Judgment No. 4635
Decision
The complaint is dismissed.
Summary
The complainant impugns the decision to reject his internal appeal in which he requested that an expert in occupational diseases be consulted.
Judgment keywords
Keywords
medical board; invalidity; complaint dismissed
Consideration 5
Extract:
[T]he Tribunal observes that the decision contested by the complainant was not an act adversely affecting him and therefore could not be challenged. Accordingly, the complaint is irreceivable.
[T]he refusal to grant the complainant’s request for an expert to be consulted had neither the aim nor the effect of ending the procedure he had initiated with a view to obtaining recognition that his invalidity was caused by an occupational disease. The refusal only meant that the request in question would be submitted to the Medical Committee for consideration, instead of being regarded as having to be granted automatically, as the complainant contended. Apart from the fact that it in no way prejudiced the eventual outcome of the request, this decision was merely a step in the process of reaching a final decision on the question of whether the invalidity was to be recognised as service incurred.
However, under the Tribunal’s settled case law, when a decision is thus taken in the procedure leading to a final administrative decision, it must be regarded merely as a preparatory step and is not therefore challengeable in itself, although it may be challenged in the context of an appeal directed against that final decision (see, for example, Judgments 3433, consideration 9, and 2366, consideration 16, or, specifically in respect of decisions taken, as in this case, in proceedings of a medical nature, Judgments 3893, consideration 8, or 3712, consideration 3).
Lastly, while it must be noted that from the start of the dispute the EPO has never argued that the complainant’s claims are irreceivable, that does not prevent such a finding in the present judgment. It is well-established case law that, because they involve the application of mandatory provisions, issues of receivability can be raised by the Tribunal of its own motion (see, in particular, Judgments 3648, consideration 5, 3139, consideration 3, 2567, consideration 6, or 2097, consideration 24) and, while plainly it will not do so unless the submissions make such irreceivability clear, that is the situation here.
Reference(s)
ILOAT Judgment(s): 2097, 2366, 2567, 3139, 3433, 3648, 3712, 3893
Keywords
provisional decision; receivability of the complaint; competence of tribunal; expert inquiry; medical board; step in the procedure
Consideration 6
Extract:
Since [...] the complaint was already moot when it was filed with the Tribunal on 6 April 2019 – and not that its became moot during these proceedings, in which case the Tribunal would have found that there was no longer any need to rule on it – the complaint must simply be dismissed (on the concept of a complaint or claim devoid of purpose, see Judgments 4060, consideration 3, 3583, consideration 2, or 2856, consideration 5).
Reference(s)
ILOAT Judgment(s): 2856, 3583, 4060
Keywords
receivability of the complaint; claim moot
Consideration 7
Extract:
To support his claim for moral damages, the complainant refers to the anxiety, insecurity and stress that were caused to him by the intention, which he believes he can attribute to the EPO, of “manipulating the proceedings” and deploying “delaying tactics” with the aim of causing detriment to him. However, the Tribunal observes that the complainant’s submissions show that the actions giving rise to these accusations are essentially decisions taken by the Organisation’s services in the normal course of a procedure for recognising whether invalidity is attributable to an occupational disease, and it is the complainant’s misconstruction [...] of Article 90(3) of the Service Regulations that is likely to have led him to perceive these actions as manipulative or tactical.
Keywords
moral injury
Consideration 8
Extract:
[I]n respect of the claim for compensation owing to the undue length of the internal appeal procedure, which by contrast must be considered in this judgment, the Tribunal recalls that, under its case law, the amount of compensation liable to be granted under this head ordinarily depends on two essential considerations, namely the length of the delay and the effect of the delay on the employee concerned (see, for example, Judgments 4178, consideration 15, 4100, consideration 7, or 3160, consideration 17).
In this case, the period of around seven years and nine months between the submission of the internal appeal on 15 April 2011 and the decision on it of 18 January 2019 is, in itself, clearly excessive. However, the Tribunal observes that the injury caused to the complainant by that delay was substantially diminished by the circumstance [...] that his appeal had become moot by November 2015 at the latest. Moreover, the fact that the appeal was directed, as has been stated, against an act which did not in itself adversely affect the complainant also puts into perspective the injury caused by the delay in considering that appeal (see inter alia on this point Judgment 4493, consideration 9). In the particular circumstances of the case, the Tribunal therefore considers that the compensation in the amount of 350 euros that the complainant has already received pursuant to the impugned decision suffices to redress the injury thus caused.
Reference(s)
ILOAT Judgment(s): 3160, 4100, 4178, 4493
Keywords
moral injury; delay in internal procedure
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