Judgment No. 3006
1. The decisions of 16 December 2008 and 30 March 2010 are set aside.
2. The matter is remitted to the President of the Office to determine the complainant's internal appeal by ascertaining whether the complainant would have been recommended for promotion earlier than 1 April 2007 if his 2004-2005 staff report had been in its present form.
3. The EPO shall pay the complainant costs in the amount of 1,000 euros.
4. The complaint is otherwise dismissed.
Assessment of merit is an exercise that involves a value judgement. It is usual to refer to decisions or recommendations involving a value judgement as 'discretionary', signifying that persons may quite reasonably hold different views on the matter in issue and, if the issue involves a comparison with other persons, they may also hold different views on their comparative rating. The nature of a value judgement means that point-to-point comparisons are not necessarily decisive. Moreover, because of the nature of a value judgement, the grounds on which a decision involving a judgement of that kind may be reviewed are limited to those applicable to discretionary decisions. Thus, the Tribunal will only interfere if 'the decision was taken without authority; if it was based on an error of law or fact, a material fact was overlooked, or a plainly wrong conclusion was drawn from the facts; if it was taken in breach of a rule of form or procedure; or if there was an abuse of authority' (see Judgment 2834, under 7).
ILOAT Judgment(s): 2834
grounds; promotion; work appraisal; performance report; rating; judicial review; discretion; limits; disregard of essential fact; flaw; formal flaw; procedural flaw; mistake of fact; mistaken conclusion; misuse of authority; abuse of power
"The principle of equality requires that all candidates in a given year be assessed by reference to staff reports for the same period. It is clear from Judgment 2221 that the principle also requires that if the 'merits' of a candidate for promotion are subsequently upgraded, the question of promotion must be considered on the basis of what would have happened if the upgraded marking had been considered previously."
ILOAT Judgment(s): 2221
equal treatment; promotion; work appraisal; performance report; rating; candidate