Judgment No. 2751
1. The decision of 26 January 2007 is set aside.
2. The EPO shall pay the complainant moral damages in the amount of 7,500 euros.
3. It shall also pay him 4,000 euros in costs.
4. The complaint is otherwise dismissed.
"Statements made in legal proceedings are privileged, whether those statements are made in writing in the pleadings or orally in the course of a hearing. The consequence is that, even if defamatory, they cannot be the subject of legal proceedings or sanction. The privilege, sometimes referred to as 'in court privilege', exists, not for the benefit of the parties or their representatives, but because it is necessary for the proper determination of proceedings and the issues that arise in their course. In Judgment 1391 the Tribunal recognised that the privilege attaches to its proceedings, as well as those of internal appeal bodies. [...]
[T]he Tribunal's consideration of the extent of the privilege that attaches to statements made in the course of internal appeal proceedings or proceedings before the Tribunal has concentrated on statements made by staff members. However, the privilege is the same in the case of statements made by or on behalf of defendant organisations, and they must be allowed a similar degree of freedom in what they say and the manner of its expression. Even so, a statement will constitute a perversion of a defendant organisation's right of reply if it is wholly irrelevant and it can only serve an improper purpose."
Jugement(s) TAOIT: 1391
procedure before the tribunal; organisation; formal requirements; internal appeals body; settlement out of court; iloat; confidential evidence; oral proceedings; reply; respect for dignity; breach; privileges and immunities; freedom of speech; disciplinary measure; judicial review; misuse of authority; consequence; purpose; right; official
"[A] claim may be made and pursued against an organisation if its conduct in proceedings before an internal appeals body or this Tribunal constitutes an abuse of process or a perversion of the right of reply."
procedure before the tribunal; organisation; internal appeals body; iloat; reply; conduct; procedural flaw; misuse of authority; right
"The intention with which a statement is made is not necessarily determinative of the question whether a statement that is wholly irrelevant is also one that can serve no proper purpose." The complainant represented three colleagues whose complaints were considered by the Tribunal in Judgment 2514. In its replies the Organisation had stated that, by reason of the time he had spent providing legal assistance to staff members, the complainant's work as an examiner had been less satisfactory than it should have been. "That was defamatory. It was also inconsistent with the duty of the EPO to respect the complainant's dignity. In the context of the other comments that were within the limits of the privilege that attaches to proceedings before the Tribunal, it carried the threat of possible administrative consequences for the complainant's employment. Such a remark can serve no proper purpose. Accordingly, it was not privileged and the complainant is entitled to seek relief with respect to it."
Jugement(s) TAOIT: 2514
procedure before the tribunal; organisation; iloat; organisation's duties; respect for dignity; security of tenure; breach; intention of parties; privileges and immunities; staff representative; compensation; consequence; counsel; purpose; request by a party; right
The complainant represented three colleagues whose complaints to the Tribunal led to Judgment 2514. In its replies the Organisation had made defamatory statements on the complainant. "[T]he EPO [...] contends that the complaint is irreceivable to the extent of the claim for retraction of the defamatory statements. In this regard, it relies on Judgment 1635 where the Tribunal explained that it was not competent to order a written apology, as requested in that case. In Judgment 2720, also delivered this day, the Tribunal recognised, under 17, that publication of statements defamatory of a staff member by an international organisation gives rise to a continuous obligation to take steps to remedy, as far as possible, the harm done to the staff member's reputation. Moreover, the Tribunal held in that case that it could order performance of that obligation pursuant to Article VIII of its Statute. Accordingly, it is not correct to say that it is beyond the competence of the Tribunal to order the retraction of a defamatory statement."
ILOAT reference: Article VIII of the Statute
Jugement(s) TAOIT: 1635, 2514, 2720
moral injury; receivability of the complaint; competence of tribunal; order; respect for dignity; iloat statute; staff representative; apology; defamation