]-[OSCURATO:PERSONA] 10 September 2020( * ) (Appeal — Interim relief — Article 157(2) of the Rules of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] – [OSCURATO:PERSONA] of the Representatives of the Governments of the [OSCURATO:PERSONA] appointing three judges and one [OSCURATO:PERSONA] to the [OSCURATO:PERSONA] of Justice – Application for Annulment – Prima facie case) [OSCURATO:PERSONA] C‑424/20 P(R), APPEAL under the second paragraph of Article 57 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], lodged on 5 September 2020, Representatives of the Governments of the [OSCURATO:PERSONA] , represented by M. Bauer, R. Meyer and A. Sikora-Kalėda, acting as Agents, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA], applicant at first instance, [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] , defendant at first instance, [OSCURATO:PERSONA]-[OSCURATO:PERSONA], after hearing the [OSCURATO:PERSONA], M. Szpunar, makes the following [OSCURATO:PERSONA] 1 By their appeal, the Representatives of the Governments of the [OSCURATO:PERSONA] request that the [OSCURATO:PERSONA] set aside the order of the Judge of the [OSCURATO:PERSONA] hearing [an] application for interim measures, of 4 September 2020, [OSCURATO:PERSONA] v. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] and Representatives of the Governments of the [OSCURATO:PERSONA] (T-550/20 R, the ‘contested order’) by which that judge ordered that the operation, and all consequential effects, of the [OSCURATO:PERSONA] of the Representatives of the Governments of the [OSCURATO:PERSONA] of 2 September 2020 appointing three judges and one [OSCURATO:PERSONA]-[OSCURATO:PERSONA] to the [OSCURATO:PERSONA] of Justice (OJ 2020, L 292, p.1), in so far as it purports to appoint Mr. [OSCURATO:PERSONA] to the position of [OSCURATO:PERSONA]-[OSCURATO:PERSONA] at the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], are suspended until the order terminating the present proceedings for interim relief is made. Background to the dispute, procedure before the [OSCURATO:PERSONA] and the order under appeal 2 In 2006, on the nomination of the government of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA], the Representatives of the Governments of the [OSCURATO:PERSONA] appointed Ms. [OSCURATO:PERSONA] to the [OSCURATO:PERSONA] of Justice to serve as an [OSCURATO:PERSONA] for a term of six years. Upon re-nomination by the same government, [OSCURATO:PERSONA] (EU, Euratom) 2015/578 of the Representatives of the Governments of the [OSCURATO:PERSONA] of 1 April 2015 appointing Judges and [OSCURATO:PERSONA]-[OSCURATO:PERSONA] to the [OSCURATO:PERSONA] of Justice (OJ 2015 L 96, p. 1) appointed the applicant to serve as [OSCURATO:PERSONA] for the period from 7 October 2015 to 6 October 2021. She has served and continues to serve in that post. 3 [OSCURATO:PERSONA] of 25 June 2013 increasing the number of [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] (OJ 2013, L 179, p. 92) fixes the number of [OSCURATO:PERSONA] at the [OSCURATO:PERSONA] of Justice as eleven with effect from 7 October 2015. 4 On 2 September 2020, the Representatives of the Governments of the [OSCURATO:PERSONA] adopted the [OSCURATO:PERSONA] appointing three Judges and an [OSCURATO:PERSONA]-[OSCURATO:PERSONA] to the [OSCURATO:PERSONA] of Justice, which was then made public on the [OSCURATO:PERSONA]'s public register of documents after its adoption (the 'act at issue'). The press service of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] also immediately published a press release. It is clear, in particular, from the act at issue that Mr. [OSCURATO:PERSONA] was appointed [OSCURATO:PERSONA] to the [OSCURATO:PERSONA] of Justice from 7 September 2020 to 6 October 2021 following the withdrawal of the [OSCURATO:PERSONA] from the [OSCURATO:PERSONA]. 5 By an application lodged at the Registry of the [OSCURATO:PERSONA] on 4 September 2020, Ms. [OSCURATO:PERSONA] requested, pursuant to Articles 278 and 279 TFEU and Article 157(2) of the Rules of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] that: –        the operation of the act at issue, in so far as it purports to appoint Mr. [OSCURATO:PERSONA] to the position of [OSCURATO:PERSONA]-[OSCURATO:PERSONA] at the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], be suspended until the determination of the application in [OSCURATO:PERSONA]550/20 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] and Representatives of the Governments of the [OSCURATO:PERSONA] , or further order; –        the effects of the act at issue be stayed in so far as it affects the expiry of the contracts of employment, or the secondment, of the applicant’s collaborators as appear in Annex A.3 to the application for interim measures; –        the aforesaid interim measures be granted before 7 September 2020 or as soon as possible thereafter. 6 On 4 September 2020, the Judge of the [OSCURATO:PERSONA] hearing an application for interim measures provisionally granted the application for interim relief under Article 157(2) of the Rules of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] until the adoption of a final order concluding the interim measures proceedings brought by the applicant at first instance. 7 In particular, the Judge of the [OSCURATO:PERSONA] hearing an application for interim measures held, at paragraph 9 of the contested order, that the application for interim relief met the two conditions to which the grant of interim relief is found to be subject according to the case-law cited at paragraph 8 of that order, namely that the interim measures sought appear necessary to enable that judge to obtain sufficient information so as to be in a position to give a ruling on a complex situation of fact and/or law raised by the application for interim measures, or where it appears necessary, in the interests of the proper administration of justice, that the status quo be maintained until a final order concluding the interim measures proceedings has been made. 8 In those circumstances, the Judge of the [OSCURATO:PERSONA] hearing an application for interim measures provisionally granted the application for interim relief brought by the applicant at first instance. [OSCURATO:PERSONA] before the [OSCURATO:PERSONA] and the forms of order sought 9 By their appeal, the Representatives of the Governments of the [OSCURATO:PERSONA] (the ‘appellant’) claim that the [OSCURATO:PERSONA] should: –        set aside the order under appeal; –        dismiss the application for interim relief in its entirety; and –        reserve the costs. 10 The appellant moreover requests that the [OSCURATO:PERSONA] should rule on the present appeal without first hearing the other parties under Article 160(7) of the Rules of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of Justice. 11 On the basis of the documents contained in the [OSCURATO:PERSONA]’s file, in particular the arguments put forward both by the applicant at first instance, before the [OSCURATO:PERSONA], and by the appellant, before the [OSCURATO:PERSONA], the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] considers that she has at her disposal all the information necessary in order to rule on the present appeal. It is therefore appropriate, in accordance with Article 160(7) of the Rules of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of Justice, which applies to the present appeal by virtue of Articles 39 and 57 of the Statue of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], to rule on the present appeal without first hearing the other parties. The appeal 12 In support of its appeal, the appellant raises three pleas in law. The second plea in law Arguments 13 By its second plea in law which it is appropriate to examine first, the appellant alleges, in substance, that, by provisionally granting the application for interim relief brought by the applicant at first instance in circumstances where, according to the appellant, the main action is manifestly inadmissible, the Judge of the [OSCURATO:PERSONA] hearing an application for interim measures made an error of law. 14 The appellant recalls that in accordance with settled case-law, pursuant to the first paragraph of Article 263 TFEU, an action for annulment can be brought only against the institutions referred to in that provision, as well as against a body, office or agency of the [OSCURATO:PERSONA] which is competent to adopt the contested act and is the author of that contested act. 15 Indeed, according to the appellant, the content and all of the circumstances surrounding the adoption of the act at issue show that it was adopted by the Ambassadors of the [OSCURATO:PERSONA], meeting as Representatives of the Governments of the [OSCURATO:PERSONA] and expressing their 'common accord' to the appointment of members of the [OSCURATO:PERSONA] of Justice, as provided for in Article 253 TFEU. 16 In those circumstances, the appellant submits that the main action is thus manifestly inadmissible in so far as it is directed against the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. 17 Moreover, the appellant explains that a conference of the Representatives of the Governments of the [OSCURATO:PERSONA] is not meant to be an EU decision-making body. On the contrary, a conference represents a rare intergovernmental dimension in the complex system of EU law, which remains beyond the scope of Article 263 TFEU. Indeed, most of the competences that the authors of the Treaties have not conferred on the institutions but left to the [OSCURATO:PERSONA], are exercised by them individually. However, for certain very specific and particularly sensitive topics, such as the appointment of judges and the determination of the seats of the institutions of the [OSCURATO:PERSONA] (Article 341 TFEU), the Treaties set a framework but then leave the actual decision to the [OSCURATO:PERSONA], acting collectively. Thus, the [OSCURATO:PERSONA] – as masters of the Treaties – have reserved to themselves, collectively, the adoption of certain acts. These are thus, as such, outside the scope of judicial control by the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], which by definition is only competent for acts which have been adopted by the institutions in the exercise of the competences conferred upon them. 18 In those circumstances, the appellant submits that the main application is manifestly inadmissible in that the act at issue, which was adopted on the basis of Article 253(1) TFEU, by common accord of the 27 Representatives of the Governments of the [OSCURATO:PERSONA], plainly falls outside the scope of the powers conferred by the authors of the Treaties upon the [OSCURATO:PERSONA] and thus outside the judicial control of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA]. Assessment 19 The first sentence of Article 156(4) of the Rules of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] provides that an application for interim measures shall 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’. 20 Thus, according to the settled case-law of the [OSCURATO:PERSONA], the judge hearing an application for interim relief may order the suspension of operation of an act, or 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 interests of the party making the application, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, which means that an application for interim measures must be dismissed if either of them is absent. The judge hearing an application for interim relief is also to undertake, where necessary, a weighing of the competing interests (order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 21 March 2019, [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v. Commission , C‑4/19 P(R), EU:C:2019:229, paragraph 12 and the case-law cited). 21 As regards, in particular, the requirement of a prima facie case, the [OSCURATO:PERSONA] has held that it is met where at least one of the pleas in law relied on by the applicant for interim measures in support of the main action appears, prima facie, not to be unfounded (order of 8 April 2020, Commission v. Poland , C‑791/19 R, EU:C:2020:277, paragraph 52 and the case-law cited). 22 It follows that it is not possible for the condition concerning a prima facie case to be fulfilled and, consequently, for the application for interim relief to be granted, even on a provisional basis, where it is apparent, prima facie, that the main action has no prospect of success. 23 Indeed, in the present case, it is immediately clear from the content of the contested act at issue that it was adopted not by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] but by the Representatives of the Governments of the [OSCURATO:PERSONA], on the basis of Article 253(1) TFEU. 24 Consequently, it is apparent, prima facie, that the main action is manifestly inadmissible to the extent that it is directed against the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. 25 Moreover, it is clear from the very wording of Article 263 TFEU that only acts of the institutions, bodies, offices and agencies of the [OSCURATO:PERSONA] are subject to the judicial review that is exercised by the [OSCURATO:PERSONA] of Justice on the basis of that provision. 26 In that connection, the [OSCURATO:PERSONA] has held that it is clear from Article 263 TFEU that acts adopted by Representatives of the [OSCURATO:PERSONA], acting not in their capacity as members of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] or of the [OSCURATO:PERSONA] but as representatives of their governments, and thus collectively exercising the powers of the [OSCURATO:PERSONA], are not subject to judicial review by the courts of the [OSCURATO:PERSONA] (judgment of 30 June 1993, Parliament v. [OSCURATO:PERSONA] and Commission , C‑181/91 and C‑248/91, EU:C:1993:271, paragraph 12). 27 That is so, prima facie, for the acts by which Judges and [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of Justice are nominated and which are adopted, in accordance with Article 253(1) TFEU, by common accord of the governments of the [OSCURATO:PERSONA]. 28 Consequently, it is apparent, again prima facie, that the main action is manifestly inadmissible to the extent that it seeks the annulment of a decision taken not by an institution, body, office or agency of the [OSCURATO:PERSONA] but by the Representatives of the Governments of the [OSCURATO:PERSONA] exercising the powers of those [OSCURATO:PERSONA], with the consequence that such act is not subject to the judicial review that is exercised by the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] on the basis of Article 263 TFEU. 29 Since, prima facie, the main action thus has no prospect of success, it must be held, in accordance with the finding at paragraph 22 of the present order, that, in deciding to grant the application for interim relief, albeit on a provisional basis, the Judge at the [OSCURATO:PERSONA] hearing an application for interim measures made an error of law. 30 Since the second plea in law raised by the appellant is thus well founded, the present appeal must be allowed and, consequently, the contested order must be quashed, without its being necessary to rule on the other pleas in law. On the application for interim measures submitted to the [OSCURATO:PERSONA] 31 In accordance with the first paragraph of Article 61 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], if the appeal is well founded the [OSCURATO:PERSONA] shall quash the decision of the [OSCURATO:PERSONA]. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the [OSCURATO:PERSONA] for judgment. The abovementioned provision also applies to appeals brought under the second paragraph of Article 57 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] (order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 23 April 2015, Commission v. [OSCURATO:PERSONA] and Benefits , C‑35/15 P(R), EU:C:2015:275, paragraph 59 and the case-law cited). 32 In the present case, on the basis of the documents contained in the [OSCURATO:PERSONA]’s file, in particular those to which reference is made in paragraph 11 of the present order, the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] considers that the state of the proceedings is such that she is in a position to give a final ruling in the matter. 33 In that regard, in accordance with the case-law recalled at paragraph 20 of the present order, the conditions for the grant of interim relief are cumulative, meaning that an application for such relief must be rejected where one of those conditions is not satisfied. 34 Moreover, as was made clear at paragraph 22 of the present order, it is not possible for the condition concerning a prima facie case to be fulfilled where it is apparent, prima facie, that the main action has no prospect of success. 35 That is the case in the present instance, as was held in paragraph 29 of the present order, since the main action is, prima facie, manifestly inadmissible, for the reasons set out in paragraphs 23 to 28 of the present order. 36 Consequently, the application for interim measures must be dismissed. On those grounds, the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] hereby: 1. Sets aside the order of the Judge of the [OSCURATO:PERSONA] hearing [an] application for interim measures, of 4 September 2020, [OSCURATO:PERSONA] v. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] and Representatives of the Governments of the [OSCURATO:PERSONA] (T-550/20 R). 2. Dismisses the application for interim measures in its entirety. 3. Reserves the costs. Luxembourg, 10 September 2020. A. [OSCURATO:PERSONA] R. Silva de [OSCURATO:PERSONA][OSCURATO:PERSONA] * Language of the case: English.