Judgment No. 3693
1. The impugned decision of 3 December 2012 is set aside to the extent that it upheld the decision not to grant the expatriation allowance to the complainant retroactively from 1 June 2001, and is also set aside because it upheld the decision of 7 September 2010 to reverse the grant of the expatriation allowance to the complainant.
2. The EPO shall pay the complainant the expatriation allowance to which he is entitled with effect from 1 June 2001.
3. The EPO shall pay the complainant within 30 days of the date of the public delivery of this Judgment all arrears of the expatriation allowance to which he is entitled under paragraph 2 of this decision, together with interest at the rate of 5 per cent per annum until the date of payment.
4. The EPO shall also pay to the complainant costs in the amount of 6,000 euros.
5. All other claims are dismissed.
The complainant impugns the EPOís implied rejection of his internal appeals against the decision not to grant him the expatriation allowance retroactively and the decision to cease paying him the allowance.
complaint allowed; internal appeal; decision quashed; allowance
In his complaint, the complainant did not request an oral hearing. This, he said, was because the issues in the case are so straightforward and he considers that the Tribunal has quite enough information to determine them. However, he reserved the right to reconsider this after he read the EPOís reply. In his rejoinder, he requests an oral hearing at which his legal counsel may address the Tribunal on the issues raised in the complaint and at which he (the complainant) would be available to answer any questions which the Tribunal has. It is determined that an oral hearing is unnecessary given the partiesí detailed and ample pleadings and written submissions, the information and many documents which they have provided and the fact that the IACís fact finding was thoroughly conducted. Moreover, the parties subsequently made ample submissions and presented further information and documents addressing the IACís opinion and the impugned decision.
[W]here a decision stemmed from a clerical error, i.e. a purely factual error, and not from a genuine intention of its author, the Tribunal considers that that decision did not create rights for the person concerned. Where the decision is not consistent with its authorís intention, it is important that the impact of the decision should be limited as much as possible, even though its existence cannot be denied. A decision which is based on such a purely factual error could not create any rights. Accordingly, the competent authority is entitled to reverse it at any time as not doing so would possibly conflict not only with the interests of the organisation concerned but also with the principle of equal treatment of officials, insofar as it could, in some extreme cases, result in preposterous individual decisions reached by pure oversight becoming final.
However, notwithstanding that a decision which is based on a purely factual error did not create any rights, it could be reversed only on certain conditions dictated by the principle of good faith. This principle requires, first, that the power to reverse a decision resting on a factual error must be exercised as soon as the competent authority notices the error in question and not at a later date chosen at its own convenience. Secondly, this principle requires that if the person who benefitted from the error has not contributed to it, she or he must not suffer any unfavourable consequences from the application of the decision in question during the period before it was reversed.
The Tribunal considers that inasmuch as a review of a decision that was favourable to the complainant was being conducted, ordinary principles of procedural fairness required that he should have been notified of it and given an opportunity to explain why it should not have been reversed.
review of administrative decision