Jugement n° 4853
Décision
The complaint is dismissed.
Synthèse
The complainant challenges the direct appointment, ad interim, of Mr F. to the position of Director, Agricultural Development Economics Division.
Mots-clés du jugement
Mots-clés
Absence d'intérêt à agir; Annulation du concours; Nomination sans concours; Requête rejetée
Considérant 6
Extrait:
[T]he case law concerning a complainant challenging an appointment following a competition in which they did not compete and, accordingly, have no cause of action, informs the scope of the applicable principles, both when considering appointments following a competition and appointments which do not. Those principles should be coherent and consistent.
Mots-clés
Intérêt à agir; Nomination; Concours; Nomination sans concours
Considérants 9-11
Extrait:
It is tolerably clear that the case law establishes, in the context of the filling of a post following a competition, that a person who has not participated in the competition does not have a cause of action to challenge the competition (see, for example, in recent Judgment 4702, consideration 3). Indeed, if a person participates in the competition but was admitted to it erroneously, they have no cause of action if they were not eligible for the position (see Judgment 4087, considerations 6 and 7). One obvious rationale for this approach is that participation in the competition is a manifestation of interest in the position on the part of the complainant, with corresponding injury to that person if not appointed, who can then challenge the lawfulness of the competition and appointment. It would be an extremely curious result that a complainant who did not have an interest in a position (either immediate or longer term and thus risk of immediate or future injury) filled by appointment without competition, rather than by competition, had a significantly broader basis for challenging the appointment. The obvious question which arises is what is the credible basis for confining standing to challenge an appointment following a competition to those who participated in the competition, but not confining standing in a similar or analogous situation concerning an appointment without competition. If the latter is confined only by eligibility for appointment, the obvious question which arises is why would that not also be so of an appointment following a competition. The coherent answer lies in whether the complainant had an interest in the lawfulness of the filling of the position. That would derive from having an interest, either immediate or longer term, in the filling of the position.
The touchstone of the Tribunal’s jurisdiction is its Statute. Having regard to Article II, it concerns non-observance, in substance or in form, of the terms of appointment of officials and other provisions of the Staff Regulations. The relevant impugned decision must adversely affect the complainant’s rights or interests, or cause her or him injury, or be likely to cause injury (see, for example, Judgment 2670, consideration 5). This concerns legal rights or interests. As the Tribunal said in Judgment 4672, consideration 4:
“The Tribunal’s jurisdiction centres on whether there has been a reviewable administrative decision which, in turn, implies any act by an officer of an organisation which has a legal effect (see Judgments 4499, consideration 8, 3141, consideration 21, and 532, consideration 3).”
Plainly, if there is evidence that a staff member has manifested an interest in a position, then she or he has an interest in the preservation of the position for possible future appointment to it. That interest may be expressed, for example, by the staff member applying for the position in a competition. An interest might be inferred from all the circumstances, which might include that occupying the position would be a logical career progression or development for the staff member concerned. But, in the absence of evidence of interest, it is very difficult to discern what legal interest the staff member has in ensuring that the position, if filled, has been filled lawfully. Put slightly differently, it is difficult to discern what legal effect the appointment of another person to a position has on a staff member who has no interest in that position, even if she or he is qualified to be appointed to it.
Référence(s)
ILOAT Judgment(s): 4087, 4672, 4702
Mots-clés
Intérêt à agir; Nomination; Concours; Nomination sans concours
Considérant 12
Extrait:
[T]he complainant clearly did not aspire to occupy the post of Director, ESA, in April 2017, when the vacancy notice was published. He did not apply for the position. He then had no legally enforceable interest in the steps which were, or were not taken, to fill the position. That is to say, any legal flaws in the selection process did not affect his rights or interests nor cause him injury. These facts would sustain an inference that in spring 2018, when the post was filled, his lack of interest in the position continued. It is true, and the Tribunal must recognise, that this was one year later. However, the complainant does not contend in his pleas that by spring 2018 he then had an interest in the position. Nor did the objective circumstances sustain an inference that he had. Accordingly, any procedural or other defects in the appointment of Mr F. in spring 2018 did not adversely affect his legal rights, or interests, or cause him injury.
Mots-clés
Absence d'intérêt à agir; Nomination; Concours; Nomination sans concours
Considérant 13
Extrait:
The complainant sought oral proceedings, but the Tribunal is satisfied it is in a position to make a fair and balanced decision having regard to the written material provided by the parties.
Mots-clés
Débat oral
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