Judgment No. 4583
1. The impugned decision, as well as the termination decision of 30 July 2019, are set aside.
2. EMBL shall pay the complainant material damages in the sum of 150,000 euros.
3. It shall pay him moral damages in the sum of 10,000 euros.
4. It shall also pay him costs of 8,000 euros.
5. EMBL shall remove the termination decision of 30 July 2019 from the complainant’s personnel file.
6. All other claims are dismissed.
The complainant challenges the decision to terminate his appointment for reasons of professional unsuitability and the decision to place him on special paid leave until the end of his period of notice.
complaint allowed; disciplinary procedure
The Tribunal notes that the concept of “professional unsuitability” is not defined in the Staff Rules and Regulations […] It is, therefore, crucial to establish which was the proper procedure to be followed in the instant case. The Tribunal finds that albeit misconduct and professional unsuitability may sometimes overlap, the organisation does not have an unfettered discretionary power to choose the procedure it prefers on a case-by-case basis. Whenever an official’s conduct amounts potentially to misconduct, the proper procedure to be followed is the disciplinary one, since misconduct must be first proven beyond reasonable doubt. Since a specific disciplinary procedure exists, which is adversarial in nature and therefore better safeguards the right of defence of the official involved, it is this procedure that must be followed whenever unsuitability involves serious misconduct which could lead to dismissal.
The complainant asks for an award of material damages equivalent to his salary and emoluments from the date the unlawful termination became effective until his ordinary retirement age (65 years) or even later (until the age of 68 years). The Tribunal observes that the complainant held an open-ended contract. According to Regulation R 2 6.08 “[a]n open-ended contract may be terminated at any time by either party”. According to Regulation R 2 6.10 “[t]he retirement age shall be 65 years. Service shall automatically cease on the last day of the month in which the 65th birthday falls. However, on an exceptional basis, a staff member may by mutual agreement with the Director General and in the interest of the Laboratory, carry on working until the age of 68.” In light of these Regulations, there is no evidence that the complainant’s appointment, had it not been unlawfully terminated, would have been extended until he would have reached the age of 68 years, as such extension is exceptional. Nor is there any certainty that, had the complainant’s appointment not been unlawfully terminated, it would have lasted until the ordinary retirement age of 65 years, as an open-ended contract may be terminated at any time. Nonetheless, the complainant lost a valuable opportunity to have his open-ended contract prolonged until his retirement age of 65 years. Considering that when the unlawful termination became effective (July 2022), the complainant was 62 and had three more years until reaching the ordinary retirement age, the Tribunal determines the material damages (under all heads, including loss of pension rights and interest) in the sum of 150,000 euros.
loss of opportunity; material damages
As relief of moral damages, EMBL will also be ordered to remove the unlawful termination decision […] from the complainant’s personnel file.
personal file; moral damages