Today the order of the President of the General Court of 29 October in a covid-19 certificate case was published. I have not yet heard on European level there was a decision in such a case before.
The order was published in French and Italian, below you find a machine translation into English. It only concerns the request for interim measures, a request that is rejected. The President thinks the matter is not urgent enough for interim measures and amongst others considers:
We’ll see what the main procedure will bring.
WORKING DOCUMENT
ORDER OF THE PRESIDENT OF THE COURT
29 October 2021 (*)
“(*) “Interim measures – Regulation (EU) 2021/953 – EU digital COVID certificate – Application for suspension of operation – No urgency
In Case T-527/21 R,
Stefania Abenante, residing in Ferrara (Italy), and the other applicants whose names are listed in the Annex (1 ), represented by M. Sandri, lawyer,
applicants,
against
European Parliament, represented by L. Visaggio, J. Rodrigues and P. López-Carceller, acting as Agents,
and
Council of the European Union, represented by M. Moore and S. Scarpa Ferraglio, acting as Agents,
defendants,
application under Articles 278 and 279 TFEU for suspension of operation of Article 3(1)(a) and (b) of Regulation (EU) No 2021/953 of the European Parliament and of the Council of 14 June 2021 on a framework for the issue, verification and acceptance of certificates of origin verification and acceptance of interoperable COVID-19 certificates of vaccination, testing and recovery (EU digital COVID certificate) in order to facilitate the free movement during the COVID-19 pandemic (OJ 2021 L 211, p. 1),
THE PRESIDENT OF THE COURT
hereby makes this
Order
Background to the dispute, procedure and conclusion of the parties
1 The applicants, Ms Stefania Abenante and the other natural persons whose names are annexed, are citizens of the European Union.
2 In order to limit the spread of Severe Acute Respiratory Syndrome (SARS-CoV-2), Member States have adopted certain measures which have affected the exercise by citizens of the Union of their right to move and reside freely within the territory of the Member States, such as restrictions on entry or requirements for cross-border travellers to be quarantined or self-contained or to be tested for SARS-CoV-2 infection
3 In order to facilitate the exercise of the right to move and reside freely within the territory of the Member States, the European Parliament and the Council of the European Union have decided to establish a common framework for the issuance, verification and acceptance of interoperable certificates of vaccination, testing and reinstatement in relation to coronavirus 2019 (COVID-19), which is caused by SARS-CoV-2. The objective of this common framework is to facilitate, as far as possible on the basis of scientific evidence, the gradual lifting of restrictions by Member States in a coordinated manner, taking into account the lifting of restrictions on their own territory.
4 To that end, the Parliament and the Council adopted, on 14 June 2021, Regulation (EU) 2021/953 on a framework for the issue, verification and acceptance of interoperable COVID-19 certificates of vaccination, testing and recovery (EU digital COVID certificate) in order to facilitate free movement during the COVID-19 pandemic (OJ 2021 L 211, p. 1, hereinafter ‘the contested regulation’).
5 According to recital 13 of the contested regulation, although it is without prejudice to the competence of Member States to impose restrictions on free movement, in accordance with Union law, in order to limit the spread of SARS-CoV-2, it should help to facilitate the gradual lifting of those restrictions in as coordinated a manner as possible.
6 Article 3(1) of the contested regulation provides that the framework of the interoperable certificate containing information on the holder’s vaccination, test results or recovery issued in the context of the COVID-19 pandemic (hereinafter the ‘EU digital COVID certificate’) allows for the issue, verification and cross-border acceptance of one of the following certificates: a certificate confirming that its holder has received a COVID-19 vaccine in the issuing Member State, referred to as a “vaccination certificate” (Article 3(1)(a) of the contested regulation), a certificate confirming that its holder has been tested by health professionals or qualified testing personnel in the issuing Member State, and indicating the type of test, the date on which it was carried out and the result of the test, ‘test certificate’ (Article 3(1)(b) of the contested regulation), and a certificate confirming that, following the positive result of a test carried out by health professionals or qualified testing personnel, the holder has recovered from an infection with SARS-CoV-2, ‘recovery certificate’ (Article 3(1)(c) of the contested regulation)
7 By application lodged at the Registry of the Court of First Instance on 30 August 2021, the applicants have brought an action seeking, inter alia, the annulment in whole or in part of the contested regulation.
8 By separate document lodged at the Registry of the Court of First Instance on 31 August 2021, the applicants have brought the present application for interim measures, in which they claim that the President of the Court of First Instance should
– as an immediate and interim measure, suspend the operation of Article 3(1)(a) and (b) of the contested regulation
– Primarily, annul the contested regulation in its entirety;
– in the main alternative, annul Article 3(1)(a) and (b) of the contested regulation
– in the further alternative, for the purpose of balancing the practical needs of the parties, partially amend the contested regulation by providing, in place of Article 3(1)(a) and (b) thereof, for an obligation, for the issue of the EU digital COVID certificate to every citizen of the Union, to submit to the Commission’s examination of the application for a COVID certificate in the situations referred to in that regulation, to take a salivary smear and, in the event of a positive result, to undergo an effective check to confirm a case of SARS-CoV-2 or Covid-19, in accordance with the protocols laid down by the World Health Organisation (WHO) and the European Centre for Disease Prevention and Control (ECDC) ;
– order any defendant to pay the costs.
9 In its observations on the application for interim measures, lodged at the Registry of the Court of First Instance on 15 September 2021, the Council claims that the President of the Court should:
– reject the application for a protective stay as manifestly inadmissible ;
– in the alternative, dismiss the application for a protective stay as manifestly unfounded
– order the applicants jointly and severally to pay the costs.
10 In its observations on the application for interim measures, lodged at the Court Registry on 15 September 2021, the Parliament claims that the President of the Court should:
– reject the application for suspension of operation ;
– order the applicants to pay the costs.
In law
11 It follows from a combined reading of Articles 278 and 279 TFEU, on the one hand, and Article 256(1) TFEU, on the other, that the interim relief judge may, if he considers that the circumstances so require, order the suspension of operation of an act challenged before the Court of First Instance or prescribe the necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the Court of First Instance. However, Article 278 TFEU lays down the principle that actions are not suspensive, as acts adopted by the Union institutions are presumed to be lawful. It is therefore only exceptionally that the judge hearing the application for interim measures may order a stay of execution of an act challenged before the Court of First Instance or prescribe interim measures (Order of 19 July 2016 in Case T-131/16 R Belgium v Commission, EU:T:2016:427, paragraph 12).
12 The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures must specify ‘the subject-matter of the dispute, the circumstances establishing urgency and the pleas of fact and law which prima facie justify the grant of the interim measure which they seek’.
13 Thus, the stay of execution and other interim measures may be granted by the interim relief judge if it is established that their grant is prima facie justified in fact and in law (fumus boni juris) and that they are urgent, in the sense that it is necessary, in order to avoid serious and irreparable damage to the interests of the party seeking them, that they be enacted and take effect before the decision in the main case. These conditions are cumulative, so that applications for interim measures must be rejected if one of them is missing. The interim relief judge also carries out, where appropriate, a balancing of the interests involved (see Order of 2 March 2016 in Case C-162/15 P-R Evonik Degussa v Commission, EU:C:2016:142, paragraph 21, and the case-law cited).
14 In the context of that overall examination, the interlocutory judge has a broad discretion and remains free to determine, in the light of the particular circumstances of the case, the manner in which those various conditions are to be verified and the order of that examination, since there is no rule of law which imposes on him a pre-established pattern of analysis for assessing the need to give a provisional ruling (see Order of 19 July 2012 in Case C-110/12 P(R) Akhras v Council, unreported, EU: C:2012:507, paragraph 23, and the case-law cited therein).
15 Having regard to the material in the file, the President of the Court of First Instance considers that he has all the information necessary to rule on the present application for interim measures, without there being any need to hear the parties’ oral explanations beforehand.
16 In the circumstances of the present case, it is appropriate to examine first whether the condition of urgency is satisfied.
17 In order to ascertain whether the interim measures sought are urgent, it should be recalled that the purpose of the interim measures procedure is to ensure the full effectiveness of the future final decision, in order to avoid a gap in the legal protection afforded by the Union court. In order to achieve this objective, urgency must, in general, be assessed in the light of the need to give a provisional ruling in order to avoid serious and irreparable harm to the party seeking interim protection. It is for that party to prove that it cannot await the outcome of the proceedings relating to the action on the merits without suffering serious and irreparable harm (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).
18 It is in the light of those criteria that it is necessary to examine whether the applicants succeed in demonstrating urgency.
19 In the present case, in order to demonstrate the serious and irreparable nature of the alleged damage, the applicants submit, first, that the contested regulation creates in practice discrimination between vaccinated and non-vaccinated persons and, therefore, between citizens of the Union in the exercise of their fundamental rights, which affects them directly.
20 Secondly, the applicants submit that the serious infringement of their fundamental rights, caused by the inadmissible content of the contested regulation, which is manifestly at variance with any scientific standard, must be brought to an immediate end in view of the material and, above all, non-material damage which it inflicts on them in a direct and immediate manner, thus depriving them of the opportunity to lead a normal social life.
21 For their part, the Parliament and the Council submit that the applicants have failed to establish that the requirement of urgency is satisfied.
22 In that regard, first, with regard to the applicants’ argument that the contested regulation discriminates in practice between citizens of the Union in the exercise of their fundamental rights, it should be recalled, first, that the interlocutory judge cannot be held responsible for the infringement of the fundamental rights of citizens, that the interim relief judge cannot mechanically and rigidly apply the condition relating to the irreparable nature of the damage – or, moreover, to the serious nature of the damage relied on – but must take account of the circumstances of each case (see, to that effect, Order of 25 July 2014 in Case T-189/14 R Deza v ECHA, not published, EU: T:2014:686, paragraph 105, and the case-law cited), especially since that criterion, which is purely praetorian in origin and does not appear in the Treaties or in the Rules of Procedure, must be left inapplicable where it is irreconcilable with the requirements of effective provisional protection (see, to that effect, Order of 23 April 2015 in Commission v Vanbreda Risk & Benefits, C-35/15 P(R), EU:C:2015:275, paragraph 30).
23 Second, the possibility of ordering a stay of execution or of taking interim measures solely on the basis of the manifest illegality of the contested measure is not excluded, for example, where the latter lacks even the appearance of legality and its execution must therefore be suspended immediately (see, to that effect, Orders of 7 July 1981 in IBM v Commission, 60/81 R and 190/81 R, EU: C:1981:165, paragraphs 7 and 8, and of 26 March 1987, Hoechst v Commission, 46/87 R, EU:C:1987:167, paragraphs 31 and 32).
24 Thirdly, however, although, as is apparent from paragraph 110 of the order of 23 February 2001 in Case C-445/00 R Austria v Council (EU:C:2001:123), the particularly serious nature of the fumus boni juris is not without influence on the assessment of urgency, it is, however, in accordance with the provisions of Article 156(4) of the Rules of Procedure, a question of two separate conditions governing the grant of a stay of execution. It is therefore for the party seeking interim measures to demonstrate the imminence of serious and difficult-to-repair, or even irreparable, damage, and the mere demonstration of the existence of a prima facie case, even a particularly serious one, cannot make up for the complete absence of a demonstration of urgency, except in very special circumstances (see, to that effect, Order of 2 May 2007 in Case T-297/05 R IPK International – World Tourism Marketing Consultants v. Commission, unreported, EU: T:2007:118, paragraph 52 and case law cited).
25 In the present case, moreover, none of the applicants’ arguments demonstrates, prima facie, the manifest nature of the alleged violation.
26 As regards the applicants’ argument that the infringement of their right to freedom of movement if they do not undergo invasive medical treatment contrary to their wishes entails a direct limitation of their personal freedom, as provided for in Article 6 of the Charter of Fundamental Rights of the European Union, and of their professional freedom and right to work, as provided for in Article 5 of the Charter, as well as their professional freedom and their right to work, provided for in Article 15 of that Charter, it must first be observed that possession of the certificates provided for in the contested regulation does not constitute a precondition for the exercise of the right to freedom of movement, as is apparent from Article 3(6) of that regulation.
27 Furthermore, the applicants do not put forward any evidence which would allow the conclusion to be drawn that the contested regulation worsened their conditions of movement as compared with the situation before its entry into force. Indeed, the contested regulation is intended precisely to facilitate the exercise of the right to free movement within the Union during the COVID-19 pandemic by establishing a framework for the issue, verification and acceptance of EU digital COVID certificates.
28 Second, as regards the applicants’ argument that the infringement of their fundamental rights caused them material damage, it should be noted that financial damage cannot, save in exceptional circumstances, be regarded as irreparable or even difficult to repair, since it can, as a general rule, be the subject of subsequent financial compensation (see Order of 2 October 2019 in Case T-542/19 R FV v Council, unreported, EU:T:2019:718, paragraph 42, and the case-law cited).
29 It is true that, even in the case of purely pecuniary damage, an interim measure is justified if it appears that, in the absence of that measure, the party seeking it would be in a situation likely to jeopardise its financial viability, since it would not have available to it a sum which would normally enable it to meet all the expenditure necessary to satisfy its basic needs until the main action is decided (see Order of 2 October 2019, FV v Council, T-542/19 R, unreported, EU: T:2019:718, paragraph 43, and the case-law cited).
30 However, in order to be able to assess whether the alleged damage is of a serious and irreparable nature and therefore justifies suspending, exceptionally, the implementation of the contested measure, the judge hearing the application for interim measures must, in any event, have at his disposal concrete and precise information, supported by detailed documents which demonstrate the financial situation of the party seeking the interim measure and make it possible to assess the consequences which are likely to result from the absence of the measures requested (see Order of 27 April 2010, Parliament v Union, T-103/10 P(R), EU: T:2010:164, paragraph 37, and the case-law cited therein).
31 However, in the present case, the applicants failed to provide concrete and precise indications, supported by detailed certified documents.
32 Consequently, in such circumstances, the interim relief judge is not in a position to assess whether the alleged damage can be classified as serious and irreparable.
33 Furthermore, in so far as the applicants maintain that the infringement of their fundamental rights directly and immediately causes them non-material damage, it is sufficient to recall that, according to well-established case-law, even assuming that such damage is actually caused by the contested regulation, the annulment of that regulation at the end of the main proceedings would constitute sufficient compensation for the non-material damage alleged (see, to that effect, Order of 20 July 2016, Director General of OLAF v Commission, T-251/16 R, unreported, EU: T:2016:424, paragraph 57 and the case-law cited). It follows that the non-material damage alleged cannot be regarded as irreparable.
34 It follows from all the foregoing that the application for interim measures must be dismissed in the absence of evidence of urgency on the part of the applicants, without it being necessary to examine its admissibility, to rule on the fumus boni juris or to balance the interests.
35 Pursuant to Article 158(5) of the Rules of Procedure, costs should be reserved.
For these reasons
THE PRESIDENT OF THE COURT
orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Done at Luxembourg on 29 October 2021.
(…)
* Language of the case: Italian.
1 The list of other applicants is annexed only to the version notified to the parties.
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