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Keywords: Applicable law
Total judgments found: 108
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Judgment 4895
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the date of his promotion with retroactive effect and seeks promotion from an earlier date.
Consideration 11
Extract:
[T]he Tribunal notes first of all that, in the absence of an express provision to the contrary, all that the right to a hearing requires is that the complainant should be free to put his case, either in writing or orally; the appeal body is not obliged to offer him both possibilities (see, in particular, Judgments 4743, consideration 13, 3447, consideration 8, and 3023, consideration 11). It is plain from the written submissions in this regard that the complainant had ample opportunity to present his allegations and arguments in writing and that he was informed, by letter of 19 November 2019, that the chairperson of the chamber to which the internal appeal had been referred had decided not to hold a hearing, since the matter could be properly addressed on the basis of the documentation already filed by the complainant with the Committee.
In this case, the right to be heard orally by the Appeals Committee was indeed applicable at the time when the complainant filed his internal appeal on 23 May 2014. However, following the amendments introduced to the Implementing Rule for Articles 106 to 113 of the Service Regulations by Administrative Council decision CA/D 7/17 of 29 June 2017, which entered into force on 1 July 2017, Article 8(1) of the Service Regulations replaced the right to be heard orally with an option for the chairperson or presiding member of the chamber dealing with the appeal to hold a hearing if she or he considers it useful. According to the Tribunal’s case law, any amendment to the procedural rules applicable before an internal appeals body applies directly to cases pending before that body, unless a transitional provision provides otherwise (see, in particular, Judgment 3895, consideration 4). This not being the case in this instance, the chairperson of the chamber concerned, when he ruled on this point on 19 November 2019, correctly applied Article 8 of the aforementioned Service Regulations, in their new version then in force.
Reference(s)
ILOAT Judgment(s): 3023, 3447, 3895, 4743
Keywords:
applicable law; internal appeal; internal appeals body; oral proceedings; right to be heard;
Judgment keywords
Keywords:
applicable law; competence of tribunal; complaint dismissed; discretion; internal appeal; internal appeals body; judicial review; oral proceedings; order; promotion; retroactivity; right to be heard; work appraisal;
Judgment 4841
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish the post she used to hold and not to renew her contract beyond 31 December 2020.
Consideration 4
Extract:
The complainant also relies on the Guidelines assuming that they were binding and that the Organization was obliged to comply strictly with all the provisions contained therein. Her reliance in this regard is misplaced. The Guidelines expressly state that they were not intended to be binding, but “for information only”. The language of the Guidelines is not prescriptive. They rather outline or suggest best practices. Thus, they are not part of the staff rules and regulations or of the complainant’s terms of appointment.
Keywords:
applicable law; binding character;
Judgment 4800
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of her requests for special leave for very serious illness of a child.
Consideration 6
Extract:
[R]eliance on national law, which cannot be enforced against the EPO, does not create a legal obstacle to the application of rules and regulations governing permanent employees of the Office (see, in particular, Judgments 4553, consideration 4, and 4401, consideration 6).
Reference(s)
ILOAT Judgment(s): 4401, 4553
Keywords:
applicable law;
Judgment 4759
137th Session, 2024
Organisation of African, Caribbean and Pacific States
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-renewal of his employment contract.
Consideration 10
Extract:
[P]ursuant to paragraph 1 of Article 7B of the Rules of the Tribunal, only a complainant or intervener may request anonymity, since they are the only parties whose names are referred to in the Tribunal’s judgments.
In addition, in view of its special nature and its specific Statute, the Tribunal is not, in any event, bound by the provisions of EU law, such as those of the GDPR (see Judgments 4493, consideration 10, 4167, consideration 7, and 3867, consideration 2).
Reference(s)
ILOAT Judgment(s): 3867, 4167, 4493
Keywords:
anonymity; applicable law; european union;
Judgment 4758
137th Session, 2024
Organisation of African, Caribbean and Pacific States
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision of the Secretary-General to end her employment and the breach of a promise of employment allegedly made to her.
Consideration 11
Extract:
[P]ursuant to paragraph 1 of Article 7B of the Rules of the Tribunal, only a complainant or intervener may request anonymity, since they are the only parties whose names are referred to in the Tribunal’s judgments.
In addition, in view of its special nature and its specific Statute, the Tribunal is not, in any event, bound by the provisions of EU law, such as those contained in the GDPR (see Judgments 4493, consideration 10, 4167, consideration 7, and 3867, consideration 2).
Reference(s)
ILOAT Judgment(s): 3867, 4167, 4493
Keywords:
anonymity; applicable law; european union;
Judgment 4670
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the restitution of amounts wrongly deducted from her salary in respect of sickness insurance contributions.
Considerations 10-11
Extract:
As Interpol has decided to affiliate its officials stationed in France to the French social security scheme pursuant to Staff Regulation 7.1(1), it has made French national law applicable to the employment relationship between the Organization and the officials concerned as regards their social protection. Given this express reference to the rules of national law, the Tribunal should, in principle, refer to them when ruling on this dispute (see Judgments 4401, consideration 6, 3915, consideration 4, 1451, consideration 23, and 1369, consideration 15).
[...]
Having regard to these matters, the Tribunal finds that the question of the extent to which the amounts of ESC paid for the 2009-2012 period may be refunded to the persons who paid them raises a question of interpretation of national law, the scope of which goes well beyond the case of Interpol officials and which can only be decided by the French authorities and courts. It is therefore not for the Tribunal to rule on this issue.
Reference(s)
ILOAT Judgment(s): 1369, 1451, 3915, 4401
Keywords:
applicable law; competence of tribunal; domestic law;
Judgment 4668
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the restitution of amounts wrongly deducted from his salary in respect of sickness insurance contributions.
Considerations 8-9
Extract:
As Interpol has decided to affiliate its officials stationed in France to the French social security scheme pursuant to Staff Regulation 7.1(1), it has made French national law applicable to the employment relationship between the Organization and the officials concerned as regards their social protection. Given this express reference to the rules of national law, the Tribunal should, in principle, refer to them when ruling on this dispute (see Judgments 4401, consideration 6, 3915, consideration 4, 1451, consideration 23, and 1369, consideration 15). [...]
Having regard to these matters, the Tribunal finds that the question of the extent to which the amounts of ESC paid for the 2009-2012 period may be refunded to the persons who paid them raises a question of interpretation of national law, the scope of which goes well beyond the case of Interpol officials and which can only be decided by the French authorities and courts. It is therefore not for the Tribunal to rule on this issue.
Reference(s)
ILOAT Judgment(s): 1369, 1451, 3915, 4401
Keywords:
applicable law; competence of tribunal; domestic law;
Judgment 4667
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants seek the restitution of amounts wrongly deducted from their salaries in respect of sickness insurance contributions.
Considerations 9-10
Extract:
As Interpol has decided to affiliate its officials stationed in France to the French social security scheme pursuant to Staff Regulation 7.1(1), it has made French national law applicable to the employment relationship between the Organization and the officials concerned as regards their social protection. Given this express reference to the rules of national law, the Tribunal should, in principle, refer to them when ruling on this dispute (see Judgments 4401, consideration 6, 3915, consideration 4, 1451, consideration 23, and 1369, consideration 15).
[...]
Having regard to these matters, the Tribunal finds that the question of the extent to which the amounts of ESC paid for the 2009-2012 period may be refunded to the persons who paid them raises a question of interpretation of national law, the scope of which goes well beyond the case of Interpol officials and which can only be decided by the French authorities and courts. It is therefore not for the Tribunal to rule on this issue.
Reference(s)
ILOAT Judgment(s): 1369, 1451, 3915, 4401
Keywords:
applicable law; competence of tribunal; domestic law;
Judgment 4493
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to award him moral damages for the length of the internal appeal procedure.
Consideration 10
Extract:
With regard to the complainant’s reference to the case law of the European Court of Human Rights, it has to be recalled that this Tribunal is not bound by the case law of other international or regional courts (see Judgments 3138, consideration 7, and 4363, consideration 12). The Tribunal also held in Judgment 3815 that “the [European] Convention [on Human Rights] is not in any event applicable as such to international organisations within the legal system to which the Tribunal belongs” (see Judgment 3815, consideration 3, and Judgments 2236, consideration 11, 2611, consideration 8, and 2662, consideration 12). Therefore, the reference by the complainant to the case law of the European Court of Human Rights should not be applied in the present case.
Reference(s)
ILOAT Judgment(s): 2236, 2611, 2662, 3138, 3815, 4363
Keywords:
applicable law; european convention on human rights;
Judgment 4435
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who is a former permanent employee of the European Patent Office, challenges the deductions from his remuneration that were made in respect of his absences for strike participation as well as the lawfulness of the general normative decisions on which those deductions were based.
Consideration 19
Extract:
In circumstances where the deduction actually made for specified conduct was unlawful under the subsisting Service Regulations, it is appropriate to apply the pre-existing Service Regulations (see Judgment 365, consideration 4).
Reference(s)
ILOAT Judgment(s): 365
Keywords:
applicable law; deduction; staff regulations and rules;
Judgment 4397
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer her.
Considerations 10-12
Extract:
The claim that the [transfer] decision […] lacked legal basis is well founded. The Organisation relied on its general power to restructure its services to justify the complainant’s “reassignment” […]. The Organisation notes that the Tribunal’s case law forms part of its legal framework. However, the Tribunal’s consistent case law holds that “any authority is bound by the rules it has itself issued until it amends, suspends or repeals them. The general principle is that rules govern only what is to happen henceforth, and it is binding on any authority since it affords the basis for relations between the parties in law. Furthermore, a rule is enforceable only from the date on which it is brought to the notice of those to whom it applies (see Judgment 963, under 5). A competent body adopts rules in order to regulate its exercise of discretionary power in making specific decisions. It would radically contrast with the finality and essence of a rule (which is by nature general and abstract) to allow that in making a decision the authority can disregard a rule that was adopted in order to limit the authorities’ power concerning particular subjects and instead create an opportunity for expanding one’s power. Obviously, the procedure to adopt rules must be different from the procedure to make decisions, because rules are general and apply to many (undefined) and therefore must be published accordingly, whereas decisions are more precise and apply to few (defined)” (see Judgment 2575, consideration 6).
In stating that “the legal basis for restructuring decisions [is] not to be found exclusively in the [Service Regulations]”, the Appeals Committee misinterpreted the Tribunal’s case law. While it is true that, in taking restructuring decisions, the executive head can also rely on some well-established principles enshrined in the case law (see, for example, Judgments 4086, consideration 11, 3488, consideration 3, and 2839, consideration 11), she or he is bound by the proper application of the relevant provisions in force. In the present case, the Organisation erred in not following the provisions in force at the time the […] decision was taken, when it created a new post without advertising the vacancy. […]
The Organisation’s assertion that the impugned decision was lawful as it was based on its general power to restructure its services, in its generality, is not acceptable. The Organisation’s wide discretion still requires it to be exercised within the limits of the general principles of law and the existing provisions; otherwise, it becomes a way to circumvent the provisions in force, leading to arbitrariness. At the time the [transfer] decision was taken, there was no provision in the Service Regulations which allowed the EPO to reassign an employee, together with her or his post, to duties corresponding to her or his grade, or which allowed the EPO to create and fill a new post without following the provisions regarding transfers and creation of posts. […]
Reference(s)
ILOAT Judgment(s): 963, 2575, 2839, 3488
Keywords:
applicable law; patere legem; reorganisation; transfer;
Judgment 4388
131st Session, 2021
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: IFAD filed an application for interpretation of Judgments 4341 and 4342.
Consideration 6
Extract:
The Tribunal notes that in Judgment 4324, consideration 5, it was said: “When an organisation is required to take a new decision after a case has been referred back to it by a judgment of the Tribunal, if the applicable provisions have been amended in the meantime, the organisation must take that decision in compliance with the procedure now in force (see, for example, Judgment 3896, consideration 4).”
Reference(s)
ILOAT Judgment(s): 3896, 4324
Keywords:
applicable law; execution of judgment;
Judgment 4324
130th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The applicant seeks execution in full of Judgments 3045 and 3792 and recognition that the disease which led to his invalidity status is occupational.
Consideration 5
Extract:
When an organisation is required to take a new decision after a case has been referred back to it by a judgment of the Tribunal, if the applicable provisions have been amended in the meantime, the organisation must take that decision in compliance with the procedure now in force (see, for example, Judgment 3896, consideration 4).
Reference(s)
ILOAT Judgment(s): 3896
Keywords:
amendment to the rules; applicable law; execution of judgment;
Judgment 4207
129th Session, 2020
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Director General’s decision to endorse the conclusion of the Office of Internal Oversight Services that it was unable to make a conclusive determination on her sexual harassment claim and to reject her related request for damages.
Consideration 15
Extract:
It is observed that there are no specific provisions in the IAEA’s Staff Regulations and Staff Rules that articulate a comprehensive procedure to deal with a claim of harassment of the type first discussed in the preceding consideration. In the absence of a lawful comprehensive procedure within the IAEA’s Staff Regulations and Staff Rules to deal with a claim of harassment, the IAEA had to respond to the complainant’s claim of harassment in accordance with the Tribunal’s relevant case law. It is well settled in the case law that an international organization has a duty to provide a safe and adequate working environment for its staff members (see Judgment 2706, consideration 5, citing Judgment 2524). As well, “given the serious nature of a claim of harassment, an international organization has an obligation to initiate the investigation itself [...]” (see Judgment 3347, consideration 14). Moreover, the investigation must be initiated promptly, conducted thoroughly and the facts must be determined objectively and in their overall context. Upon the conclusion of the investigation, the complainant is entitled to a response from the Administration regarding the claim of harassment. Additionally, as the Tribunal held in Judgment 2706, consideration 5, “an international organisation is liable for all the injuries caused to a staff member by their supervisor acting in the course of his or her duties, when the victim is subjected to treatment that is an affront to his or her personal and professional dignity” (see also Judgments 1609, consideration 16, 1875, consideration 32, and 3170, consideration 33). Thus, an international organization must take proper actions to protect a victim of harassment.
Reference(s)
ILOAT Judgment(s): 1609, 1875, 2524, 2706, 3170, 3347
Keywords:
applicable law; case law; harassment; sexual harassment;
Judgment 4020
126th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the denial of his second request to benefit from the temporary early termination of service scheme and the implied decision to reject his claim for compensation.
Consideration 8
Extract:
As stated in Judgments 3034, under 33, and 2459, under 9, when it deals with a claim, an administrative authority must generally base itself on the provisions in force at the time it takes its decision and not on those applicable at the time the claim was submitted. Only where this approach is clearly excluded by the new provisions, or where it would result in a breach of the requirements of the principles of good faith, the non-retroactivity of administrative decisions and the protection of acquired rights, will the above rule not apply.
If, as a result of the Tribunal setting aside an administrative decision, the competent authority must take a new decision on a claim presented to it, the Administration must base that decision on the legal and factual circumstances existing on the date on which it takes its new decision. Indeed, in that situation, none of the exceptions to the principle established by the case law cited above applies.
Reference(s)
ILOAT Judgment(s): 2459, 3034
Keywords:
applicable law; decision quashed;
Judgment 3939
125th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to extend his appointment beyond the statutory retirement age.
Consideration 5
Extract:
It must first be emphasised that, contrary to the complainant’s submissions, the provision of the Constitution of the ISAU setting the Treasurer’s term of office [...] does not constitute a “statutory requirement” established by the Organization’s authorities. Since, in accordance with the principle of trade-union freedom, the ISAU is an entity separate from the Administration of UNESCO, its Constitution, although subject to the Director-General’s approval, cannot be regarded as an integral part of the rules and regulations governing the Organization, and the fact that its text is reproduced as an appendix to the Human Resources Manual for ease of consultation by staff members does not by any means have the effect of incorporating it therein.
Keywords:
applicable law; staff union;
Judgment 3895
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant has filed an application for interpretation and execution of Judgment 3694.
Consideration 4
Extract:
With regard to the clarification requested under a) [...], the expression an “Appeals Committee, composed in accordance with the applicable rules”, in the present case refers to the procedural rules in force at the time of the execution of the judgment (i.e. the new examination of the appeal). It must be accepted that the procedural rules governing the composition of the Appeals Committee could be changed and that, in the event of a change, the new provisions should apply to the complainant’s appeal. In saying this the Tribunal is not expressing a view about the lawfulness of the new provisions. As the application for execution is only based on the arguments raised with respect to the application for interpretation, it is without merit.
Keywords:
applicable law; execution of judgment;
Judgment 3726
123rd Session, 2017
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her claim for compensation on account of labour exploitation and compulsory labour.
Consideration 4
Extract:
The Tribunal has explained its purview when a party relies on the violation of a right under an ILO Convention as follows:
“The complainant contends that the ILO acted in breach of its own international instruments when it did not renew his contract. He specifically refers to ILO Convention No. 158 and Article 3.2(c) of ILO Recommendation No. 166. [...] [T]hese instruments create obligations for Member States and do not apply to the relationships between the ILO and its officials. These latter relationships are governed by the terms of the contracts into which the person entered with the ILO and by the rules and regulations of the ILO, as interpreted and applied by the Tribunal’s case law (see, for example, Judgment 2662, under 12).” (Judgment 3448, consideration 10.)
However, the prohibition on forced labour is not confined to the Forced Labour Convention. It is also one of the fundamental principles and rights at work, as recognized in the ILO Declaration on Fundamental Principles and Rights at Work, 1998, which is accepted by all ILO Member States through their membership of the ILO. The Tribunal already considered in Judgment 1333, consideration 5, that:
“The law that the Tribunal applies in entertaining claims that are put to it includes not just the written rules of the defendant organisation but the general principles of law and basic human rights.”
Accordingly, the complainant’s claim for compensation on the ground that she was subjected to compulsory labour and labour exploitation will be considered.
Reference(s)
ILOAT Judgment(s): 1333, 2662, 3448
Keywords:
applicable law; forced labour; ilo instruments;
Consideration 5
Extract:
The complainant refers to a number of international conventions. As indicated in the foregoing paragraph of this judgment, their terms are only enforceable between the States Parties, but the general principles enshrined therein may also apply to staff relations.
Keywords:
applicable law; international instrument;
Judgment 3661
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of the transitional allowance paid to her following her admission to the early termination of service scheme.
Consideration 5
Extract:
The fact that one Member State had notified the Organisation that it objected to these provisions does not prevent their application. Indeed, since this objection had not led to their amendment, the Organisation could not draw any legal consequences from it.
Keywords:
applicable law;
Judgment 3287
116th Session, 2014
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who reported his suspicions that someone was unlwafully accessing his professional email account, impugned the decision to deny him access to the investigation report.
Considerations 15 and 16
Extract:
"The complainant cited one judgement of the United Nations Administrative Tribunal to support a request for the provision of documents in a broadly analogous situation [...]. However the complainant cited no judgment of the Tribunal or another international administrative tribunal that has held, in the face of a provision such as paragraph 10, that an organisation must or even should make available a report containing confidential information gathered from various sources during an investigation to a person who requested it even if that person is centrally involved in the investigation. Paragraphs 9 and 10 are fundamental to maintaining a system of internal investigation that is likely to be effective and reveal to the Administration the true position surrounding any particular issue or matter which is the subject of internal audit. It is true that there is a general trend in the case law of the Tribunal towards the production rather than non-disclosure of documents in an Administration’s possession which may bear upon a staff member’s position within the organisation (see, for example, Judgment 1756, consideration 10(b)). [...]
[T]his case provides an example of where a specific provision effectively denying disclosure for the purposes of promoting confidential communications with an internal auditor should be maintained fully and given effect. [...] The complainant had no right to be provided with a copy of the IAOD report and accordingly there was no relevant delay for which he may be entitled to damages."
Keywords:
applicable law; confidential evidence; disclosure of evidence; refusal;
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