T-595/22

ORDER OF THE PRESIDENT OF THE GENERAL COURT 14 February 2023 (*) (Interim relief – Civil service – Members of the temporary staff – Dismissal before the end of the probationary period – Application for suspension of operation of a measure – No urgency) In Case T‑595/22 R, Carlos Miguel Ferreira de Macedo Silva, residing in Cercal do Alentejo (Portugal), represented by L. Rolo, lawyer, applicant, v European Border and Coast Guard Agency (Frontex), represented by S. Karkala, acting as Agent, and by B. Wägenbaur, lawyer, defendant, THE PRESIDENT OF THE GENERAL COURT makes the following Order 1        By his application based on Articles 278 and 279 TFEU, the applicant, Mr Carlos Miguel Ferreira de Macedo Silva, seeks suspension of the operation of the decision of the European Border and Coast Guard Agency (Frontex) of 29 August 2022 terminating his contract as a member of the temporary staff before the end of the probationary period (‘the contested decision’).  Background to the dispute and forms of order sought by the parties 2        In August 2021, Frontex published recruitment notice RCT-2021-00071 for the post of ‘European Border and Coast Guard’ (intermediate level), to become members of the European Border and Coast Guard standing corps. 3        According to the recruitment notice, successful candidates would be engaged as members of the temporary staff (AST, grade 4), for a period of five years, with a probationary period of nine months. 4        Point 4(a) of the title ‘Essential professional competencies’ of the recruitment notice specified, first, that one of the essential professional competencies required was proof of the candidate’s ability to swim at least 100 metres in less than four minutes using any stroke or combination of strokes, without stopping, without any assistance and without allowing one’s feet to touch the bottom of the pool at any time, and, second, that a certificate or diploma would be required in that regard. 5        The applicant applied for the post in question and stated, in his application form, that he possessed the required professional competence specified in point 4(a) of the heading ‘Essential professional competencies’ of the recruitment notice. 6        On 13 April 2022, the applicant entered into a contract of employment with Frontex, which took effect on 16 May 2022, in accordance with Article 3 of that contract. Under Article 4 of that contract, the applicant was required to serve a probationary period and could be dismissed during the probationary period or upon its expiry, in accordance with Article 14 of the Conditions of Employment of Other Servants of the European Union. 7        On 16 May 2022, the applicant started his probationary period. The probationary period was governed by the Basic Training Programme for the European Border and Coast Guard standing corps (Category 1) (‘the Basic Training Programme’). 8        The Basic Training Programme, which comprised a total of eight modules, provided, at page 89, that swimming sessions during module 0 were dedicated primarily to the assessment of entry requirements for learners and to provide information on their swimming skills for learners’ further division into groups according to their level, if possible. The sessions covered the acquisition of basic self-rescue skills and basic swimming survival skills. That programme specified, on page 464, that the water rescue assessment strategy included a first assessment exercise that would take place during module 0 consisting in a practical assessment of the ability to swim 100 metres freestyle in a maximum of four minutes, without stopping during each 25-metre length, but with a stop after each 25 metres. The learner would have to swim in a ventral position, controlling his or her breathing, but was allowed to change swimming style every 25 metres. 9        By email of 7 June 2022, the applicant was informed that a swimming test would take place during module 0, which consisted of swimming a distance of 100 metres in less than 4 minutes in a ventral position, with control over breathing (‘the swimming test’). 10      The applicant failed the swimming test at his first assessment on 14 June 2022 and at the two reassessments, of 23 and 30 June 2022. 11      On 29 July 2022, the applicant received his probationary report. According to that report, the applicant’s ability to perform the tasks associated with his job and his efficiency were unsatisfactory because he had failed the swimming test three times and, therefore, module 0. 12      On 8 August 2022, the applicant submitted his comments on the probationary report. 13      By letter of 9 August 2022, the applicant was informed by the appointing authority that, as a result of his unsatisfactory performance during the probationary period, as documented in the probationary report, he might be dismissed before the end of the probationary period, with one month’s notice. In that letter, the appointing authority invited the applicant to submit his comments in writing before it made a decision. 14      On 11 August 2022, the applicant submitted his comments. 15      On 18 August 2022, a meeting took place between the applicant and the appointing authority. 16      On 29 August 2022, the appointing authority adopted the contested decision, by which it decided to dismiss the applicant before the end of the probationary period, with one month’s notice. 17      On 2 September 2022, the applicant lodged a complaint against the contested decision, pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union. 18      By application lodged at the Registry of the General Court on 21 September 2022, the applicant brought, first, an action seeking, inter alia, annulment of the contested decision and, second, 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. 19      In its observations on the application for interim measures, which were lodged at the Registry of the General Court on 22 December 2022, Frontex contends that the President of the General Court should: –        dismiss the application for interim measures; –        order the applicant to pay the costs.  Law  General considerations 20      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 an act challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. 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 the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12). 21      The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures are to 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 measures applied for’. 22      Accordingly, 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 required 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). 23      In the context of that overall examination, the judge hearing the application for interim measures 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). 24      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. 25      In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.  The condition relating to urgency 26      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 avoid a lacuna in the legal protection afforded by the Court. To attain that objective, urgency must generally 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, to that effect, 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). 27      It is in the light of those criteria that it should be examined whether the applicant has managed to demonstrate urgency. 28      In the present case, in order to demonstrate the serious and irreparable nature of the damage alleged, the applicant submits that, if operation of the contested decision were not suspended, he would not succeed in his training and, even if the action in the main proceedings were upheld, he would have to wait until the next batch, in one or two years’ time, and recommence the entire Basic Training Programme. 29      In addition, the applicant adds that, as a result of this, he would also, in the meantime, lose all the income that comes with deployments. 30      In addition, the applicant claims that, if operation of the contested decision were not suspended until mid-September 2022, he would have to terminate his five‑year special leave to work in an international institution and return to his former position as a law enforcement agent in the Guarda Nacional Republicana (National Republican Guard, Portugal). Once he returns to his former position, he would no longer be able to resume his employment with Frontex in the event that the action in the main proceedings is upheld, unless he requests another type of leave, which might not be granted, or he resigns from his position in the Guarda Nacional Republicana. 31      Frontex disputes the applicant’s arguments. 32      In the first place, as regards the applicant’s argument that, if operation of the contested decision were not suspended, he would not succeed in his training and, if the action in the main proceedings were upheld, he would have to wait for the next batch, it must be held that the applicant merely makes general statements and does not put forward any argument capable of demonstrating the serious and irreparable nature of the alleged damage. 33      The fact that, if the Court finds in the applicant’s favour in the action in the main proceedings, the applicant has the opportunity to join the next batch and to recommence his basic training shows that he is not at risk of suffering irreparable consequences if, in the event that the contested decision is not suspended, he has to await the outcome of the main proceedings. 34      In the second place, as regards the damage consisting in the loss of all income associated with deployments, it should be noted that that damage is purely financial. 35      In accordance with settled case-law, damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he or she suffered the damage. Any such damage could be recouped by the applicant’s bringing an action for compensation (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 24 and the case-law cited). 36      Admittedly, even where the damage is purely financial, an interim measure is justified if it is apparent that, without that measure, the party requesting it would be in a position likely to jeopardise his or her financial viability, since he or she would not have an amount of money which under normal circumstances should enable him or her to meet all the essential expenditure necessary to cater for his or her basic needs until a ruling is given in the main action (see order of 2 October 2019, FV v Council, T‑542/19 R, not published, EU:T:2019:718, paragraph 43 and the case-law cited). 37      However, in order to assess whether the alleged damage is of a serious and irreparable nature justifying the suspension, exceptionally, of the operation of the act which is being challenged, the judge hearing the application for interim measures must, in all cases, have specific and precise information, supported by detailed, certified documentary evidence, which shows the situation in which the party seeking the interim measures finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party, in particular when it relies on the occurrence of financial damage, must in principle produce, with supporting documentation, an accurate overall picture of its financial situation (see, to that effect, order of 10 July 2018, Synergy Hellas v Commission, T‑244/18 R, not published, EU:T:2018:422, paragraph 27 and the case-law cited). 38      However, in the present case, the applicant does not claim, let alone demonstrate, with supporting evidence, that he does not have the necessary resources to cater for his basic needs until delivery of judgment in the main proceedings. Furthermore, it is apparent from the application for interim measures that the applicant could terminate his special leave and return to his former position as a law enforcement agent in the Guarda Nacional Republicana. 39      Accordingly, it must be held that the applicant has not succeeded in demonstrating that the condition relating to urgency was satisfied on account of the financial damage alleged. 40      In the third place, as regards the applicant’s argument that, if the General Court finds in his favour in the action in the main proceedings, there would be a risk that, after returning to his former position in the Guarda Nacional Republicana, he would no longer obtain special leave and would be forced to resign in order to take up employment at Frontex, it should be observed that, according to settled case-law, there is urgency only if the serious and irreparable harm feared by the party seeking the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party remains, in any event, required to prove the facts that form the basis of its claim that such harm is likely, it being clear that purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures (see order of 11 November 2022, Belaruskali v Council, T‑528/22 R, not published, EU:T:2022:709, paragraph 30 and the case-law cited). 41      In the present case, it must be held, as Frontex submits, that the damage alleged by the applicant is hypothetical, since he does not demonstrate to the requisite legal standard that, if he were reinstated at Frontex, the risk of not obtaining special leave or of having to resign from the Guarda Nacional Republicana would be so imminent that it would occur in a foreseeable manner and with a sufficient degree of probability. 42      It follows from all the foregoing that the application for interim measures must be dismissed since the applicant has failed to establish that the condition relating to urgency has been satisfied, without it being necessary to rule on the admissibility of the present application for interim measures, to examine whether there is a prima facie case or to weigh up the interests at stake. 43      Under Article 158(5) of the Rules of Procedure, the costs are to be reserved. On those grounds, THE PRESIDENT OF THE GENERAL COURT hereby orders: 1.      The application for interim measures is rejected. 2.      The costs are reserved. Luxembourg, 14 February 2023. E. Coulon   M. van der Woude Registrar   President *      Language of the case: English.