Judgment No. 3958
1. The Administrative Councilís decision CA/D 12/14 of 11 December 2014 is set aside and so is the impugned decision of 10 April 2015, insofar as they concern the complainantís suspension, the imposed house ban, the relinquishment of EPO property previously at the complainantís disposal, and the blocking of his User ID.
2. The Administrative Councilís decision to maintain the complainantís suspension pending completion of the disciplinary proceedings against him (decision taken at the Administrative Councilís 143rd meeting and communicated to the complainant by a letter of 26 March 2015) is also set aside.
3. The complainant shall be immediately reinstated in his former post.
4. The EPO shall immediately allow the complainant access to the EPO premises and resources; it shall return to him any EPO property it requested him to hand over pursuant to decision CA/D 12/14, and it shall immediately unblock his User ID.
5. The EPO shall pay the complainant 10,000 euros in compensation for moral injury.
6. It shall also pay him costs in the amount of 5,000 euros.
7. All other claims are dismissed.
The complainant, a member of an EPO Board of Appeal, contests a decision in which the Administrative Council decided to impose upon him several measures in relation to an alleged misconduct.
According to the Tribunalís case law, ď[i]t is a general rule of law that a person called upon to take a decision affecting the rights or duties of other persons subject to his jurisdiction must withdraw in cases in which his impartiality may be open to question on reasonable grounds. It is immaterial that, subjectively, he may consider himself able to take an unprejudiced decision; nor is it enough for the persons affected by the decision to suspect its author of prejudice. Persons taking part in an advisory capacity in the proceedings of decision-making bodies are equally subject to the above-mentioned rule. It applies also to members of bodies required to make recommendations to decision-making bodies. Although they do not themselves make decisions, both these types of bodies may sometimes exert a crucial influence on the decision to be taken.Ē (Judgment 179, under 1; see also Judgments 2225, under 19, 2671, under 10, 2892, under 11, and 3732, under 3.) A conflict of interest occurs in situations where a reasonable person would not exclude partiality, that is, a situation that gives rise to an objective partiality. Even the mere appearance of partiality, based on facts or situations, gives rise to a conflict of interest.
ILOAT Judgment(s): 179, 2225, 2671, 2892, 3732
conflict of interest
In the present case, there is a conflict of interest on the part of the President. It stems from the fact that the alleged serious misconduct, with which the complainant was charged, might reasonably be thought to have offended the President specifically, directly and individually. This situation, by itself, casts doubts on the Presidentís impartiality. Considering the whole situation, a reasonable person would think that the President would not bring a detached, impartial mind to the issues involved. The argument raised by the President in his opinion to the Council (CA/C 6/15) [...], namely that pursuant to the applicable rules the President was acting within his competence and had the power and duty to take all necessary steps to ensure the smooth functioning of the Office, is immaterial. The question of a conflict of interest only arises if the official is competent. Accordingly, the question of competency is not an answer to a charge of a conflict of interest. Hence, the Administrative Council erred in not finding that the President had a conflict of interest in the matter. In this situation, in accordance with the provisions in force, the Administrative Council should have sent the matter back to the next most senior official to exercise authority instead of the President, who was precluded from exercising authority because of his conflict of interest (see Judgement 2892, under 11).
ILOAT Judgment(s): 2892
bias; conflict of interest
[T]he decision regarding the house ban, as well as the suspension decision, even if they are essentially interim measures to safeguard the investigation, have, by themselves, an immediate, material, legal and adverse effect on the person concerned, and are not subsumed under the final decision taken at the conclusion of any disciplinary proceedings. Consequently, they cannot be considered mere steps to the final decision of the proceeding. As such, the request for review of these decisions was receivable [...].
decision; measure of distraint; suspension; step in the procedure
According to the Tribunalís case law, ď[o]rdinarily, the process of decision-making involves a series of steps or findings which lead to a final decision. Those steps or findings do not constitute a decision, much less a final decision. They may be attacked as part of a challenge to the final decision but they themselves, cannot be the subject of a complaint to the Tribunal.Ē (See Judgment 2366, under 16, confirmed in Judgments 3433, under 9, and 3512, under 3.) Accordingly, the complainantís claims related to the investigative procedure and the various acts adopted by the Investigative Unit and by its Chief are merely steps in the proceedings that cannot adversely affect the complainant until a final decision has been taken.
ILOAT Judgment(s): 2366, 3433, 3512
inquiry; final decision; step in the procedure