Judgment No. 3876
The complaint is dismissed.
The complainant requests the payment, after his death, of a pension for a surviving spouse to his wife and of an orphan’s pension to two children of whom he claims to be the biological father. He also claims allowances for dependent children.
The complainant has requested the convening of a hearing, but in view of the abundant and sufficiently clear submissions and evidence produced by the parties, the Tribunal considers that it is fully informed about the case and does not therefore deem it necessary to hold such a hearing.
According to the Tribunal’s case law, it is not for the Tribunal to make such declarations (see Judgments 1546, under 3, 2299, under 5, 2649, under 6, or 3764, under 3).
ILOAT Judgment(s): 1546, 2299, 2649, 3764
declaration of law
[I]t was incumbent upon [the complainant] submit to the Tribunal in the course of the proceedings any evidence he considers to be material in support of his case (see Judgments 1248, under 7, and 3678, under 8).
ILOAT Judgment(s): 1248, 3678
According to the Tribunal’s case law, “[o]rdinarily, the process of decision-making involves a series of steps or findings which lead to a final decision. Those steps or findings do not constitute a decision, much less a final decision. They may be attacked as part of a challenge to the final decision, but they themselves cannot be the subject of a complaint to the Tribunal” (see Judgment 2366, under 16, confirmed in Judgments 3433, under 9, 3512, under 3, and 3700, under 14).
ILOAT Judgment(s): 2366, 3433, 3512, 3700
final decision; step in the procedure
It should also be noted that it is clearly not the Tribunal’s role to identify “any [...] objective evidence [...] proving [the complainant’s] paternity”, as he requests, since the Tribunal cannot provide the parties with legal or expert opinions.
competence of tribunal
Regarding the claim relating to the payment of a surviving spouse’s pension, the Tribunal notes that under Article II 5.08 of the Rules of the CERN Pension Fund, “a marriage to a beneficiary of a retirement pension taking place on or after 1 August 2006 shall not give rise to entitlement to a surviving spouse’s pension”. It follows from this provision that the complainant’s marriage on 24 October 2011 did not confer any entitlement to a surviving spouse’s pension.
The complainant contends that this provision, which was adopted in December 2005, does not apply to him as it would breach his acquired rights. The Tribunal draws attention to the fact that international organisations’ staff members do not have any right 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.
Of course 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, according to the 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 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).
The possibility for a spouse whom the official has married after his retirement to benefit from a surviving spouse’s pension cannot be viewed as fulfilling that condition, and it is clear that the amendment in this regard did not adversely affect the balance of contractual relations. Nor did it alter fundamental terms of employment in consideration of which the complainant accepted an appointment with the Organization in 1962, or which subsequently induced him to pursue his career there.
It follows from the foregoing that this claim must be dismissed, without there being any need to rule on the merits of the objection to receivability raised by CERN on this point.
ILOAT Judgment(s): 61, 832, 986, 2089, 2682, 2986, 3135
acquired right; survivor's benefit
acquired right; pension; complaint dismissed