Judgment No. 580
Decision
THE COMPLAINT IS DISMISSED.
Consideration 8
Extract:
"The [Organisation] contends that the complainant has no cause of action. [It pleads] that the impugned decision does him no injury. It is clear, however, that in the circumstances the complainant has an interest, of a kind which the Tribunal will protect, in pleading any irregularity there may have been in the [...] candidacy" to the post of Director-General [the complainant was deprived of an opportunity to stand; if he had been able to stand, his chances of being elected would have been diminished with the candidacy in question].
Keywords
injury; cause of action; candidate; executive head; external candidate
Consideration 7
Extract:
"Waiver of an action may not be presumed. The plea will succeed only if there was a statement its author clearly intended should carry legal force."
Keywords
waiver of right of appeal; condition
Consideration 3
Extract:
The complainant pleads against the admissibility of the candidacy on the grounds that the age-limit was not observed. "This plea is not a matter of policy and it is one which the Tribunal will entertain in exercise of its power of review. For that reason it need not determine whether, being a so-called 'policy' decision, the actual choice of a candidate is a matter outside its competence."
Keywords
competence of tribunal; candidate; age limit; judicial review; executive head
Consideration 8
Extract:
The complainant, an international civil servant, challenged a candidacy to the post of Director-General. The Organisation pleads that "if the complainant had a cause of action, he would have an unfair advantage over candidates who, not being members of the ILO staff, do not have access to the tribunal. But the alleged breach of equality is a corollary of the provision in the Statute which determines the conditions of access to the Tribunal, and the Tribunal may not review the lawfulness of that provision. The plea fails."
Keywords
locus standi; cause of action; competence of tribunal; equal treatment; candidate; executive head; ratione personae
Consideration 13(B)
Extract:
"The principle of equality does not mean that the same rules must be uniformly applied to everyone. What it means is that like facts require like treatment in law, but different facts allow of different treatment."
Keywords
general principle; equal treatment
Consideration 2
Extract:
That it was the Governing Body that took the decision is immaterial. Who took the decision is not a question on which the Tribunal's competence, as defined in Article II(1) of its Statute, depends. The article merely says that the Tribunal may hear complaints alleging non-observance of the terms of appointment of officials and of provisions of the Staff Regulations. An appeal may therefore lie to the Tribunal against a decision by any authority which a complainant accuses of having infringed the terms of his appointment or the provisions of the Staff Regulations. The decision challenged in this case is just such a decision since the complainant is alleging that the Governing Body acted in breach of a rule he infers from Article 11.3 of the Staff Regulations.
There is therefore no need to consider whether the Tribunal is competent to review measures which the Governing Body takes in the exercise of its rule-making authority.
Keywords
final decision
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