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Judgment No. 3034

Decision

1. The disputed decisions of the Director General of Eurocontrol determining the number of pensionable years credited to the complainants referred to in consideration 41 and those dismissing these persons' internal complaints are set aside.
2. These complainants' cases shall be referred back to the Agency in order that the pensionable years un question be determined in accordance with the terms and conditions indicated in that consideration.
3. The interveners referred to in consideration 44, subject to the reservation made therein with regard to one of them, shall enjoy the rights which the present judgment confers on the complainants referred to in points 1 and 2.
4. The Agency shall pay these complainants costs in the overall amount of 8,000 euros.
5. All other claims presented by these complainants are dismissed.
6. The complaints of the other complainants and the applications to intervene referred to in consideration 45 are dismissed.

Judgment keywords

Keywords

pension

Consideration 9

Extract:

[A]ttention must be drawn to the fact that the rules concerning the receivability of complaints before the Tribunal are established exclusively by its own Statute. In particular, the possibility of lodging a complaint against an implied rejection is governed solely by the provisions of Article VII, paragraph 3, of the Statute, which states that an official may file a complaint “[w]here the Administration fails to take a decision upon any claim of an official within sixty days from the notification of the claim to it”. When an organisation forwards a claim before the expiry of the prescribed period of sixty days to the competent advisory appeal body, this step itself constitutes “a decision upon [the] claim” within the meaning of these provisions, which forestalls an implied rejection which could be referred to the Tribunal (see, on these points, Judgments 532, 762, 786 or 2681). As it is not disputed that, in the instant case, the Agency had forwarded the complainants’ internal complaints to the Joint Committee for Disputes within this prescribed period of time, the persons concerned were wrong in believing that they could challenge the implied rejection of these complaints.

Reference(s)

Jugement(s) TAOIT: 532, 762, 786, 2681

Keywords

receivability of the complaint; direct appeal to tribunal; internal remedies exhausted; iloat statute

Consideration 13

Extract:

[I]n accordance with the principles governing the burden of proof when determining the receivability of complaints, it is up to the organisation which intends to rely on late submission to establish the date on which the impugned decisions were notified (see Judgments 723, under 4, or 2494, under 4). Since the Agency has failed to produce any acknowledgement of receipt or other document attesting to the date on which the decisions in question were notified, it has not furnished proof of the alleged late submission.

Reference(s)

Jugement(s) TAOIT: 723, 2494

Keywords

time bar; burden of proof; final decision; notification; late filing

Consideration 14

Extract:

[The] period for filing a complaint expired on 28 December 2008. However, as that was a Sunday, the complaints of the persons concerned could still be filed on the following day (see Judgments 306, 517 and 2250, under 8).

Reference(s)

Jugement(s) TAOIT: 306, 517, 2250

Keywords

time limit; late filing; sunday

Consideration 14

Extract:

It must be emphasised in this respect that [...] the conditions governing the receivability of complaints before the Tribunal are governed exclusively by the provisions of its own Statute. As was recently recalled in Judgment 2863, which was delivered in a case also concerning Eurocontrol, an rganisation which has recognised the jurisdiction of the Tribunal may not depart from the rules which it has thus accepted. Article VII, paragraph 2, of the Statute of the Tribunal states that, “[t]o be receivable, a complaint must […] have been filed within ninety days after the complainant was notified of the decision impugned or, in the case of a decision affecting a class of officials, after the decision was published”. It is therefore unlawful for Article 93 of the Staff Regulations to set a different time limit for filing a complaint by specifying that that limit is three months instead of ninety days. Moreover the Tribunal’s case law indicates that the time limit laid down in the above-mentioned Article VII, paragraph 2, starts to run on the day after, and not on the day on which, the impugned decision is taken (see, for example, Judgment 2244, under 5).

Reference(s)

Jugement(s) TAOIT: 2244

Keywords

receivability of the complaint; iloat statute; late filing

Consideration 15

Extract:

[T]he procedural rules for lodging an internal appeal must not set a trap for staff members who are endeavouring to defend
their rights; they must not be construed too pedantically and, if they are broken, the penalty must fit the purpose of the rule. For that very reason, an official who appeals to the wrong body does not on that account forfeit the right of appeal. In such circumstances this body must forward the appeal to the competent body within the organisation in order that it may examine it and the person concerned is not deprived of his/her right of appeal (see, in this connection, Judgments 1832, under 6, and 2882, under 6).

Reference(s)

Jugement(s) TAOIT: 1832, 2882

Keywords

internal appeal; duty to forward appeal to competent body

Consideration 16

Extract:

As the Tribunal has consistently held, a complainant may not, in his or her rejoinder, enter new claims not contained in his or her original complaint (see Judgments 960, under 8, 1768, under 5, or 2996, under 6).

Reference(s)

Jugement(s) TAOIT: 960, 1768, 2996

Keywords

new claim; rejoinder

Consideration 20

Extract:

This Tribunal is not bound by the case law of the European Union’s judicial bodies. It must further be noted that the legal context of this case law is different.

Keywords

applicable law; european union; case law of other tribunals

Consideration 22

Extract:

Although the Tribunal has already had occasion to state that international organisations must respect their officials’ property rights (see Judgment 2292, under 11), this plea will not succeed in the instant case. The complainants’ pension benefits probably do not equate exactly to the capital of their transferred rights, but this situation, which is inherent in the functioning of every social insurance scheme, is in itself by no means abnormal, provided of course that any losses suffered by the persons concerned remain minimal. There is no evidence to show that the conditions on which the pensionable years credited to the complainants were calculated result in non-compliance with this requirement, even though they are indeed less favourable than those provided for under the previous rules. Moreover, it would in any case be difficult to tax the Agency with thus despoiling its officials, as it must be emphasised that the transfer of pension rights acquired with a national pension scheme is no more than an option available to them, which they are free not to use if they prefer to maintain their pension rights as they stand under their original scheme.

Reference(s)

Jugement(s) TAOIT: 2292

Keywords

pension; property rights

Consideration 24

Extract:

[W]here an international organisation is required to apply the principle of equal treatment to officials in dissimilar situations, the Tribunal’s case law allows the organisation a broad discretion to determine the extent to which the dissimilarity is relevant to the rules concerned and to define rules taking account of that dissimilarity (see, for example, Judgments 1990, under 7, or 2194, under 6(a)). When a revision of staff regulations takes place, as occurred here, it will inevitably affect various categories of staff differently, depending on their personal or professional characteristics, such as their age or career pattern, and the organisation should naturally not be required to define specific legal rules for each category.

Reference(s)

Jugement(s) TAOIT: 1990, 2194

Keywords

equal treatment; staff regulations and rules; discretion

Consideration 25

Extract:

[T]he duty of care which an international organisation owes to its officials obviously does not imply that the organisation must, as a matter of principle, refrain from adopting rules which are less favourable to its staff than those previously in force, or that it must exempt staff from the normal application of such rules.

Keywords

duty of care

Consideration 33

Extract:

As the Tribunal stated in Judgment 2459, under 9, an administrative authority, when dealing with a claim, must generally base itself on the provisions in force at the time it takes its decision and not on those in force at the time the claim was submitted. Only where this approach is clearly excluded by the new provisions, or where it would result in a breach of the requirements of the principles of good faith, the non-retroactivity of administrative decisions and the protection of acquired rights, will the above rule not apply.

Reference(s)

Jugement(s) TAOIT: 2459

Keywords

acquired right; good faith; non-retroactivity; staff regulations and rules

Consideration 40

Extract:

The Tribunal further notes that there was no time limit for presenting applications under the Office Notice of 27 June 1991. Since their submission was not subject to any express time limit, which would indeed have been fairly nonsensical given that the applications were to be made in order to safeguard a right which might arise at a later date, there was nothing to prevent officials from submitting such applications up until the entry into force [...] of provisions rendering possible the transfer of pension rights acquired with Belgian pension schemes.

Keywords

internal appeal; time bar

Consideration 44

Extract:

The interveners who filed transfer applications as a safeguard and who are thus in a similar legal situation to that of the complainants referred to in consideration 41 [...] shall be granted the rights conferred on the latter by the present judgment. The Agency must carry out the requisite checks with regard to the intervener who claims to be in this category, but whose applications do not appear to be in its records. The person concerned shall assist it in this matter.

Keywords

intervention



 
Dernière mise à jour: 14.08.2017 ^ haut