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.
complaint allowed; decision quashed; case sent back to organisation; harassment
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
The IAC’s report of 2 August 2011 appears to be the product of a balanced, rational and thoughtful consideration of the evidence and arguments advanced by the parties in the internal appeals. In the final express decision of 11 October 2012 (communicated by the Vice-President of Directorate General 4), the reasoning of the President as regards internal appeal RI/35/10 was that “in view of the fact that the investigation of [the complainant’s] complaint from 2008 [could] not be repeated, taking into account the ongoing efforts to find a balanced and global solution to [his] different requests and grievances, [the President had decided] to reject this appeal as well and refrain from any payments”. 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). The reasons of the President singularly fail to come to grips with the reasoning of the IAC and fail to explain, in any satisfactory and persuasive way, why the recommendations of the IAC, whether the majority or the minority, should be rejected. For this reason alone the impugned decision rejecting the complainant’s appeal in internal appeal RI/35/10 should be set aside. The complainant is entitled to costs.
The complainant does not come to grips with the reasoning of the IAC and the argument of the EPO in these proceedings that the issue raised in his internal appeal RI/145/09 is moot. This appears to be correct and nothing further need be said.
Whether and, if so, to what extent, the Tribunal’s decision in Judgment 3337 has a bearing on any final decision the President might make in relation to internal appeal RI/35/10 is initially a matter for the President presumably acting on legal advice. However, the Tribunal does note that the subject matter of that judgment concerned events and issues which, at most, overlap in a limited way with events and issues raised in internal appeal RI/35/10.
Jugement(s) TAOIT: 2339, 2699, 3208
case sent back to organisation