Judgment No. 3209
1. The ITU shall produce the file of the selection process in accordance with consideration 14, within fifteen days of the delivery of the judgment.
2. The complainant shall make her observations, if any, within thirty days of receiving the documents produced.
3. The defendant shall be given thirty days to make final comments, if it so wishes.
4. All the rights and pleas of the parties not expressly ruled upon in the Judgment are reserved pending the Tribunal's final ruling on the case.
The complainant accuses the ITU of having failed in its duty to ensure transparency in a selection process.
Considerations 13 and 14
The complainant applied for a post but was not selected. She asks the Tribunal to require disclosure of the file of the selection process.
"[The Organisation] argues that the complainantís request for the communication of the file is a claim made for the first time in her complaint and must therefore be dismissed as irreceivable. However, as the complainant rightly observes, this is not a new claim which would be subject to the rule on the exhaustion of internal remedies. In this instance, it is merely a request made on the basis of Article 11 of the Rules of the Tribunal, for the Tribunal to use its powers of investigation, which it can in fact do on its own motion.
The defendant also stated that if the Tribunal considered that the information supplied in support of its arguments was insufficient, it would transmit the file of the selection process for the exclusive attention of the Tribunal. [...] The Tribunal recalls that, according to the adversarial principle, all documents submitted to it by a party to the proceedings must be communicated to the other party. It will be for the organisation itself, if it considers this necessary in order to protect the interests of third parties, to conceal identities to the required extent in the documents produced."
ILOAT reference: Article 11 of the Rules
new claim; receivability of the complaint; internal remedies exhausted; interlocutory order; disclosure of evidence; adversarial proceedings; competition; application of law ex officio
complaint allowed; disclosure of evidence; selection procedure
According to the Tribunalís case law, an appointment by an international organisation is a decision that lies within the discretion of its executive head. Being subject to only limited review, it may be set aside only if it was taken without authority or in breach of a rule of form or of procedure, or if it was based on a mistake of fact or of law, or if some material fact was overlooked, or if there was abuse of authority, or if a clearly wrong conclusion was drawn from the evidence. Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have his application considered in good faith and in keeping with the basic rules of fair and open competition. That is a right that every applicant must enjoy, whatever his hopes of success may be (see, inter alia, Judgment 2163, under 1, and the case law cited therein).
ILOAT Judgment(s): 2163
appointment; competition; judicial review; discretion; selection procedure