Judgment No. 4432
1. The EPO shall pay the complainant 8,000 euros as moral damages, from which the amount of 450 euros awarded in the impugned decision shall be deducted if already paid.
2. The EPO shall pay the complainant 500 euros costs.
3. All other claims are dismissed or are moot.
The complainant challenges the decision to accept only part of the recommendations of the Appeals Committee on his appeal against the postponement of a strike ballot by the President of the European Patent Office.
complaint allowed; right to strike
[T]he jurisdiction of the Tribunal is to address alleged non-observance of the terms of appointment of a member of the staff of an international organisation or the non-observance of the Staff Regulations “as are applicable to the case” (Article II of the Tribunal’s Statute). If non-observance of a Staff Regulation (or other applicable normative legal document) is conceded before the proceedings in the Tribunal are commenced (in this case non-observance of paragraph 3 of Circular No. 347), there is no justiciable issue about non-observance for the Tribunal to determine. At least ordinarily, the reasons for the concession are irrelevant to the issue of non-observance.
competence of tribunal; claim moot; ratione materiae
[T]he complainant initially sought and still seeks moral damages. In his brief he seeks 10,000 euros moral damages “for depriving [him] of his fundamental human right to strike and taking away his fundamental right to freedom of association”. But he was not deprived of the right, at least in its entirety. There was only a delay in taking a procedural step which may have led to a strike in which the complainant would have been involved. At best for the complainant, the facts reveal the EPO failed to comply with paragraph 3 of Circular No. 347 notwithstanding that it was bound by the rules it had itself issued until it amended or repealed them (see, for example, Judgments 963, consideration 5, and 3883, consideration 20). Putting it this way is not to suggest that the non-observance was trivial. The Organisation had put in place highly contentious provisions concerning a matter of fundamental importance, namely the right to strike. It could be expected that all elements of those provisions would be followed to the letter unless there was some insuperable reason for not doing so. In this case, there was not. The President acted unilaterally and arbitrarily in breach of the scheme the Organisation had adopted and, in any event, his conduct involved an abuse of power in that he purported to exercise a power which he did not have. The complainant is entitled to moral damages which are assessed in the sum of 6,000 euros.
Jugement(s) TAOIT: 963, 3883
moral injury; patere legem; right to strike; misuse of authority; abuse of power