Judgment No. 2996
1. The decision of the Director-General of EMBL of 23 February 2009 rejecting the complainant's application for an invalidity pension is set aside.
2. The case is referred back to EMBL in order that the Director-General take a new decision on this application, after consulting the Invalidity and Rehabilitation Board, whose members must be different from those of the previous Board, and in order that the complainant's entitlement to assistance in obtaining a post be examined.
3. The Laboratory shall pay the complainant costs in the amount of 3,000 euros.
4. All the complainant's other claims are dismissed, as is the Laboratory's counterclaim.
"While procedural rules and time limits usually apply to the officials of international organisations without it being necessary to recapitulate them when a decision is notified, this is not the case where a rule expressly establishes an obligation to provide this information when notifying a decision [...] and where this formality has not been respected. [...] [T]he principle of good faith requires that an official's complaint will not be deemed irreceivable owing to his or her failure to lodge an internal appeal, if the organisation itself has not abided by the requisite formalities enabling the official to submit an appeal."
receivability of the complaint; internal remedies exhausted; good faith; patere legem; written rule; duty to be informed; ignorance of the rules; duty to know the rules
"While generally speaking there is no reason why an advisory body on medical questions should not comprise the same members when it has to give a series of opinions on developments in the condition of the same official, that is not the case where it is required to give a second opinion on the same request of that person, as occurred here. [...] As the Tribunal found in [...] Judgments 179 and 2671, the rule that members of an advisory body must not examine a case on which they have previously expressed a view applies even in the absence of an express text, since its purpose is to protect officials against arbitrary action."
ILOAT Judgment(s): 179, 2671
advisory body; exception; organisation's duties; no provision; medical board; medical opinion; bias; purpose; request by a party; safeguard; official; composition of the internal appeals body
According to firm precedent, the provisions governing internal appeals will not be applied to a complainant if he or she might have been misled as to the conditions for lodging such an appeal and if they thus set a trap which is liable to catch out someone who is acting in good faith (see, for example, Judgments 1376, under 13, or 1720, under 8).
ILOAT Judgment(s): 1376, 1720
internal appeal; time limit
On the merits, attention must be drawn to the fact that, while the Tribunal may not replace the medical findings of a body such as an invalidity board with its own assessment, it does have full competence to say whether there was due process and to examine whether the board’s opinion shows any material mistake or inconsistency, overlooks some essential fact or plainly misreads the evidence (see, for example, Judgments 1284, under 4, or 2361, under 9).
ILOAT Judgment(s): 1284, 2361
medical board; service-incurred; judicial review; discretion