Competence of Tribunal (102, 103, 105, 694, 699, 700, 701, 844, 702, 703, 727, 830, 861, 878, 944, 946, 948,-666)
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Keywords: Competence of Tribunal
Total judgments found: 463
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Judgment 4804
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject his appeal seeking, in the main, moral damages for breach of confidentiality and defamation.
Consideration 2
Extract:
By one of his claims, the complainant asks the Tribunal to order that the EPO publish, in the EPO Gazette and/or on the intranet, the President’s […] decision on internal appeal RI/31/08 […], accompanied by a summary of the facts approved by himself. However, the Tribunal is not competent to make orders of this kind against international organisations (see Judgments 4065, consideration 9, 4039, consideration 17, and 2058, consideration 13).
Reference(s)
ILOAT Judgment(s): 2058, 4039, 4065
Keywords:
competence of tribunal; injunction; publication;
Judgment 4803
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests amendments made to the procedure for adjusting remuneration as reflected in his payslips.
Consideration 3
Extract:
[H]aving regard to the Appeals Committee’s findings, it is not inevitable, certain or even likely there will be future injury to the complainant. It remains the position generally that an abstract change of methodology of salary calculation or the calculation of other emoluments is challengeable when it is implemented or, exceptionally, when future injury is certain or likely. Thus, in Judgment 4075, recently reiterated in Judgments 4381, consideration 11, and 4380, consideration 8, for instance, the Tribunal concluded that the complaint was irreceivable as beyond the scope of the Tribunal’s competence.
Reference(s)
ILOAT Judgment(s): 4380, 4381
Keywords:
competence of tribunal; injury; salary;
Judgment keywords
Keywords:
competence of tribunal; complaint dismissed; payslip; salary;
Judgment 4797
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the modifications made to the procedure for examining patent applications and contest the validity of the internal appeal proceedings.
Consideration 10
Extract:
Cases arise in the Tribunal where the defendant organisation has failed to consult a person or a body, which should have been consulted under the relevant rules, and the Tribunal may make orders which require that consultation take place and the Tribunal may also set aside the decision made without consultation (see, for example, Judgment 4230). But setting aside the decision is not an inevitable outcome following a conclusion that consultation should have, but did not, take place.
Reference(s)
ILOAT Judgment(s): 4230
Keywords:
compensation; competence of tribunal; consultation; iloat statute;
Consideration 11
Extract:
In the present case, the failure to consult the GAC occurred over a decade ago. Indeed, as noted earlier, the GAC was abolished in 2014, almost a decade ago. It cannot now be consulted. There is a suggestion in the pleas of both the complainants and the EPO that the Notice is no longer in force. If so, this would be relevant and militate strongly against granting relief based on the failure to consult. But even if it is in force, it is not apparent to the Tribunal that the Notice’s continued implementation would cause any real prejudice or injury to the complainants or the staff of the Office more generally. In these circumstances, it is clearly not advisable to rescind the decision adopting and promulgating the Notice notwithstanding the failure to consult the GAC. However, while Article VIII of the Tribunal’s Statute contemplates the awarding of compensation there should be none in the present case. That is because a staff representative, bringing proceedings in that capacity, is not entitled to an award of moral damages (see Judgment 4575, consideration 9).
Reference(s)
ILOAT Judgment(s): 4575
Keywords:
compensation; competence of tribunal; consultation; iloat statute;
Judgment 4764
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to dismiss her for misconduct.
Consideration 13
Extract:
In relation to the question of whether conduct founding a disciplinary measure has been proved beyond reasonable doubt and what evidence the Tribunal considers, it has said its role is a limited one, as described in Judgment 4362, consideration 7:
“The role of the Tribunal in a case such as the present is not to assess the evidence itself and determine whether the charge of misconduct has been established beyond reasonable doubt but rather to assess whether there was evidence available to the relevant decision-maker to reach that conclusion [...]”
Plainly enough that role does not require, indeed contemplate, further evidence to be furnished in the proceedings before the Tribunal. The touchstone for error in this regard concerns the evaluation of the evidence by the relevant decision-maker, namely the evidence before him or her.
Reference(s)
ILOAT Judgment(s): 4362
Keywords:
competence of tribunal; disciplinary measure; evidence; standard of proof;
Consideration 2
Extract:
One matter arising from the complainant’s pleas […] concerns the decision to place her “on administrative leave” in March 2018 which she challenges in her complaint. The legality of the suspension decision was not challenged at the time. Any grievance about that decision should have been raised then (see, for example, Judgment 4461, consideration 5). The [Global Board of Appeal] concluded, correctly, that the claims in the internal appeal, insofar as they related to the suspension decision, were irreceivable as time-barred. Accordingly, insofar as the legality of the suspension decision is challenged in these proceedings, the challenge is irreceivable because the complainant has not exhausted internal means of redress, a matter the Tribunal can consider ex officio (see, for example, Judgment 4597, consideration 8).
Reference(s)
ILOAT Judgment(s): 4461, 4597
Keywords:
competence of tribunal; failure to exhaust internal remedies; receivability of the complaint;
Judgment keywords
Keywords:
competence of tribunal; complaint dismissed; disciplinary measure; misconduct;
Judgment 4762
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to dismiss him for misconduct.
Consideration 8
Extract:
It is well settled in the Tribunal’s case law that the executive head of an international organisation, while at liberty to disagree with, and reject, recommendations made by an internal appeal body, must explain why and the basis for the disagreement and rejection (see, for example, Judgment 4598, consideration 12). The Executive Director has not done so in the present case and her decision should be quashed and the matter remitted to the WHO/UNAIDS for a fresh decision to be taken.
Reference(s)
ILOAT Judgment(s): 4598
Keywords:
competence of tribunal; motivation of final decision;
Judgment 4739
137th Session, 2024
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the Global Fund’s decision to close his harassment complaint and not to provide him with a copy of the investigation report.
Consideration 5
Extract:
An order of […] measures [to mitigate the consequences of the complainant’s alleged harassment], including to permanently assign the complainant to another team, is beyond the Tribunal’s competence (see Judgment 4096, consideration 12).
Reference(s)
ILOAT Judgment(s): 4096
Keywords:
competence of tribunal; injunction;
Judgment 4737
137th Session, 2024
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who was the Secretary-General of the Energy Charter Secretariat, challenges the decision not to launch the procedure for his reappointment as Secretary-General.
Consideration 4
Extract:
A clear indicator of the status of the Secretary-General as an official, is that he or she is part of the Secretariat performing duties described in [Article 35(1) of the Energy Charter Treaty] (and elsewhere in the Treaty), namely providing the Charter Conference with all necessary assistance for the performance of its duties and entering “administrative and contractual arrangements”.
The organisation relies on other normative legal documents to argue the complainant is not an official. But the relevant legal question is not whether the Secretary-General is an official for the purposes of those rules, but whether he is for the purposes of the Tribunal’s Statute. The Tribunal is satisfied he is.
Keywords:
competence of tribunal; executive head; official;
Consideration 2
Extract:
The organisation contends that the Tribunal is not competent to hear this complaint for two reasons. The first which should be addressed is the argument that the complainant was not an “official” of the organisation for the purposes of Article II of the Tribunal’s Statute. The organisation relies in part on the terms on which it recognised the jurisdiction of the Tribunal as contemplated by Article II, paragraph 5, of the Statute. The terms of recognition can be a relevant consideration in determining the scope of the Tribunal’s jurisdiction (see Judgment 2232, consideration 8).
Reference(s)
ILOAT Judgment(s): 2232
Keywords:
competence of tribunal; executive head; official;
Consideration 5
Extract:
[T]he organisation [contends] that the decision not to launch the reappointment procedure, which was made by the Conference, was a bare political decision that is not open to judicial review. But the Tribunal notes that the decision was not entirely political but indirectly raised the question of the application of the conditions in the rules for appointment of the Secretary-General and had a direct legal adverse effect on the complainant, an international civil servant. The observations of the Tribunal in Judgment 2232, consideration 10, are apt to apply:
‘a decision terminating the appointment of an international civil servant prior to the expiry of his/her term of office is an administrative decision, even if it is based on political considerations. The fact that it emanates from the Organisation's highest decision-making body cannot exempt it from the necessary review applying to all individual decisions which are alleged to be in breach of the terms of an appointment or contract, or of statutory provisions’.
Reference(s)
ILOAT Judgment(s): 2232
Keywords:
administrative decision; appointment; competence of tribunal; executive head;
Judgment 4735
136th Session, 2023
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former staff member of IOM at its Country Office in Afghanistan, asserts that a position which was readvertised after its temporary abolition should be assigned to him.
Judgment keywords
Keywords:
cause of action; competence of tribunal; complaint dismissed; former official; summary procedure;
Judgment 4707
136th Session, 2023
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants contest the modifications brought to the subsistence allowance.
Considerations 6-7
Extract:
CERN does not contest that the complainant has personal standing to maintain his complaint. It accepts that the complainant has standing “before the Tribunal in respect of administrative decisions adversely affecting [his] conditions of association” and it refers to Judgment 1166. However, what it does contest concerns the subject matter of the complaint as it is “not related to the Complainant’s conditions of association deriving from his contract or from” the Staff Rules and Regulations (SRR). Part of CERN’s argument in its reply is that payment of subsistence allowances which are the subject of the ceiling, do not derive from the SRR or an appealable decision of the Director-General of CERN (appealable under Article S VI 1.01 of the SRR), but rather are decided upon by an external entity as the employer of the MPA concerned. The pleas on this topic continue in the rejoinder, surrejoinder, further submissions of the complainant and final comments by CERN. Part of the responsive argument of the complainant is that CERN had not provided any proof that the payments of the subsistence allowance of the complainant had been “decided upon by an external entity”.
The Tribunal’s case law establishes that, generally, a party making an allegation bears the burden of proving it (unless, of course, it is not contested). This approach has relevance in cases where a defendant organization challenges the receivability of a complaint and that challenge is based on a fact or facts bearing upon receivability. Cases have arisen where such challenges have failed because the defendant organization has not proved a fact underpinning the contention that the complaint was not receivable (see, for example, Judgments 3034, consideration 13, and 2494, consideration 4). If a distinction is drawn between the general arrangement whereby CERN made payments on behalf of third parties which is principally a matter of process, and an alteration, particularly a material one, to the amount of any such payment based on a decision of the third party communicated to CERN then proof of that decision may be required to sustain the objection to receivability of the type advanced by CERN. It is not at all obvious, even implicitly, from the material relied upon by CERN that the alteration, by way of reduction, of the subsistence allowance commencing in 2020 payable to the complainant, was ever considered by the complainant’s Home Institution, an American university. The absence of evidence leaves open the possibility that, as a matter of fact, the reduction in the payment of the subsistence allowance to the complainant was a direct result of the implementation of the general decision to place a ceiling of ordinarily 5,163 Swiss francs on subsistence payments which did not involve any decision-making or instructions by or from the complainant’s Home Institution. But it is unnecessary to explore this issue any further as, for reasons which follow, the complaint should be dismissed on its merits.
Reference(s)
ILOAT Judgment(s): 2494, 3034
Keywords:
burden of proof; cause of action; competence of tribunal; ratione materiae; ratione personae; receivability of the complaint;
Judgment 4703
136th Session, 2023
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to close the case arising from his reports of alleged misconduct and to reject his request to be provided with an unredacted version of the final investigation report.
Consideration 4
Extract:
[T]he complainant’s request for providing him with a certificate of satisfactory performance is beyond the Tribunal’s competence (see, for example, Judgment 4029, consideration 22).
Reference(s)
ILOAT Judgment(s): 4029
Keywords:
certificate of service; competence of tribunal;
Judgment 4676
136th Session, 2023
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges EMBL’s refusal to guarantee that the survivor’s pension to which his wife will be entitled at the time of his death will be at least 35 per cent of his last salary; to award him a children’s allowance for each of his wife’s three children from her previous marriages; and to verify that his current pension was properly calculated.
Consideration 5
Extract:
With respect to the […] claim for relief concerning a “guarantee of survivor[’s] pension for [his] wife”, Ms H.-R., the complainant misunderstands and misconceives the role of the Tribunal. This might be thought to be a request to now declare the rights of his spouse. But according to established case law, it is not for the Tribunal to make declarations of the nature sought (see, for example, Judgment 4602, consideration 5), nor to provide complainants with guarantees such as the one claimed here.
Furthermore, given that the complainant is still alive, the relief sought in this regard is premature. As correctly indicated by EMBL, the amount of any entitlement to the survivor’s pension in case of the complainant’s death has not been decided and cannot be decided at this juncture. A definite amount will only be set when the date of a potential entitlement of the complainant’s survivor is known. Before then, there is simply no decision that has an effect on the complainant’s rights and obligations or on the rights and obligations of anyone holding or deriving rights through him under Article II, paragraph 6(b), of the Statute of the Tribunal (see, for example, Judgment 1203, consideration 2).
Reference(s)
ILOAT Judgment(s): 1203, 4602
Keywords:
competence of tribunal; survivor's benefit;
Judgment 4670
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the restitution of amounts wrongly deducted from her salary in respect of sickness insurance contributions.
Considerations 10-11
Extract:
As Interpol has decided to affiliate its officials stationed in France to the French social security scheme pursuant to Staff Regulation 7.1(1), it has made French national law applicable to the employment relationship between the Organization and the officials concerned as regards their social protection. Given this express reference to the rules of national law, the Tribunal should, in principle, refer to them when ruling on this dispute (see Judgments 4401, consideration 6, 3915, consideration 4, 1451, consideration 23, and 1369, consideration 15).
[...]
Having regard to these matters, the Tribunal finds that the question of the extent to which the amounts of ESC paid for the 2009-2012 period may be refunded to the persons who paid them raises a question of interpretation of national law, the scope of which goes well beyond the case of Interpol officials and which can only be decided by the French authorities and courts. It is therefore not for the Tribunal to rule on this issue.
Reference(s)
ILOAT Judgment(s): 1369, 1451, 3915, 4401
Keywords:
applicable law; competence of tribunal; domestic law;
Judgment 4668
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the restitution of amounts wrongly deducted from his salary in respect of sickness insurance contributions.
Considerations 8-9
Extract:
As Interpol has decided to affiliate its officials stationed in France to the French social security scheme pursuant to Staff Regulation 7.1(1), it has made French national law applicable to the employment relationship between the Organization and the officials concerned as regards their social protection. Given this express reference to the rules of national law, the Tribunal should, in principle, refer to them when ruling on this dispute (see Judgments 4401, consideration 6, 3915, consideration 4, 1451, consideration 23, and 1369, consideration 15). [...]
Having regard to these matters, the Tribunal finds that the question of the extent to which the amounts of ESC paid for the 2009-2012 period may be refunded to the persons who paid them raises a question of interpretation of national law, the scope of which goes well beyond the case of Interpol officials and which can only be decided by the French authorities and courts. It is therefore not for the Tribunal to rule on this issue.
Reference(s)
ILOAT Judgment(s): 1369, 1451, 3915, 4401
Keywords:
applicable law; competence of tribunal; domestic law;
Judgment 4667
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants seek the restitution of amounts wrongly deducted from their salaries in respect of sickness insurance contributions.
Considerations 9-10
Extract:
As Interpol has decided to affiliate its officials stationed in France to the French social security scheme pursuant to Staff Regulation 7.1(1), it has made French national law applicable to the employment relationship between the Organization and the officials concerned as regards their social protection. Given this express reference to the rules of national law, the Tribunal should, in principle, refer to them when ruling on this dispute (see Judgments 4401, consideration 6, 3915, consideration 4, 1451, consideration 23, and 1369, consideration 15).
[...]
Having regard to these matters, the Tribunal finds that the question of the extent to which the amounts of ESC paid for the 2009-2012 period may be refunded to the persons who paid them raises a question of interpretation of national law, the scope of which goes well beyond the case of Interpol officials and which can only be decided by the French authorities and courts. It is therefore not for the Tribunal to rule on this issue.
Reference(s)
ILOAT Judgment(s): 1369, 1451, 3915, 4401
Keywords:
applicable law; competence of tribunal; domestic law;
Judgment 4665
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, whose post was reclassified retrospectively, claims compensation for the injury he considers he has suffered and requests that his resignation be redefined as a dismissal.
Consideration 8
Extract:
The complainant further seeks compensation for the moral injury he considers he has suffered [...]. He substantiates the existence of this injury with particular reference to the Organization’s [...] bad faith during the negotiations seeking to find an amicable resolution to the dispute.
On this last point, the Tribunal considers that it is not required to take into consideration discussions of this kind (see, in this respect, Judgment 4457, consideration 2).
Reference(s)
ILOAT Judgment(s): 4457
Keywords:
collective bargaining; competence of tribunal; moral injury; settlement out of court;
Consideration 11
Extract:
[T]he complainant requests the Tribunal to order the deduction from the various monetary awards made to him of an amount “corresponding to the fees and taxes” which he has undertaken to pay to his counsel, and to order that this amount be paid directly to the latter.
However, the Tribunal is not competent to make an order of this nature, which relates to the private contractual relationship between the complainant and his counsel (see, in particular, Judgments 4541, consideration 13, and 4072, consideration 21).
Reference(s)
ILOAT Judgment(s): 4072, 4541
Keywords:
attorney; competence of tribunal; costs; counsel;
Judgment 4635
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject his internal appeal in which he requested that an expert in occupational diseases be consulted.
Consideration 5
Extract:
[T]he Tribunal observes that the decision contested by the complainant was not an act adversely affecting him and therefore could not be challenged. Accordingly, the complaint is irreceivable.
[T]he refusal to grant the complainant’s request for an expert to be consulted had neither the aim nor the effect of ending the procedure he had initiated with a view to obtaining recognition that his invalidity was caused by an occupational disease. The refusal only meant that the request in question would be submitted to the Medical Committee for consideration, instead of being regarded as having to be granted automatically, as the complainant contended. Apart from the fact that it in no way prejudiced the eventual outcome of the request, this decision was merely a step in the process of reaching a final decision on the question of whether the invalidity was to be recognised as service incurred.
However, under the Tribunal’s settled case law, when a decision is thus taken in the procedure leading to a final administrative decision, it must be regarded merely as a preparatory step and is not therefore challengeable in itself, although it may be challenged in the context of an appeal directed against that final decision (see, for example, Judgments 3433, consideration 9, and 2366, consideration 16, or, specifically in respect of decisions taken, as in this case, in proceedings of a medical nature, Judgments 3893, consideration 8, or 3712, consideration 3).
Lastly, while it must be noted that from the start of the dispute the EPO has never argued that the complainant’s claims are irreceivable, that does not prevent such a finding in the present judgment. It is well-established case law that, because they involve the application of mandatory provisions, issues of receivability can be raised by the Tribunal of its own motion (see, in particular, Judgments 3648, consideration 5, 3139, consideration 3, 2567, consideration 6, or 2097, consideration 24) and, while plainly it will not do so unless the submissions make such irreceivability clear, that is the situation here.
Reference(s)
ILOAT Judgment(s): 2097, 2366, 2567, 3139, 3433, 3648, 3712, 3893
Keywords:
competence of tribunal; expert inquiry; medical board; provisional decision; receivability of the complaint; step in the procedure;
Judgment 4622
135th Session, 2023
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment for reasons of health.
Consideration 19
Extract:
The complainant asks the Tribunal to order the ILO to “take any other measures necessary to accommodate her” and, in particular, to bear the costs of any vocational retraining aiming to enable her to work in a job compatible with her functional impairments. However, the Tribunal is not competent to make orders of this kind against international organisations (see, for example, Judgments 4039, consideration 17, 3835, consideration 6, or 3506, consideration 18).
Reference(s)
ILOAT Judgment(s): 3506, 3835, 4039
Keywords:
competence of tribunal; injunction;
Judgment 4607
135th Session, 2023
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her allegation that the opening of an investigation against her involved abuse of authority and the decision not to investigate her allegations against the Acting Director of the Internal Oversight Division.
Consideration 3
Extract:
It is desirable to address at the outset the question of receivability, and the Tribunal can do so ex officio (see, for example, Judgments 3139, consideration 3, and 2567, consideration 6).
Reference(s)
ILOAT Judgment(s): 2567, 3139
Keywords:
competence of tribunal; receivability of the complaint;
Judgment 4605
135th Session, 2023
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the lawfulness and the results of the election for members of the new Staff Council.
Consideration 6
Extract:
It can be seen that the second order is, in substance, an injunction restraining future conduct of WIPO which is couched in the most general and imprecise terms with a consequential interdependent effect on the future conduct of the Staff Council and Staff Association. The Tribunal’s case law clearly establishes it cannot grant relief of this nature against an organisation (see Judgments 3835, consideration 6, 3506, consideration 18, and 2370, consideration 19). Accordingly, in this respect, the complaints should also be dismissed.
Reference(s)
ILOAT Judgment(s): 2370, 3506, 3835
Keywords:
competence of tribunal; injunction;
Judgment 4603
135th Session, 2023
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to extend his fixed-term appointment on account of his unsatisfactory performance.
Consideration 7
Extract:
To the extent that the complainant raises questions concerning human rights violations allegedly committed by the Austrian authorities and matters relating to his family circumstances, those questions relate to private rather than work-related matters and are not concerned with the non-observance of the complainant’s terms of appointment. Pursuant to paragraph 5 of Article II of the Tribunal’s Statute, they are not within the competence of the Tribunal.
Keywords:
competence of tribunal; host state; private life; ratione materiae;
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