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Judgment No. 4368

Decision

1. The IOC shall pay the complainant compensation for moral injury in the amount of 4,000 euros.
2. It shall also pay her costs in the amount of 1,000 euros.
3. All other claims are dismissed.

Summary

The complainant challenges the cancellation of a competition procedure in which she participated.

Judgment keywords

Keywords

complaint allowed; competition

Consideration 2

Extract:

The complainant has requested that oral proceedings be held, including, in particular, the hearing of a witness. However, in view of the abundance and high degree of clarity of the submissions and evidence produced by the parties, the Tribunal considers that it is fully informed about the case and does not therefore deem it necessary to grant this request.

Keywords

oral proceedings

Consideration 2

Extract:

The complainant has [...] asked that the IOC be ordered to produce various documents. However, the IOC has submitted, as annexes to the reply, the various documents of which disclosure was requested in the complaint. While the complainant has requested, in her rejoinder, the production of several additional documents, the Tribunal considers that the disclosure of these documents – whose very existence is highly doubtful – is not actually necessary to resolve the dispute. It will not therefore order further disclosure.

Keywords

disclosure of evidence

Consideration 3

Extract:

[I]t should be borne in mind that, as the Tribunal has consistently held, a complainant may not, in her or his rejoinder, enter new claims not contained in her or his complaint (see, for example, Judgments 960, consideration 8, 1768, consideration 5, or 2996, consideration 6). In the present case, the complainant has, in her rejoinder, presented a claim for compensation for “financial loss”, which did not appear in the same form in her complaint. While the IOC misunderstands the implications of this rule, laid down in case law, when it argues in its surrejoinder that the irreceivability in question extends to any submission or allegation made for the first time in the rejoinder, this new claim will be dismissed at the outset for this reason.

Reference(s)

ILOAT Judgment(s): 960, 1768, 2996

Keywords

new claim; rejoinder

Consideration 4

Extract:

[T]he executive head of an international organisation may cancel a competition in the interests of the service with a view, in particular, to holding a new competition on different terms if need be (see, for example, Judgments 791, consideration 4, 1223, consideration 31, 1771, consideration 4(e), 1982, consideration 5(a), 2075, consideration 3, 3647, consideration 9, 3920, consideration 18, 4216, consideration 3, or 4283, consideration 2).
However, such a decision can never be arbitrary. The Tribunal must therefore ascertain whether the condition relating to the interests of the organisation required under the case law in question is actually met and whether the cancellation of the initial process is based on a legitimate reason (see, in particular, Judgments 3647, consideration 9, and 3920, consideration 18, cited above).

Reference(s)

ILOAT Judgment(s): 791, 1223, 1771, 1982, 2075, 3647, 3920, 4216, 4383

Keywords

competition; discretion

Considerations 10-11

Extract:

The Tribunal underlines [...] that the situation [...] resulting from the fact that different qualification requirements were specified in the provisions applicable to the competition, was not only liable to introduce a regrettable ambiguity into the determination of selection procedures for candidates – as the IOC appeared to consider – but was quite simply unlawful. Indeed, the Executive Director could not lawfully decide, while allowing the qualification requirements in the job description to remain in force, to specify different requirements in the competition notice, since the statement in the memorandum of 1 December 2016 to the effect that the provisions set out in that notice would not be applied insofar as they were contrary to those specified in the job description was not capable of remedying their unlawfulness.
Since the contested competition had been opened unlawfully, the requirement that administrative decisions be taken lawfully dictated that it be cancelled, as it would otherwise have led to an appointment to the post in question which would itself inevitably have been unlawful.
This implies not only that the decision [...] was taken in the interest of the service and hence based on a legitimate reason, so that, pursuant to the [Tribunal's] case law [...], the Executive Director was entitled to adopt it, but also that, in this case, he was in fact bound to do so.

Keywords

competition; administrative decision; lawfulness of a measure

Consideration 15

Extract:

The main purpose of the statement of reasons for an administrative decision is precisely to enable the staff member concerned to know the reasons for that decision so that she or he can decide whether to exercise her or his right of appeal (see, for example, Judgments 1817, consideration 6, 3117, consideration 9, 3617, consideration 5, or 3914, consideration 15). Thus, while it is true that the Tribunal’s case law accepts that the reasons for a decision need not necessarily appear in the decision itself and can be contained in other documents, this is plainly on the condition that those documents are also communicated to the official concerned (see, for example, Judgments 2112, consideration 5, 2927, consideration 7, or 4081, consideration 5).
Since the IOC did not comply with this requirement, the complainant’s right of appeal was breached, and the fact that the complainant was provided with the [...] note in these proceedings could not, in the Tribunal’s view, suffice to rectify the effects of that breach in this case.

Reference(s)

ILOAT Judgment(s): 1817, 2112, 2927, 3117, 3617, 3914, 4081

Keywords

motivation; administrative decision

Consideration 18

Extract:

[T]here are no grounds for awarding [...] 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, Judgments 4156, consideration 9, or 4217, consideration 12). Such circumstances are not evident in this case.

Reference(s)

ILOAT Judgment(s): 4156, 4217

Keywords

costs for internal appeal procedure

Consideration 16

Extract:

[T]he complainant [...] rightly contends that her appeal to the Joint Committee was not considered, at least in appearance, in compliance with the essential requirements as to impartiality.
First, the written evidence shows that a member of that Committee – who, according to the complainant’s undisputed assertion, was the spouse of the only other candidate participating in the contested competition, and whose disqualification the complainant had requested for that very reason – took part in hearing the case in question. The Tribunal considers that this member faced, in the circumstances of the case, a conflict of interest that required him to withdraw. The practical difficulties put forward by the organisation to justify the fact that he did not do so cannot be accepted, particularly as the member in question had an alternate.
Second, the Joint Committee had, as already stated, asked the head of the Legal Department to provide it with an opinion in connection with its examination of the complainant’s appeal. However, as a member of the Committee pointed out in a dissenting opinion, that request breached the principle of impartiality since, in particular, that official was herself involved in managing competitions and, above all, she had at the same time been appointed to represent the Executive Director before the Joint Committee in that case.

Keywords

internal appeals body; challenge of member; impartiality



 
Last updated: 01.04.2021 ^ top