Judgment No. 4550
Decision
1. The decision of the President of the Office of 18 May 2020 is set aside insofar as it concerned the complainant’s appeal.
2. Articles 7 and 13 of the Administrative Council’s decision CA/D 2/14 modifying Article 36 of the Service Regulations and Article 5 of the Implementing Rules for Articles 106 to 113 of the Service Regulations respectively are set aside to the extent indicated in consideration 15 of the judgment.
3. The EPO shall pay the complainant 100 euros as moral damages.
4. The Organisation shall pay the complainant 500 euros in costs.
5. All other claims are dismissed.
Summary
The complainant contests the “social democracy” reform introduced by decision CA/D 2/14 and implemented in particular by Circular No. 356.
Judgment keywords
Keywords
complaint allowed; internal appeals body; freedom of association; plenary judgment
Consideration 4
Extract:
Although it is well established in the Tribunal’s case law that a staff member cannot challenge a decision of general application unless and until an individual decision adversely affecting her or him has been adopted (see, for example, Judgments 1852, consideration 3, 2822, consideration 6, or 4430, consideration 14), an exception is made where the decision of general application does not require any implementing decision and immediately affects individual rights (see, for example, Judgments 3761, consideration 14, 4430, considerations 14 and 15, or 4482, consideration 4).
Reference(s)
ILOAT Judgment(s): 1852, 2822, 3761, 4430, 4482
Keywords
general decision; receivability of the complaint
Consideration 4
Extract:
[A]s the Tribunal has already stated on several occasions, staff members of an international organisation enjoy the right to association freely and there is an implicit clause in their contract of employment compelling the organisation to respect that right (see, in particular, Judgments 496, consideration 6, 3414, consideration 4, and 4482, consideration 5).
Reference(s)
ILOAT Judgment(s): 496, 3414, 4482
Keywords
terms of appointment; contract; freedom of association
Consideration 4
Extract:
[T]he complainant also has a cause of action to challenge decision CA/D 2/14 in his capacity as a member of the Appeals Committee appointed by the Staff Committee insofar as, irrespective of the more general impact of the reform in question on the functioning of the Appeals Committee, that decision affected the system under which he was a member of that body and ended prematurely his mandate as a full member of it.
Keywords
cause of action; internal appeals body
Consideration 5
Extract:
In support of his claims against decision CA/D 2/14, the complainant argues subsidiarily that this decision was adopted unlawfully because the composition of the General Advisory Committee, which was consulted prior to the deliberation of the Administrative Council, was flawed. However, pleas of this nature cannot be usefully raised in the present proceedings. Indeed, the complainant cannot approbate and reprobate. The invocation of the right to freely associate upon which he wished to engage the Tribunal’s jurisdiction renders irrelevant the question whether the decision was also legally flawed for the other reasons raised by the complainant in this case and therefore shall not be examined by the Tribunal (see above-mentioned Judgment 4482, consideration 6, and Judgment 4483, consideration 6).
Reference(s)
ILOAT Judgment(s): 4482, 4483
Keywords
general decision; consultation; freedom of association
Consideration 7
Extract:
The Tribunal considers that the Staff Committee, which is the body elected by the staff to represent them before the Office’s bodies, must be free to choose the persons whom it appoints as members of the Appeals Committee, which is an essential joint body. This freedom of choice is one of the components of the staff members’ right to freely associate.
Keywords
freedom of association
Consideration 8
Extract:
[I]t is important to stress first of all that, although the Appeals Committee’s members appointed by the staff representation obviously are not, contrary to the Staff Committee’s members, defending the employees’ interests as a matter of principle, since it is their responsibility – as it is the responsibility of the members of the Appeals Committee appointed by the President of the Office – to examine the appeals before them in compliance with the requirements of independence and impartiality, the very purpose of the joint composition of this body is nevertheless to allow the expression of the respective points of view and sensitivities of the members appointed by the President and by the Staff Committee. The balance between the representation of the Administration and that of the staff within the Appeals Committee is therefore a fundamental guarantee for employees.
Moreover, the Tribunal’s case law requires, to ensure that this guarantee is effective, that this balance be respected not only in terms of the number of members sitting on the Appeals Committee, but also in terms of the quality of the staff representation provided within this body.
Keywords
internal appeals body; freedom of association
Consideration 19
Extract:
The complainant requests that all staff members who have lodged an internal appeal which has been considered by the Appeals Committee since 1 July 2014, be given the opportunity to have it reconsidered with a view that a new final decision be taken. He seeks compensation in the amount of 100 euros for each case dealt with by the Appeals Committee between 1 July 2014 and the date of delivery of the present judgment. However, since the complainant does not provide evidence that he is acting on delegation of authority from the employees concerned, he has no standing to make such claims on their behalf, and cannot claim compensation for their own prejudices. His claims in that respect must therefore be rejected as they concern third parties.
Keywords
locus standi; power of attorney
Consideration 20
Extract:
[A]ccording to the Tribunal’s well-established case law, employees are not entitled, when they file a complaint against an organisation in their capacity as staff representatives, to receive damages in their personal capacity (see, for example, Judgments 3258, consideration 5, 3522, consideration 6, 3671, consideration 5, or 4230, consideration 15).
Reference(s)
ILOAT Judgment(s): 3258, 3522, 3671, 4230
Keywords
staff representative; moral damages
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