Judgment No. 4259
1. The impugned decision, dated 20 July 2016, as well as the prior decision of 23 February 2016, are set aside.
2. The EPO shall pay the complainant moral damages in the amount of 10,000 euros.
3. All other claims are dismissed.
The complainant challenges the decision not to extend his appointment beyond the statutory retirement age.
complaint allowed; decision quashed; retirement; age limit; extension beyond retirement age
The duty to provide reasons for an administrative decision that adversely affects an official is a fundamental requirement in international civil service law and the Tribunal’s case law requires such a decision to be motivated in order for the official to know the basis on which it was taken and to facilitate her or him to formulate an appeal from the decision if necessary. However, the Tribunal has accepted that the reasons for a decision may be provided in response to a subsequent challenge of the decision (see, for example, Judgment 3662, under 3).
Jugement(s) TAOIT: 3662
motivation; administrative decision
The impugned decision correctly states that the President’s decision whether to propose to the Administrative Council a prolongation of service of a member of the Boards of Appeal is an exceptional measure and the decision is subject to only limited review. The Tribunal stated as follows in Judgment 3970, under 2:
“The Tribunal has consistently held that a decision to retain an official beyond the normal retirement age is an exceptional measure over which the executive head of an organisation exercises wide discretion. Such a decision is therefore subject to only limited review by the Tribunal, which will interfere only if the decision was taken without authority, if a rule of form or procedure was breached, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority [...].”
Jugement(s) TAOIT: 3970
discretion; extension beyond retirement age
[T]he argument that insufficient weight was given to the complainant’s personal attributes and merits does not fall within the limited vitiating grounds on which the decision not to prolong his appointment may be set aside (see, for example, Judgment 3285, under 19).
Jugement(s) TAOIT: 3285
extension beyond retirement age
The President stated that he did not consider the prolongation justified “after weighing all relevant aspects and with due respect to the Office’s prevailing general interest of [the] service”. It is not clear from the impugned decision or from any document which the EPO presents what the “relevant aspects” are. The EPO does not explain it and the Tribunal does not discern a nexus between any aspects of the proposed structural reform of the Boards of Appeal contained in document CA/16/15 and the President’s decision not to propose the prolongation of the complainant’s appointment to the Administrative Council. Moreover, there is no indication as to what the Office’s prevailing general interest of the service in rejecting the complainant’s request for prolongation of his appointment was. Merely repeating that phrase in similar terms to the formulation in Article 54(1)(b) was insufficient. The Tribunal therefore concludes that the President’s decision not to propose the prolongation of the complainant’s appointment to the Administrative Council and rejecting the request was irregular.
duty to substantiate decision; motivation