Appeal brought on 10 September 2008 by the Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 8 July 2008 in Case F-76/07, Birkhoff v Commission

(Case T-377/08 P)

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by J. Currall and B. Eggers)

Other party to the proceedings: Gerhard Birkhoff (Weitnau, Germany)

Form of order sought by the appellant

Set aside the judgment of the Civil Service Tribunal delivered on 8 July 2008 in Case F-76/07 Birkhoff v Commission;

order Mr Birkhoff to pay the costs of the proceedings before the Civil Service Tribunal and of the appeal.

Pleas in law and main arguments

The appeal is directed against the judgment of the Civil Service Tribunal delivered on 8 July 2008 in Case F-76/07 annulling the decision of the Settlements Office, in the form of a decision on a complaint, not to reimburse the costs of acquiring a new wheelchair two years after the last acquisition, on the grounds of lack of necessity.

The appellant submits in support of its appeal that, first, contrary to the applicable provisions of Community law, the judgment redefines the margin of discretion of the Medical Officer and of the Medical Council in that, according to the judgment, only independent medical bodies may have such a margin of discretion.

Second, the judgment disavows any significance in the opinions of the Medical Council - which, in practice, are important in the examination of the necessity of costs - by stating that it is merely an advisory body whose opinions are not published. This is contrary to settled case-law on the Joint Rules on sickness insurance for officials of the European Communities, as applicable on 22 March 2004. Furthermore, those opinions have the status of a rebuttable presumption in relation to the necessity of costs.

In addition, the appellant alleges a distortion of the facts or errors in the legal characterisation of the facts and of the subject-matter of the dispute, and an infringement of the obligation to state the reasons for the judgment, since an essential part of the decision on the complaint was declared to be non-existent.

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