Judgment No. 292
Decision
The appeal is allowed, and it is declared:
1. that Article 3 of Rule No. 7 of the Rules of Application of the Staff Regulations has not been amended by Office Notices Nos. 43/70, 41/71 or 47/74; and
2. that the complainant is entitled to recover from the Organisation the sums underpaid to him as educational allowance for his children on and after, but not before, 1 October 1974.
Consideration 6
Extract:
The provision on school fees "provides for an allowance and not the reimbursement of fees; it does not require proof of the amount actually spent".
Keywords
evidence; allowance; education expenses; refund; condition
Consideration 6
Extract:
The question before the Tribunal is whether a document intended to determine how the provisions of a rule are to be applied may impose conditions not in the original rule. The Tribunal holds that it may not.
Keywords
administrative instruction; precedence of rules; staff regulations and rules; enforcement; provision
Consideration 18
Extract:
"In the absence of [words to that effect] it is not [...] to be supposed that the power to amend [the] rule [respecting conditions of remuneration] is one which the Director-General can delegate. [The material provision] specifies that in individual cases the application of staff regulations may be delegated, but there is no similar provision in respect of the making of general rules."
Keywords
competence; staff regulations and rules; amendment to the rules; no provision; provision; delegated authority
Consideration 12
Extract:
The article was amended by an office note. "The complainant's request for an interpretation of [the article] is a request for a decision relating to him; it may be made at any time and is not subject to any time limit. [The administration] never gave any decision upon the interpretation of [this] article [...] or upon the relationship to it of the office notices; this [...] is the substantial question in this case."
Keywords
decision; failure to answer claim; receivability of the complaint; time limit; administrative instruction; staff regulations and rules; amendment to the rules; interpretation; provision; request by a party
Consideration 13
Extract:
The complaint seeks the refund of education expenses. "On [the first day of every month] the organisation, if the complainant is right, acted adversely towards him by failing to adopt the measure prescribed [...]. However, the time limit of three months, running backwards from the [date of] application [...] means that claims in respect of [earlier] payments are time-barred."
Keywords
injury; receivability of the complaint; time bar; continuing breach; allowance; education expenses; refund; payment
Consideration 15
Extract:
"If it is to be granted that the power to make a rule must embrace a power to amend it, then the Director-General could unilaterally amend Rule No. 7, but only by the exercise of his rule-making power. There is no document in the dossier [which explicitly shows him to have exercised] such a power."
Keywords
competence; staff regulations and rules; amendment to the rules; provision; adoption; decision-maker; executive head
Considerations 16-17
Extract:
Under the material article "general provisions for giving effect to the regulations are to be settled by rules, instructions and office notices made by the Director-General. [...] is it the intention of [this article] to put on a par with the rules of application a miscellaneous collection of office notices? If they are contradictory of the rules, which are to prevail ? [...] The Tribunal will not attempt to answer all these questions [...] nor to decide to what extent, if at all, a rule of application can be amended by an office notice".
Keywords
administrative instruction; precedence of rules; staff regulations and rules; judicial review; difference
Consideration 17
Extract:
The Tribunal will not rule whether a rule of application can be amended by an office notice. "It will assume for the purposes of this case that a valid amendment can be made by office notice, provided that: a) the document containing the amendment is made by the Director-General himself; b) the intention to amend is made clear in the document; c) the amendment is clear in its effect; d) the amendment is not deemed effective to deprive an official of essential acquired rights."
Keywords
competence; competence of tribunal; acquired right; administrative instruction; staff regulations and rules; amendment to the rules; judicial review; executive head; condition
Consideration 18
Extract:
"A change in the conditions of remuneration is not an ordinary administrative matter; it is something which the Director-General is expected to consider and decide himself. In the absence of [words to that effect] it is not therefore to be supposed that the power to amend [rules] is one which the Director-General can delegate. [The relevant article] specifies that in individual cases the application of the Staff Regulations may be delegated, but there is no similar provision in respect of the making of general rules."
Keywords
competence; staff regulations and rules; amendment to the rules; no provision; salary; decision-maker; delegated authority; executive head
Consideration 20
Extract:
"An office notice is the instrument by which the administration communicates in general terms with the staff membership. It may be used for many purposes besides the amendment of the rules of application. In order to be effective as an amendment it must therefore be made clear on the document itself that amendment is its purpose."
Keywords
administrative instruction; staff regulations and rules; amendment to the rules; condition; effect; purpose
Consideration 22
Extract:
The instructions "take the form of a new and contradictory text; they do not make it clear what part of the old text is superseded and what part retained. [...] The fact [...] that documents were being signed indiscriminately by the Director-General and the director p. and a. strongly suggests that the formality appropriate to an amendment was not being contemplated at all. The fact that language appropriate to amendment was not being used suggests the same thing. [...] The effect of the instructions is not to amend [the] article but to apply its provisions."
Keywords
formal requirements; administrative instruction; staff regulations and rules; amendment to the rules; enforcement; provision; effect
Consideration 23
Extract:
"[T]he characteristic that distinguishes an allowance from a reimbursement is that the recipient of an allowance cannot, provided that the conditions for its receipt are fulfilled, be made to account for what he does with the money. It is in his discretion to spend it as he likes."
Keywords
allowance; refund; difference
Consideration 25
Extract:
" [I]t is within the power of the Director-General to lay down by means of an instruction criteria for determining what is or is not 'reasonably near', provided that in doing so he has proper regard to the nature and purpose of the [material provision]. [...] He must be guided by accessibility for school children [...] to lay down [...] that for every official [...] every school within a radius of 50 kilometers [...] is to be deemed accessible is not a proper exercise of the power. Accordingly the provision to this effect [...] is not binding upon the complainant."
Keywords
competence; administrative instruction; staff regulations and rules; enforcement; interpretation; provision; education expenses; refund; executive head; condition; criteria
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