Judgment No. 3161
1. The decision of the President of the Office recorded in the letter of 9 December 2009 to reject the complainant's appeal is set aside.
2. The case is remitted to the Organisation to consider the recommendations of the Internal Appeals Committee in accordance with consideration 7.
3. The Organisation shall pay the complainant 10,000 Swiss francs in moral damages.
4. It shall also pay him 6,000 francs for legal costs.
5. All other claims are dismissed.
The complainant challenges the decision to transfer him which, in his view, violates his status as an employee.
"[T]he task of the Internal Appeals Committee is to determine whether the decision under appeal is the correct decision or whether, on the facts, some other decision should be made. While provisions establishing an internal appeal committee or board may limit its functions, this is not the case in relation to this Internal Appeals Committee established under the Service Regulations applying to the permanent employees of the EPO.
Of course the authority of the Internal Appeals Committee is limited to making recommendations and, to that extent, the ultimate decision-making power remains, in a case such as the present, with the President of the Office. However, the President is obliged to give proper consideration to the recommendations of the Committee and not avoid addressing the reasoning of its members by wrongly indicating, as in this case, that the majority of the Committee’s members had exceeded the limits of their role in determining the appeal."
Jugement(s) TAOIT: 2781
decision; duty to substantiate decision; internal appeals body; advisory body; recommendation; case law; general principle; due process; decision-maker; advisory opinion
complaint allowed; internal appeals body; decision quashed; case sent back to organisation
The complaint to this Tribunal was filed on 29 October 2009. At that time, the President of the EPO had not taken a decision on the recommendations that the Internal Appeals Committee made in its report of 8 June 2009 on the complainant’s appeal against the decision to transfer him. More than sixty days had elapsed since the recommendations were made. Thus, the complainant was apparently exercising the right conferred by Article VII, paragraph 3, of the Statute of the Tribunal in filing his complaint. If so, the subject matter of the complaint would have been, at the time of filing, an implied decision of the President of the EPO to reject the recommendations of the Committee.
final decision; implied rejection of internal appeal