Judgment No. 1185
1. THE DECISION OF 9 JULY IS SET ASIDE.
2. THE CASE IS SENT BACK TO THE ORGANIZATION FOR REVIEW OF THE COMPLAINANT'S CLAIMS IN LINE WITH WHAT IS SAID IN 6 ABOVE.
3. CERN SHALL MAKE HIM A PROVISIONAL PAYMENT OF AN AMOUNT EQUIVALENT TO THREE MONTHS' REMUNERATION.
4. IT SHALL PAY HIM 4,000 SWISS FRANCS IN COSTS.
"According to consistent precedent a decision to grant an appointment, even though it is a matter of discretion, may be set aside, and one flaw that will be fatal is that it was taken without authority."
complaint allowed; decision; decision quashed; case law; judicial review; decision-maker; discretion
Considerations 2 and 3
The complainant argues that the impugned decision was ultra vires. The organization says that it was at the Director-General's instructions that the leader of the personnel division notified the decision to the complainant and that as a matter of good faith any decision on personnel management should be deemed to have been taken by the competent authority. The organization argues that the leader of the personnel division enjoyed an implied delegation of authority. "Such a broad statement of principle is unsound. [...] There is no telling [...] who actually made the decision in this case. The text cites no delegation of authority to sign; the only reference to the decision is impersonal and raises no presumption whatever of such delegation."
decision; presumption; decision-maker; delegated authority; executive head