Judgment No. 2869
1. The decision of 21 May 2008 is quashed.
2. Eurocontrol shall pay the complainant 6,000 euros in compensation for the denial of a valuable opportunity to be promoted in 2007.
3. It shall pay the complainant 4,000 euros in moral damages.
4. It shall also pay him 1,000 euros in costs.
5. The complaint is otherwise dismissed.
The complainant, a staff union representative, challenged the Agency's decision not to promote him in the course of the 2007 promotion exercise. He claimed that he was among the most senior staff eligible for promotion and that the Administration had failed to provide adequate reasons for its decision. The Tribunal found in his favour.
"[T]he present situation has the appearance of an abuse of discretion. The complainant's situation is extreme (i.e. being promoted much less frequently than the average) yet there has been no valid reason given for the continued nonpromotion. According to Eurocontrol's reasoning, without a breach of procedure or obvious flaw, the Agency does not have to explain its decisions. This is not correct. Precedent has it that "there is no rule or principle of law that requires the Director-General to state in so many words just why he has turned someone down for promotion or appointment. What matters is that, if the official asks, the reasons must be revealed. Otherwise the Tribunal may not exercise its power of review and determine whether the reasons are lawful and the decision sound" (see Judgment 1355, under 8)."
ILOAT Judgment(s): 1355
duty to substantiate decision; duty to inform; staff member's interest; promotion; staff union activity; staff representative; judicial review; discretion; misuse of authority
"[I]t is not enough that the decision may be reasonable and in good faith; it must also appear to be reasonable and in good faith. [...] [A]ll decisions regarding the promotion or non-promotion of staff union representatives must be, and must appear to be, made impartially so as to avoid any hint of preference or prejudice."
equal treatment; good faith; respect for dignity; promotion; staff union activity; staff representative; judicial review; discretion; misuse of authority; bias