Judgment No. 3671
1. The impugned decision and Service Orders Nos. 13/01 and 13/03 are set aside.
2. The ITU shall pay the complainant costs in the amount of 3,000 euros.
3. All other claims are dismissed.
The complainant challenges two service orders.
complaint allowed; general decision; decision quashed; staff representative
[T]he Tribunal’s case law establishes that insofar as an official alleges a failure to respect the prerogatives of a body of which she or he was a member, she or he has a cause of action which gives her or him standing to bring a complaint (see, for example, Judgment 3546, under 6). In the instant case, the complainant is a member of the Staff Council and she submits that the latter was not consulted before Service Order No. 13/03 was published. In accordance with the case law, the complainant therefore has a cause of action before the Tribunal, even though this service order constitutes a regulatory measure which may ordinarily be challenged only indirectly in the context of an appeal lodged against an individual decision based on it.
ILOAT Judgment(s): 3546
general decision; cause of action; staff representative
The Tribunal recalls [...] that in keeping with the principle tu patere legem quam ipse fecisti, when a text provides for the consultation of a body representing the staff before the adoption of a decision, the competent authority must follow that procedure, otherwise its decision will be unlawful (see, for example, Judgment 1488, under 10). It is ascertained that the ITU did not consult the Staff Council on the matter of the disputed service orders. The fact relied upon by the ITU, that two members of the Council took part in the above-mentioned working group, is not a valid substitute for the consultation of the Council.
ILOAT Judgment(s): 1488
Although the complainant’s claims for the setting aside of these texts have been allowed, as she is acting in her capacity as a staff representative, she is not entitled to moral damages (see Judgments 3258, under 5, and 3522, under 6).
ILOAT Judgment(s): 3258, 3522
moral injury; staff representative