Judgment No. 4397
1. The 25 January 2019 and 1 December 2014 decisions are set aside.
2. The EPO shall pay the complainant moral damages in the amount of 10,000 euros.
3. It shall also pay the complainant 4,000 euros costs.
4. All other claims are dismissed.
The complainant challenges the decision to transfer her.
complaint allowed; transfer
The complainant requests an oral hearing on the ground that “all of the facts relevant to a just settlement of the case cannot be clarified in a satisfactory manner by means of the written procedure”. The request is rejected as the Tribunal considers that the materials which the parties have provided are sufficient to enable it to render an informed decision on the case.
The Organisation challenges the receivability of the complaint insofar as the “reassignment” was based on the complainant’s wish to remain in Vienna. […]
The complaint is receivable. The fact that the EPO was attempting to satisfy the complainant’s wish to remain in Vienna does not prevent her from contesting the resulting decision by which she was transferred to the specific post […].
receivability of the complaint; cause of action
The complainant asserts that the internal appeal procedure was procedurally flawed as the principle of equality of arms was not respected when the presiding member of the Appeals Committee chamber refused to postpone the hearing as a “purely arbitrary measure”. This assertion is unfounded. […] By letter of 18 May 2018, the Appeals Committee’s Secretariat informed the complainant’s attorney that the hearing was scheduled for 11 June 2018. On 22 May the complainant’s attorney requested to postpone the hearing due to the fact that she would be away on vacation […]. The presiding member of the chamber decided to maintain the hearing as it could not be postponed for other than compelling reasons. […] The finding that a vacation was not considered to be a compelling reason warranting postponement of the hearing, in the present case, cannot be considered unreasonable nor arbitrary.
internal appeals body; internal appeal; equality of arms
The claim that the [transfer] decision […] lacked legal basis is well founded. The Organisation relied on its general power to restructure its services to justify the complainant’s “reassignment” […]. The Organisation notes that the Tribunal’s case law forms part of its legal framework. However, the Tribunal’s consistent case law holds that “any authority is bound by the rules it has itself issued until it amends, suspends or repeals them. The general principle is that rules govern only what is to happen henceforth, and it is binding on any authority since it affords the basis for relations between the parties in law. Furthermore, a rule is enforceable only from the date on which it is brought to the notice of those to whom it applies (see Judgment 963, under 5). A competent body adopts rules in order to regulate its exercise of discretionary power in making specific decisions. It would radically contrast with the finality and essence of a rule (which is by nature general and abstract) to allow that in making a decision the authority can disregard a rule that was adopted in order to limit the authorities’ power concerning particular subjects and instead create an opportunity for expanding one’s power. Obviously, the procedure to adopt rules must be different from the procedure to make decisions, because rules are general and apply to many (undefined) and therefore must be published accordingly, whereas decisions are more precise and apply to few (defined)” (see Judgment 2575, consideration 6).
In stating that “the legal basis for restructuring decisions [is] not to be found exclusively in the [Service Regulations]”, the Appeals Committee misinterpreted the Tribunal’s case law. While it is true that, in taking restructuring decisions, the executive head can also rely on some well-established principles enshrined in the case law (see, for example, Judgments 4086, consideration 11, 3488, consideration 3, and 2839, consideration 11), she or he is bound by the proper application of the relevant provisions in force. In the present case, the Organisation erred in not following the provisions in force at the time the […] decision was taken, when it created a new post without advertising the vacancy. […]
The Organisation’s assertion that the impugned decision was lawful as it was based on its general power to restructure its services, in its generality, is not acceptable. The Organisation’s wide discretion still requires it to be exercised within the limits of the general principles of law and the existing provisions; otherwise, it becomes a way to circumvent the provisions in force, leading to arbitrariness. At the time the [transfer] decision was taken, there was no provision in the Service Regulations which allowed the EPO to reassign an employee, together with her or his post, to duties corresponding to her or his grade, or which allowed the EPO to create and fill a new post without following the provisions regarding transfers and creation of posts. […]
ILOAT Judgment(s): 963, 2575, 2839, 3488
applicable law; patere legem; transfer; reorganisation