Judgment No. 4554
1. The impugned decision of 27 March 2020 is set aside.
2. The case is remitted to the EPO so that the merits of the complainant’s internal appeal can be given proper consideration by the IAC and so that a new final decision issued can be thereon.
3. The EPO shall pay the complainant moral damages in the amount of 9,000 euros.
4. It shall also pay him 800 euros in costs.
5. All other claims are dismissed, as is the EPO’s counterclaim.
The complainant challenges the decision deriving from the Administrative Council’s decision CA/D 2/15 to require the recipients of the new retirement pension for health reasons to cease performing gainful activities or employment or to refrain from performing such activities or employment.
complaint allowed; case sent back to organisation; invalidity; outside activity
[T]he Tribunal [...] accepted that the complainants did have a cause of action in challenging the ban on gainful activities or employment, even though that ban would not have forced them to abandon activities or employment that they were actually performing.
Referring to its case law on determining whether a cause of action exists, the Tribunal recalled in that judgment that “there may be a cause of action even if there is no present injury: time may go by before the impugned decision causes actual injury. The necessary, yet sufficient, condition of a cause of action is a reasonable presumption that the decision will bring injury” (see Judgments 1712, consideration 10, 2632, consideration 10, and 3337, consideration 7). Thus, in that case, since the ban on the performance of gainful activities or employment by the former employees concerned changed their previous situation in a manner detrimental to their interests and had the effect of requiring them to refrain from undertaking such activities or employment in the future, the decision adversely affected them, even though the actual injury deriving from the implementation of the ban was, in their case, purely hypothetical.
Jugement(s) TAOIT: 1712, 2632, 3337
cause of action; outside activity
[T]he Tribunal considers that, by unlawfully rejecting his appeal following a summary procedure for lack of a cause of action, the impugned decision placed the complainant in an uncertain and stressful situation. This resulted in moral injury [...].
[T]he Tribunal [...] notes that, although the file shows that [...] the EPO sent the complainant tables showing the method used to calculate his pension, it cannot be considered, as the Organisation submits, that the complainant’s request for information has thereby become moot, particularly since the tables were not accompanied by any explanations in words and, moreover, they were expressly presented as being only provisional. If the complainant were to continue to wish for additional information concerning the method used to calculate his pension, the Organisation should, under its duty to provide information and its duty of care, endeavour to meet his expectations, provided, at least, that they are formulated with sufficient clarity (see, on this point, Judgment 3963, consideration 2).
Jugement(s) TAOIT: 3963
disclosure of evidence; duty to inform; pension; duty of care
[T]he Tribunal considers that there are no grounds for awarding costs in respect of the internal appeal proceedings. Costs of this kind may be awarded only in exceptional circumstances (see, for example, Judgments 4157, consideration 14, or 4392, consideration 13). Such circumstances are not evident in this case.
Jugement(s) TAOIT: 4157, 4392
costs for internal appeal procedure
The EPO has asked that the complainant be ordered to pay it the sum of 100 euros in partial compensation for its own legal costs on the grounds that the complaint is an abuse of process. However, the mere fact that the complaint has been allowed by the Tribunal obviously precludes it from being considered abusive. This counterclaim will therefore be dismissed.