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Judgment No. 3648

Decision

1. The decision of the Director General of WIPO of 24 October 2013 is set aside, as are the decisions taken at the end of the disputed competition to appoint Mrs H. as Director, Regional Bureau for Arab Countries, and to reject the complainant’s application.
2. WIPO shall pay the complainant compensation for moral injury in the amount of 3,000 euros.
3. It shall also pay her the sum of 2,000 euros in costs.
4. All other claims, including WIPO’s counterclaim, are dismissed.
5. WIPO shall shield Mrs H. from any injury that may result from the cancellation of her appointment.

Summary

The complainant challenges the validity of a competition process in which she participated and the lawfulness of the ensuing appointment.

Judgment keywords

Keywords

competition

Consideration 2

Extract:

[T]he complainant’s objection to the receivability of WIPO’s surrejoinder is unfounded. It should be noted that the date of filing of complaints and briefs with the Tribunal is, in principle, the date on which they are sent and not the date on which they are received by the Registry (see, in particular, Judgment 3566, under 3). In this case, the file contains a delivery receipt showing that the surrejoinder was deposited at the International Labour Office, where the Tribunal is based, on 9 February 2015. As the defendant organisation thus sent its surrejoinder on the date at the latest, that is, within the prescribed time limit, which ended that evening, the complainant is wrong to claim that it was filed late.

Reference(s)

Jugement(s) TAOIT: 3566

Keywords

time bar; reply

Consideration 3

Extract:

WIPO asserts that the complaint is now moot. In support of this contention, it points out that Mrs H. was transferred to another post [...] and that a new selection procedure [...] resulted in the appointment of another staff member [...]. However, the fact that Mrs H. has now been replaced in the post to which she was appointed at the end of the disputed competition does not by any means render moot the complaint against the decision to appoint her to that post, since that decision was nevertheless implemented and produced legal effects (see, for example, Judgments 1680, under 3, 3206, under 12, 3449, under 4, in fine, and 3546, under 3).

Reference(s)

Jugement(s) TAOIT: 1680, 3206, 3449, 3546

Keywords

claim moot

Consideration 5

Extract:

[T]he submissions show that WIPO did not claim that the complainant had no cause of action at any time during the internal appeal proceedings, yet such an objection could equally have been raised at that stage, and WIPO does not mention any circumstance that prevented it from so doing. The Tribunal has on a number of occasions held that in such circumstances an organisation may not raise such an objection for the first time in the proceedings before the Tribunal (see, for example, Judgments 1655, under 9 and 10, 2255, under 12 to 14, and 3160, under 14).

Reference(s)

Jugement(s) TAOIT: 1655, 2255, 3160

Keywords

cause of action; estoppel

Consideration 5

Extract:

WIPO’s argument that the Tribunal itself could have raised the issue of the complainant’s lack of a cause of action is of no avail. Indeed, although it is well-established case law that, because they involve the application of mandatory provisions, issues of receivability can be raised by the Tribunal of its own motion (see, for example, Judgments 2567, under 6, 3139, under 3, and the case law cited therein), the Tribunal may only do so when irreceivability is clearly apparent from the evidence submitted. That is plainly not the case here, especially if one considers only the submissions as they stood before the surrejoinder was filed, which is how the issue must be approached here.

Reference(s)

Jugement(s) TAOIT: 2567, 3139

Keywords

receivability of the complaint; no cause of action; competence of tribunal

Consideration 9

Extract:

As the Tribunal has already stated [...] (see Judgment 564, under 5 and 6), in the event that the applicable regulations change in the course of a competition, the rules governing the membership of the body responsible for selecting candidates that were in force at the time when the competition was advertised continue to apply. This is the case unless there are express provisions to the contrary (see Judgment 2051, under 5 to 8).
In support of her argument, the complainant seeks to rely on the well-established case law under which any administrative decision should in principle be based on the provisions in force at the time it is adopted (see, in particular, Judgments 2459, under 9, and 2985, under 15). She infers from this that the decisions taken at the end of the disputed competition, including with regard to the arrangements for the prior consultation of the selection body, should have complied with the provisions in force at the time when they were taken.
However, the same case law makes plain that it is appropriate to depart from this rule where, for example, applying it would breach the principle of good faith. The replacement of the Appointment and Promotion Board that had been set up initially with another selection body with a different membership would have infringed this principle, as it would have undermined the candidates’ legitimate expectation that the competition would take place in the conditions stipulated at its opening.

Reference(s)

Jugement(s) TAOIT: 564, 2051, 2459, 2985

Keywords

competition

Consideration 12

Extract:

There is no need to order, as the complainant requests, the disclosure of the competition file, which in any case would be pointless in view of the decision taken.

Keywords

disclosure of evidence

Consideration 15

Extract:

Although the complainant’s submissions do not establish material injury, the unlawfulness of the contested decisions did cause her moral injury, for which compensation should be granted in the amount of 3,000 euros.

Keywords

moral injury

Consideration 17

Extract:

WIPO has made a counterclaim for the complainant to be ordered to pay it a token sum of one Swiss franc as compensation for moral injury caused by the complainant’s pleadings. However, the Tribunal considers that, although their unnecessarily argumentative tone is regrettable, the complainant’s pleadings do not exceed the boundaries of the freedom of expression that the parties must be accorded during legal proceedings. This counterclaim must hence be dismissed.

Keywords

counterclaim

Consideration 5

Extract:

[I]t is worth recalling that an organisation may not raise a new objection to receivability in its surrejoinder, that is to say at a stage of the proceedings when the other party is, in principle, no longer able to respond, where the objection could have been raised in its reply, as is the case for an objection based on the absence of a cause of action (see, in particular, Judgments 1082, under 16, 1419, under 20, and 3422, under 14, in fine). The fact that in this case the complainant was allowed by the Tribunal to file additional submissions enabling her to respond to the new argument raised by WIPO in its surrejoinder does not alter the fact that this manner of proceeding is not acceptable.

Reference(s)

Jugement(s) TAOIT: 1082, 1419, 3422

Keywords

surrejoinder



 
Dernière mise à jour: 15.08.2017 ^ haut