Judgment No. 4487
Decision
1. The complaint is dismissed.
2. The EPO’s counterclaim for costs is dismissed.
Summary
The complainant challenges the fact that the arrears owed to him in respect of his invalidity allowance, related benefits and unused leave following a retroactive modification of the monthly gross salary scales in December 2012 were not paid to him until January 2013.
Judgment keywords
Keywords
allowance; invalidity; delay in payment; complaint dismissed
Consideration 5
Extract:
The complainant requests oral proceedings. Pursuant to Article V of the Statute of the Tribunal, “[t]he Tribunal, at its discretion, may decide or decline to hold oral proceedings, including upon request of a party”. In this case, the Tribunal finds the written submissions to be sufficient to reach a reasoned decision and thus the request is rejected.
Keywords
oral proceedings
Consideration 7
Extract:
The complainant challenges “the underlying general decisions” together with the individual implementation. This claim is irreceivable […]. The internal appeal lodged by the complainant […] did not explicitly challenge any general decisions, its only object being to obtain the payment of the “arrears”, together with the December pay slip. Moreover, in that appeal, not only are the disputed general decisions not clearly identified, but also neither are any arguments offered to challenge their lawfulness. Therefore, this claim is irreceivable for failure to exhaust internal remedies (Article VII of the Tribunal’s Statute).
Keywords
general decision; internal remedies not exhausted
Consideration 8
Extract:
The Tribunal notes that a delay in payment can be contested if it is unlawful and/or it adversely affects the party. The party challenging the delay bears the burden of proof.
Keywords
delay in payment
Consideration 14
Extract:
The complainant challenges the excessive length of the internal appeal and seeks compensation by way of moral damages, stating that neither the complexity of the case, nor the ancillary partiality objection raised during the internal proceedings justified its length. It is well settled in the Tribunal’s case law that internal appeals must be conducted with due diligence and in a manner consistent with the duty of care an international organisation owes to its staff members. The amount of compensation for unreasonable delay will ordinarily be influenced by at least two considerations: the length of the delay and the effect of the delay (see Judgment 4229, consideration 5). Delay in an internal appeal concerning a matter of limited seriousness in its impact on the appellant would be likely to be less injurious to the appellant than delay in an appeal concerning an issue of fundamental importance and seriousness in its impact on the appellant (see Judgment 4100, consideration 7). Recent case law holds that an unreasonable delay in an internal appeal is not sufficient to award moral damages. It is also required that the complainant articulate the adverse effects which the delay has caused (see Judgment 4396, consideration 12: “[n]otwithstanding that there was unreasonable delay in the internal appeal process, the moral damages which the complainant seeks under this head will not be awarded, as he has not articulated the effects which the delay has caused”; see also Judgments 4147, consideration 13, 4231, consideration 15, and 4392, consideration 12).
Reference(s)
Jugement(s) TAOIT: 4100, 4147, 4229, 4231, 4392, 4396
Keywords
moral injury; delay in internal procedure
Consideration 15
Extract:
Two claims (punitive damages and remitting the case to the German criminal prosecution authorities) were raised in the rejoinder. This is impermissible (see Judgments 4092, consideration 10, 4221, consideration 7, and 4396, consideration 7).
Reference(s)
Jugement(s) TAOIT: 4092, 4221, 4396
Keywords
new claim; rejoinder
Consideration 16
Extract:
The complainant’s claim for costs of the internal appeal shall be dismissed, as the Tribunal’s case law stipulates that “such costs may only be awarded under exceptional circumstances” (see Judgments 4156, consideration 9, 4392, consideration 13, and 4399, consideration 13), which do not exist in the present case.
Reference(s)
Jugement(s) TAOIT: 4156, 4392, 4399
Keywords
costs for internal appeal procedure
Consideration 17
Extract:
The EPO quotes, as relevant precedent, Judgment 4025, considerations 11 and 12, in which the Tribunal allowed the counterclaim for costs in a case deemed to have “no possibility of success” and to be “clearly frivolous”. The Tribunal observes that its case law has established strict requirements for a complaint to be considered frivolous, vexatious, and repetitive. Firstly, abuse of process requires bad faith, and bad faith cannot be automatically inferred solely on the basis of the filing of a large number of complaints by a litigant (see Judgment 4025, consideration 9). Secondly, the Tribunal “may indeed award costs against the authors of frivolous, vexatious and repeated complaints which absorb its resources and those of the defendant organisations and hamper the Tribunal’s ability to deal expeditiously with other complaints. Any such award must, however, remain exceptional, since it is essential that international civil servants’ access to an independent and impartial judicial body is not impeded by the prospect of an adverse award of costs if their complaint were to prove unfounded” (see Judgments 1962, consideration 4, 3196, consideration 7, and 3568, consideration 5). The present case is not comparable to the one addressed by Judgment 4025, considerations 11 and 12. In that case, the complaint was dismissed in its entirety and was deemed clearly frivolous. In the present case, even though the complaint shall be dismissed in its entirety, the issues raised cannot be considered plainly frivolous. In addition, there is no repetition of the same complaint, because the present complaint and the thirty-first one have different objects, that is to say two different decisions issued on the same internal appeal. Furthermore, consistent with the principle stipulated in Judgment 4025, consideration 9, referring to an egregious number of complaints, the fact that the present complaint contains a number of unfounded claims and submissions does not establish bad faith on the part of the complainant.
Reference(s)
Jugement(s) TAOIT: 1962, 3196, 3568, 4025
Keywords
counterclaim; bad faith
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