Judgment No. 4375
1. The impugned decision of 15 January 2019 is set aside, as is the decision to appoint Mr E. to the position of Head of the Systems Engineering Department.
2. ESO shall pay the complainant moral damages in the amount of 10,000 euros.
3. It shall also pay him costs in the amount of 8,000 euros.
4. All other claims are dismissed.
The complainant challenges the validity of a selection procedure in which he participated and the lawfulness of the ensuing appointment.
complaint allowed; selection procedure
The Tribunal finds that, while it would be ideal to have a properly appointed JAAB prior to the lodging of any appeal, it recognizes that this is not always possible and there is no general requirement for that. The formation of an administrative internal body with quasi-judicial functions after receiving an appeal does not affect the body’s impartiality or appearance of impartiality. The principle of impartiality is secured by the balance of the JAAB’s members appointed by both the Director General and the Staff Association and their joint selection of additional members. The complainant was given the opportunity to contest the appointment of any of the members, and in fact did so, thus his right to a properly composed JAAB was preserved.
internal appeals body
Once that procedure had begun, ESO had an obligation to follow it properly in accordance with the rules and regulations that it had itself established and, if they do not exhaustively prescribe a procedure, in accordance with the Tribunal’s case law (see, for example, Judgments 4153, consideration 5, 4001, consideration 15, and 1646, consideration 6), which eschews amendments to the competition rules not being properly publicized (see Judgment 1549, consideration 13). In the present case, the organisation does not challenge the complainant’s assertion that the extension of the closing date for applications was not published in the same manner as the original vacancy notice, that is, on the Intranet. Therefore, the extension was unlawful and the acceptance of an application beyond the original closing date was also unlawful.
ILOAT Judgment(s): 1549, 1646, 4001, 4153
patere legem; selection procedure
The disputed appointment of Mr E. to the position of Head of the Systems Engineering Department, which was taken at the end of an unlawful selection procedure, will also be set aside, but ESO must shield Mr E. from any injury that may result from the cancellation of an appointment that he accepted in good faith (see Judgments 4153, consideration 2, and 3130, consideration 10). In this respect, ESO argues that the cancellation of that appointment would be inadvisable, referring to Article VIII of the Statute of the Tribunal. According to ESO, this is so particularly in view of the potential disruption to the functioning of the Systems Engineering Department. The Tribunal observes that ESO is not prevented from assigning to Mr E. on an interim basis the duties of Head of that Department during the limited time which is necessary for that position to be filled by a lawful procedure.
ILOAT Judgment(s): 3130, 4153