Judgment No. 4276
1. The decisions of 16 June 2017 and 25 May 2018 are set aside.
2. The case is remitted to CERN for a new decision as specified in consideration 11 above.
3. The Organization shall pay the complainant costs in the amount of 5,000 euros.
4. All other claims are dismissed.
5. The applications to intervene are dismissed.
The complainant challenges his performance appraisal under the new merit recognition system established following the 2015 five-yearly review.
complaint allowed; case sent back to organisation; performance evaluation
The Tribunal’s case law has it that a general decision which requires individual implementation cannot be challenged directly; it is only the individual implementing decisions which may be challenged (see Judgments 3628, under 4, 3736, under 3, 4008, under 3, and 4119, under 4, and the case law cited therein). The lawfulness of the general decision may only be challenged as part of the challenge to the individual decision.
ILOAT Judgment(s): 3628, 3736, 4008, 4119
general decision; cause of action; impugned decision
The Tribunal has consistently held that international organisations have wide discretion in taking decisions concerning staff performance appraisal. Such decisions are therefore subject to only limited review by the Tribunal, which will interfere only if a 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 1583, under 2, 3039, under 7, 4010, under 5, 4062, under 6, and 4170, under 9).
ILOAT Judgment(s): 1583, 3039, 4010, 4062, 4170
[T]he Organization merely repeats that the Head of Department’s decision not to endorse the Group Leader’s proposal that the complainant’s performance be qualified as “strong” resulted from a comparison with other principal staff members. However, the Organization’s submissions do not contain any information that would allow the Tribunal to understand what factors were taken into consideration in that comparison and how it was performed in this particular case. In the absence of such information, the Tribunal finds that insufficient reasons were given for the decision.
The interveners submit that the general decision of the Council of CERN was unlawful and that they, as individuals, are in a legal and factual situation similar to that of the complainant since their performance was rated as “fair” or “insufficient”. However, it must be observed that, in this judgment, the Tribunal has not ruled on whether the general decision of the Council of CERN was lawful, and that the complainant’s performance qualification was cancelled on the basis of the specific grievances that he put forward regarding the individual decision in that respect. The interveners – who moreover failed to file internal appeals – have not proved that they are in a similar legal and factual situation to the complainant and that they could invoke the same grievances with regard to their own performance qualifications.