Acquired right (182,-666)
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Judgment 4898
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the abolition of the permanent invalidity lump sum.
Consideration 10
Extract:
In light of its precedents, the Tribunal notes that the suppression of the invalidity lump sum did not infringe an acquired right, as such a lump sum cannot be considered an essential term of employment which induced the complainant to accept the appointment and to stay on. By its nature, the payment of a lump sum in case of the invalidity of a staff member is a remote and contingent right which arises only on the rare occurrence of the permanent invalidity of an official occurring while the official is still employed by the EPO (see Judgments 4398, considerations 11 and 12, and 3375, consideration 13). The triggering event underlying the payment of the lump sum is the permanent invalidity, not the fact that the complainant paid contributions. Hence, many staff members have contributed to the insurance throughout their whole career without receiving the lump sum. In addition, in the case of such an invalidity, other benefits and emoluments are provided for in the “social security package”.
Reference(s)
ILOAT Judgment(s): 3375, 4398
Keywords:
acquired right; invalidity;
Judgment keywords
Keywords:
acquired right; complaint dismissed; general decision; invalidity; payslip;
Judgment 4889
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge their transposition to a new grade following the introduction of a new career system.
Consideration 7
Extract:
[T]he complainants submit that their acquired rights were also breached by the amendment of the provisions governing grade promotion. They consider that this amendment unlawfully brought to an end the system for “quasi-automatic promotion” which, they claim, was in force prior to the disputed reform and also constituted a fundamental term of their employment.
But the Tribunal cannot accept this line of argument either.
It is well settled in the case law, drawing on the same principles as those set out in the aforementioned consideration 8 of Judgment 4711, that the provisions providing for the grant of promotion within an international organisation do not confer any acquired rights on staff. Unless the new rules substantially deprive staff of their former prospects for advancement, an organisation always has the ability to amend those arrangements according to need (see, in particular, Judgments 3524, consideration 3, 3256, consideration 14, or 1025, consideration 4).
In the present case, it is plain from the file that, although the effect of decision CA/D 10/14 on the rules governing promotion was indeed to make career progression more dependent on the assessment of performance and evidence of expected competencies, the opportunities for promotion open to staff were not substantially affected.
[...]
[I]t was lawful for the provisions in question, which deal with simple arrangements for the grant of promotion within the meaning of the aforementioned case law, to amend the earlier text without causing any breach of acquired rights.
Reference(s)
ILOAT Judgment(s): 1025, 3256, 3524, 4711
Keywords:
acquired right; promotion; step;
Judgment 4767
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requests a compensatory allowance to offset financial losses resulting from a restructuring.
Consideration 4
Extract:
[T]he Tribunal recalls that, according to established case law, an acquired right is breached only when the amendment of a rule to the official’s detriment and without her or his consent disturbs the structure of the contract of appointment or impairs fundamental terms of appointment in consideration of which the official accepted appointment (see, in particular, Judgments 4381, consideration 14, 4195, consideration 7, and 4028, consideration 13).
In the present case, there can be no question of any breach of the complainant’s acquired rights. In view of the relative amount involved, the pay reduction at issue cannot be regarded as disturbing the structure of the contract of appointments or impairing fundamental terms of appointment in consideration of which the complainant joined Eurocontrol.
Reference(s)
ILOAT Judgment(s): 4028, 4195, 4381
Keywords:
acquired right;
Judgment 4766
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requests a compensatory allowance to offset financial losses resulting from a restructuring.
Consideration 4
Extract:
[T]he Tribunal recalls that, according to established case law, an acquired right is breached only when the amendment of a rule to the official’s detriment and without her or his consent disturbs the structure of the contract of appointment or impairs fundamental terms of appointment in consideration of which the official accepted appointment (see, in particular, Judgments 4381, consideration 14, 4195, consideration 7, and 4028, consideration 13).
In the present case, there can be no question of any breach of the complainant’s acquired rights. In view of the relative amount involved, the pay reduction at issue cannot be regarded as disturbing the structure of the contract of appointment or impairing fundamental terms of appointment in consideration of which the complainant joined Eurocontrol.
Reference(s)
ILOAT Judgment(s): 4028, 4195, 4381
Keywords:
acquired right;
Judgment 4737
137th Session, 2024
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who was the Secretary-General of the Energy Charter Secretariat, challenges the decision not to launch the procedure for his reappointment as Secretary-General.
Consideration 13
Extract:
It is true that the terms on which [the complainant] was initially appointed expressly, in his letter of appointment, recognised his right to have protected any acquired right. But the relevant question is whether a right to repeatedly reapply for the position was an acquired right which could not be altered. The Tribunal’s case law recognises that international civil servants’ conditions of employment existing at the time of recruitment are not immutable and need not, of necessity, be applied to them throughout their careers (see, for example, Judgment 4465, considerations 5 to 8). The Tribunal is not satisfied that an unconstrained right to reapply for the position of Secretary-General meets the criteria of an acquired right identified in, for example, Judgment 4195, consideration 7.
Reference(s)
ILOAT Judgment(s): 4195, 4465
Keywords:
acquired right; appointment; executive head;
Judgment 4711
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the abolition of automatic step advancement pursuant to the introduction of a new career system.
Judgment keywords
Keywords:
acquired right; career; complaint dismissed; step;
Consideration 8
Extract:
[T]he complainant contends that the new step advancement system infringed an acquired right. He alleges that in the former system he had a right to an automatic step advancement based on seniority, whilst in the new career system step advancement is based on performance and assessment of competencies. He concludes that the former automatic step advancement was a fundamental and essential term of employment in the meaning of the Tribunal’s case law on acquired rights. Namely, he recalls that Judgment 832 lays down three elements to be considered: the nature of the altered term; the reason for change; and the consequences on staff pay and benefits.
This plea must be rejected. According to the Tribunal’s case law, established for example in Judgment 61, clarified in Judgment 832 and confirmed in Judgment 986, the amendment of a provision governing an official’s situation to her or his detriment constitutes a breach of an acquired right only when such an amendment adversely affects the balance of contractual obligations, or alters fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced her or him to stay on. In order for there to be a breach of an acquired right, the amendment to the applicable text must relate to a fundamental and essential term of employment. Judgment 832, consideration 14, details a three-part test for determining whether the altered term is fundamental and essential. The test is as follows:
(1) The nature of the altered term: “It may be in the contract or in the Staff Regulations or Staff Rules or in a decision, and whereas the contract or a decision may give rise to acquired rights the regulations and rules do not necessarily do so.”
(2) The reason for the change: “It is material that the terms of appointment may often have to be adapted to circumstances, and there will ordinarily be no acquired right when a rule or a clause depends on variables such as the cost-of-living index or the value of the currency. Nor can the finances of the body that applies the terms of appointment be discounted.”
(3) The consequence of allowing or disallowing an acquired right and the effect it will have on staff pay and benefits, and how those who plead an acquired right fare as against others.
In addition, as the Tribunal observed in Judgment 4028, consideration 13, international civil servants are not entitled to have all the conditions of employment or retirement laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career and retirement. Most of those conditions can be altered though depending on the nature and importance of the provision in question, staff may have an acquired right to its continued application.
Reference(s)
ILOAT Judgment(s): 61, 832, 986, 4028
Keywords:
acquired right; promotion; step;
Judgment 4707
136th Session, 2023
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants contest the modifications brought to the subsistence allowance.
Judgment keywords
Keywords:
acquired right; allowance; complaint dismissed;
Judgment 4683
136th Session, 2023
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests her non-selection to a post.
Consideration 6
Extract:
As regards the complainant’s reliance on acquired rights, consistent case law has it that “a staff member has no entitlement or right to be selected for a contested post. The Director-General’s decision to order a new selection process for the subject post was entirely within her discretionary authority” (see Judgment 4100, consideration 5). The complainant, regardless of the roster’s validity, had no acquired right to be directly appointed.
Reference(s)
ILOAT Judgment(s): 4100
Keywords:
acquired right; selection procedure;
Judgment 4662
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the Secretary General’s decision to reject her application for voluntary departure and her claim for compensation for “legitimate resignation”.
Consideration 20
Extract:
The complainant maintains that, despite the removal of the provisions in question from the legal system, she could exercise an acquired right to have them applied because they were in force when she was recruited.
In Judgment 4593, consideration 10, the Tribunal recalled that, under its case law on acquired rights:
“[...] the amendment of a rule governing an official’s situation to her or his detriment constitutes a breach of an acquired right only when the structure of the contract of appointment is disturbed or there is impairment of a fundamental and essential term of appointment in consideration of which the official accepted appointment, or which subsequently induced her or him to stay on. In order for there to be a breach of an acquired right, the amendment made must therefore relate to a fundamental and essential term of employment (see, for example, Judgments 4398, consideration 11, 4381, consideration 13 and 14, and 3074, consideration 16, and the case law cited in those judgments).”
The Tribunal further stated the following in Judgment 4580, consideration 11:
“It is recalled that the staff members of international organisations are not entitled to have all the conditions of employment laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career. Most of those conditions can be altered during an employment relationship as a result of amendments to those provisions (see, for example, Judgments 4465, consideration 8, 3876, consideration 7, and 3074, consideration 15).”
However, in her submissions, apart from asserting that she had an acquired right, the complainant does not state how the removal of Rule A.3.3(1)(c) from Appendix 3 to the Staff Manual has upset the balance of contractual obligations or altered an essential and fundamental condition of employment in consideration of which she accepted her appointment or which induced her to stay on.
In light of the case law referred to above and the evidence in the file, the Tribunal finds that the conditions that would allow the existence of an acquired right to be established are clearly not satisfied in this case.
Reference(s)
ILOAT Judgment(s): 3074, 3074, 3876, 4381, 4398, 4465, 4580, 4593
Keywords:
acquired right;
Judgment 4593
135th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the withdrawal of his right to supplementary days of annual leave for “travelling time”.
Judgment keywords
Keywords:
acquired right; complaint dismissed; travel time;
Consideration 10
Extract:
The Tribunal recalls that, according to its case law on acquired rights, the amendment of a rule governing an official’s situation to her or his detriment constitutes a breach of an acquired right only when the structure of the contract of appointment is disturbed or there is impairment of a fundamental and essential term of appointment in consideration of which the official accepted appointment, or which subsequently induced her or him to stay on. In order for there to be a breach of an acquired right, the amendment made must therefore relate to a fundamental and essential term of employment (see, for example, Judgments 4398, consideration 11, 4381, consideration 13 and 14, and 3074, consideration 16, and the case law cited in those judgments).
Reference(s)
ILOAT Judgment(s): 3074, 4381, 4398
Keywords:
acquired right;
Judgment 4580
135th Session, 2023
International Bureau of Weights and Measures
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the increase in their contributions to the Pension and Provident Fund such as it appears on their payslips for January 2021.
Consideration 11
Extract:
It is recalled that the staff members of international organisations are not entitled to have all the conditions of employment laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career. Most of those conditions can be altered during an employment relationship as a result of amendments to those provisions (see, for example, Judgments 4465, consideration 8, 3876, consideration 7, and 3074, consideration 15). Of course, the position is different if, having regard to the nature and importance of the provision in question, a complainant has an acquired right to its continued application. However, under the Tribunal’s case law, the amendment of a provision governing an official’s situation to her or his detriment constitutes a breach of an acquired right only where such an amendment adversely affects the balance of contractual obligations or alters fundamental and essential terms of employment in consideration of which the official accepted an appointment, or which subsequently induced her or him to stay on. For there to be a breach of an acquired right, it is therefore necessary for the amendment to affect a term of employment that is fundamental and essential (see, for example, Judgments 4398, consideration 11, 4381, considerations 13 and 14, and aforementioned 3074, consideration 16, and the case law cited in these judgments).
Reference(s)
ILOAT Judgment(s): 3074, 3876, 4381, 4398, 4465
Keywords:
acquired right;
Consideration 13
Extract:
In respect of the application of the principle of acquired rights to increases in pension contributions, a long line of precedent establishes that “whereas the right to a pension is no doubt inviolable, a pension contribution is by its very nature subject to variation [...]. Far from infringing any acquired right a rise in contribution that is warranted for sound actuarial reasons [...] actually affords the best safeguard against the threat that lack of foresight may pose to the future value of pension benefits” (see Judgments 3538, consideration 10, 2633, consideration 7, or 1392, consideration 34). It follows that, where a decision to alter a pension scheme is taken on grounds of financial necessity, such as the need to address the rising cost of pensions, the Tribunal cannot consider it to be invalid for the sole reason that it leads to a situation less favourable to staff members (see aforementioned Judgment 2633, consideration 7).
Reference(s)
ILOAT Judgment(s): 1392, 2633, 3538
Keywords:
acquired right; contribution rate; retirement;
Consideration 15
Extract:
[T]he Tribunal has already ruled that a provision concerning an organisation’s contributions to a staff pension scheme affects staff members’ interests too indirectly to give rise to an acquired right (see Judgment 429, consideration 9). The same is bound to apply to a provision providing for the payment of such subsidies by the organisation concerned. Moreover, it should be borne in mind that Article 3.1 of the Regulations of the Fund provides that “[a]ny pensions [...] shall be charged to the budget of the BIPM”, and Article 3.2 adds that “[t]he Member States of the BIPM shall jointly guarantee the payment of the pensions”, which represents the fundamental safeguards that, as the Tribunal has already observed in its case law, may be afforded to staff members in this area (see also, on this point, aforementioned Judgment 429, consideration 9).
Reference(s)
ILOAT Judgment(s): 429
Keywords:
acquired right; retirement;
Consideration 20
Extract:
As the Tribunal held in aforementioned Judgment 3538, consideration 15, and repeated in Judgment 4422, consideration 14, and [...] Judgments 4277 and 4278, “the power clearly vested in [an organisation’s competent authority] to alter the pension scheme can be exercised lawfully if it represents a bona fide attempt to secure the pension scheme into the future and is based on what appears to be properly reasoned actuarial advice”. The CIPM decision of 14 December 2016 satisfies these criteria.
Reference(s)
ILOAT Judgment(s): 3538, 4277, 4278, 4422
Keywords:
acquired right; retirement;
Consideration 9
Extract:
[I]t is important to note that, contrary to what the complainants submit, the disputed increases in the contribution rate, which have the effect of reducing their net salary, do not influence the amount of the pension they will ultimately receive and affect them only as serving staff members, not future retirees. As the Tribunal observed when ruling on the complaint filed by a former BIPM staff member also directed against measures resulting from the 2016 reform of the Pension and Provident Fund, decisions concerning deductions from employment income made with a view to the acquisition of pension entitlements have a different purpose than those affecting the amount of a pension (see Judgment 4277, consideration 15). A breach of acquired rights owing to the effect of a new decision can only be determined by reference to the situation resulting from previous decisions with the same purpose (see Judgment 986, consideration 16 in fine). The complainants cannot therefore seek to rely, as they attempt to do, on a breach of the acquired rights they will have as future retirees.
Reference(s)
ILOAT Judgment(s): 986, 4277
Keywords:
acquired right; cause of action; retired official;
Judgment 4498
134th Session, 2022
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to reject his claim concerning a surviving spouse’s pension.
Consideration 10
Extract:
The Tribunal observes that the principle stated in Judgment 3876 is that there is not an acquired right to a surviving spouse’s pension in the event of marriage after retirement, given that the possibility for a spouse whom the official married after her or his retirement to benefit from a surviving spouse’s pension does not fulfil the condition of a fundamental and essential term of employment. This principle is applicable regardless of the amount of the premium. Indeed, if there is no acquired right, the amount of the premium is irrelevant, since it only concerns the purchase of a “new right” under Article II 5.09. Its rate in no case infringes an acquired right, so the criteria adopted to set the premium cannot be challenged with arguments regarding acquired rights.
Reference(s)
ILOAT Judgment(s): 3876
Keywords:
acquired right; pension; spouse; survivor's benefit;
Consideration 5
Extract:
[T]he possibility for a spouse whom the official has married after her or his retirement to benefit from a surviving spouse’s pension cannot be viewed as a fundamental and essential term of employment within the meaning of Judgment 832.
Reference(s)
ILOAT Judgment(s): 832
Keywords:
acquired right; pension; spouse; survivor's benefit;
Judgment 4484
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decisions to reject their claim for reimbursement of deductions made as from December 2015 to a compensatory allowance following their career progression and the ensuing increase in their salary.
Judgment keywords
Keywords:
acquired right; allowance; complaint dismissed;
Consideration 8
Extract:
As the Committee noted, the compensatory allowance was meant to serve as a means of mitigating the adverse financial effects that the reorganisation had had on the complainants’ income in 2005 and not as a permanent financial bonus, and that moreover, ten years after the commencement of that entitlement the EPO slightly reduced the compensatory allowance, while nonetheless maintaining the complainants’ income at a stable level. In the Tribunal’s view, this reasoning is in line with the Tribunal’s analyses in Judgments 2972 and 3109, consideration 3, particularly as the complainants no longer perform shift work outside normal working hours. As the impugned decisions accepted the Appeals Committee’s reasoning on this issue, the complainants’ claims to the contrary are unfounded.
Reference(s)
ILOAT Judgment(s): 2972, 3109
Keywords:
acquired right; allowance; mitigation of loss;
Judgment 4465
133rd Session, 2022
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to cease paying boarding assistance for his son following amendments to the education grant scheme.
Consideration 10
Extract:
The Tribunal’s case law recognises that the alteration of a benefit can operate to the detriment of staff and this, of itself, does not constitute the breach of an acquired right. It plainly did operate to the complainant’s detriment in the present case. A further element was needed, as discussed in the opening paragraph of the quotation in consideration 7: the complainant must demonstrate that the structure of the employment contract was disturbed or that the modifications impaired a fundamental term of appointment in consideration of which he accepted employment. The complainant has not established, to the Tribunal’s satisfaction, that either element exists in the present case in relation to the changes impugned in these proceedings.
Keywords:
acquired right;
Judgment keywords
Keywords:
acquired right; complaint allowed; duty of care; education expenses; icsc decision;
Considerations 6-8
Extract:
In Judgment 4381, the Tribunal discussed acquired rights. The Tribunal observed that the concept of breach of acquired rights has its genesis in the first decision given on 15 January 1929 by this Tribunal, then called the Administrative Tribunal of the League of Nations. In that decision (In re di Palma Castiglione v. International Labour Office), the Tribunal held: “The Administration is at liberty to establish for its staff such regulations as it may see fit, provided that it does not in any way infringe the acquired rights of any staff member.” Over the decades since, the basis for recognising and protecting acquired rights has evolved and, in particular, principles developed for demarking what are and are not such rights.
In Judgment 4381, the Tribunal quoted the applicable legal principles as summarised in Judgment 4195, consideration 7:
“According to the case law, ‘[i]n Judgment 61 [...] the Tribunal held that the amendment of a rule to an official’s detriment and without his consent amounts to breach of an acquired right when the structure of the contract of appointment is disturbed or there is impairment of any fundamental term of appointment in consideration of which the official accepted appointment’ (see Judgment 832, under 13). Judgment 832, under 14 (cited in part, below), poses a three-part test for determining whether the altered term is fundamental and essential. The test is as follows: (1) What is the nature of the altered term? ‘It may be in the contract or in the Staff Regulations or Staff Rules or in a decision, and whereas the contract or a decision may give rise to acquired rights the regulations and rules do not necessarily do so.’
(2) What is the reason for the change? ‘It is material that the terms of appointment may often have to be adapted to circumstances, and there will ordinarily be no acquired right when a rule or a clause depends on variables such as the cost-of-living index or the value of the currency. Nor can the finances of the body that applies the terms of appointment be discounted.’
(3) What is the consequence of allowing or disallowing an acquired right and the effect it will have on staff pay and benefits, and how do those who plead an acquired right fare as against others?”
Also, as the Tribunal observed in Judgment 4028, consideration 13, international civil servants are not entitled to have all the conditions of employment or retirement laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career and retirement. Most of those conditions can be altered though, depending on the nature and importance of the provision in question, staff may have an acquired right to its continued application.
Reference(s)
ILOAT Judgment(s): 4028, 4195, 4381
Keywords:
acquired right;
Consideration 9
Extract:
The ICSC’s reasons for the proposed changes to the education grant scheme impugned in these proceedings were rational, logical and credible. They did not involve the general elimination of the benefit but its recasting with modifications of how, when and why the benefit would be paid. The adoption of the proposed changes by the IAEA was in conformity with obligations arising from membership of the UN common system. This is a valid reason for change (see Judgment 1446, consideration 14), at least in the absence of any apparent unlawfulness attending the change either procedurally or substantively.
Reference(s)
ILOAT Judgment(s): 1446
Keywords:
acquired right; education expenses; icsc decision;
Judgment 4398
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of her claim for a second payment of the lump sum paid in the event of death or permanent invalidity under Article 84(1)b) of the Service Regulations.
Consideration 11
Extract:
The Tribunal [...] finds that the 2008 amendment to Article 84(1)b) [of the Service Regulations] did not breach the principle of acquired rights as the complainant contends. The Tribunal’s case law states that the amendment of a rule to an official’s detriment and without her or his consent amounts to breach of an acquired right when the structure of the contract of appointment is disturbed or there is impairment of any fundamental term of appointment in consideration of which the official accepted appointment (see, for example, Judgment 4195, consideration 7, and the case law cited therein). The Tribunal has established that the consideration whether an altered term of appointment is fundamental depends upon: (1) the nature of the term that is altered; (2) the reason for the change; and (3) the consequences of allowing or disallowing an acquired right (see, for example, Judgment 3375, consideration 12). These are compendious requirements which must all be met for the plea of breach of acquired rights to succeed.
Reference(s)
ILOAT Judgment(s): 3375, 4195
Keywords:
acquired right;
Judgment 4381
131st Session, 2021
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the changes made with respect to her salary.
Consideration 28
Extract:
[T]he Tribunal’s case law does not support an approach to determining whether an acquired right has been breached which entails the examination of an altered “package” of salary and benefits to justify a conclusion that the alteration of any given element of the package involved a violation or breach of an acquired right. The logical consequences of this approach would be that even though such an alteration to a given element may be minimal or entirely justified or both, because other changes are made to other elements of the “package” the minimal or justified alteration can be characterised as a breach of an acquired right. There is no principled basis for taking this approach though the Tribunal cannot discount the possibility that situations may arise where the effect of the alteration of a limited number of related benefits might be viewed as relevant to the characterisation of one alteration as being a breach of an acquired right.
Keywords:
acquired right; salary;
Consideration 31
Extract:
[T]he complainant bears the burden of establishing her case (see, for example, Judgments 4094, consideration 17, and 3912, consideration 13). In many respects her pleas are vague and unclear. For example, the basis on which she had, historically, been receiving the dependency rate of pay is not articulated with any precision. It appears from observations in her brief that it was not because she had a dependent spouse but rather dependent children. But she does not establish her calculations of potential future loss as a result of the abolition of the dependency rate are well founded, because, having regard to the age and circumstances of her children, she would have been entitled to the dependency rate for the entire period the transitional arrangements would operate. It would only be in the context of clearly articulated argument by reference to proven or uncontroversial facts, the Tribunal might reach a level of satisfaction that indeed acquired rights have been breached. It would be a large step for the Tribunal to do so and could only be done on a firm foundation.
Reference(s)
ILOAT Judgment(s): 3912, 4094
Keywords:
acquired right; burden of proof;
Considerations 13-15
Extract:
The concept of breach of acquired rights has its genesis in the first decision given on 15 January 1929 of this Tribunal then called the Administrative Tribunal of the League of Nations. In re di Palma Castiglione v. International Labour Office, the Tribunal held: “The Administration is at liberty to establish for its staff such regulations as it may see fit, provided that it does not in any way infringe the acquired rights of any staff member.” Over the decades since, the basis for recognising and protecting acquired rights has evolved and, in particular, principles developed for demarking what are and are not such rights [...].
The applicable legal principles were recently summarised by the Tribunal in Judgment 4195, consideration 7:
“According to the case law, ‘[i]n Judgment 61 [...] the Tribunal held that the amendment of a rule to an official’s detriment and without his consent amounts to breach of an acquired right when the structure of the contract of appointment is disturbed or there is impairment of any fundamental term of appointment in consideration of which the official accepted appointment’ (see Judgment 832, under 13). Judgment 832, under 14 (cited in part, below), poses a three-part test for determining whether the altered term is fundamental and essential. The test is as follows:
(1) What is the nature of the altered term? ‘It may be in the contract or in the Staff Regulations or Staff Rules or in a decision, and whereas the contract or a decision may give rise to acquired rights the regulations and rules do not necessarily do so.’
(2) What is the reason for the change? ‘It is material that the terms of appointment may often have to be adapted to circumstances, and there will ordinarily be no acquired right when a rule or a clause depends on variables such as the cost-of-living index or the value of the currency. Nor can the finances of the body that applies the terms of appointment be discounted.’
(3) What is the consequence of allowing or disallowing an acquired right and the effect it will have on staff pay and benefits, and how do those who plead an acquired right fare as against others?”
Also, as the Tribunal recently discussed in Judgment 4028, consideration 13, international civil servants are not entitled to have all the conditions of employment or retirement laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career and retirement. Most of those conditions can be altered though, depending on the nature and importance of the provision in question, staff may have an acquired right to its continued application.
Reference(s)
ILOAT Judgment(s): 4028, 4195
Keywords:
acquired right;
Consideration 30
Extract:
The Tribunal’s case law recognises that the alteration of a benefit can operate to the detriment of staff and this, of itself, does not constitute the breach of an acquired right. A further element was needed, as discussed in the opening paragraph of the quotation in consideration 10: the complainant should have demonstrated that the structure of the employment contract was disturbed and that the modifications impaired a fundamental term of appointment in consideration of which he accepted employment. The complainant has not demonstrated, to the Tribunal’s satisfaction, that this further element exists in the present case in relation to the changes impugned in these proceedings.
Keywords:
acquired right;
Judgment keywords
Keywords:
acquired right; complaint dismissed; icsc decision; salary;
Judgment 4380
131st Session, 2021
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the changes made with respect to his salary.
Considerations 9-11
Extract:
The concept of breach of acquired rights has its genesis in the first decision given on 15 January 1929 of this Tribunal then called the Administrative Tribunal of the League of Nations. In re di Palma Castiglione v. International Labour Office, the Tribunal held: “The Administration is at liberty to establish for its staff such regulations as it may see fit, provided that it does not in any way infringe the acquired rights of any staff member.” Over the decades since, the basis for recognising and protecting acquired rights has evolved and, in particular, principles developed for demarking what are and are not such rights [...].
The applicable legal principles were recently summarised by the Tribunal in Judgment 4195, consideration 7:
“According to the case law, ‘[i]n Judgment 61 [...] the Tribunal held that the amendment of a rule to an official’s detriment and without his consent amounts to breach of an acquired right when the structure of the contract of appointment is disturbed or there is impairment of any fundamental term of appointment in consideration of which the official accepted appointment’ (see Judgment 832, under 13). Judgment 832, under 14 (cited in part, below), poses a three-part test for determining whether the altered term is fundamental and essential. The test is as follows:
(1) What is the nature of the altered term? ‘It may be in the contract or in the Staff Regulations or Staff Rules or in a decision, and whereas the contract or a decision may give rise to acquired rights the regulations and rules do not necessarily do so.’
(2) What is the reason for the change? ‘It is material that the terms of appointment may often have to be adapted to circumstances, and there will ordinarily be no acquired right when a rule or a clause depends on variables such as the cost-of-living index or the value of the currency. Nor can the finances of the body that applies the terms of appointment be discounted.’
(3) What is the consequence of allowing or disallowing an acquired right and the effect it will have on staff pay and benefits, and how do those who plead an acquired right fare as against others?”
Also, as the Tribunal recently discussed in Judgment 4028, consideration 13, international civil servants are not entitled to have all the conditions of employment or retirement laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career and retirement. Most of those conditions can be altered though, depending on the nature and importance of the provision in question, staff may have an acquired right to its continued application.
Reference(s)
ILOAT Judgment(s): 4028, 4195
Keywords:
acquired right;
Consideration 18
Extract:
[T]he Tribunal’s case law does not support an approach to determining whether an acquired right has been breached which entails the examination of an altered “package” of salary and benefits to justify a conclusion that the alteration of any given element of the package involved a violation or breach of an acquired right. The logical consequences of this approach would be that even though such an alteration to a given element may be minimal or entirely justified or both, because other changes are made to other elements of the “package” the minimal or justified alteration can be characterised as a breach of an acquired right. There is no principled basis for taking this approach though the Tribunal cannot discount the possibility that situations may arise where the effect of the alteration of a limited number of related benefits might be viewed as relevant to the characterisation of one alteration as being a breach of an acquired right.
Keywords:
acquired right; salary;
Consideration 20
Extract:
The Tribunal’s case law recognises that the alteration of a benefit can operate to the detriment of staff and this, of itself, does not constitute the breach of an acquired right. A further element was needed, as discussed in the opening paragraph of the quotation in consideration 10: the complainant should have demonstrated that the structure of the employment contract was disturbed and that the modifications impaired a fundamental term of appointment in consideration of which he accepted employment. The complainant has not demonstrated, to the Tribunal’s satisfaction, that this further element exists in the present case in relation to the changes impugned in these proceedings.
Keywords:
acquired right;
Judgment keywords
Keywords:
acquired right; complaint dismissed; icsc decision; salary;
Judgment 4335
131st Session, 2021
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of the allowance she received during her parental leave.
Consideration 9
Extract:
The Tribunal’s case law states that most of the conditions of employment laid down in the provisions of the staff rules and regulations in force at the time when a staff member of an international organisation is recruited can be altered during their employment as a result of amendments to those provisions but that the position is different if, having regard to the nature and importance of the provision in question, the complainant has an acquired right to its continued application. However, the case law has established that the amendment of a provision governing an official’s situation to her or his detriment constitutes a breach of an acquired right only when such an amendment adversely affects the balance of contractual obligations, or alters fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced her or him to stay on. In order for there to be a breach of an acquired right, the amendment to the applicable text must therefore relate to a fundamental and essential term of employment within the meaning of Judgment 832 (see, for example, Judgment 3074, consideration 15).
Reference(s)
ILOAT Judgment(s): 832, 3074
Keywords:
acquired right;
Judgment 4277
130th Session, 2020
International Bureau of Weights and Measures
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who has been receiving a retirement pension since 1 December 2017, impugns her “pay slip” for January 2018.
Consideration 16
Extract:
With regard to the decisions concerning pensions, the Tribunal points out that the staff members of international organisations are not entitled to have all the conditions of employment or retirement laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career and retirement. Most of those conditions can be altered during or after an employment relationship as a result of amendments to those provisions (see Judgment 3876, consideration 7).
Of course, the position is different if, having regard to the nature and importance of the provision in question, a complainant has an acquired right to its continued application. However, according to the case law established in Judgment 61, clarified in Judgment 832 and confirmed in Judgment 986, the amendment of a provision governing an official’s situation to her or his detriment constitutes a breach of an acquired right only when such an amendment adversely affects the balance of contractual obligations, or alters fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced her or him to stay on. In order for there to be a breach of an acquired right, the amendment to the applicable text must therefore relate to a fundamental and essential term of employment within the meaning of Judgment 832 (in this connection see also Judgments 2089, 2682, 2986 or 3135).
Reference(s)
ILOAT Judgment(s): 2089, 2682, 2986, 3135, 3876
Keywords:
acquired right; pension;
Judgment 4273
130th Session, 2020
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge their classification in the new career structure established following the 2015 five-yearly review.
Consideration 18
Extract:
As the Tribunal has pointed out on a number of occasions, the staff members of international organisations are not entitled to have all the conditions of employment or retirement laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career and retirement. Most of those conditions can be altered during or after an employment relationship as a result of amendments to those provisions (see Judgments 3876, under 7, 3909, under 12, and 4028, under 13). The Tribunal has consistently held that the position is of course different if, having regard to the nature and importance of the provision in question, the complainant has an acquired right to its continued application. However, the amendment of a provision governing an official’s situation to her or his detriment constitutes a breach of an acquired right only when such an amendment adversely affects the balance of contractual obligations, or alters fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced her or him to stay on. In order for there to be a breach of an acquired right, the amendment to the applicable text must therefore relate to a fundamental and essential term of employment within the meaning of Judgment 832 (see, for example, Judgments 2089, 2682, 2986, 3135, 3909 and 4028).
Reference(s)
ILOAT Judgment(s): 2089, 2682, 2986, 3135, 3876, 3909, 4028
Keywords:
acquired right;
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