Judgment No. 3695
1. The impugned decision of 11 October 2012 is set aside.
2. The matter is remitted to the President of the European Patent Office to make a decision in relation to internal appeal RI/35/10 in accordance with considerations 9 to 11.
3. The EPO shall pay the complainant 2,000 euros in costs.
The complainant impugns the EPO’s rejection of his two internal appeals against the Ombudsman’s failure to follow the formal procedure in respect of his harassment complaint and against the President’s decision to reject that harassment complaint.
It is open to the Tribunal to treat the express decision as replacing the implied decision (see for example Judgment 3184, consideration 3), on the basis that the belated express decision is the decision the Tribunal should consider (see Judgment 3161, considerations 1 and 2). However, if the express decision is only provided by the defendant organization in its surrejoinder (as happened in this case) then the Tribunal needs to ensure that the complainant has an opportunity to comment on that decision in appropriate cases to ensure that the complainant is afforded procedural fairness.
Jugement(s) TAOIT: 3161, 3184
express decision; surrejoinder; final decision
An executive head of an organisation has a duty to substantiate a final decision departing from the recommendations of an appeal committee (see, for example, Judgments 2339, consideration 5, 2699, consideration 24, and 3208, consideration 11).
Jugement(s) TAOIT: 2339, 2699, 3208
final decision; motivation