Judgment No. 4208
1. The IAEA shall pay to the complainant compensation in the amount of 15,000 euros.
2. The IAEA shall pay the complainant costs in the amount of 1,000 euros.
3. All other claims are dismissed.
The complainant challenges the decision not to select him for a vacant post.
complaint allowed; selection procedure
Regarding the basic principles which guide the Tribunal where a non-selection decision is challenged, the following was stated, for example, in Judgment 3652, consideration 7:
“The Tribunal’s case law has it that a staff appointment by an international organisation is a decision that lies within the discretion of its executive head. Such a decision is subject to only limited review and 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 (see Judgment 3537, under 10). Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have her or his application considered in good faith and in keeping with the basic rules of fair and open competition. That is a right which every applicant must enjoy, whatever her or his hope of success may be (see, inter alia, Judgment 2163, under 1, and the case law cited therein, and Judgment 3209, under 11). It was also stated that an organisation must abide by the rules on selection and, when the process proves to be flawed, the Tribunal can quash any resulting appointment, albeit on the understanding that the organisation must ensure that the successful candidate is shielded from any injury which may result from the cancellation of her or his appointment, which she or he accepted in good faith (see, for example, Judgment 3130, under 10 and 11).”
To successfully challenge a non-selection decision, a complainant is required to demonstrate that there was a serious defect in the selection process. The following was accordingly stated in Judgment 3669, consideration 4:
“[...] as the Tribunal observed in Judgment 1827, consideration 6: ‘The selection of candidates for promotion is necessarily based on merit and requires a high degree of judgment on the part of those involved in the selection process. Those who would have the Tribunal interfere must demonstrate a serious defect in it; it is not enough simply to assert that one is better qualified than the selected candidate.’”
However, when an organization conducts a competition to fill a post the process must accord with the relevant rules and the case law. The following was accordingly relevantly stated in Judgment 1549, considerations 11 and 13:
“11. When an organisation wants to fill a post by competition it must comply with the material rules and the general precepts of the case law.
13. The purpose of competition is to let everyone who wants a post compete for it equally. So precedent demands scrupulous compliance with the rules announced beforehand: patere legem quam ipse fecisti. [...]”
ILOAT Judgment(s): 1549, 1827, 2163, 3130, 3209, 3537, 3652, 3669