Competence of Tribunal (102, 103, 105, 694, 699, 700, 701, 844, 702, 703, 727, 830, 861, 878, 944, 946, 948,-666)
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Keywords: Competence of Tribunal
Total judgments found: 473
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Judgment 3648
122nd Session, 2016
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the validity of a competition process in which she participated and the lawfulness of the ensuing appointment.
Consideration 5
Extract:
WIPO’s argument that the Tribunal itself could have raised the issue of the complainant’s lack of a cause of action is of no avail. Indeed, although it is well-established case law that, because they involve the application of mandatory provisions, issues of receivability can be raised by the Tribunal of its own motion (see, for example, Judgments 2567, under 6, 3139, under 3, and the case law cited therein), the Tribunal may only do so when irreceivability is clearly apparent from the evidence submitted. That is plainly not the case here, especially if one considers only the submissions as they stood before the surrejoinder was filed, which is how the issue must be approached here.
Reference(s)
ILOAT Judgment(s): 2567, 3139
Keywords:
competence of tribunal; no cause of action; receivability of the complaint;
Consideration 5
Extract:
[T]he submissions show that WIPO did not claim that the complainant had no cause of action at any time during the internal appeal proceedings, yet such an objection could equally have been raised at that stage, and WIPO does not mention any circumstance that prevented it from so doing. The Tribunal has on a number of occasions held that in such circumstances an organisation may not raise such an objection for the first time in the proceedings before the Tribunal (see, for example, Judgments 1655, under 9 and 10, 2255, under 12 to 14, and 3160, under 14).
Reference(s)
ILOAT Judgment(s): 1655, 2255, 3160
Keywords:
competence of tribunal; no cause of action; receivability of the complaint;
Judgment 3557
120th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: As the complaint is clearly irreceivable, it is summarily dismissed.
Consideration 5
Extract:
"A significant part of the complainant’s submissions is devoted to challenging certain modifications to the EPO’s internal appeal procedure which were introduced in 2013. In his claims for relief, he specifically asks the Tribunal to “clarify some points of the procedure of the Internal Appeals Committee”. The complainant clearly misunderstands the role of the Tribunal. A request for interpretation of a normative text of an organization cannot be formulated as an independent claim before the Tribunal, outside the context of alleged non-observance of the terms of appointment of an official. This claim is therefore clearly irreceivable."
Keywords:
competence of tribunal; interpretation; ratione materiae; receivability of the complaint;
Judgment 3544
120th Session, 2015
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the practice followed in granting appointments without limit of time to officials in the Director and Principal Officer category.
Consideration 7
Extract:
"Although the Director-General’s decision [...] was confined to dismissing the complainant’s grievance as irreceivable, [...] the Tribunal considers that, since the parties have addressed the substance of the complainant’s claims, it should rule on the merits of the case."
Keywords:
competence of tribunal;
Judgment 3490
120th Session, 2015
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision not to grant her request for retroactive reclassification of her former post.
Consideration 30
Extract:
"The complainant asks the Tribunal to order the retroactive reclassification of the post […] and to order the IAEA to pay material damages equivalent to the salary differential […] taking into account step increases […]. First, the reclassification of a post is clearly beyond the competence of the Tribunal as the authority to do so rests exclusively with the Director General and as delegated. Second, granting the request for the material damages would amount to the Tribunal substituting its own assessment for that of the competent authority contrary to well settled case law (for example, see Judgments 2284, under 9, and 3284, under 12)."
Reference(s)
ILOAT Judgment(s): 2284, 3284
Keywords:
competence of tribunal; order; post classification; reclassification;
Judgment 3468
119th Session, 2015
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: As the complaint does not raise issues over which the Tribunal has jurisdiction, it is irreceivable and is summarily dismissed.
Consideration 4
Extract:
"[I]t is clear that these issues concerned the application of a policy to the complainant while he was seeking consultancy work with the FAO but when he was no longer an official of the Organization. The policy had no practical or legal application to the complainant when he was an official of the FAO. Accordingly the issues sought to be raised by the complainant in his internal appeal and before the Tribunal are not issues concerning the non-observance of the terms of his appointment as an official of the FAO or of the application of the Staff Regulations applicable to him during his period of employment with that Organization. The complainant’s challenge is made as a potential consultant rather than as a former official. Consequently, his complaint is based on his status as a potential consultant. Having regard to Article II of the Tribunal’s Statute, the complaint does not raise issues over which the Tribunal has jurisdiction."
Keywords:
competence of tribunal; former official; non official; ratione personae; status of complainant;
Judgment 3449
119th Session, 2015
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal cancelled the disputed competitions because the ILO rendered the recruitments unlawful.
Consideration 3
Extract:
"[T]he complainant also acted in his capacity as Chairperson of the Staff Union Committee of the Office. According to the case law, members of a staff committee may bring a complaint to preserve common rights and interests, these being understood to mean enforceable legal rights and interests derived from terms of appointment or under Staff Regulations which have not necessarily been breached in respect of the member of the staff committee who files a complaint with the Tribunal.
In order for a complaint submitted on behalf of a staff committee to be receivable, it must allege a breach of guarantees which an organisation is legally bound to provide to staff who are connected to it by an employment contract or who have the status of officials. This condition is a sine qua non for the Tribunal’s jurisdiction (see Judgment 3342, under 10, and the case law cited therein)."
Reference(s)
ILOAT Judgment(s): 3342
Keywords:
competence of tribunal; contract; locus standi; staff representative;
Judgment 3441
119th Session, 2015
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal found that UNIDO breached its duty of care, good faith and mutual trust to the complainant.
Consideration 8
Extract:
[A]ll of these and other issues which call into question decisions that are made on the basis of the UNJSPF Regulations are irreceivable in the Tribunal as they fall within the exclusive jurisdiction of the United Nations Appeals Tribunal under UNIDO Staff Regulation 12.2(b).
Keywords:
competence of tribunal; ratione materiae; receivability of the complaint; unjspf;
Judgment 3428
119th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants unsuccessfully challenge decisions that were not followed by individual implementing decisions.
Consideration 21
Extract:
[T]he complainants requested subsidiarily that the Tribunal should order the EPO “correctly to interpret the capping in Art[icle] 10 [of the New Pension Scheme Regulations]” [...]. The Tribunal may not, however, issue such injunctions to an international organisation. Hence these claims are [...] irreceivable (see, for example, Judgments 1456, under 31, 2244, under 12, or 2793, under 21).
Reference(s)
ILOAT Judgment(s): 1456, 2244, 2793
Keywords:
claim; competence of tribunal; order;
Judgment 3427
119th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants unsuccessfully challenge a series of decisions concerning pension issues, those being decisions of general application.
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:
competence of tribunal; internal remedies exhausted; receivability of the complaint;
Judgment 3426
119th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenged decisions relating to tax adjustment for EPO pensioners, but the Tribunal found that those decisions had not caused them any injury.
Consideration 16
Extract:
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 reference: Articles II and VII of the Statute
ILOAT Judgment(s): 1756, 3136
Keywords:
cause of action; competence of tribunal; iloat statute; ratione materiae; ratione personae; receivability of the complaint;
Consideration 5
Extract:
[E]ven if there is agreement, the Tribunal must still determine whether it is competent to hear the complaint under Article II of the Statute. As the competence of the Tribunal is statutory, it cannot be conferred by agreement of the parties or on consent.
Reference(s)
ILOAT reference: Article II of the Statute
Keywords:
competence of tribunal; iloat statute;
Judgment 3420
119th Session, 2015
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant unsuccessfully challenges the decision not to convert his consultant's contract into a fixed-term appointment.
Consideration 9
Extract:
"The Tribunal has examined its competence ratione personae of its own motion since, when the complaint was filed [...], the complainant was formally described in his employment contract as a “consultant”, a term often used for external collaborators. In the complaint form, the complainant calls himself a staff member. The Tribunal notes that the Staff Regulations and Staff Rules applicable since 1 January 2012 use the terms “staff members” and “staff” indiscriminately and that WIPO describes the complainant as a temporary employee on a short-term contract. The Tribunal finds that WIPO has consistently treated the complainant as a staff member. It is clear from the evidence that his contract provided for the payment of a salary, that he was subject to the disciplinary procedure – which was actually applied to him – and that he had access to internal appeal bodies. Moreover, WIPO admits that it has outsourced duties previously exercised by the complainant, which clearly shows that they were previously regarded as being performed internally. The Tribunal is therefore competent ratione personae to hear this case. Indeed, it had already implicitly accepted that it was competent to hear the complainant’s previous complaints."
Keywords:
competence of tribunal; locus standi; official; ratione personae; short-term; staff member; status of complainant;
Judgment 3408
119th Session, 2015
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants unsuccessfully challenge the decision to apply to them a salary adjustment index they considered illegal.
Considerations 8 and 9
Extract:
The next contention of the complainants is that there is a clear principle that any methodology of adjustment of, amongst other things, salaries must ensure that the results are “stable, foreseeable and clearly understood”, referring to Judgment 1265, consideration 27, and Judgment 1821, consideration 7. They contend that this principle has been violated, at least in the sense that a methodology yielding a negative salary adjustment could not be “clearly understood” and, presumably, was not clearly understood. The complainants refer to the fact that the Finance Committee meeting in November 2011 was in a restricted session and that the Staff Association was not given access to the minutes of that meeting and that of the Council of December 2011. In the brief the concluding submission is that “the Staff Association, through its representatives, and consequently the complainants, were not informed of all the data behind the Council’s decision and consequently, could not understand the results arrived at”. However the die was cast and the method of computation established by the decision of the Tripartite Group at its meeting of 8 March 2011 to recommend, as the minutes record, “[the application of] an exact adjustment for the year 2011 [of minus 1.5 per cent] to the 2012 salary adjustment calculation”. It is true that the minutes also record concerns about the quality of the data input, the availability of the data and its (the methodology’s) retroactive changes. However, insofar as the adjustment of minus 1.5 per cent is concerned, there was, after March 2011, ample opportunity for the representatives of the staff to consult with the Administration about the calculation of the minus 1.5 per cent. Moreover, the jurisprudence the complainants rely on concerns methodology, not the minutiae of particular data used when applying the methodology. The real grievance is with the result, namely a reduction in salaries and other emoluments. That is not to say that data is always immune from challenge. Indeed, the complainants seek to challenge data on the third basis identified earlier.
The challenge to the data is based on the principle, as described in the brief, that “international organisations are bound under law to check that the decision of an external authority is legal, before incorporating it within their own legal order”. The complainants refer to Judgments 382, consideration 6, 825, consideration 18, 1000, consideration 12, 1265, considerations 21 and 24, 1713, consideration 3, 2303, consideration 7, and 2420, consideration 11.
Reference(s)
ILOAT Judgment(s): 382, 825, 1000, 1265, 1265, 1713, 1821, 2303, 2420
Keywords:
competence of tribunal; general decision; salary;
Judgment 3360
118th Session, 2014
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal dismissed the complaints seeking a review of the decision to apply to the complainants’ salaries the post adjustment calculated on the basis of the ICSC 2010 cost-of-living survey for Vienna.
Consideration 4
Extract:
"The complaints are receivable and the Tribunal is competent to rule on their merits. However as they raise issues of a very technical nature, similar considerations apply here as in Judgment 3273, under 6, where the Tribunal noted that “an evaluation or classification exercise is based on the technical judgment to be made by those whose training and experience equip them for that task. It is subject to only limited review. The Tribunal cannot, in particular, substitute its own assessment for that of the organisation. Such a decision cannot be set aside unless it was taken without authority, shows some formal or procedural flaw or a mistake of fact or of law, overlooks some material fact, draws clearly mistaken conclusions from the facts or is an abuse of authority (see, for example, Judgment 2581).”"
Reference(s)
ILOAT Judgment(s): 2581, 3273
Keywords:
competence of tribunal;
Judgment 3359
118th Session, 2014
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants, former judges of the ICC, impugn the implied decision of the Assembly of States Parties not to determine to which Pension Scheme they were subjected.
Consideration 19
Extract:
"It is settled that pension entitlement is a term of appointment and clearly within the Tribunal’s jurisdiction."
Keywords:
competence of tribunal; pension entitlements;
Judgment 3318
117th Session, 2014
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully impugns the decision of the Director-General to dismiss his harassment complaint.
Consideration 12
Extract:
[T]he claim for disciplinary measures against one of the supervisors implicated in the complaint cannot be granted. Indeed, such a request is, in any event, outside the Tribunal’s jurisdiction. (See Judgments 2811, under 15, or 2636, under 13.)
Reference(s)
ILOAT Judgment(s): 2636, 2811
Keywords:
competence of tribunal; request to subject someone to disciplinary proceedings;
Judgment 3312
117th Session, 2014
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The disciplinary sanction taken by the Executive Head departing from the recommendation of a disciplinary board is cancelled for lack of sufficient reasons.
Consideration 6
Extract:
In Judgment 2495, under 9(b), the Tribunal held that in taking a decision at the outcome of disciplinary proceedings, an Executive Head, such as the Registrar, is not bound by the recommendations of a disciplinary board. The Registrar may depart from them if another solution is considered to be more appropriate to ensure the satisfactory running of the Organization. The Tribunal will not substitute its assessment for that of the Registrar, unless it notes a clear disproportion between the gravity of the offence committed and the severity of the penalty imposed by the Registrar. However, a Registrar who departs from a recommendation of a board, as in this case, must state the reasons for disregarding it. One purpose which is served by this requirement to give reasons is to enable the Tribunal to evaluate whether the decision is proportionate in the event that the decision is challenged in the Tribunal (see, for example, Judgment 2391, under 8). In this case, the Registrar motivated her decision for departing from the recommendation of the DAB, but gave insufficiently cogent reasons for issuing the reprimand and warnings to the complainant.
Reference(s)
ILOAT Judgment(s): 2391, 2495
Keywords:
competence of tribunal; disciplinary procedure; executive head;
Judgment 3290
116th Session, 2014
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Following the abolition of the complainant's post for lack of financial resources, the reassignment process was organized but was ultimately unsuccessful in finding the complainant another post.
Consideration 23
Extract:
"In Judgment 2315, under 29, the Tribunal held that the need for a personnel advisory panel to be free to discuss relevant matters is not an acceptable basis for a claim of confidentiality “[i]n a decisionmaking process which is subject to internal review and the jurisdiction of this Tribunal […]”. This is equally applicable to a reassignment process that is also subject to internal review and the jurisdiction of the Tribunal. If there are aspects of the report pertaining to confidential third party information, the report can be redacted to exclude this information."
Reference(s)
ILOAT Judgment(s): 2315
Keywords:
advisory body; competence of tribunal; decision-maker; judicial review; reassignment; report;
Judgment 3282
116th Session, 2014
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully challenged the decision not to renew his contract based on an "overall assessment" that his performance was below the acceptable level.
Consideration 3
Extract:
"The guarantee of access to justice is a guarantee of access to a judge, which the complainant has in his ability to bring a complaint before the Tribunal. [...] In this case, Article VI.1.02 of the Staff Rules provides that there is no internal remedy for decisions regarding non-renewal of contract and as such, the complainant has direct access to the Tribunal."
Reference(s)
Organization rules reference: Article VI.1.02 of the Staff Rules
Keywords:
competence of tribunal; internal appeal; judicial review; non-renewal of contract; right; staff regulations and rules;
Judgment 3260
116th Session, 2014
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: After divorce proceedings with serious financial consequences, the complainant challenges the refusal to refer to the General Council of the WTO the issue of compatibility between the judgment of the Swiss Federal Court against him and certain provisions of the Headquarters Agreement and the Pension Plan Regulations.
Judgment keywords
Keywords:
competence of tribunal; complaint dismissed; headquarters agreement;
Considerations 19-20
Extract:
"[T]he Tribunal is not competent to examine whether the Swiss Civil Code or the Swiss Federal Court decision violates the Headquarters Agreement and cannot entertain challenges to the decision itself. [...] However, as found in Judgment 3020, the Tribunal can consider an organisation’s application of its own provisions [...]. The Tribunal can also, as stated in Judgment 3105, under 5, consider the [organisation]’s application of the Headquarters Agreement."
Keywords:
competence of tribunal; flaw; headquarters agreement; vested competence;
Judgment 3247
116th Session, 2014
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant was on reimbursable loan from UNOPS to the Global Fund, when she was notified of the non-renewal of her contract for unsatisfactory performance.
Consideration 20
Extract:
"In a case such as the present, jurisdiction is limited and defined by organisations submitting to the Tribunal’s jurisdiction and the complainant being an official (or former official) of an organisation that has so submitted (see Judgments 2503, consideration 4, and 3049, consideration 4). The complainant was not an official of the Global Fund at any relevant time. She was an official of UNOPS, which has not submitted to the Tribunal’s jurisdiction. Accordingly, the Tribunal has no jurisdiction to determine the complainant’s complaint save for determining whether it has jurisdiction. The complaint is therefore not receivable."
Reference(s)
ILOAT Judgment(s): 2503, 3049
Keywords:
competence of tribunal; iloat; locus standi; non official; ratione personae; receivability of the complaint; status of complainant;
Judgment keywords
Keywords:
competence of tribunal; complaint dismissed; official; organisation; receivability of the complaint; termination of employment; unops;
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