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Judgment No. 2657

Decision

The complaint is dismissed.

Consideration 5

Extract:

The complainant contests the decision not to appoint him to a post as examiner at the European Patent Office on the grounds that he did not meet the physical requirements for the post. The Organisation submits that the Tribunal is not competent to hear complaints from external applicants for a post in an organisation that has recognised its jurisdiction. "However regrettable a decision declining jurisdiction may be, in that the complainant is liable to feel that he is the victim of a denial of justice, the Tribunal has no option but to confirm the well-established case law according to which it is a court of limited jurisdiction and 'bound to apply the mandatory provisions governing its competence', as stated in Judgment 67, delivered on 26 October 1962. [...]
It [can be inferred from Article II of the Statute of the Tribunal] that persons who are applicants for a post in an international organisation but who have not been recruited are barred from access to the Tribunal. It is only in a case where, even in the absence of a contract signed by the parties, the commitments made by the two sides are equivalent to a contract that the Tribunal can decide to retain jurisdiction (see for example Judgment 339). According to Judgment 621, there must be 'an unquestioned and unqualified concordance of will on all terms of the relationship'. That is not the case, however, in the present circumstances: while proposals regarding an appointment were unquestionably made to the complainant, the defendant was not bound by them until it had established that the conditions governing appointments laid down in the regulations were met."

Reference(s)

ILOAT reference: Article II of the Statute of the Tribunal
ILOAT Judgment(s): 67, 339, 621

Keywords

complaint; grounds; organisation; formal requirements; competence of tribunal; vested competence; exception; case law; written rule; declaration of recognition; iloat statute; interpretation; provision; terms of appointment; contract; appointment; candidate; open competition; post; intention of parties; handicapped person; medical examination; medical fitness; condition; consequence; definition; proposal; refusal

Consideration 6

Extract:

The complainant contests the decision not to appoint him to a post as examiner at the European Patent Office on the grounds that he did not meet the physical requirements for the post but the Tribunal considers that persons who have applied for a post in an international organisation and who have not been recruited are barred from access to the Tribunal. The complainant asks that the Organisation be ordered to waive its immunity to enable him to bring proceedings before a German court. "[T]he Tribunal [recalls that it] has no authority to order the EPO to waive its immunity (see Judgment 933, under 6). It notes, however, that the present judgment creates a legal vacuum and considers it highly desirable that the Organisation should seek a solution affording the complainant access to a court, either by waiving its immunity or by submitting the dispute to arbitration."

Reference(s)

ILOAT Judgment(s): 933

Keywords

claim; grounds; organisation; competence of tribunal; arbitration; judgment of the tribunal; municipal court; appointment; candidate; open competition; post; handicapped person; medical examination; medical fitness; waiver of immunity; condition; refusal; safeguard



 
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