Judgment No. 4283
The complaint and the applications to intervene are dismissed.
The complainant challenges the decision to cancel a competition in which he was a candidate.
competition cancelled; complaint dismissed
According to the Tribunal’s settled case law, the executive head of an international organisation may cancel a competition in the interests of the service if, among other reasons, 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, under 4, 1771, under 4(e), 1982, under 5(a), 2075, under 3, 3647, under 9, or 3920, under 18, and 4216, under 3).
According to the same case law, the decision not to fill an advertised post – like any decision to appoint an official in the opposite case where an appointment is made – falls within the discretion of the executive head of the organisation and is therefore be subject to only limited review by the Tribunal (see, in particular, aforementioned Judgment 791, under 4, or aforementioned 1771, under 6). However, it is within the Tribunal’s purview to verify whether that decision was taken in accordance with the rules on competence, form and procedure, whether it involved an error of fact or of law, whether it failed to take account of material facts, whether it drew clearly incorrect conclusions from the evidence or whether it constituted misuse of authority (see, for example, Judgments 1689, under 3, 2060, under 4, 2457, under 6, 3537, under 10, or 3652, under 7, and [...] 4216, under 4).
ILOAT Judgment(s): 791, 1689, 1771, 1982, 2060, 2075, 2457, 3537, 3647, 3652, 3920, 4216
competition cancelled; discretion
[T]he complainant submits that that decision, which took the form of an e-mail sent [...] by Mr T., Head of People and Finance Operations, was taken without authority.
The Tribunal notes that, although there can be little doubt that that e-mail, in which Mr T. stated that he was acting “[f]or the Director General and by delegation”, merely notified the complainant of an administrative decision taken beforehand, there is no evidence to show that the decision in question was formalised in any other manner, so it must be found that the competition was cancelled as a result of that e-mail. It must therefore be ascertained whether the author of the e-mail had a delegation of the power of signature authorising him to adopt such a measure.
In this case, however, the objection raised by the complainant on that point is unwarranted. The evidence shows that, pursuant to a decision of the Principal Director of Resources [...], Mr T., in his capacity as Head of People and Finance Operations, was granted sub-delegation of authority to sign, on behalf of the Director General, “all documents that fall under his responsibilities”. Moreover, pursuant to a decision [...] on the internal organisation of the Directorate of Resources, the People and Finance Operations Unit has, among other responsibilities, the task of “ensuring the administrative management of recruitment, mobility and careers”, which, contrary to what the complainant contends in his rejoinder, clearly includes taking decisions concerning a competition such as that at issue here. Since Mr T. thus acted within the scope of his authority and, consequently, within the limits of the sub-delegation of the power of signature which he held, the plea that the author of the decision [...] lacked authority has no factual basis.
delegated authority; power of signature
The complainant [...] submits that insufficient reasons were given for the decision [challenged]. He contends that in stating that the decision to cancel the competition had been taken owing to “business needs”, the author of that decision had used an “empty formula, devoid of meaning, justification and foundation”.
However, although the Tribunal’s case law does not regard generic references of that kind as sufficient to provide the reasons for an administrative decision (see Judgments 1231, under 23, 3617, under 6, or 4259, under 12), an examination of the impugned decision in this case shows that, far from merely referring in an abstract manner to the interests of the service, it contains a detailed statement of the reasons for which it was taken.
ILOAT Judgment(s): 1231, 3617, 4259
motivation; interest of the service
The general principle that an official has the right to be heard before an individual decision that adversely affects her or him is taken plainly cannot be applied to an impersonal decision which is collective in scope, such as the cancellation of a competition.
competition cancelled; administrative decision; right to be heard
The complainant submits that the cancellation of the first competition and the subsequent organisation of the second involved a misuse of authority.
According to him, the initial competition was in fact “cancelled for reasons of partiality, with the sole purpose of appointing officials who were to the Agency’s liking”, and the selection board’s abovementioned observation concerning the candidates’ shortcomings in terms of soft skills was merely a “pretext” used by the Organisation “to prevent the candidates being appointed”.
However, as the Tribunal has repeatedly stated, misuse of authority may not be presumed, and the burden of proof is on the party that pleads it (see, for example, Judgments 2116, under 4(a), 2885, under 12, 3543, under 20, 3939, under 10, or aforementioned 4081, under 19).
It must be noted that the complainant has not produced any evidence to corroborate his allegations. The circumstance, put forward by the complainant, that he was unsuccessful in the second competition even though he had been placed on the list of suitable candidates in the first one and that the same was true of other candidates plainly cannot, in itself, constitute such evidence.
ILOAT Judgment(s): 2116, 2885, 3543, 3939, 4081
competition cancelled; misuse of authority; abuse of power
The applications to intervene must, as a consequence of the outcome of the complaint, also be dismissed, without it being necessary to rule on Eurocontrol’s objection to the receivability of some of them.