Judgment No. 3714
The complaint is summarily dismissed.
The complainant impugns the implied decision of the President of the European Patent Office not to accept the findings of the Medical Committee concerning his invalidity.
direct appeal to tribunal; internal remedies exhausted; summary procedure; complaint dismissed
Where a complaint impugning an implied decision does not fulfil the requirements of Article VII, paragraph 3, of the Statute at the time when it is filed, such a deficiency cannot be remedied by simply referring to an express decision taken subsequently to the filing of the complaint. It is only where the initial complaint was receivable under Article VII, paragraph 3, that it can later be viewed as being directed against an express decision taken in the course of the proceedings and on which the parties have been able to comment in their submissions.
The Tribunal has established through its case law that exceptions to the requirement of Article VII, paragraph 1, of the Statute that internal remedies be exhausted will be made only in very limited circumstances, namely where staff regulations provide that the decision in question is not such as to be subject to the internal appeal procedure; where for specific reasons connected with the personal status of the complainant she or he does not have access to the internal appeal body; where there is an inordinate and inexcusable delay in the internal appeal procedure; or, lastly, where the parties have mutually agreed to forgo this requirement that internal means of redress must have been exhausted (see, in particular, Judgments 2912, consideration 6, 3397, consideration 1, and 3505, consideration 1). Moreover, the complainant bears the burden of proving that the above conditions are satisfied, and in this respect it is not enough to simply indicate in the complaint form that she or he impugns an implied rejection.
Furthermore, an argument based on an inordinate and inexcusable delay may be accepted provided that “a complainant shows that the requirement to exhaust the internal remedies has had the effect of paralysing the exercise of her or his rights. It is only then that she or he is permitted to come directly to the Tribunal where the competent bodies are not able to determine an internal appeal within a reasonable time, depending on the circumstances. A complainant can make use of this possibility only where he has done his utmost, to no avail, to accelerate the internal procedure and where the circumstances show that the appeal body was not able to reach a decision within a reasonable time (see, for example, Judgments 1486, under 11, 1674, under 6(b), and 2039, under 4 and 6(b), and the cases cited therein).” (See Judgment 3558, consideration 9.)
ILOAT reference: Article VII, paragraphs 1 and 3, of the Statute
ILOAT Judgment(s): 1486, 1674, 2039, 2912, 3397, 3505, 3558
direct appeal to tribunal; internal remedies exhausted
Article VII, paragraph 3, of the Statute relevantly provides that “[w]here the Administration fails to take a decision upon any claim of an official within sixty days from the notification of the claim to it, the person concerned may have recourse to the Tribunal and his complaint shall be receivable in the same manner as a complaint against a final decision”.
The “decision upon [a] claim” to which that provision refers does not necessarily mean the final decision on the claim. Indeed, as the Tribunal has often recalled, where the Administration takes any action to deal with a claim, by forwarding it to the competent advisory appeal body for example, this step in itself constitutes “a decision upon [the] claim” within the meaning of Article VII, paragraph 3, which forestalls an implied rejection that could be referred to the Tribunal (see, for example, Judgments 3552, consideration 2, 3456, consideration 4, 3428, consideration 18, and 3356, consideration 15).
ILOAT Judgment(s): 3356, 3428, 3456, 3552
direct appeal to tribunal; iloat statute