# C_2011139EN.01002101.xml

| 7.5.2011 | EN | Official Journal of the European Union | C 139/21 |
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7.5.2011

EN

Official Journal of the European Union

C 139/21

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Appeal brought on 18 February 2011 by the European Training Foundation (ETF) against the judgment of the Civil Service Tribunal of 9 December 2010 in Case F-87/08 Schuerings v ETF

(Case T-107/11 P)

2011/C 139/40

Language of the case: French

Parties

Parties

Appellant: European Training Foundation (ETF) (represented by L. Levi, lawyer)

Appellant:

Other party to the proceedings: Gisela Schuerings (Nice, France)

Other party to the proceedings:

Form of order sought by the appellant

Form of order sought by the appellant

| — | Annul the judgment of the European Union Civil Service Tribunal of 9 December 2010 in case F-87/08; |
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Annul the judgment of the European Union Civil Service Tribunal of 9 December 2010 in case F-87/08;

| — | In consequence, dismiss the action at first instance and, accordingly, |
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In consequence, dismiss the action at first instance and, accordingly,

| — | Order the respondent to the appeal to pay all the costs of both sets of proceedings. |
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Order the respondent to the appeal to pay all the costs of both sets of proceedings.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the appeal, the appellant relies on four pleas in law.

| 1. | First plea in law, alleging that the CST disregarded the interest of the service and of the post, and infringed Articles 2 and 47 of the Conditions of employment of other servants of the European Union and the obligation to state reasons, insofar as the CST held in paragraph 62 of the judgment under appeal that ‘before an agency dismisses a member of staff employed under a contract of indefinite duration on the ground that the tasks to which that member of staff was assigned have been cancelled or transferred to another body, the agency concerned is under an obligation to consider whether the person concerned can be reassigned to another post already in existence or soon to be created, in particular, following the attribution of new responsibilities to the agency concerned’. |
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1.

First plea in law, alleging that the CST disregarded the interest of the service and of the post, and infringed Articles 2 and 47 of the Conditions of employment of other servants of the European Union and the obligation to state reasons, insofar as the CST held in paragraph 62 of the judgment under appeal that ‘before an agency dismisses a member of staff employed under a contract of indefinite duration on the ground that the tasks to which that member of staff was assigned have been cancelled or transferred to another body, the agency concerned is under an obligation to consider whether the person concerned can be reassigned to another post already in existence or soon to be created, in particular, following the attribution of new responsibilities to the agency concerned’.

| 2. | Second plea in law, alleging breach of the principles of proportionality and legal certainty, insofar as the CST held in paragraph 63 of the judgment under appeal that the administration must, when considering the possibility of reassignment, ‘weigh the interest of the service, which requires the recruitment of the most suitable person to fill the post already in existence or soon to be created, against the interest of the member of staff whose dismissal is contemplated. In order to do so, it must take account ... of various criteria, which include the requirements of the post in the light of the qualifications and potential of the member of staff, ... and his age, seniority and the number of years of pension contributions remaining before he can claim a retirement pension’. |
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2.

Second plea in law, alleging breach of the principles of proportionality and legal certainty, insofar as the CST held in paragraph 63 of the judgment under appeal that the administration must, when considering the possibility of reassignment, ‘weigh the interest of the service, which requires the recruitment of the most suitable person to fill the post already in existence or soon to be created, against the interest of the member of staff whose dismissal is contemplated. In order to do so, it must take account ... of various criteria, which include the requirements of the post in the light of the qualifications and potential of the member of staff, ... and his age, seniority and the number of years of pension contributions remaining before he can claim a retirement pension’.

soon to be created

potential of the member of staff

| 3. | Third plea in law, alleging breach of the rules prohibiting rulings ultra vires or ultra petita, and of the procedural rules relating to the principle that both sides should be heard, insofar as the CST:






  — | based its ruling on reasoning which had not been the subject of an exchange of arguments between the parties, |
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3.

Third plea in law, alleging breach of the rules prohibiting rulings ultra vires or ultra petita, and of the procedural rules relating to the principle that both sides should be heard, insofar as the CST:

ultra vires

ultra petita

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based its ruling on reasoning which had not been the subject of an exchange of arguments between the parties,

| — | upheld a plea in law which was not one of those raised by Mrs Schuerings and |
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upheld a plea in law which was not one of those raised by Mrs Schuerings and

| — | required the ETF to reinstate Mrs Schuerings although she did not seek an order that she be reinstated. |
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required the ETF to reinstate Mrs Schuerings although she did not seek an order that she be reinstated.

| 4. | Fourth plea in law alleging breach of Article 266 TFEU and of the obligation to state reasons, insofar as the CST disregarded the power devolved on the ETF to implement a judgment setting aside a decision, and the settled case-law on the subject, by ordering the reinstatement of the person concerned rather than financial compensation when setting aside the decision to dismiss her. |
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4.

Fourth plea in law alleging breach of Article 266 TFEU and of the obligation to state reasons, insofar as the CST disregarded the power devolved on the ETF to implement a judgment setting aside a decision, and the settled case-law on the subject, by ordering the reinstatement of the person concerned rather than financial compensation when setting aside the decision to dismiss her.

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