Judgment No. 1390
Decision
1. THE DECISIONS OF 30 MARCH 1993 AND 25 OCTOBER 1993 REJECTING THE COMPLAINANT'S APPLICATION FOR THE POST ADVERTISED IN VACANCY NOTICE/NOTICE OF COMPETITION RR-92-BA/093 AND MISS MCGRENAGHAN'S APPOINTMENT TO THAT POST ARE SET ASIDE.
2. RECRUITMENT PROCEDURE RR-92-BA/093 IS QUASHED INSOFAR AS IT PUTS THE COMPLAINANT ON AN EQUAL FOOTING WITH ALL THE CANDIDATES WHO APPLIED UNDER THE SO-CALLED"COMPETITION" PROCEDURE, AND THE CASE IS SENT BACK TO EUROCONTROL FOR RESUMPTION OF THE SELECTION PROCEDURE IN KEEPING WITH THE RULES.
Consideration 15
Extract:
"Even supposing that the complainant applied only for transfer, the Tribunal's ruling in Judgment 1359 means - see under 5, 6 and 7 - that if an official applies for a transfer to a post to be filled by some other procedure he still has a legitimate interest, and any breach of that interest is liable to review and sanction."
Reference(s)
ILOAT Judgment(s): 1359
Keywords
cause of action; case law; transfer; internal candidate; competition cancelled; judicial review; official
Consideration 16
Extract:
"As for the application for a stay of proceedings, Article 10(3) of the Rules says that 'the Tribunal [...] shall rule on an application by either party for a stay of proceedings'". The Tribunal holds that no stay of proceedings is warranted in this case. Whatever changes may be made in the procedure for filling vacant posts, the complaint must be reviewed in the light of the rules in force at the material time. Once the proceedings have begun, the Tribunal is bound to reach a decision as promptly as possible and will not stay the proceedings pending possible changes in the rules."
Reference(s)
ILOAT reference: ARTICLE 10(3) OF THE RULES
Keywords
procedure before the tribunal; order of suspension; submissions; closure of written proceedings; applicable law; iloat statute; staff regulations and rules; amendment to the rules; competition cancelled; refusal
Consideration 24
Extract:
"To what extent must an administration substantiate its decisions? The answer is that it depends on the sort of decision that is to be substantiated. In the present case a distinction must be drawn between the rejection of an external application, particularly where a competition has attracted many candidates, and the rejection of an application by a serving official. In the latter case the organisation has a duty to maintain the relations of trust it has with the staff member, and although it must remain free to choose how it will notify the reasons to him it must be wary of damaging his career prospects."
Keywords
duty to substantiate decision; organisation's duties; staff member's interest; appointment; competition; candidate; internal candidate; competition cancelled; discretion; purport; refusal
Consideration 27
Extract:
Article 15 of Annex 1 to the Eurocontrol Convention says that "the Agency shall be empowered to recruit personnel directly only if the contracting parties are unable to make qualified personnel available to it". The Tribunal holds that the provision "limits the organisation's freedom to recruit by giving priority to candidates prescribed by the contracting parties over 'outside' candidates, but it puts no restrictions on the organisation's freedom to assess the suitability of applicants, wherever they may come from, nor its right to give serving staff a reasonable opportunity of advancement provided that they are as well qualified as other candidates."
Reference(s)
Organization rules reference: ARTICLE 15 OF ANNEX 1 TO THE EUROCONTROL CONVENTION
Keywords
equal treatment; member state; international instrument; interpretation; career; promotion; legitimate expectation; appointment; competition; candidate; internal candidate; competition cancelled; qualifications; priority; discretion; official
Consideration 27
Extract:
The organisation argues that the International Court of Justice in an opinion it delivered on 23 October 1956 "recognised that the internal practices of international organisations may have force of law (Digest 1956, p. 18). But those practices must be lawful and must not offend, as they do in the present case, against the internal law of an organisation or the principles of due administrative process."
Keywords
icj; case law; due process; practice; written rule; staff regulations and rules; competition cancelled; advisory opinion of icj
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