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Judgment No. 3969

Decision

1. The impugned decision is set aside and the matter is remitted to the EPO to enable the President to make a new decision in accordance with consideration 16 of the judgment.
2. The EPO shall pay the complainant 30,000 euros in moral damages.
3. The EPO shall pay the complainant 8,000 euros in costs.
4. All other claims are dismissed.

Summary

The complainant contests the EPO’s decision to impose upon her the disciplinary measure of downgrading.

Judgment keywords

Keywords

complaint allowed; decision quashed; downgrading; misconduct; disciplinary measure

Considerations 10 and 16

Extract:

The overarching legal principles in a case such as the present have recently been discussed by the Tribunal in Judgment 3862, consideration 20. The Tribunal observed:
“The executive head of an international organisation is not bound to follow a recommendation of any internal appeal body nor bound to adopt the reasoning of that body. However an executive head who departs from a recommendation of such a body must state the reasons for disregarding it and must motivate the decision actually reached. [...]"
[In the present case], the President has failed to adequately motivate his conclusions and decision for departing from the conclusions of the Disciplinary Committee, failed to establish beyond a reasonable doubt that the complainant acted in bad faith, and failed to adequately motivate his ultimate conclusion on the disciplinary sanction he imposed and the reasons for it with specific reference to all mitigating circumstances. His decision should be set aside and the matter remitted to the EPO to enable the President to make a new decision.

Reference(s)

Jugement(s) TAOIT: 3862

Keywords

duty to substantiate decision; case sent back to organisation; disciplinary procedure; final decision

Consideration 10

Extract:

The overarching legal principles in a case such as the present have recently been discussed by the Tribunal in Judgment 3862, consideration 20. The Tribunal observed:
“[A]ccording to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). It is equally well settled that the ’Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made by the primary trier of fact’ (see Judgment 2699, consideration 9).”

Reference(s)

Jugement(s) TAOIT: 2699, 3649, 3862

Keywords

burden of proof; disciplinary procedure

Consideration 11

Extract:

The Disciplinary Committee’s opinion in the present matter is a balanced and thoughtful analysis of the issues raised in the disciplinary proceedings and, on its analysis, the conclusions and recommendations were justified and rational. It is an opinion of a character which engages the principle recently discussed by the Tribunal in Judgment 3608, consideration 7, that the report warrants “considerable deference” (see also, for example, Judgments 2295, consideration 10, and 3400, consideration 6).

Reference(s)

Jugement(s) TAOIT: 2295, 3400

Keywords

advisory body; disciplinary procedure; judicial review

Consideration 15

Extract:

The [President's] analysis contains a material flaw. It introduces into an assessment of whether an individual acted in good faith in the context of disciplinary proceedings a concept that, in this context, is irrelevant and likely to mislead. It may be true that for the purposes of the law of agency as it might apply, for example, to the negotiation and finalisation of contracts, the conduct of a lawyer (and less likely that of a medical adviser) can be treated as the conduct of the lawyer’s client. The lawyer, in such cases, is the client’s agent. However, it does not follow that, for the purpose of evaluating misconduct, the way the lawyer approaches the resolution of a legal question and interacts with third parties can be attributed to the client, in the sense that the lawyer’s conduct is to be treated as a manifestation of the state of mind of the client, above and beyond the conduct of the client herself or himself. While lawyers should act on instructions, it is often the case that, as a practical matter, they have considerable latitude about how they go about acting for the client. In the present case, it cannot be assumed, as the President appears to have assumed, that the lawyer had a sufficient grasp of the Service Regulations to know that Article 14 operated in the way discussed by the Tribunal in preceding considerations, and that Article 62a and the implementing rules did not modify its effect. On final analysis, the lawyer’s approach was misconceived but that does not justify the attribution of bad faith either to him or, more importantly, to the complainant.

Keywords

counsel; bad faith

Consideration 17

Extract:

The ultimate decision to impose a serious disciplinary sanction was made in circumstances where the complainant was incapacitated by serious mental health issues. This should be reflected in the amount of those damages. The Tribunal assesses those damages in the sum of 30,000 euros.

Keywords

moral injury; illness; disciplinary measure



 
Dernière mise à jour: 15.09.2020 ^ haut