Judgment No. 3619
1. The competition for the contested position (advertised through vacancy notice INT/EXT/5131) is cancelled from the point at which the Selection Board prepared a list for the appointing authority and the decision to appoint the successful candidate to that position is quashed.
2. The EPO shall ensure that the successful candidate is shielded from any injury that might result from the quashing of that decision.
3. The complainant shall be awarded moral damages in the sum of 10,000 euros.
4. She shall also be awarded 1,200 euros in costs.
5. All other claims are dismissed.
The complainant contests the rejection of her internal appeal against the decisions not to convert her fixed-term contract into a permanent contract and not to select her for a vacant permanent post.
complaint allowed; decision quashed; competition; fixed-term; permanent appointment; conversion of contract
The complainant’s arguments on these issues involved no more than a very brief tabulation of the conclusions of the IAC which was said to be “incorporated by reference” into the complainant’s legal brief and a “[maintenance] of [the] argumentation as presented during the internal appeal procedure”. This is an entirely unacceptable way of presenting an argument to the Tribunal and creates the real risk that the Tribunal will not appreciate the arguments advanced (see, for example, Judgments 3434, under 5, 2264, under 3(a) [Recte: (e)], and 3538, under 5). The Tribunal will thus focus on the conclusions of the IAC favourable to the complainant.
ILOAT Judgment(s): 2264, 3434, 3538
omission to rule on a plea; receivability of the complaint; judicial review
The Tribunal favours the approach of the minority, though it accepts that there is room for legitimate debate about what the comment meant and how it might have been understood by the complainant. But there is a fundamental difficulty with the complainant’s case based on the written 2010 promise. It is not every statement made by or on behalf of an organisation that is capable of being characterised as a promise that gives rise to a legal obligation on the part of the organisation to honour the promise. Were that the applicable principle, it would almost certainly introduce an unacceptably high level of caution and constraint into the dialogue between senior officers of an organisation and staff members they manage. Open and frank discussion within an organisation is often a desirable part of good management and it can contribute to a positive culture of inclusiveness.
It is necessary to refer to the various elements of a promise that give rise to a legal liability to honour the promise. They were correctly identified by the IAC in its report though there was a singular failure on the part of the majority to address the third element. The first element is that there must be a promise to act or not act or to allow. The second element is that the promise must come from someone who is competent or deemed competent to make it. The third element is that the breach of the promise would cause injury to the person who relies on it. The fourth is that the position in law should not have altered between the date of the promise and the date on which fulfilment is due. The third element has two sub-elements. One is that the promisee has relied on the promise and the second is that this reliance has caused injury to the promisee in the event of non-fulfilment of the promise.
There are numerous decisions of the Tribunal applying these principles (see, for example, Judgments 3204, under 9, 3148, under 7, 3005, under 12, 2158, under 5, 2112, under 7, and 1278, under 12). However they have, as their foundation, the decision of the Tribunal in Judgment 782. It is instructive to review the facts of that case and how the principle containing the four elements, propounded by the Tribunal in that judgment, were satisfied so as to result in a legal obligation on the part of the defendant organisation to honour the promise or, as it turned out, to pay damages for its failure to do so.
ILOAT Judgment(s): 782, 1278, 2112, 2158, 3005, 3148, 3204
good faith; promise