Judgment No. 4216
1. The decisions of the Director General of Eurocontrol of 13 December 2016 and 7 December 2015 are set aside.
2. The Organisation shall pay the complainant compensation of 25,000 euros under all heads.
3. It shall also pay him costs in the amount of 5,000 euros.
4. All other claims are dismissed.
The complainant challenges the lawfulness of the decision to cancel a competition procedure in which he took part.
complaint allowed; decision quashed; competition
The Tribunal has consistently held that the executive head of an international organisation may cancel a competition in the interest of the organisation if, for example, it becomes apparent that the competition will not enable the post concerned to be suitably filled, and the opening of such a procedure does not therefore imply that a candidate will necessarily be appointed to that post (see, for example, Judgments 791, consideration 4, 1771, consideration 4(e), 1982, consideration 5(a), 2075, consideration 3, 3647, consideration 9, and 3920, consideration 18).
According to the same case law, the decision not to fill a post for which a competition procedure is opened – like any decision to appoint an official in the opposite case that an appointment is made – is a matter for the discretion of the organisation’s executive head and is therefore subject to only limited review by the Tribunal (see, in particular, aforementioned Judgments 791, consideration 4, or 1771, consideration 6). The Tribunal must, however, ascertain whether that decision was taken in breach of applicable rules on competence, form or procedure, 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 1689, consideration 3, 2060, consideration 4, 2457, consideration 6, 3537, consideration 10, and 3652, consideration 7).
ILOAT Judgment(s): 791, 1689, 1771, 1982, 2060, 2075, 2457, 3537, 3647, 3652, 3920
competition cancelled; discretion; organisation's interest
Contrary to what the complainant submits, the setting aside of those decisions [to cancel the competition and to reject an appeal against that decision] does not in itself imply that the Director General was obliged to appoint him to the [...] post [in question] following the competition procedure. Under the case law [of the Tribunal], the Director General had a discretion to decide, in the interest of the organisation, not to act on the proposals of the selection board. The complainant’s claims for an order to appoint him retroactively to the post in question [...], with all the legal consequences that this entails, must therefore be dismissed.
appointment; competition cancelled
At this stage in its findings, the Tribunal would normally remit the case to the Organisation for the Director General to take a new decision concerning the disputed competition procedure, this time basing his assessment on a consideration of the exact substance of the findings of the selection board.
However, the response to the Tribunal’s request for further information shows that the complainant retired on 1 January 2019. Since the issue of his possible appointment to the post in question has become moot, it is not advisable to remit the case to Eurocontrol, but the Tribunal will award the complainant compensation for the various injuries caused to him by the contested decisions, as foreseen by Article VIII of the Statute of the Tribunal in cases of this type.
competition; competition cancelled; compensation
The complainant, who [...] was ranked first on the list of suitable candidates drawn up by the selection board for the competition, was deprived, by the flaws in the decisions in question, of a valuable opportunity to be appointed to the advertised post, the loss of which constitutes material injury. That appointment would have entailed his promotion to a higher grade and thus a pay rise from December 2015 or January 2016 until his retirement, a period of around three years.
material injury; competition cancelled; loss of opportunity
[T]here are no grounds for awarding [the complainant] costs for the internal appeal proceedings. Under the Tribunal’s case law, costs of this kind may be awarded only in exceptional circumstances (see, in particular, Judgment 4156, consideration 9). Such circumstances are not evident from the written submissions in this case.
ILOAT Judgment(s): 4156
internal procedure; costs awarded