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Domestic law (218, 219,-666)
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Keywords: Domestic law
Total judgments found: 68
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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;
Considerations 12-13
Extract:
[S]ince reimbursement of the disputed contributions for the 2009-2012 period did not appear clearly impossible in the light of the aforementioned decision of the French Constitutional Council and the above-mentioned provisions of the French Social Security Code, the Tribunal considers that the Organization ought, at the very least, to have expressly requested URSSAF or the French public authorities to effect that reimbursement.
Interpol’s decision to affiliate its officials to the French social security scheme did not in any way release it from its obligations towards them. While it is true that the Organization only deducted the ESC following what it believed, wrongly, to be the applicable French law on the matter, it cannot take refuge behind the fact that it acted only as an intermediary, nor behind its status as an international organisation with no responsibility of its own for the application of that law. In fact, it is pursuant to Staff Regulation 7.1 that the Organization’s officials are usually covered by the compulsory social security schemes in force in the States in which they are stationed, unless the Organization decides otherwise. The officials concerned thus have no choice in this regard and it is therefore unreasonable to suggest that it was their own responsibility to pursue the matter with the French authorities and courts of their own accord, assuming this would be possible.
Keywords:
domestic law; medical insurance; organisation's duties;
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 10-11
Extract:
[S]ince reimbursement of the disputed contributions for the 2009-2012 period did not appear clearly impossible in the light of the aforementioned decision of the French Constitutional Council and the above-mentioned provisions of the French Social Security Code, the Tribunal considers that the Organization ought, at the very least, to have expressly requested URSSAF or the French public authorities to effect that reimbursement.
Interpol’s decision to affiliate its officials to the French social security scheme did not in any way release it from its obligations towards them. While it is true that the Organization only deducted the ESC following what it believed, wrongly, to be the applicable French law on the matter, it cannot take refuge behind the fact that it acted only as an intermediary, nor behind its status as an international organisation with no responsibility of its own for the application of that law. In fact, it is pursuant to Staff Regulation 7.1 that the Organization’s officials are usually covered by the compulsory social security schemes in force in the States in which they are stationed, unless the Organization decides otherwise. The officials concerned thus have no choice in this regard and it is therefore unreasonable to suggest that it was their own responsibility to pursue the matter with the French authorities and courts of their own accord, assuming this would be possible.
Keywords:
domestic law; medical insurance; organisation's duties;
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;
Considerations 11-12
Extract:
[S]ince reimbursement of the disputed contributions for the 2009-2012 period did not appear clearly impossible in the light of the aforementioned decision of the French Constitutional Council and the above-mentioned provisions of the French Social Security Code, the Tribunal considers that the Organization ought, at the very least, to have expressly requested URSSAF or the French public authorities to effect that reimbursement.
Interpol’s decision to affiliate its officials to the French social security scheme did not in any way release it from its obligations towards them. While it is true that the Organization only deducted the ESC following what it believed, wrongly, to be the applicable French law on the matter, it cannot take refuge behind the fact that it acted only as an intermediary, nor behind its status as an international organisation with no responsibility of its own for the application of that law. In fact, it is pursuant to Staff Regulation 7.1 that the Organization’s officials are usually covered by the compulsory social security schemes in force in the States in which they are stationed, unless the Organization decides otherwise. The officials concerned thus have no choice in this regard and it is therefore unreasonable to suggest that it was their own responsibility to pursue the matter with the French
authorities and courts of their own accord, assuming this would be possible.
Keywords:
domestic law; medical insurance; organisation's duties;
Judgment 4553
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to recover sums which were unduly paid to him as dependent child allowance.
Consideration 4
Extract:
[T]he complainant’s reference to German law is irrelevant since Article 69(4)(b) of the Service Regulations is intended to apply and be interpreted autonomously and independently of provisions of national law (see, for example, Judgment 4401, consideration 6).
Reference(s)
ILOAT Judgment(s): 4401
Keywords:
domestic law;
Judgment 4401
132nd Session, 2021
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her application for the reimbursement of medical expenses.
Consideration 6
Extract:
Precedent has it that “[a]s a rule the conditions of employment of staff are subject exclusively to the [organisation]’s own Staff Regulations and to the general principles of the international civil service: see Judgments 322 [...], under 2; 473 [...], under 2 and 3; and 493 [...] under 5. National laws, and in particular those of the host country, apply only where there is express reference thereto” (see Judgment 1311, consideration 15).
Reference(s)
ILOAT Judgment(s): 322, 473, 493, 1311
Keywords:
domestic law;
Judgment 4400
131st Session, 2021
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official of the International Labour Office, impugns the decisions of the Director-General to issue a reprimand against him, to revoke his appointment as a Director, to appoint another person to that post and, finally, to discharge him with notice.
Consideration 19
Extract:
Paragraph 44 of the Standards of Conduct for the International Civil Service, which concerns officials’ “[p]ersonal conduct” and provides that “acts that are generally recognized as offences by national criminal laws will normally also be considered violations of the standards of conduct for the international civil service”, previously states that “[a] conviction by a national court will usually, although not always, be persuasive evidence of the act for which an international civil servant was prosecuted”.
The complainant argues that the principle set out in the second phrase concerning the probative value of convictions by national courts applies, in the words of that phrase, only “generally” and “not always”, and submits that, in the present case, the ILO was in a situation where it should have invoked that exception rather than accepting the offences of which he was accused as proven. However, it is well known that this restriction, placed on the principle in question when the Rules were adopted, was solely intended by the drafters to reserve the case of convictions in States where the courts do not offer the requisite safeguards of independence and procedural fairness. Since there is no doubt that the French legal system fulfils that requirement, the Organization – whose role plainly is not to assess whether a conviction by a national court is justified and which does not have the means to investigate conduct such as that in question in the present case by itself – rightly relied on the judgment of the Tribunal correctionnel and considered that the offences of which he had been accused had been proven.
Keywords:
conduct; criminal sanction; disciplinary procedure; domestic law; evidence;
Judgment 3915
125th Session, 2018
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requested ESO to provide her with a reference certificate satisfying the requirements of German law.
Consideration 4
Extract:
[I]t is firmly established in the case law that the conditions of employment of staff members are subject to the Staff Rules and Regulations of the organisation that employs them and to the general principles of the international civil service and that national laws do not apply, unless where there is express reference thereto (see, for example, Judgment 1311, under 15). In this instance, there is no such reference in ESO’s regulatory regime requiring that ESO provides members of personnel with reference certificates that meet the standards required under German law. Furthermore, as was relevantly stated in Judgment 2611, under 8, “the complainant points to nothing in the terms of h[er] appointment to suggest that German law, as distinct from the [ESO Staff Rules and Staff] Regulations, was applicable to any aspect of h[er] employment”.
Reference(s)
ILOAT Judgment(s): 1311, 2611
Keywords:
domestic law; insurance benefits;
Judgment keywords
Keywords:
certificate of service; complaint dismissed; domestic law;
Judgment 3484
120th Session, 2015
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the FAO’s rejection of his request to be transferred back to the Security Service.
Consideration 12
Extract:
"With regard to [the complainant's] claim that in absence of an internal rule regulating the right of return for transfers for health reasons, the FAO should be obliged to follow Italian national law, the Tribunal points out that Italian law is not applicable to the employment relations of the FAO and its staff."
Keywords:
domestic law;
Judgment 3281
116th Session, 2014
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Tax refunds due as a result of tax credits.
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed; decision quashed; domestic law; member state; organisation's duties; payment; reckoning; refund; salary; staff regulations and rules; status of complainant; tax;
Judgment 3080
112th Session, 2012
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
"[T]he case law of the Tribunal establishes that when the term "spouse" is used in an organisation's staff rules or regulations without being otherwise defined therein, it is not limited to individuals within a marriage but may also cover persons in other forms of union (see in particular Judgments 2760, under 4, and 2860, under 9). Thus, in several recent judgments concerning cases where the applicable provisions were couched in similar language, the Tribunal held that the organisations concerned had to recognise same-sex marriages (see Judgment 2590 or Judgment 2760 [...]) or unions in the form of registered partnerships when the relevant national law made it possible to consider persons in such unions as "spouses" (see Judgments 2549 and 2550, and Judgment 2860 [...])."
Reference(s)
ILOAT Judgment(s): 2549, 2550, 2590, 2760, 2860
Keywords:
applicable law; definition; domestic law; marital status; no provision; same-sex marriage; staff regulations and rules;
Judgment 3020
111th Session, 2011
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
WTO Staff Rule 106.11 provides that "[n]ational income tax on salaries, allowances, indemnities or grants paid by the WTO shall be refunded to the staff member by the WTO." The complainant considers that her salary is indirectly taxed, because it is included in the assessment of her husband's rate of income tax. The Organization rejected her claims for reimbursement of what she describes as "over-taxation by the Swiss tax authorities". The Tribunal holds that "[t]he refusal to provide compensation for the additional amount of tax unfairly levied on the couple's income solely because of the complainant's earned income, although it was exempt from taxation, would have a paradoxical effect. A rule designed to guarantee equal wages would lead to unjustifiable inequality between an official whose earned income was unduly taxed although it was by law exempt from taxation and an official whose tax-exempt salary was taken into account for assessment purposes, thus reducing his/her spouse's disposable income after tax and therefore his/her economic capacity from which the official living with him/her naturally benefits. The impugned decision is therefore unlawful."
Reference(s)
Organization rules reference: WTO Staff Rule 106.11
Keywords:
allowance; breach; compensatory allowance; decision quashed; deduction; domestic law; effect; equal treatment; grounds; marital status; official; organisation; payment; purpose; rate; reckoning; recovery of overpayment; reduction of salary; refund; refusal; request by a party; safeguard; salary; staff regulations and rules; status of complainant; tax; written rule;
Consideration 5
Extract:
"It does not lie within the Tribunal's competence, as defined in Article II, paragraph 5, of its Statute, to examine whether the practice followed by the Genevan tax authorities [...] was compatible with the provisions on the exemption enjoyed in principle by the complainant as a[n] official employed by an international organisation which has concluded a headquarters agreement with Switzerland [...]."
Reference(s)
ILOAT reference: Article II, paragraph 5, of the Statute
Keywords:
competence of tribunal; domestic law; exception; headquarters agreement; iloat statute; limits; official; organisation; status of complainant; tax; written rule;
Consideration 8
Extract:
WTO Staff Rule 106.11 provides that "[n]ational income tax on salaries, allowances, indemnities or grants paid by the WTO shall be refunded to the staff member by the WTO." The complainant considers that her salary is indirectly taxed, because it is included in the assessment of her husband's rate of income tax.
"[T]here is no need to entertain the claim that the WTO should be ordered to 'employ its authority and power' to persuade the competent Swiss authorities to abandon the practice giving rise to this dispute, since the Tribunal has no jurisdiction to issue such an order."
Reference(s)
Organization rules reference: WTO Staff Rule 106.11
Keywords:
competence of tribunal; domestic law; marital status; order; ratione materiae; tax;
Judgment 2944
109th Session, 2010
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 45
Extract:
"By not paying the sums owed to creditors for more than ten years and not complying with several court rulings ordering her to meet her obligations, the complainant, an international civil servant, plainly did not show due respect for local laws and institutions and for the public policy of the host State [...]."
Keywords:
debt; domestic law; judgment of the tribunal; member state; misconduct; municipal court; staff member's duties;
Judgment 2860
107th Session, 2009
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 9, 13, 17, 19 and 21
Extract:
The complainant, a French national, entered into a "Civil Solidarity Contract" (PACS) under French law with his same-sex partner. The FAO refused to recognise his partner as his dependent spouse for the purpose of dependency benefits.
"The Tribunal rejects the FAO's assertion that under the Staff Regulations and Rules, the status of 'spouse' can only arise in the context of a marriage. It is now well established in the case law that, unless the term 'spouse' is otherwise defined in the staff regulations, it is not limited to individuals within a marriage. It may also arise from other types of unions. As the Tribunal observed in Judgment 2760, under 4, in the absence of a definition of 'spouse' in the relevant regulatory provisions, 'same-sex marriages' [...] or unions in the form of 'registered partnerships' [have] to be recognised by these organisations where the applicable national legislation enable[s] persons who ha[ve] contracted such unions to be regarded as 'spouses' (see Judgments 2549 and 2550)'. (See also Judgment 2643, under 6.)"
"Accordingly, as the Tribunal also observed in Judgment 2549, under 11, it is necessary to determine whether in the light of the provisions of French law, the complainant and his partner should be considered as 'spouses' within the meaning of the FAO Staff Regulations and Rules."
"[The materials of the file] demonstrate that just as in a marriage relationship, PACS partners are required to provide each other with financial support and are jointly liable for debts incurred for daily living. In matters such as immigration, social security, health insurance, home leave and relocation of civil servants, special leave for persons bound by a PACS, inheritance fees and income taxes, PACS partners are treated the same as spouses in a marriage. In a significant recent development, reference is made to the existence of the PACS and the name of the partners in the official register of personal status of individuals who have entered into a PACS, just as marital status is recorded for married persons."
"Not only does a PACS change the legal status of the partners in relation to each other, but it also changes the legal status of the partners in relation to the State in a variety of ways enumerated earlier and in ways that mirror the status of married couples in relation to the State. Just as in a marriage, a PACS establishes a legal relationship of mutual dependence. Further, and at the very least, in the absence of a contrary provision in the Staff Regulations and Rules, the principle of non-discrimination requires that for the purposes of dependency benefits the term 'spouse' be interpretated as applicable to a relationship of mutual dependence under the relevant national law."
"In conclusion, having regard to the materials filed in this proceeding, the Tribunal is satisfied that the provisions of French law give rise to a relationship of mutual dependence, and accordingly, the complainant and his partner must be regarded as 'spouses' under the Staff Regulations and Rules. In these circumstances, the Director-General erred in refusing to recognise the status of the complainant and his partner for the purpose of dependency benefits and, therefore, his decision will be set aside."
Reference(s)
ILOAT Judgment(s): 2549, 2550, 2643, 2760
Keywords:
applicable law; case law; dependant; domestic law; family allowance; marital status; same-sex marriage; staff regulations and rules;
Judgment 2847
107th Session, 2009
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"The purpose of the family allowances which Eurocontrol pays to officials with dependent children is to contribute financially towards these children's maintenance, and the aim of the rule laid down in [Article 67(2) of the Staff Regulations], according to which the amount of these allowances must be reduced by the amount of allowances of the same kind paid from other sources, such as family allowances paid by a national authority, is to prevent two benefits from being granted concurrently for the same children, since this would plainly result in the unlawful enrichment of the recipient family.
In this regard, the fact that the [national authority] does not make payments to the official himself, but to his spouse (or, as in this case, his partner), is of course immaterial. If the two benefits in question are being paid for the maintenance of the same children, they cannot be drawn simultaneously by the parents without contravening the very purpose of this rule against concurrent benefits."
Reference(s)
Organization rules reference: Article 67(2) of the Staff Regulations governing officials of the Eurocontrol Agency
Keywords:
accumulation; amount; breach; dependent child; domestic law; family allowance; marital status; parent; purpose; rate; staff regulations and rules; unjust enrichment; written rule;
Consideration 19
Extract:
The complainant received family allowances paid at the full rate by Eurocontrol in respect of his three children but did not declare to the Agency that his partner was drawing family allowances from the competent national social security authority. According to Article 67(2) of the Staff Regulations, the amount of family allowances that Eurocontrol was paying him should have been reduced by the amount of the family allowances received by his partner. The complainant objects to the fact that the Agency has recovered the amount overpaid from the outset, i.e. over a five-year period, whereas in the opposite case, when the Agency makes a mistake to the detriment of an official, it usually benefits from rules of prescription which enable it greatly to reduce the amounts reimbursed.
"[A]ccording to the Tribunal's case law, a claim for recovery of undue payment is not imprescriptible and must be brought - even in the absence of any provision in writing to this effect - in reasonable time (see Judgments 53, under 4, and 2565, under 7(c)). However [...] the five-year period concerned by the recovery of the overpayment [...] cannot be regarded in this case as an unreasonable length of time, particularly because the disputed reimbursement arises from concealment on the part of the complainant and because Eurocontrol did not fail to take the necessary steps to recover the sums in question."
Reference(s)
Organization rules reference: Article 67(2) of the Staff Regulations governing officials of the Eurocontrol Agency
ILOAT Judgment(s): 53, 2565
Keywords:
accumulation; amount; breach; case law; dependent child; difference; domestic law; family allowance; injury; limits; misrepresentation; no provision; organisation's duties; payment; period; rate; reasonable time; recovery of overpayment; request by a party; staff member's duties; staff regulations and rules; time bar;
Consideration 17
Extract:
The complainant received family allowances paid at the full rate by Eurocontrol in respect of his three children but did not declare to the Agency that his partner was drawing family allowances from the competent national social security authority. According to Article 67(2) of the Staff Regulations, the amount of family allowances that Eurocontrol was paying him should have been reduced by the amount of the family allowances received by his partner. The complainant had to reimburse the full amount overpaid.
"The evidence on file shows that the complainant deliberately refrained from declaring to Eurocontrol the family allowances drawn by his partner, although he had been duly informed that, in the Agency's view, they should be deducted from those he was receiving. While it was open to the complainant to challenge - if necessary before the Tribunal - any deductions made by the Agency in calculating the payments, he could not choose of his own accord to evade his duty of disclosure. He must therefore be deemed to have been aware of the unlawfulness of the disputed payments, which was indeed sufficiently obvious for it to be concluded that he could not have been unaware of it."
Reference(s)
Organization rules reference: Article 67(2) of the Staff Regulations governing officials of the Eurocontrol Agency
Keywords:
accumulation; amount; breach; dependent child; domestic law; family allowance; flaw; misrepresentation; payment; rate; reckoning; recovery of overpayment; staff member's duties; staff regulations and rules;
Judgment 2760
105th Session, 2008
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The complainant, a Canadian national, married a person of the same sex, as she is permitted to do under the law in force in Canada. She immediately informed the Agency of her new marital status and applied for the dependency benefits to which staff members with a spouse are eligible, but her application was rejected. The defendant points out that, for the purpose of applying its Staff Regulations and Staff Rules, it has a definition of the term "spouse" which refers only to the partners of a union between persons of opposite sex, since the Guide to Dependency Benefits, which was drawn up for the staff, indicates that the term "'[s]pouse' for all purposes of the Staff Regulations and Staff Rules is defined to mean the husband or wife". "But this mere information document, which was prepared by the Administration and has no normative value, clearly cannot prescribe the adoption of a restrictive definition which does not appear in the applicable texts themselves.
Furthermore, while the Tribunal notes that the same definition was also given in a Notice to the Staff of 11 July 2005, that document likewise could not narrow the scope of the concept of 'spouse' to which the Staff Regulations and Staff Rules refer. Although the secretariat of an organisation may always circulate a Notice to the Staff to clarify certain provisions of its staff regulations and rules, such a notice cannot impose on staff any restrictive conditions other than those stipulated in the provisions themselves."
Reference(s)
Organization rules reference: Guide to Dependency Benefits
Keywords:
administrative instruction; applicable law; binding character; condition; definition; dependant; domestic law; enforcement; family allowance; information note; limits; marital status; organisation; precedence of rules; provision; publication; purpose; refusal; request by a party; same-sex marriage; staff regulations and rules; written rule;
Judgment 2643
103rd Session, 2007
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The complainant, a British national, entered into a "Civil Solidarity Contract" (PACS) under French law with his same-sex partner and had his partnership registered under the Civil Partnership Act applicable to British citizens. The ITU refused to recognise his partner as his dependent spouse for determination of the benefits pertaining to that status. "The Tribunal has accepted in several recent judgments that same-sex marriages (see Judgment 2590) and unions taking the form of 'registered partnerships' must be recognised where the national legislation applicable to the staff member concerned allows persons who have contracted such unions to be treated as 'spouses' (see Judgments 2549 and 2550). The important difference between the present case and those previously decided lies in the fact that the ITU Staff Regulations and Staff Rules explicitly define the concept of spouses as denoting husband and wife in a large number of provisions, and that, contrary to the situations examined in Judgments 2549 and 2550, the ITU refuses to accept that same-sex unions lawfully contracted under the national legislation of the official concerned may be taken into consideration for the purpose of applying the Staff Regulations and Staff Rules. It follows that the defendant was not wrong in asserting that, in the light of the case law and the applicable Regulations and Rules as they currently stand, the Secretary-General was barred from giving the term 'spouse' the broad interpretation requested."
Reference(s)
ILOAT Judgment(s): 2549, 2550, 2590
Keywords:
applicable law; case law; definition; dependant; difference; domestic law; enforcement; family allowance; interpretation; judgment of the tribunal; marital status; provision; purpose; refusal; same-sex marriage; social benefits; staff regulations and rules; written rule;
Judgment 2636
103rd Session, 2007
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
"The terms of Article II of the Statute of the Tribunal [...] dictate that various [...] claims for relief are not receivable. The claim that the Tribunal make appropriate orders to enable investigation of the complainant's allegations by the Swiss authorities falls into this category. The complainant's rights are those that derive from the terms of his appointment, the applicable Staff Regulations and those general legal principles recognised by the Tribunal as applicable to all international civil servants. None of these confer any right on the complainant to rely on Swiss law in his claims against WIPO and, consequently, there is no power in the Tribunal to make any order in that regard."
Reference(s)
ILOAT reference: Article II of the Statute
Keywords:
applicable law; claim; competence of tribunal; contract; domestic law; general principle; iloat statute; inquiry; investigation; official; provision; receivability of the complaint; right; staff regulations and rules; written rule;
Judgment 2611
102nd Session, 2007
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The complainant argues that the impugned decision was “illegal” because the President of the Office did not apply German law and, also, because he was not accorded the right to be heard before “a competent, independent and impartial national tribunal”. In support of the latter argument, he invokes the Universal Declaration of Human Rights and the European Convention on Human Rights. The complainant points to nothing in the terms of his appointment to suggest that German law, as distinct from the EPO Service Regulations, was applicable to any aspect of his employment or dismissal. Accordingly, his argument in that regard must be dismissed (see Judgments 1311 and 1369). So far as concerns the Universal Declaration of Human Rights and the European Convention on Human Rights, they apply, according to their terms, to Member States not to international organisations. Thus, the complainant’s argument that he should have been heard by, and that the matters alleged against him should have been proven in a national tribunal must also be dismissed.
Reference(s)
ILOAT Judgment(s): 1311, 1369
Keywords:
domestic law;
Judgment 2585
102nd Session, 2007
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"While it is true, as the Tribunal recalled in Judgment 2156, that 'elected representatives of the staff enjoy specific rights and safeguards in accordance with the general principles which govern employment relationships in international organisations and which are also generally recognised in national labour legislation', it is still up to the staff member complaining that such specific rights and safeguards have been violated to prove that fact and not merely rely on bald assertions."
Reference(s)
ILOAT Judgment(s): 2156
Keywords:
breach; burden of proof; case law; collective rights; domestic law; general principle; iloat; official; organisation; request by a party; right; safeguard; staff representative; working relations;
Judgment 2549
101st Session, 2006
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 10, 11 and 13
Extract:
The complainant, a Danish national, was employed by the ILO from 3 January 2002 to 2 January 2005. She had entered into a registered partnership with her same-sex partner. On taking up her functions, she submitted a Certificate of Registered Partnership drawn up in accordance with the Danish Act on registered partnership and asked to be granted dependency benefits, designating her partner as her spouse. Her request was rejected. The Office stated that it was "in a position to recognise same-sex marriages immediately where the legislation of the country of the staff member's nationality recognises such marriages." It has in fact recently recognised such same-sex marriages where the national legislation defines same-sex marriages as spousal relationships.
"The question is whether the broad interpretation of the term 'spouse' already given by the Office in the case of a marriage recognised by the legislation of the country of the staff member's nationality should have been extended to unions between same-sex partners which are not expressly designated as marriages under the national law of the staff member concerned. The Tribunal feels that a purely nominalistic approach to this issue would be excessively formalistic and is inappropriate in view of the fact that the situation varies from one country to another and that great care must be taken not to treat officials placed in comparable situations unequally: it is not because a country has opted for legislation that admits same-sex unions while refusing to describe them as marriages that officials who are nationals of that State should necessarily be denied certain rights. As pointed out in Judgment 1715 [...], there may be situations in which the status of spouse can be recognised in the absence of a marriage, provided that the staff member concerned can show the precise provisions of local law on which he or she relies. It is therefore necessary to determine whether in the present case the provisions of Danish law enable the complainant and her partner to be considered as 'spouses' in the meaning of the applicable regulations."
After having examined the provisions of the Danish Act on registered partnership, the Tribunal finds that "the Director-General was wrong [...] to refuse to recognise the status of spouse for the complainant's partner [and orders] the ILO [to] give full effect to this ruling by granting the complainant the benefits denied to her during the time of her employment".
Reference(s)
ILOAT Judgment(s): 1715
Keywords:
analogy; applicable law; burden of proof; condition; consequence; contract; declaration of recognition; definition; dependant; difference; domestic law; equal treatment; exception; executive head; family allowance; interpretation; judicial review; marital status; member state; nationality; official; provision; refusal; request by a party; right; same-sex marriage; social benefits; status of complainant;
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