Judgment No. 4018
Decision
1. Eurocontrol shall pay the complainant compensation in the amount of 80,000 euros.
2. It shall also pay him 3,000 euros in costs.
3. All other claims are dismissed.
Summary
The complainant challenges the decision no longer to pay him an expatriation allowance.
Judgment keywords
Keywords
complaint allowed; compensatory allowance; payment
Consideration 1
Extract:
[The] complaint, which was initially directed against an implied rejection of the internal complaint which [the complainant] had filed against this measure, must now be regarded as impugning the express decision adopted on 28 January 2015, in the course of proceedings, by which the Director General dismissed this internal complaint as unfounded (see, for example, Judgments 3667, under 1, or 3925, under 2).
Reference(s)
Jugement(s) TAOIT: 3667, 3925
Keywords
implied decision; direct appeal to tribunal; impugned decision
Consideration 2
Extract:
The different rules applying to the two categories of official concerned is of course warranted by the fact that assignment to a foreign country generally entails more difficulties when the official concerned has no previous connections with that country than when he has previously lived or worked there (see, in this connection, Judgment 2893, under 13 and 14).
Reference(s)
Jugement(s) TAOIT: 2893
Keywords
equal treatment
Consideration 6
Extract:
It is plain from the evidence in the file that the clause providing for the granting of the expatriation allowance to the complainant was deliberately included in the letter of appointment by the signatory parties and was not the result of a mere administrative error, as Eurocontrol now tries to argue.
The complainant has produced an exchange of emails with the Head of the Engineering Division which unambiguously prove that his recruitment was preceded by negotiations precisely concerning the granting of the expatriation allowance and that the Eurocontrol Administration had agreed to grant him this benefit in order that his remuneration would remain similar to that which he had previously received in the private sector. [...]
Similarly, Eurocontrol’s argument that the complainant’s letter of appointment did not explicitly refer to an agreement between the parties on this subject “notwithstanding the rules and regulations” does not mean that no such informal agreement existed, since it is hardly likely that an organisation would wish to draw attention in a contract to the unlawful nature of one of the clauses thereof.
In view of the foregoing, the Tribunal will not accept the Organisation’s submission that the clause providing for the benefit in question was inserted into the complainant’s contract solely as a result of an accidental error in applying Article 4(1) of Rule of Application No. 7. In this connection, the Organisation explains that the Administration of the Maastricht Centre wrongly believed that the complainant’s services while he was placed at the disposal of Eurocontrol by private companies prior to his recruitment should be regarded as services for an international organisation within the meaning of Article 4(1), and that they were therefore not to be taken into account when determining whether he was entitled to receive the expatriation allowance. In view of the evidence on file, the Tribunal is of the opinion that, at best, the purpose of this somewhat surprising alleged misunderstanding was to contrive a reason for granting the complainant a benefit which the Organisation had purposefully decided to give him, in breach of the applicable text, in order to be able to offer him a level of remuneration which would persuade him to accept his appointment.
Keywords
contract; intention of parties; clerical error
Consideration 6
Extract:
The defendant organisation’s submission that this undertaking on behalf of Eurocontrol is not valid because it was not given by the Director General himself is manifestly misconceived. Apart from the fact that the executive head of international organisation is obviously not the only authority empowered to represent it in a negotiation of this kind, the issue that arises here is not whether this undertaking was legally valid, but whether it was actually given, which would explain why the clause in question was inserted in the complainant’s contract; and, as already stated, the above-mentioned emails show that it was.
Keywords
delegated authority
Considerations 7-8
Extract:
[A]n international organisation cannot lawfully conclude an employment contract containing a clause that is contrary to its existing staff rules and regulations. The organisation must abide by the provisions it has itself laid down and they therefore take precedence over the clauses of contracts concluded between it and its officials (see, for example, Judgments 1634, under 19, or 2097, under 10).
It follows that a clause which [...] contravenes the staff rules and regulations is unlawful and therefore cannot apply, even if the contracting parties clearly intended it to do so. Were that not the case, an organisation could evade compliance with its staff regulations on a case-by-case basis, which would seriously undermine the legal framework to which they belong and, in particular, would breach the principle of the equal treatment of officials. [...]
It is useful to compare this dispute with that which gave rise to Judgment 3483, in which an official’s employment contract made provision for the granting of a benefit which was not mandatory under the Staff Regulations and which the organisation concerned did not intend to pay. Although, in the latter case, the Tribunal found that the disputed contractual clause had to be applied, it did so after expressly noting in consideration 8 of that judgment that the clause had not been unlawfully included in the complainant’s contract, since a provision of the organisation’s rules permitted the granting of the allowance in question to staff members in the position of the official in question. In this case, on the other hand, there was no provision permitting Eurocontrol to grant the complainant an expatriation allowance.
Reference(s)
Jugement(s) TAOIT: 1634, 2097, 3483
Keywords
precedence of rules; staff regulations and rules; contract
Consideration 10
Extract:
It is true that in this case, as the evidence clearly shows, the decision to stop the payment of the allowance, which represented a substantial part of the complainant’s remuneration, altered a fundamental term of employment in consideration of which he had decided to enter Eurocontrol’s service. In that respect, this measure could well be regarded as breaching an acquired right within the meaning of the Tribunal’s case law established in Judgments 61, 832 and 986 (see, for example, Judgments 2696, under 5, or 3074, under 16).
However, it is an established principle that only a benefit that has some basis in law may be protected as an acquired right (see Judgment 1334, under 23). The cancellation of an unjustified benefit will not therefore be regarded as a breach of an acquired right (see Judgments 1241, under 24, and 1446, under 13 and 14). Since, as stated above, the complainant received the expatriation allowance as a result of an unlawful contractual clause, he cannot validly invoke an acquired right to justify the continued payment of the allowance.
Reference(s)
Jugement(s) TAOIT: 61, 832, 986, 1241, 1334, 1446, 2696, 3074
Keywords
acquired right
Consideration 14
Extract:
[B]y deliberately including in the complainant’s letter of appointment, albeit at his request, a clause stipulating that he would receive the expatriation allowance, although he could not lawfully claim it, Eurocontrol indisputably acted wrongly. Moreover, the subsequent decision to withdraw this benefit, which had been unlawfully granted to the complainant, who wrongly thought he was entitled to it and who had no doubt viewed it as an essential condition when he had decided to accept his appointment, caused him serious injury stemming primarily from that wrongful act.
The complainant therefore has reason to claim, as he does subsidiarily in his complaint, that this injury should be redressed by ordering the Organisation to pay him damages.
Keywords
damages; contract
Consideration 17
Extract:
The complainant asks the Tribunal to rule that, should the various sums awarded to him by this judgment be subject to national taxation, he would be entitled to a refund of the tax paid from Eurocontrol. However, in the absence of a present cause of action in this respect, this claim must be dismissed as irreceivable (see, for example, Judgments 3255, under 15, or 3424, under 15).
Reference(s)
Jugement(s) TAOIT: 3255, 3424
Keywords
cause of action; tax
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