Judgment No. 3427
Decision
1. The complaints are dismissed in their entirety.
2. The applications to intervene are dismissed.
3. The EPO’s counterclaim for costs is dismissed.
Summary
The complainants unsuccessfully challenge a series of decisions concerning pension issues, those being decisions of general application.
Judgment keywords
Keywords
pension; complaint dismissed
Consideration 10
Extract:
Turning to the applications for joinder, it is well settled that complaints may be joined if they raise the same issues of law and the material facts upon which the claims rest are the same such that the Tribunal can deliver a single ruling (see Judgments 657, under 1, and 1541, under 3).
Reference(s)
ILOAT Judgment(s): 657, 1541
Keywords
joinder
Consideration 10
Extract:
This application [for joinder] is rejected. Despite the fact that the complaints filed by Mr Ka. and Mr Ke. share a contextual background with the other complaints, they impugn different decisions and raise distinct issues of fact and law. Accordingly, they are not joined.
Keywords
joinder
Consideration 14
Extract:
The claims for relief in a complaint are the remedies sought in the event the complainant is successful or partially successful in the prosecution of the complaint. Given the evolution of a case over time, some remedies initially sought in the internal appeal might not be pursued in a complaint and other claims for relief may arise, for example, from the final decision itself that could not have been contemplated at the time the internal appeal was filed. For the purpose of the present judgment a consideration of the circumstances under which the Tribunal will consider a claim for relief not advanced in the internal appeal process is unnecessary. Suffice it to say that it is not a matter of receivability in relation to the complaint itself.
Keywords
claim; internal remedies exhausted
Consideration 16
Extract:
[I]t is observed that the Tribunal has, in certain circumstances, “deemed” that the internal means of resisting a decision have been exhausted. However, as the exhaustion of the internal means of resisting a decision is a statutorily mandated requirement of receivability, it is beyond the Tribunal’s competence to waive it.
Keywords
receivability of the complaint; internal remedies exhausted; competence of tribunal
Consideration 18
Extract:
[I]t can be seen that the complaint was filed before it was properly before the Administrative Council for consideration.
Clearly the deemed rejection upon which the complainant relies was not engaged in these circumstances and the complaint is irreceivable as the internal means of redress have not been exhausted.
Keywords
direct appeal to tribunal; failure to exhaust internal remedies
Consideration 22
Extract:
The Tribunal considered the same receivability argument in Judgment 3426, under 16, and rejected it for the following reasons:
“The complainants’ position that cause of action is not a question of receivability is rejected. As the Tribunal stated in Judgment 1756, under 5, ‘[t]o be receivable a complaint must disclose a cause of action’. There are two aspects to receivability – the procedural aspect found in Article VII of the Statute and the substantive aspect found in Article II. That is, whether the Tribunal is competent to hear the case ratione personae and ratione materiae. Framed another way, Article II requires that a complaint must reveal a cause of action and that the impugned decision is one which is subject to challenge. Under Article II, two thresholds must be met for there to be a cause of action. First, the complainant must be an official of the defendant organization or other person described in Article II, paragraph 6. Second, Article II, paragraph 5, requires that a complaint ‘must relate to [a] decision involving the terms of a staff member’s appointment or the provisions of the Staff Regulations’ (Judgment 3136, under 11).”
Reference(s)
ILOAT Judgment(s): 1756, 3136, 3426
Keywords
receivability of the complaint; cause of action
Consideration 26
Extract:
[I]t is observed that none of the complainants claim to be Vice-Presidents or Principal Directors. Accordingly, their
claims of unequal treatment must fail as they have not met the threshold requirement to advance this plea, namely, that they are similarly situated in fact and in law.
Keywords
equal treatment
Consideration 31
Extract:
The Tribunal’s case law is clear that “a complainant cannot attack a rule of general application unless and until it is applied in a manner prejudicial to [the complainant]” (see Judgment 2953, under 2). And, it is equally clear that a complainant may challenge the lawfulness of a general decision forming the legal basis of the individual decision which the complainant is seeking to have quashed (see Judgment 2793, under 13, and Judgment 3428, under 11, and the judgments cited therein).
Reference(s)
ILOAT Judgment(s): 2793, 2953, 3428
Keywords
general decision; individual decision; lack of injury
Consideration 32
Extract:
The complainants contend that they have a direct interest in decision CA/D 14/08 because it concerns the tax adjustments of employees recruited before 1 January 2009. It does not follow from the fact that a complainant has an interest either direct or otherwise in a decision that the decision has been applied to the complainant and that it has been applied in a manner prejudicial to the complainant.
Keywords
individual decision; lack of injury; cause of action; tax
Consideration 33
Extract:
The Tribunal explained in Judgment 3168, under 9, where a “complainant has failed to demonstrate that the contested administrative actions have caused him any injury to his health, financially or otherwise, or that it is liable to cause him injury, the complainant does not have a cause of action”. The complainants have not shown that the decision at issue has or is liable to cause them injury, therefore, they have not established a cause of action. The complainants have not shown that the decision at issue has or is liable to cause them injury, therefore, they have not established a cause of action.
Reference(s)
ILOAT Judgment(s): 3168
Keywords
lack of injury; cause of action; no cause of action
Consideration 34
Extract:
The Tribunal concludes that as decision CA/D 14/08 has not been individually implemented and the complainants have not shown a cause of action, the complaints against this decision will be dismissed.
Keywords
individual decision; lack of injury; no cause of action
Considerations 35-36
Extract:
As concerns the complaints brought by staff members in their respective staff representative capacities, the determinative issue centres on the nature of the contested decisions. In Judgment 1451, under 20, and later in Judgment 1618, under 5, the Tribunal drew a distinction between “a general decision setting out the arrangements governing pay or other conditions of service” that “take the form of individual implementing decisions” that each employee may later challenge and those decisions that do not give rise to implementing decisions and involve matters of common concern to all staff. In the latter case a challenge to the general decision by a staff representative may be receivable.
However, in the present case, it is clear that the contested decisions are decisions of general application subject to individual implementation. Until a decision of general application is implemented it cannot be said to have been applied in a prejudicial manner to a staff member and, consequently, as has been consistently held, cannot be attacked (see Judgment 2822, under 6, citing Judgment 1852). The fact of filing their complaints in their staff representative capacities does not overcome the fact of the nature of the contested decisions being ones of general application that at the material time had not been implemented. Accordingly, the complaints filed by the staff members in their representative capacities are irreceivable.
Reference(s)
ILOAT Judgment(s): 1451, 1618, 1852, 2822
Keywords
general decision; individual decision; lack of injury; locus standi; cause of action; staff representative
Consideration 37
Extract:
The parties’ briefs reflect the enormous interest in the subject matter of the complaints and the upheaval surrounding the introduction of the NPS. However, despite the complexity of the case, the parties have had ample opportunity to state their respective cases and to respond to the arguments of the opposing party. Given that the complaints largely turn on questions of law that have been fully addressed in the pleadings, and that the complainants have not identified any additional evidence or witnesses that could assist in the resolution of the issues, the request for oral hearings is rejected.
Keywords
oral proceedings
Consideration 38
Extract:
Numerous applications to intervene were filed with the Tribunal. As all the complaints will be dismissed, the applications to intervene will also be dismissed.
Keywords
intervention
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