Judgment No. 2315
- Organization: Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO PrepCom)
- Date: 04.02.2004
- Original: English
- Judges: Gentot, Hugessen, Gaudron
- Full judgment text - Full judgment text (french)
1. The Executive Secretary's decision of 6 June 2003 is set aside.
2. The matter is remitted so that the Executive Secretary may make a new decision on the question of the renewal of the complainant's contract on the basis that the seven year policy is wholly irrelevant to the renewal decision.
3. The Commission is to pay the complainant's legal costs in the sum of 5,000 euros.
4. The applications to intervene are allowed.
5. All other claims are dismissed.
The Commission adopted a directive stipulating that staff members appointed to the Professional and higher categories and internationally recruited staff should not, except in certain limited exceptions, remain in service for more than seven years. In accordance with this directive, the complainant's contract was not renewed. "Much of the complainant's argument is directed to the proposition that the Commission cannot secure services of the standard specified in [Staff] Regulation 4.2 if it cannot retain those services beyond seven years, particularly as it has to compete for staff with other international organisations. That proposition is not self-evidently correct. Nor is it established by pointing, as the complainant does in his submissions, to international organisations which have a similar policy and which, according to the complainant, have or may have had difficulties in recruiting and retaining suitable staff. Moreover, [...] exceptions [are allowed] in the case of a need to retain 'essential expertise or memory in the Secretariat' ensures that, to that extent, its staffing needs can be satisfied."
Organization rules reference: CTBTO PrepCom's Staff Regulation 4.2
organisation; exception; lack of evidence; general principle; written rule; staff regulations and rules; enforcement; terms of appointment; career; professional category; contract; appointment; qualifications; non-local status; non-renewal of contract; limits; safeguard; official
The Commission adopted a directive stipulating that staff members appointed to the Professional and higher categories and internationally recruited staff should not, except in certain limited exceptions, remain in service for more than seven years. In accordance with this directive, the complainant's contract was not renewed. "Although the embodiment of the seven year policy in [the] directive may properly be viewed as the prescribing of a term or condition upon which fixed-term contracts may be granted, it does not itself operate as the imposition of that term or condition. To be effective, a term or condition of the kind now in question must be incorporated in the contract, even if only by reference: a reference to the Staff Regulations and Rules is not sufficient because they do not incorporate the [...] directive in question. By implementing the seven year policy in the way that he purported to do in the present case, the Executive Secretary was attempting to enforce a term or condition that was not incorporated in the contract between the complainant and the Preparatory Commission."
complainant; organisation; exception; general principle; written rule; staff regulations and rules; enforcement; terms of appointment; career; professional category; contract; appointment; fixed-term; non-local status; non-renewal of contract; executive head; limits; condition; effect; official
"There are two aspects to the rule against retroactivity. The first is a rule of interpretation which requires that a provision not be construed as having retroactive effect unless that is clearly intended. The second is a substantive rule of international civil service law which, as explained in Judgment 1589, prevents a retroactive change in the legal status of staff save in limited circumstances [...]. However, to state the rule in this way is not to expose what is meant by 'retroactive'. In general terms, a provision is retroactive if it effects some change in existing legal status, rights, liabilities or interests from a date prior to its proclamation, but not if it merely affects the procedures to be observed in the future with respect to such status, rights, liabilities or interests."
ILOAT Judgment(s): 1589
procedure before the tribunal; exception; case law; general principle; international civil service principles; non-retroactivity; staff member's interest; amendment to the rules; interpretation; provision; staff member's duties; collective rights; organisation's interest; condition; consequence; date; definition; effect; publication; purpose; right; official
The Commission adopted a directive stipulating that staff members appointed to the Professional and higher categories and internationally recruited staff should not, except in certain limited exceptions, remain in service for more than seven years. "A change in the nature of the discretion to be exercised in determining whether to grant future rights by the extension or renewal of a contract cannot be said to effect a change in an existing legal interest, much less in an existing legal right or existing legal status. Accordingly, the seven year policy embodied in [the] directive [...] is not retroactive even if the seven year period is computed from a time prior to the proclamation of that policy."
decision; status of complainant; organisation; exception; general principle; staff member's interest; written rule; amendment to the rules; terms of appointment; career; professional category; reckoning; period; contract; appointment; extension of contract; non-local status; discretion; limits; consequence; date; publication; right; official
The complainant submits that the impugned decision is vitiated by a breach of due process of law, inasmuch as the recommendation of the Personnel Advisory Panel was kept from him. The Commission points out that this recommendation is confidential and, thus, there was no breach of due process. "Should a claim of confidentiality be made, for example, where a recommendation contains immaterial information on a third party, it is for the party making that claim to establish the grounds upon which the claim is based. In such a case, precautions may be taken to maintain confidentiality. In the present case, the Commission provides no grounds for its argument of confidentiality other than the need for the Personnel Advisory Panel to be able freely to discuss relevant matters. In a decision-making process which is subject to internal review and to the jurisdiction of this Tribunal, that is not an acceptable basis for a claim of confidentiality."
procedure before the tribunal; complaint; decision; grounds; advisory body; internal appeal; recommendation; iloat; burden of proof; confidential evidence; right to reply; breach; freedom of speech; formal flaw; request by a party
"The Tribunal may, when setting aside a flawed decision not to renew a contract, order renewal for an appropriate term, as was done in Judgments 1298 and 1633. But it does so only if that is clearly the fair course to take. That was the situation in Judgment 1633 where, in practical terms, the question for decision was not whether a contract should be renewed but whether it should be renewed for two or for five years."
ILOAT Judgment(s): 1298, 1633
decision; settlement out of court; competence of tribunal; judgment of the tribunal; iloat; equity; period; contract; non-renewal of contract; flaw; condition