Judgment No. 1204
Decision
1. THE DIRECTOR-GENERAL'S DECISIONS OF 20 NOVEMBER 1991 ARE SET ASIDE.
2. THE COMPLAINANTS ARE SENT BACK TO CERN FOR PROPER DETERMINATION OF THEIR ENTITLEMENT TO OUT-OF-CAREER PROMOTION.
3. THEIR OTHER CLAIMS ARE DISMISSED.
4. CERN SHALL PAY THE COMPLAINANTS 1,000 SWISS FRANCS IN COSTS.
Considerations 4-5
Extract:
The complainants object to a decision denying them so-called "out-of-career" promotions. They submit that the original decisions were taken for an unlawful reason of principle and that the organization later confirmed the decisions on quite different grounds. The organization says it merely exercised the discretion inherent in managerial prerogative and did not alter the original reasons but merely added to them. "Although the competent authority has discretion to grant or refuse the promotion of staff who qualify under the material rules, it must abide by the rules, and whatever decisions it takes will be subject to judicial review [...] so as to determine whether they pass muster the rules have to be known to everyone and an organisation may not go beyond the duly published texts and resort to secret provisions that change the thrust of the ones it intended to treat as binding. Before it takes its discretionary decision, it must compare the merits of all staff who qualify under the rules [...] CERN committed two mistakes of law. One was to apply to the complainants rules that had never been published and that it regarded as binding. The other was to defend its position ex post facto by saying that its reasons for rejecting the complainants' claims were connected with their performance, though there is no evidence of any comparative and analytical assessment of the kind that international officials are entitled to."
Keywords
duty to substantiate decision; applicable law; equal treatment; organisation's duties; patere legem; promotion; judicial review; discretion; publication; refusal
Consideration 6
Extract:
The complainants were refused the grant of a promotion. The impugned decisions are set aside and the complainants sent back to CERN for proper determination of their entitlement to promotion. They are claiming awards of damages. But "they fail to show any particular injury. If they get promotion, that, and the financial consequences, will afford them sufficient redress. If they are not promoted they will not have suffered any injury unless the new decisions are again unlawful. For the time being there is no actual injury and they have no right to compensation."
Keywords
injury; lack of injury; vexatious complaint; promotion; allowance; compensation; refusal
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