Judgment No. 2493
1. The decisions issuing the complainants a written warning and those rejecting their internal complaints are set aside.
2. Eurocontrol shall pay each complainant moral damages in the sum of 1,000 euros.
3. It shall also pay each complainant 500 euros in costs.
The complainants were issued a written warning on the grounds that they had participated in industrial action which management considered to be unlawful and that caused them to be absent from duty without authorisation. They contend that the Director General had no authority to decide whether the collective action was illegal. "There is no doubt that in the absence of any statutory provisions or collective agreement between the Agency and the staff representatives, it is up to the Director General to take whatever measures are necessary to prevent actions which he deems unlawful, to warn members of staff against participating in such actions and, if necessary, to lay down guidelines for the exercise of the collective rights of staff in accordance with the general principles of international civil service law. From this point of view, one cannot object to the Director General's legitimate right to take action when he, 'in the absence of an agreement with the unions', issued on 13 March 2003 - in other words, three days after the start of the industrial action - an Office Notice setting out 'General provisions applicable in the event of a strike at Eurocontrol'. Nevertheless, the general measures taken by the administration and the individual decisions taken to implement those measures must not have the effect of restricting the exercise of the collective rights of members of staff in such a way as to deprive them of all substance."
complaint allowed; general decision; individual decision; competence; applicable law; general principle; international civil service principles; organisation's duties; information note; staff regulations and rules; enforcement; no provision; provision; unauthorised absence; disciplinary measure; warning; collective rights; right to strike; strike; staff union; staff union agreement; staff representative; executive head; limits; condition; consequence; effect
The complainants were issued a written warning on the grounds that they had participated in industrial action which management considered to be unlawful and that caused them to be absent from duty without authorisation. "[I]f it were a work stoppage not involving unlawful actions, the question arises as to whether the Agency could, in view of the provisions of Article 11 of the Staff Regulations whereby an official is bound to ensure the continuity of the service and must not cease to exercise his functions without previous authorisation, deem participation in the collective action by the officials in question to be unlawful. Without overlooking the fact that a strike will necessarily affect continuity of service, the Tribunal considers that, if the answer to that question were yes, it would in practice deprive of all substance the exercise of a right, the existence of which the Agency does not deny and which, according to the case law, is lawful in principle (see, for instance, Judgments 615 and 2342 of the Tribunal). To make the exercise of that right conditional on obtaining leave of absence would clearly be incompatible with the principle itself, the necessary corollary of which is the freedom of officials to follow or not to follow a call to strike duly issued by their representative organisations."
Organization rules reference: Article 11 of the Staff Regulations governing officials of the Agency
ILOAT Judgment(s): 615, 2342
complaint allowed; general principle; staff regulations and rules; provision; unauthorised absence; staff member's duties; disciplinary measure; warning; collective rights; right to strike; continuance of operations; strike; staff union; freedom of association; condition; consequence