JUDGMENT OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

9 December 2010

Case F-87/08

Gisela Schuerings

v

European Training Foundation (ETF)

(Civil service — Staff of the European Training Foundation — Temporary staff — Contract of unlimited duration — Dismissal — Requirement to provide a valid reason — Abolition of a post — Duty of care — Reassignment)

Application: brought under Articles 236 EC and 152 EA, in which Ms Schuerings essentially seeks annulment of the ETF’s decision of 23 October 2007 terminating her contract of employment from 31 August 2008, as well as an order that the ETF pay her damages for pecuniary and non-pecuniary damage.

Held: The decision of 23 October 2007 to dismiss the applicant is annulled. The remainder of the action is dismissed. The ETF is ordered to pay the costs.

Summary

1.      Officials — Actions — Pleas in law

2.      Officials — Members of the temporary staff — Termination of a contract concluded for an indefinite period — Reduction in scope of a Union agency’s activities — Obligation to consider the possibility of reassigning the staff member concerned

3.      Officials — Non-contractual liability of the institutions — Damage caused by unlawful dismissal — Compensation for non-material damage — Conditions

1.      The fact that the principle of sound administration does not confer any right on individuals, except where it constitutes the expression of a specific right, does not have the effect of rendering inadmissible a plea in law, or a part of a plea, alleging the infringement of that principle, the result of which is that the arguments presented in support of the plea, or part of the plea, are not considered. It is only when those arguments are considered in detail that it can be determined whether the administration may have infringed a specific right alleged to be the expression of the principle of sound administration.

(see para. 39)

2.      The reduction in scope of a Union agency’s activities may be regarded as capable of constituting a valid ground for dismissing a staff member employed on an indefinite contract, provided, however, that that agency did not have a post to which the staff member concerned could have been reassigned. It is only in the latter case that dismissal on the ground of the reduction in the activities of the agency concerned would be justified.

In that respect it is irrelevant that internal rules lay down special selection procedures for internal transfers of staff to fill vacant posts. Before publishing a vacancy with a view to filling a post by internal transfer, the administration always has the option of automatically reassigning a staff member in the interest of the service, without infringing the principle of equal treatment, since staff reassigned on the administration’s initiative are not in the same position as those requesting a transfer. The fact that supporting measures have been taken is also irrelevant. While their introduction unquestionably contributes to compliance with the duty to have regard for the welfare of staff, which an agency is obliged to respect, that fact does not exempt the competent authority from having to base dismissal decisions on valid grounds.

It follows that, before a Union agency dismisses a staff member employed on an indefinite contract, on the ground that the tasks to which that staff member was assigned have been abolished or transferred to another body, the agency is obliged to consider whether the person concerned could be reassigned to another existing post or a post to be created shortly as a result, in particular, of the allocation of new responsibilities to the agency in question.

When considering that question, the administration must weigh the interests of the service, which require it to recruit the most suitable person to fill the existing post or post to be created shortly, against the interests of the staff member whom it is planning to dismiss. In order to do so, it must take account, in the exercise of its discretion, of various criteria, including the requirements of the post in the light of the staff member’s qualifications and potential, whether or not the staff member’s contract of employment states that he was employed to fill a particular post, his evaluation reports, as well as his age, seniority and the number of years’ contributions still to be paid before he can claim his entitlement to a pension.

(see paras 59-63)

See:

F‑55/06 de Albuquerque v Commission [2007] ECR-SC I‑A‑1‑35 and II‑A‑1‑183, paras 93 and 94; F-74/06 Longinidis v Cedefop [2008] ECR-SC I‑A‑1‑125 and II‑A‑1‑655, para. 138

3.      While any dismissal is, by its very nature, likely to create in the official or staff member dismissed feelings of rejection, frustration and uncertainty for the future, it does not automatically follow from the fact that a dismissal was recognised as unlawful by the Union judicature that the person concerned is entitled to obtain payment of compensation for non-material damage. It is only where there are special circumstances that an employer’s conduct may be held to have had a psychological impact on the staff member beyond what a dismissed person normally feels, particularly where that employer has based its decision on grounds involving an assessment of the staff member’s abilities or conduct which is capable of offending him.

(see para. 73)

See:

T-223/99 Dejaiffe v OHIM [2000] ECR-SC I‑A‑277 and II‑1267, para. 91