Judgment No. 4633
Decision
1. The decision of the Administrative Council of 27 June 2018, being decision CA/D 7/18, is set aside.
2. The matter is remitted to the EPO for further consideration and determination of the charges against the complainant addressed in the decision referred to in point 1 above.
3. The EPO shall pay the complainant 1,000 euros costs.
4. All other claims are dismissed.
Summary
The complainant challenges the decision to impose on him the sanction of demotion.
Judgment keywords
Keywords
complaint allowed; case sent back to organisation; staff assessment; disciplinary measure; standard of proof
Consideration 1
Extract:
The complainant has requested oral hearings but the Tribunal is satisfied it can fairly and appropriately address the complaint on the written submissions and evidence of the parties.
Keywords
oral proceedings
Considerations 9-11
Extract:
It can be seen (and this is conceded by the EPO) that at no point does the Committee refer to the standard of proof applicable in proceedings alleging misconduct, namely beyond a reasonable doubt. It may be doubted that the all-encompassing expression in the “CONCLUSION” of “more than sufficiently probative” should be taken to replace earlier clear intimations that the evidence was simply “sufficient”. In the result, the assessment of the Committee was either that evidence was “sufficient”, “sufficiently detailed and probative”, an event was “overwhelmingly likely” to have occurred or evidence was “more than sufficient”.
There are several judgments of the Tribunal deprecating reliance simply on the sufficiency of evidence as establishing misconduct in disciplinary proceedings. One illustration is found in Judgment 3880, consideration 9, in which the Tribunal said:
“Whether there is sufficient evidence to support a finding of misconduct is a far less onerous evidentiary burden than the requisite ‘beyond a reasonable doubt’ standard of proof. The application of the incorrect standard of proof is a fundamental error of law and requires, on this ground alone, that the impugned decision be set aside.”
Similarly in Judgment 4360, consideration 12, the Tribunal said: “[t]here is a material difference between being satisfied there was sufficient evidence establishing a fact and being satisfied beyond reasonable doubt that the fact existed”.
The language used by the Committee casts real doubt on whether it turned its mind to the appropriate standard of proof. An illustration is found in the Committee’s consideration of the letter sent to the Swedish politician referred to in consideration 6 above. The Committee prefaced its conclusion as to whether the letter was sent by saying “we cannot be sure that this was the letter that was attached” to the email to the Swedish politician but that “it was overwhelmingly likely that it was”. The first part of this formulation manifests doubt. While it is true that the second part manifests a high degree of confidence, it is difficult to say with any certainty that applying the standard of beyond reasonable doubt, the Committee would have come to the conclusion it did.
Reference(s)
Jugement(s) TAOIT: 4360
Keywords
disciplinary measure; standard of proof
Consideration 16
Extract:
Exemplary damages may be awarded if a complainant has provided persuasive evidence and analysis to demonstrate that there was bias, ill will, malice, bad faith or other improper purpose attending the impugned decision (see, for example, Judgment 4181, consideration 11). [The complainant] asserts this is so in the present case. However, what cannot be overlooked is that it simply cannot be said that the disciplinary proceedings against the complainant were unwarranted. They plainly were justified. While the opinion of the Disciplinary Committee was flawed in the way already discussed, as was the impugned decision, the Committee’s analysis nonetheless reveals a case against the complainant which is not devoid of substance. If it is proved, his conduct was egregious. It is simply untenable for the complainant to adopt the position, as he effectively does, of simply being an innocent victim of persecutory conduct within the EPO. Exemplary damages are not warranted.
Reference(s)
Jugement(s) TAOIT: 4181
Keywords
exemplary damages
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