Judgment 801

THE ADMINISTRATIVE TRIBUNAL,

Considering the ninth complaint filed by Mr. Hendricus van der Peet against the European Patent Organisation (EPO) on l7 September l986, the EPO's reply of 8 December, the complainant's rejoinder of 8 January l987 and the EPO's surrejoinder of 13 February l987;

Considering Article II, paragraph 5, of the Statute of the Tribunal, Article 19 of the Rules of Court, Article 19(2) of the Protocol on Privileges and Immunities of the EPO and Articles 28 and 93(2)(b) and (5) of the Service Regulations of the European Patent Office, the secretariat of the EPO;

Having examined the written evidence and disallowed the complainant's application for oral proceedings;

Considering that the facts of the case and the pleadings may be summed up as follows:

A. As Judgment 76l recounts, the complainant filed an internal appeal on 8 May l984 on the matter of repayment of the cost of transporting his horse from the Netherlands to Bavaria on his transfer from The Hague to Munich. The Appeals Committee recommended rejecting his appeal. By a letter of 29 April l985 the Vice-President of the Office said that the President, besides rejecting the appeal, imposed a reprimand on him under Article 93(2)(b) of the Service Regulations. The letter said that the reasons for the reprimand were his persistent failure to account for the irregularities in his claim to repayment and his offensive attitude towards the Appeals Committee, which the Committee had spoken of in its report. By a letter of l2 May l985 he lodged another appeal, this time against the reprimand. He also sought the withdrawal of the reprimand in his fifth complaint, which he filed on l5 July. In Judgment 76l, which it delivered on 2 June l986, the Tribunal held among other things that that claim was irreceivable because he had not exhausted the internal means of redress. In a letter of l9 August the Principal Director of Personnel informed him that, quite apart from the matter of his claim to repayment - on which the Tribunal had upheld his point of view - his inadmissible behaviour towards the Committee was in itself enough to warrant the reprimand; he was invited to comment in accordance with Article 93(5) of the Service Regulations: "... No disciplinary measure may be decided unless the employee concerned has been informed of the charges against him and has had the opportunity to state his case". The letter of l9 August l986 also said that that of 29 April l985 was "null and void". On 25 August the complainant wrote a letter of protest to the Principal Director of Personnel. On 27 August the Director answered that, the reprimand of 29 April l985 having been withdrawn, the internal appeal no longer served any purpose; but that he had been guilty of offensiveness towards the Appeals Committee as described in an appendix to the letter and that the President therefore still intended to discipline him and again invited him to submit observations. He thereupon filed his complaint, which purportedly impugns the decision of 29 April l985.

B. The complainant submits that there were no grounds for the reprimand. He questions the Appeals Committee's impartiality and independence. To show the unfair handling of his case and the "vendetta" waged against him he recounts the disputes on which the Tribunal ruled in Judgments 692 and 76l. The scorn for due process was such that he felt he had to forgo taking part in the appeal proceedings. They led to a miscarriage of justice that the Tribunal had to put right. The President's annoyance does not justify the misuse of his disciplinary authority. The complainant asks the Tribunal (l) to declare the reprimand void from the start and order his public exculpation and (2) to waive the immunity of several EPO officers so that he may introduce proceedings against them in the Federal Republic of Germany. He claims (3) l4O,OOO Deutschmarks in material damages; (4) 52 days' leave as redress for moral injury; (5) "effective measures preventing further persecution" by the officers he mentions and (6) recognition of his right to return at his own discretion to his post at The Hague should the harassment go on, his "costs and efforts to be fully compensated".

C. In its reply the EPO confines itself, with the permission of the President of the Tribunal, to the issue of receivability. It submits that claim (l) is irreceivable since the Principal Director's letters of l9 August and 27 August l986 have already declared void ab initio the reprimand of 29 April l985. Since it was never made public there are no grounds for public announcement of its withdrawal. The letter of 27 August merely declares an intention to impose a reprimand and does not consitute a challengeable decision. Claim (2) is not a matter the Tribunal is competent to rule on. Claims (3) and (4) are irreceivable under the res judicata rule: the redress sought relates to disputes on which the Tribunal ruled in Judgments 692 and 76l. There was nothing to prevent the complainant's claiming in his earlier complaints the damages and other compensation he is seeking now, and his claims are not a valid means of getting the Tribunal to review its judgments. Claim (5) is irreceivable because he cites no decision adversely affecting him. In any event the complaint as a whole is irreceivable because he has failed to exhaust the internal means of redress.

D. In his rejoinder the complainant objects to the President of the Tribunal's having authorised the defendant to argue only the issue of receivability, a ruling that he submits is not provided for in the Rules of Court and shows prejudice in the Organisation's favour. He asks that the EPO be invited to argue the merits or that the Tribunal consider the merits, and that in any event the President of the Tribunal not hear the case.

He submits that his claims are receivable. As to claim (l), it was wrong not to ask him to comment before the reprimand was imposed on him. It was therefore tainted with a procedural flaw and in any event void ab initio. The fact that Judgment 761 had shown up as unsound one of the reasons given for the reprimand did not afford valid grounds in law for declaring the reprimand void: it merely showed the reprimand to be unfounded. Besides, the EPO has never explained the other reason for it, his allegedly inadmissible attitude to the Appeals Committee. In fact his attitude was quite proper. The decision to introduce new disciplinary proceedings shows a desire for revenge in the President of the Office and has nothing to do with protecting the Organisation's interests. It is also in breach of the rule against double jeopardy.

He presses claim (2), which he submits that the Tribunal is competent to hear, on the grounds that the officers he cites acted in breach of the Federal German Penal Code and therefore may not preserve their immunity, and that the President is under a duty to give him the assistance required by Article 28 of the Service Regulations.

He has had no redress for the material and moral injury the reprimand caused him. It has cost him time and money to defend himself and he has a legitimate interest in having his reputation publicly restored.

Claims (3) and (4) do not offend against the res judicata rule since they rest on the injury caused to him by having had to bring the present complaint. Claims (5) and (6) are receivable because they also rest on breach of Article 28.

Lastly, he maintains that he did exhaust the internal means of redress inasmuch as by the time of filing any objective observer could see that there would be no outcome within a reasonable time to his internal appeal of l2 May l985. He is therefore free to challenge an implied decision to reject that appeal.

E. In its surrejoinder the EPO submits that the rejoinder, the tone of which it deplores, in no way weakens the thrust of its reply. It enlarges on its earlier pleas, seeks to refute the complainant's in some detail, and again invites the Tribunal to declare the complaint irreceivable in its entirety.

CONSIDERATIONS:

l. The complainant raises a preliminary objection to the authorisation the President of the Tribunal granted to the EPO to confine its reply to the issue of receivability. The plea fails because the President takes such a decision by virtue of his general authority to regulate proceedings before the Tribunal. Besides, the Tribunal may alter his decision at any time. There is therefore no reason why, as the complainant asks, the President should withdraw from the case.

The complaint being irreceivable for the reasons given below, the Tribunal will not order submissions on the merits.

2. This complaint, the ninth by Mr. van der Peet, was lodged on l7 September l986 and relates to a reprimand imposed on him on 29 April l985.

He alludes to a second reprimand. This arises out of a letter the Principal Director of Personnel wrote him on l9 August l986 to say that he had been offensive towards the EPO Appeals Committee, that the President of the Office therefore still intended to discipline him, and that he was invited to submit observations. Since the reprimand has not yet been imposed the issue is only a subsidiary one.

3. His first claim is to a declaration that the reprimand of 29 April l985 is void and to public announcement of its cancellation.

There is no substance to the former part of the claim. In his letter of l9 August l986 the Director declared the reprimand void ab initio, and he confirmed that in a further letter on 27 August. What the complainant was objecting to has been withdrawn and, the status quo having been re-established, he no longer has any valid grounds for complaint.

4. He submits that it was wrong of the EPO not to ask

him to comment before imposing the reprimand. But the EPO implicitly admitted that in withdrawing the reprimand and, here again, there is no substance to the objection.

5. As to the second part of the first claim - to public announcement of the cancellation - the reprimand of 29 April was contained in an internal minute and the few EPO staff members to whose notice it came knew of it in the course of official duty and were therefore under a duty of secrecy. Since its issue was not public there is no reason why its withdrawal should be.

6. The Tribunal rejects as plainly unsound the complainant's contention that the Director's letter of l9 August l986 inviting him to comment on the charge of offensiveness towards the Appeal Committee afforded evidence of vindictiveness on the part of the President of the Office.

7. As for his argument that the sending of the letter was in breach of the rule that the staff member should not incur "double jeopardy", that too is mistaken, since the reprimand originally imposed had already been declared void.

8. The invitation to the complainant to submit observations does not constitute a challengeable decision: the letter merely states the intention of imposing a reprimand. Before deciding whether to impose it the President acted correctly in affording the complainant a chance to state his case. Indeed not to have done so would have been contrary to the requirement in Article 93(5) of the Service Regulations.

9. The second claim, which is to waiver of the immunity of several EPO officers, also fails because the complaint has not exhausted the internal means of redress.

l0. Claims (3) and (4), to damages for material and moral injury, are irreceivable because they are res judicata.

The claims arise out of facts and issues the Tribunal ruled on in Judgments 692 and 76l, which relate to the complainant's fourth and fifth complaints. When he filed those complaints he must have been aware of the expense and inconvenience for which he now seeks compensation. He failed to put forward the claims then and to entertain them now would be tantamount to allowing review of the two judgments.

ll. His fifth claim is to "effective measures preventing further persecution" and his sixth to recognition of his right to go back to his post at The Hague as he pleases.

Both are irreceivable because he is not challenging any decision adversely affecting him. Even if he were, he has not exhausted the internal remedies. Article 28 of the Service Regulations, which he relies on, is irrelevant and does not support the claims.

DECISION:

For the above reasons,

The complaint is dismissed.

In witness of this judgment by Mr. Andr¿risel, President of the Tribunal, Mr. Jacques Ducoux, Vice-President, and Tun Mohamed Suffian, Judge, the aforementioned have signed hereunder, as have I, Allan Gardner, Registrar.

Delivered in public sitting in Geneva on 13 March 1987.

Andr¿risel
Jacques Ducoux
Mohamed Suffian
A.B. Gardner