Judgment No. 4317
The complaint is dismissed.
The complainant, in his capacity as a member of the Selection Board, challenges the decision not to allow a staff member holding a fixed-term contract to compete for a permanent post.
cause of action; competition; complaint dismissed
The Tribunal considers that the present case raises two connected threshold issues which need to be resolved: a) whether the complainant’s cause of action can be considered by the Tribunal even though this issue has not been raised by the parties; b) if the answer is yes, whether the complainant has the requisite standing to bring this complaint.
The Tribunal’s answer is affirmative to the first question and negative to the second one.
The Tribunal must, in this case, raise the preliminary issue of the complainant’s cause of action of its own motion, because the existence of a cause of action is a necessary pre-condition for the Tribunal’s competence. If the complainant does not allege the violation of rights which the Tribunal is called upon to protect under the terms of its Statute, the Tribunal cannot adjudicate on the complaint. The Tribunal’s case law connects this issue to the issue of receivability (see Judgments 3426, consideration 16, 3428, consideration 11, 3642, consideration 11, 3648, consideration 5, and the case law cited therein).
Jugement(s) TAOIT: 3426, 3428, 3642, 3648
receivability of the complaint; cause of action
[I]t is worth noting that after the end of the written procedure in this case, the Tribunal adopted Judgment 3557, in a summary procedure, where it found that it was clear that the complainant, who was likewise acting in his capacity as a member of a Selection Board, did not have standing to challenge the outcome of the selection procedure. The same reasoning must be applied in the present case as “[the complainant] does not specifically allege any non-observance of his terms of appointment as required by Article II, paragraph 5, of the Tribunal’s Statute”.
As a matter of general principle, a complainant must, in order to raise a cause of action, allege and demonstrate arguably that the impugned administrative decision caused injury to her or him or was liable to cause injury (see, for example, Judgments 3921, consideration 6, and 3168, consideration 9). In accordance with this case law, a member of a board within an international organization, acting in this capacity, may only raise with the Tribunal the defects that have affected her or his prerogatives as a member of the board as defined by the internal provisions (see above-mentioned Judgment 3921, consideration 9).
In light of the above, the complaint is irreceivable in its entirety and must be dismissed.
Jugement(s) TAOIT: 3168, 3557, 3921
locus standi; cause of action; member of an internal body