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Judgment No. 4422

Decision

The complaints are dismissed.

Summary

The complainants are former permanent employees of the European Patent Office who challenge their January 2014 and subsequent payslips showing an increase in their pension contributions.

Judgment keywords

Keywords

pension; complaint dismissed

Consideration 3

Extract:

Although the impugned decisions were notified to the complainants in separate letters, the answer given to their internal appeals was common. Given the similar procedural and substantive backgrounds and nature of these complaints, they are joined to be the subject of a single judgment.

Keywords

joinder

Consideration 5

Extract:

According to the Tribunal’s case law, a complainant may impugn a decision only if it directly affects her or him, and cannot impugn a general decision unless and until it is applied in a manner prejudicial to her or him, but she or he is not prevented from challenging the lawfulness of the general decision when impugning the implementing decision which has generated her or his cause of action (see, for example, Judgments 3291, consideration 8, and 4119, consideration 4). Accordingly, the complainants are entitled to challenge the individual decisions resulting from the increased pension contributions reflected in their subject payslips, as well as the lawfulness of general decision CA/D 10/13.

Reference(s)

Jugement(s) TAOIT: 3291, 4119

Keywords

general decision; cause of action; pay slip

Consideration 7

Extract:

The complainants question aspects of the Tribunal’s case law and previous judgments. Mr K., in particular, refers to attempts he made to reach an amicable settlement in various cases he had with the EPO. He also seems to suggest that the Tribunal should report an allegation which he makes in his additional submissions to the German authorities. The Tribunal will not advert to these and other statements which are outside the scope of the present complaints.

Keywords

competence of tribunal; internal remedies not exhausted

Consideration 8

Extract:

Regarding the complainants’ subsidiary requests to order that decision CA/D 10/13 be no longer applied and that the EPO be ordered to apply the previous wording of the Pension Scheme Regulations, the effect of the Tribunal’s case law is that, if it is found that general decision CA/D 10/13 and the individual implementing decisions deducting the new pension contribution rate from the complainants’ relevant payslips are unlawful, the Tribunal can set aside the individual decisions and may grant consequential relief (see, for example, Judgment 2793, consideration 13, and the case law cited therein). However, if they are found to be lawful, it is not the Tribunal’s role to order that decision CA/D 10/13 be no longer applied and that the EPO be ordered to apply the previous wording of the Pension Scheme Regulations that governed their pension contribution rate (see Judgment 3538, consideration 5).

Reference(s)

Jugement(s) TAOIT: 2793, 3538

Keywords

general decision; pension; relief claimed

Consideration 9

Extract:

The complainants each seek an order under Article 11, paragraph 1, of the Tribunal’s Rules that an “[e]xpert [e]nquiry [by] an external, independent actuary not linked to the EPO or external companies running parts of the EPO’s Pension Scheme concerning the raise of pension contributions [be conducted]” if their claims are not granted in the written procedure. Their requests are rejected. The Tribunal recalls its statement in consideration 4 of Judgment 3538 when rejecting a similar request:
“Plainly enough there is a power vested in the Tribunal to order measures of investigation that might include an expert enquiry. However this power fundamentally serves to assist the Tribunal in resolving issues raised by the parties and supported by the evidence adduced by the parties. For example, it is a power that might be used if expert evidence was adduced by both the complainant and the defendant organisation but there was some unresolved difference of opinion between the experts. In such a case either the Tribunal of its own motion might order an expert enquiry or might do so on the application of a party. However, Article 11 does not create a mechanism intended to enable one party to make good a case which is otherwise deficient. This appears, in substance, to be the basis of the complainants’ request.”

Reference(s)

Jugement(s) TAOIT: 3538

Keywords

expert inquiry

Consideration 11

Extract:

The complainants’ requests for oral proceedings are rejected. Contrary to what is argued, the right to an oral hearing is not absolute and a tribunal may dispense with it if the facts of the case are such that it is legitimate not to conduct such a hearing. The Tribunal finds it unnecessary to call the member of the Actuarial Advisory Group to give evidence concerning what Mr T. refers to as “politically defined boundary conditions” and to confirm Mr K.’s mathematical calculation. The complainants’ submission that the Tribunal should conduct an oral hearing and hear the witness as there was no oral hearing in the internal appeal procedures is untenable. This is particularly because, under Article 8 of the Implementing Rules for Articles 106 to 113 of the Service Regulations, a hearing in the internal appeal procedure is not mandatory and the Appeals Committee may decide to hold such a hearing where the written documentation is not sufficient or where a hearing might be decisive in forming an opinion. In any event, the written submissions and supporting documents provided by the parties to the Tribunal are sufficiently detailed to permit it to consider the complainants’ cases fully and to make an informed decision on the issues raised in these complaints.

Keywords

oral proceedings

Consideration 12

Extract:

The complainants contend that the impugned decisions contain no reasoning and solely relied on the Appeals Committee’s opinion which is not acceptable and biased. The Tribunal’s case law has it that a final decision may accept the opinion or recommendations of an internal appeal body without further analysis (see, for example, Judgment 3994, consideration 12), but must be motivated if it rejects the opinion and recommendations (see Judgment 4062, consideration 3, and the case law cited therein). Accordingly, the fact that the impugned decisions merely accepted the Appeals Committee’s reasoning does not vitiate those decisions.

Reference(s)

Jugement(s) TAOIT: 3994, 4062

Keywords

duty to substantiate decision; final decision; motivation; report of the internal appeals body

Considerations 14-15

Extract:

In considerations 14 and 15 of Judgment 3538, the Tribunal stated that a decision to increase the pension contribution rate may be challenged if a complainant provides evidence from an expert in the field of actuarial studies to demonstrate flaws in the methodology used in the actuarial study and that, in any event, even if a complainant provides such expert evidence it would not necessarily follow that the decision of the Administrative Council or the implementation decision to deduct the higher pension contribution rate from a complainant’s payslip would be unlawful. This, as the Tribunal stated in Judgment 3538, consideration 15, is because “[t]he power clearly vested in the Administrative Council to alter the pension scheme can be exercised lawfully if it represents a bona fide attempt to secure the pension scheme into the future [...] based on what appears to be reasoned actuarial advice”.
Acknowledging the requirement that they had to provide evidence from an expert to demonstrate flaws in the methodology used in the actuarial study, the complainants state that they delivered “a full mathematical proof” in the internal appeal procedures, which is still valid, casting doubt upon the Actuarial Advisory Group’s recommendations. However, they state that they did not file their calculations in the Tribunal proceedings because they would be ignored. Critically, they have not provided evidence from an expert to demonstrate flaws in the methodology used in the underlying actuarial study. Their arguments in the present proceedings that the actuaries fully relied upon the materials provided by one party to the proceedings (the EPO) and that the Actuarial Advisory Group had to accept all the boundary conditions imposed by the EPO, such as a politically pre-determined interest rate and politically pre-determined size of the Reserve Fund for Pensions and Social Security, which results in staff members paying pension contribution rates that are too high, do not obviate their need to provide expert evidence of the nature the Tribunal outlined in Judgment 3538.

Reference(s)

Jugement(s) TAOIT: 3538

Keywords

expert inquiry; pension; actuarial valuation

Consideration 17

Extract:

To support their allegations that the Appeals Committee’s opinion is biased, the complainants submit that the means of redress before the Appeals Committee do not meet the minimum judicial standards. Their allegations of bias are based in some respects on scandalous allegations concerning the Chair of the Appeals Committee. Moreover, the complainants’ allegations of bias on the part of some members of the Appeals Committee are unfounded as they provide no evidence to prove them as the Tribunal’s case law requires (see, for example, Judgment 4097, consideration 14). Additionally, the complainants’ argument that the Appeals Committee’s process does not meet the minimum judicial standards because the President of the EPO sits in the proceedings as a party and judge in his own cause is unsupported with any helpful analysis. Their statement that the Appeals Committee is an advisory body with no competency to make decisions misapprehends the quasi-judicial nature and functions of an internal appeal body (see, for example, Judgments 3785, consideration 6, and 3694, consideration 6). The complainants’ argument that, in deciding to consider their internal appeals in a written procedure without conducting an oral hearing, the Appeals Committee conflates itself with the Tribunal leaving appellants without a fact-finding process does not take into consideration Article 8 of the Implementing Rules for Articles 106 to 113 of the Service Regulations mentioned in consideration 11 of this judgment. In the foregoing premises, the allegations of bias are unfounded.

Reference(s)

Jugement(s) TAOIT: 3694, 3785, 4097

Keywords

internal appeals body; bias

Consideration 19

Extract:

The complainants’ claims for what in effect amounts to punitive or exemplary damages are unfounded as they provide no evidence to prove their entitlement thereto (see, for example, Judgments 3092, consideration 16, and 3966, consideration 11).

Reference(s)

Jugement(s) TAOIT: 3092, 3966

Keywords

punitive damages

Consideration 19

Extract:

[The] claims for moral damages for delay in the internal appeal procedures are also unfounded. Although the period of about four and a half years from the lodging of the requests for review to the issuance of the impugned decisions is too long in the present circumstances, the complainants have not articulated the effect caused by the delay (see, for example, Judgment 3582, consideration 4).

Reference(s)

Jugement(s) TAOIT: 3582

Keywords

moral injury; delay in internal procedure

Consideration 20

Extract:

Under Article 7(9) of the Implementing Rules for Articles 106 to 113 of the Service Regulations, costs incurred in the internal appeal proceedings “shall be borne by [the appellant], unless the competent appointing authority decides otherwise”. The Tribunal determined that such costs may only be awarded under exceptional circumstances (see Judgments 4157, consideration 14, and 4217, consideration 12), which do not exist in the present cases.

Reference(s)

Jugement(s) TAOIT: 4157, 4217

Keywords

costs for internal appeal procedure



 
Dernière mise à jour: 08.07.2021 ^ haut