Judgment No. 2874
Decision
1. The President's decision dated 14 February 2008 concerning the complainant's internal appeal is set aside as is the earlier decision to place the complainant on the BEST list.
2. The question as to the method for implementing the amendments to the European Patent Convention is remitted to the President to be determined following consultation with the General Advisory Committee.
3. The Organisation shall pay the complainant 3,000 euros as compensation for the moral injury he suffered.
4. It shall also pay him 800 euros in costs.
5. All remaining claims are dismissed.
Consideration 7
Extract:
The Tribunal held that “Article 38(3) does of course […] apply to cases where the Service Regulations and Pension Scheme Regulations are to be amended or ‘implementing rules’ are to be made, and the legal status of staff is thereby to be affected. But it goes further: it applies to cases where ‘any proposal’ is made ‘which concerns the whole or part of the staff’. So it casts a wide net that goes beyond mere changes in legal provisions.” The Tribunal has also held that “Article 38(3) does not interfere with the President’s exercise of his decision-making authority, but seeks to ensure that the proposal shall go through a formal process in which the staff have a right to be consulted through the General Advisory Committee” (see Judgment 1488, under 9 and 10). Furthermore, in accordance with the provision of Article 10(2) of the European Patent Convention, the President “shall take all necessary steps to ensure the functioning of the European Patent Office, including the adoption of internal administrative instructions and information to the public”, and unless otherwise stipulated in the Convention “he shall prescribe which acts are to be performed at the European Patent Office in Munich and its branch at The Hague respectively”. The exercise of these powers is, thus, subject to Article 38(3) of the Service Regulations and the GAC must be consulted on “any proposal which concerns the whole or part of the staff”.
Reference(s)
ILOAT Judgment(s): 1488
Keywords
organisation's duties; staff union; consultation; staff representative
Considerations 8-9
Extract:
The Organisation is correct in asserting that the Tribunal is not competent to rule on the lawfulness of the amendments to the Convention. However, that does not mean that the President could choose the method for implementing the amendments without consulting the GAC. He could have dispensed with that consultation only if the amendments themselves foreclosed any choice as to the method of implementation. This was not the case; there were several factors not mentioned in the amendments in question which could be relevant in choosing a method of implementation. Therefore, there should have been a consultation of the GAC.
As the GAC was not consulted, the decision to place the complainant on the BEST list is flawed and must be set aside. The underlying question as to the method for implementing the amendments to the European Patent Convention is remitted to the President to be determined following consultation with the GAC.
Keywords
consultation
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