Judgment No. 3970
1. The decisions of the President of the Office of 15 December 2014 and 21 October 2014 are set aside.
2. The EPO shall pay the complainant financial compensation for the material injury resulting from the refusal to prolong his service, as indicated in consideration 12 of the judgment.
3. The EPO shall pay the complainant 2,005 euros in material damages for the belated delivery of the decision of 21 October 2014.
4. It shall pay the complainant moral damages in the amount of 5,000 euros.
5. It shall also pay him 176 euros in costs.
6. All other claims are dismissed.
The complainant challenges the decision not to prolong his service beyond the mandatory retirement age.
complaint allowed; decision quashed; age limit; refusal; extension beyond retirement age
The Tribunal has consistently held that a decision to retain an official beyond the normal retirement age is an exceptional measure over which the executive head of an organisation exercises wide discretion. Such a decision is therefore subject to only limited review by the Tribunal, which will interfere only if the decision was taken without authority, if a rule of form or procedure was breached, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 1143, under 3, 2845, under 5, or 3765, under 2, and, specifically in respect of the application of Article 54 of the Service Regulations to members of boards of appeal, Judgments 3214, under 12, and 3285, under 10).
ILOAT Judgment(s): 1143, 2845, 3214, 3285, 3765
age limit; discretion; extension beyond retirement age
Neither of the grounds underlying the decisions of the President of the Office can be accepted as a legitimate justification for the rejection of the complainant’s request for his service to be prolonged. This rejection was therefore tainted by an obvious error of judgement.
The Tribunal notes that this flaw is particularly unacceptable given that the Selection Committee had issued a proposal favourable to the complainant’s request. That proposal was based on sound reasoning and emphasised, in addition to the complainant’s profound competence, the service’s interest in retaining him in view of the particular need of the boards of appeal for expertise in his specific field. Considering that proposal, the President ought to have at least provided adequate justification for his own position.
grounds; retirement; age limit; extension beyond retirement age
Although the complainant’s request for a prolongation of his service was dismissed on the basis of irrelevant grounds, it cannot be said with certainty that the request would not have been rejected by the Administrative Council for another reason – assuming that the President had submitted a proposal in the complainant’s favour – in view of the broad discretion exercised by that collective body in applying Article 54 of the Service Regulations to members of boards of appeal. Nevertheless, the complainant was indisputably deprived of a valuable opportunity to have his appointment prolonged, which was all the more significant in view of the Selection Committee’s proposal in his favour, and the loss of that opportunity warrants redress.
In the light of these various considerations, the Tribunal finds, in the circumstances of the case, that the complainant must be awarded a sum equivalent to two years’ remuneration, calculated on the basis of his final net salary before he left the EPO, less the amount of payments from various retirement pensions which he received in respect of the 24 months following his departure and any professional earnings during that same period.
As this lump sum must be regarded as compensation for all material injury suffered by the complainant as a result of the refusal to prolong his service, there is no reason to grant the complainant’s claims for a recalculation of his net pension benefit from the pension scheme for permanent employees of the Office.
age limit; loss of opportunity; material damages
The complainant also claims compensation for the material injury arising from the fact that he was informed too late of the dismissal of his request for a prolongation of his service to be able to cancel in a timely fashion the lease on his accommodation and the related telephone and Internet subscriptions.
It must be observed in this respect that the procedure for considering requests by members of boards of appeal for a prolongation of service prescribed by Communiqué No. 2/08 of 11 July 2008 does not specify an exact time limit in which the competent authority must decide on a request submitted to it. Moreover, since such a request can be granted only on the condition that a prolongation of service is in the interest of the service, a decision can logically be taken only on a date sufficiently close to that on which the employee concerned will reach normal retirement age for that authority to be in a position to make an informed assessment of the advisability of such a prolongation in the light of that criterion (see [...] Judgment 3214, under 16).
Nevertheless, it is incumbent on the Organisation, in view of its duty of care towards its employees, to ensure that members of boards of appeal who submit requests for their service to be prolonged are informed of the outcome thereof sufficiently far in advance to enable them to make adequate arrangements for their personal lives after they attain normal retirement age.
In this case, the complainant was not informed of the rejection of his request until 21 October 2014, 40 days before he was retired on 30 November.
The evidence makes it plain that this did not allow him to terminate the lease for his accommodation and the abovementioned subscriptions in a timely fashion. [...] The EPO will therefore be ordered to pay the complainant the sum, in the duly substantiated amount of 2,005 euros, which he claims as compensation for the material injury which he suffered under this head.
ILOAT Judgment(s): 3214
delay; age limit; refusal; material damages; extension beyond retirement age
The unlawfulness of the refusal to prolong the complainant’s service and the Organisation’s breach of the duty of care [...] also caused the complainant moral injury, which was exacerbated throughout the proceedings by the often disrespectful manner in which the Office’s authorities treated him.
The Tribunal hence considers it appropriate to award the complainant the sum of 5,000 euros which he claims in compensation for that injury.