Judgment No. 4153
1. The decision of the Secretary-General of the ITU of 11 November 2015 is set aside, as are the decisions rejecting the complainant’s application following the contested competition and the appointment of the successful candidate.
2. The competition procedure shall be resumed as stated in consideration 10 of the judgment.
3. The ITU shall pay the complainant 10,000 euros in moral damages.
4. It shall also pay her 5,000 euros in costs.
5. All other claims are dismissed.
6. The ITU shall ensure that the successful candidate is shielded from any injury that may result from the cancellation of his appointment.
The complainant challenges the lawfulness of a competition procedure in which she participated and of the appointment made at the end of that procedure.
complaint allowed; decision quashed; selection procedure
According to the Tribunal’s case law, the decision of an international organisation to make an appointment is within the discretion of its executive head. Such a decision is subject to only limited review and may be set aside only if it was taken without authority or in breach of a rule of form or of procedure, or if it was based on a mistake of law or fact, or if some material fact was overlooked, or if there was an abuse of authority, or if a clearly wrong conclusion was drawn from the evidence (see Judgment 3537, consideration 10). Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have her or his application considered in good faith and in keeping with the basic rules of fair and open competition. That is a right that every applicant must enjoy, whatever her or his hopes of success may be (see, inter alia, Judgment 2163, consideration 1, and the case law cited therein, as well as Judgment 3209, consideration 11). The case law also establishes that an organisation must be careful to abide by the rules on selection and, when the process proves to be flawed, the Tribunal will quash any resulting appointment, albeit on the understanding that the organisation must shield the successful candidate from any injury that may result from the setting aside of an appointment he accepted in good faith (see, for example, Judgment 3130, considerations 10 and 11).
Jugement(s) TAOIT: 2163, 3130, 3209, 3537
appointment; judicial review; discretion; selection procedure
According to the Tribunal’s case law, an international organisation must observe the essential rule in every selection procedure, which is that the person appointed must possess the minimum qualifications specified in the vacancy notice (see Judgment 3372, consideration 19). It is also apparent from the case law that an international organisation which decides to hold a competition in order to fill a post cannot select a candidate who does not satisfy one of the required qualifications specified in the vacancy notice. Such conduct, which is tantamount to modifying the criteria for appointment to the post during the selection process, incurs the Tribunal’s censure on two counts. Firstly, it violates the principle of tu patere legem quam ipse fecisti, which forbids the Administration to ignore the rules it has itself defined. Secondly, the appointment body’s alteration, after the procedure has begun, of the qualifications which were initially required in order to obtain the post, introduces a serious flaw into the selection process with respect to the principle of equal opportunity among candidates. Irrespective of the reasons for such action, it inevitably erodes the safeguards of objectivity and transparency which must be provided in order to comply with this essential principle, a breach of which vitiates any appointment based on a competition (see Judgments 3641, consideration 4(a), or 4001, consideration 15).
Jugement(s) TAOIT: 3372, 3641, 4001
patere legem; selection procedure