Judgment No. 4019
1. The impugned decision of 1 October 2014 is set aside.
2. Eurocontrol shall pay the complainant 5,000 euros in material damages due to the lost opportunity for promotion.
3. The Organisation shall pay the complainant moral damages in the amount of 10,000 euros.
4. It shall also pay her 5,000 euros in costs.
5. All other claims are dismissed.
The complainant challenges the decision not to grant her a promotion in the 2013 promotion exercise.
complaint allowed; decision quashed; promotion
The Tribunal has consistently held that staff promotions by an international organisation are decisions which lie within the discretion of its executive head. 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 2834, under 7, 3006, under 7, or 3742, under 3).
ILOAT Judgment(s): 2834, 3006, 3742
promotion; judicial review; discretion
In response to its request that Eurocontrol forward the Promotion Boardís report on the disputed promotion exercise in order that it might examine it in camera, the Tribunal was informed that the Board had not drawn up any such reports since 2010. This practice, which is unusual to say the least, makes it impossible for the Tribunal to ascertain whether the complainantís merits were in fact examined by the Board, as the defendant organisation alleges. However, even if this had been the case, which is extremely doubtful in light of the submissions in the file, the examination would have been distorted by the absence of any support for the promotion proposal from the complainantís supervisors during the consultations preceding the Boardís deliberations, which was due to the above-mentioned administrative error.
This procedural flaw breached the complainantís right to benefit from a fair and informed comparison of her merits with those of other servants who were eligible for the same grade promotion, which renders unlawful the decision taken with regard to her at the end of the promotion exercise.
The setting aside of this decision does not, in itself, imply that the complainant would actually have been promoted if the proper procedure had been followed. Nevertheless, as her immediate supervisor had submitted a very complimentary promotion proposal, which would normally have been supported by her second-level supervisor, the procedural flaw identified above unduly deprived her of a promotion opportunity. This lost opportunity constitutes material injury which, as the complainant rightly submits, entitles her to compensation (see, for example, Judgments 2869, under 10, or 3084, under 21).
ILOAT Judgment(s): 2869, 3084
material injury; promotion; loss of opportunity