Exception (113,-666)

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Keywords: Exception
Total judgments found: 212

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• Judgment 2232

  
  95th Session, 2003
  Organisation for the Prohibition of Chemical Weapons
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 9

  Extract:

  The complainant, who had been the Organisation's Director-General, impugns the decision to terminate his appointment. The Organisation raises an objection to receivability, arguing that the complainant was not a staff member. "The defendant [...] considers that since the particular case of the Director-General of the Organisation was not expressly provided for in the texts on which the Tribunal's jurisdiction is based, an express provision recognising its jurisdiction would have been necessary. It points out that [another international organisation] (UNESCO), having realised that it had no statutory provision nor any contractual stipulation attributing jurisdiction in the event of a dispute involving its Director-General, decided in 1999 to include such a clause in the contract it signed with him. whilst the Tribunal does not deny that UNESCO thereby clarified difficulties which were liable to arise, it does not view that as authority for the reverse proposition that contracts containing no such clause, entered into by other organisations with their respective chief administrative officers, must be deemed to exclude the jurisdiction of the Tribunal."

  Keywords:

  competence of tribunal; contract; decision; exception; executive head; grounds; interpretation; no provision; organisation; provision; rebuttal; receivability of the complaint; staff regulations and rules; status of complainant; termination of employment; written rule;
  

  Consideration 16

  Extract:

  The complainant, who had been the Organisation's Director-General, impugns the decision to terminate his appointment. "In accordance with the established case law of all international administrative tribunals, the Tribunal reaffirms that the independence of international civil servants is an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organisations. In the case of heads of organisations, that independence is protected, inter alia, by the fact that they are appointed for a limited term of office. To concede that the authority in which the power of appointment is vested - in this case the Conference of the States parties of the Organisation - may terminate that appointment in its unfettered discretion, would constitute an unacceptable violation of the principles on which international organisations' activities are founded [...], by rendering officials vulnerable to pressures and to political change. The possibility that a measure of the kind taken against the complainant may, exceptionally, be justified in cases of grave misconduct cannot be excluded, but such a measure, being punitive in nature, could only be taken in full compliance with the principle of due process, following a procedure enabling the individual concerned to defend his or her case effectively before an independent and impartial body."

  Keywords:

  adversarial proceedings; appointment; breach; case law; condition; discretion; exception; executive body; executive head; fixed-term; general principle; hidden disciplinary measure; iloat; independence; internal appeals body; limits; member state; official; organisation; right to reply; safeguard; serious misconduct; termination of employment; tribunal;
  

  
  
  

• Judgment 2227

  
  95th Session, 2003
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 7

  Extract:

  The complainant was informed by a letter of 22 December 1999 that the administration reserved the right to approve the photocopying and distribution of circulars issued by staff representatives. "The Tribunal recalled, in Judgment 911 [...], that a staff association enjoys broad freedom of speech and the right to take to task the administration of the organisation whose employees it represents, but that like any other freedom such freedom has its bounds. thus any action that impairs the dignity of the international civil service, and likewise gross abuse of freedom of speech, are inadmissible. But the prevention of such abuse cannot give the administration a power of prior censorship over the communication of written information produced by the groups and associations concerned. Herein lies the problem in this case: the Office considers it has a general right to authorise, which it maintains it uses only with moderation, but the limits of such authorisation are by no means clear. The Tribunal cannot set aside a general decision on the grounds that it does not offer the guarantees that are in any case available to staff members on the basis of the general principles of international civil service law, as established and interpreted by the Tribunal and other international administrative tribunals. These principles confine the administration's scope of action to cases where there is gross abuse of the right to freedom of expression or lack of protection of the individual interests of persons affected by remarks that are ill-intentioned, defamatory or which concern their private lives. And it is in the light of these principles that the letter of 22 December 1999 [...] should be interpreted. a refusal to grant an authorisation may be regarded as lawful only if it complies with the above principles."

  Reference(s)

  ILOAT Judgment(s): 911
  

  Keywords:

  acceptance; case law; collective rights; exception; freedom of speech; general decision; general principle; iloat; international civil service principles; interpretation; judicial review; limits; official; organisation; outside activity; publication; refusal; respect for dignity; right; safeguard; staff member's interest; staff representative; staff union; staff union activity; tribunal;
  

  
  
  

• Judgment 2221

  
  95th Session, 2003
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Considerations 9-10

  Extract:

  "It is well settled that a promotion decision is a discretionary decision which can only be challenged on limited grounds. Moreover, it is settled that mere satisfaction of necessary criteria does not ordinarily confer a right to promotion. [...] It follows that the [competent authorities] were entitled to have regard, in determining whether to backdate the complainant's promotion, to all matters pertaining to his work performance, [including] his staff reports, even though the [applicable] guidelines made no reference to such reports."

  Keywords:

  administrative instruction; applicable law; case law; competence; consequence; criteria; decision; discretion; elements; exception; grounds; judicial review; limits; organisation; performance report; promotion; qualifications; right;
  

  
  
  

• Judgment 2220

  
  95th Session, 2003
  World Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 5

  Extract:

  The complainant is asking for the execution of a judgment in which he was neither a party nor an intervener. He "claims that [that] judgment constitutes an exception to the general rule of res judicata because it is of "general" application. There is no such exception to the rule. The judgments of the Tribunal operate only in personam and not in rem. Notwithstanding the generality of the terms in which the Tribunal may dispose of a case before it, the judgment has effect only as between the parties to it. The complainant confuses the rule of res judicata with the rule of stare decisis. The former, which is a rule of law, applies absolutely when the necessary three identities of person, cause and object are present, which is not the case here. the latter rule, which is simply a matter of judicial practice or of comity, holds that, in general, the Tribunal will follow its own precedents and that the latter have authority even as against persons and organisations who were not party thereto, unless it is persuaded such precedents were wrong in law or in fact or that for any other compelling reason they should not be applied."

  Keywords:

  binding character; case law; complainant; effect; enforcement; exception; execution of judgment; general principle; grounds; intervention; judgment of the tribunal; limits; mistake of fact; organisation; practice; purport; request by a party; res judicata; right; same cause of action; same parties; same purpose; status of complainant;
  

  
  
  

• Judgment 2193

  
  94th Session, 2003
  United Nations Educational, Scientific and Cultural Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 12

  Extract:

  The complainant, who had entered into a civil solidarity contract (pacte civil de solidarité, hereinafter 'pacs') with his male partner, informed the administration that his partner was entirely dependent on him. The organisation replied that, under the rules currently applicable within the United Nations system, the pacs was not recognised as a formal marriage that could create an entitlement to any benefits or allowances for a dependent spouse. "The complainant submits that, since the Director-General is entitled to modify or create exceptions to the application of the Staff Rules, he could and ought to have made an exception in the present case or amended the disputed text in order to protect the rights of homosexuals. [...] However, irrespective of the validity of the arguments put forward in urging the Director-General to take individual choices into account in the context of a culture of tolerance compatible with changing moral beliefs, the Director-General cannot be compelled to resort to what is merely an option open to him under certain clearly defined circumstances, since exercising that option is entirely a matter of discretion."

  Keywords:

  amendment to the rules; contract; dependant; discretion; domestic law; equal treatment; exception; executive head; family allowance; marital status; same-sex marriage; sex discrimination; staff regulations and rules;
  

  
  
  

• Judgment 2168

  
  94th Session, 2003
  World Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Considerations 1-2

  Extract:

  "Except for some minor and irrelevant matters of detail, and differences in the manner and form, but not the substance of the arguments presented, the case of the present complainants is almost identical to that which was decided by the tribunal in Judgment 2142 [...] all issues, both procedural and substantive, were definitively dealt with by the tribunal in that case [...] while that judgment is not technically res judicata, for there is no identity of the parties, it constitutes authoritative case law which the Tribunal will follow."

  Reference(s)

  ILOAT Judgment(s): 2142
  

  Keywords:

  case law; consequence; decision; difference; exception; finality of judgment; formal requirements; grounds; judgment of the tribunal; procedure before the tribunal; res judicata; same parties;
  

  
  
  

• Judgment 2138

  
  93rd Session, 2002
  International Atomic Energy Agency
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 12

  Extract:

  The complainant requests that he be considered for a long- term contract. He "can take no comfort from the case of another staff member in a somewhat similar situation who was given a long-term contract [...] The awarding of such contracts is exceptional and wholly discretionary and the fact that a contract is granted to one staff member creates no rights for any other staff member."

  Keywords:

  acceptance; complainant; contract; discretion; duration of appointment; equal treatment; exception; executive head; official; request by a party; right;
  

  
  
  

• Judgment 2125

  
  93rd Session, 2002
  International Atomic Energy Agency
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Considerations 5-6

  Extract:

  The complainant's request to have his contract extended beyond retirement age was not allowed. "On the merits, the Agency is undoubtedly right in pointing out that the Director General has discretion in the matter, over which the Tribunal has only a limited power of review. This discretion enables the Agency to depart from the rule governing the normal age of retirement. [...] Although the Director General can determine the interest of the Agency, his decisions must be based on clear and coherent reasons. In this case, the reason given - that the request for an extension contained no indication as to whether any of the criteria [on the basis of which he may authorise such an extension] had been satisfied - is not valid, and the reason based on 'rejuvenation' of the staff is too general to constitute a sufficient justification for the refusal of the complainant's request." The Tribunal considers that "this reason is not in itself reprehensible, but it could be used to justify a systematic refusal to depart from the rule governing the normal age of retirement. [By setting out the criteria] the [Agency] established for itself a number of rules which it must apply."

  Keywords:

  age limit; contract; criteria; decision; definition; discretion; exception; executive head; extension beyond retirement age; grounds; iloat; judicial review; official; organisation; organisation's duties; organisation's interest; patere legem; refusal; request by a party; retirement; written rule;
  

  
  
  

• Judgment 2124

  
  93rd Session, 2002
  European Southern Observatory
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 4

  Extract:

  "The need to give reasons in support of adverse administrative decisions arises [...] because the affected staff member must be given an opportunity of knowing and evaluating whether or not the decision should be timely contested. To allow the reasons to be given only after a complaint has been brought before the Tribunal would be to encourage the bringing of complaints for which it would ultimately be shown that there was no justification. Judgment 477 turned on a specific finding that the complainant in that case had 'suffered no prejudice whatever from the absence of a statement of the reasons for the impugned decision' since he had received copies of the documents which served as the basis for the decision prior to filing his complaint. The Tribunal's more recent case law [...] makes it clear that such line of argument is to be seen as a narrow exception to the general rule."

  Reference(s)

  ILOAT Judgment(s): 477
  

  Keywords:

  absence of final decision; amendment to the rules; case law; cause of action; complainant; complaint; duty to substantiate decision; exception; iloat; judgment of the tribunal; motivation; motivation of final decision; official; right of appeal; time limit;
  

  
  
  

• Judgment 2116

  
  92nd Session, 2002
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 11

  Extract:

  "A staff member who files an appeal is entitled to expect a decision to be taken within a reasonable time. Since an internal appeal is a necessary prelude to judicial review, the organization too must respect the need for expeditious proceedings. In this case more than two-and-a-half years elapsed between the complainant's appeal to the Appeals Committee and the Director-General's decision to reject it. Circumstances and the nature of the case demanded an expeditious appeal procedure. Since, in the internal appeal, the complainant was challenging a decision not to keep her on and claiming reinstatement, she needed to know quickly what the outcome of the appeal would be. Indeed, her future to some extent depended on it. Though it raised some delicate issues, the case was not particularly complex. The conclusion is that the appeal was not sufficiently expeditious. The amount of time usually needed to deal with such a case was far exceeded. As a result the complainant suffered injury warranting redress."

  Keywords:

  contract; delay; exception; internal appeal; internal appeals body; material damages; moral injury; non-renewal of contract; organisation's duties; reasonable time; staff member's interest; time limit;
  

  
  
  

• Judgment 2098

  
  92nd Session, 2002
  International Labour Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 8

  Extract:

  The complainant's appointment was terminated by mutual agreement. He appears to object that the organization terminated his employment while he was on sick leave. "Although the Tribunal held in Judgment 938 [...] that a staff member cannot be separated while on sick leave, it later pointed out that its ruling was to be seen in context and could not be applied in any circumstances whatever (see Judgment 1494 [...], under 6). The rule being intended to protect the staff member, it cannot be applied where the termination is the subject of an agreement, particularly when it has been mooted by the staff member concerned".

  Reference(s)

  ILOAT Judgment(s): 938, 1494
  

  Keywords:

  agreed termination; case law; condition; contract; exception; iloat; limits; separation from service; sick leave;
  

  
  
  

• Judgment 2097

  
  92nd Session, 2002
  World Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 12

  Extract:

  The complainants worked simultaneously under a fixed-term appointment at half-time and a short-term part-time appointment. "While it is unusual to find an employee working simultaneously for a single employer under two different contracts of employment, there is nothing inherently illegal about such an arrangement."

  Keywords:

  contract; difference; exception; fixed-term; official; organisation; part-time employment; short-term; terms of appointment;
  

  
  
  

• Judgment 2067

  
  91st Session, 2001
  International Labour Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 16

  Extract:

  To prove he is the victim of harassment, the complainant relies on facts dating back several years. "Contrary to the [organization's] assertion, the complaint is receivable, there being nothing to prevent the complainant from citing an accumulation of events over time to support an allegation of harassment".

  Keywords:

  admissibility of evidence; complaint; evidence; exception; receivability of the complaint; time bar;
  

  
  
  

• Judgment 2066

  
  91st Session, 2001
  United Nations Educational, Scientific and Cultural Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 5

  Extract:

  "When an organisation hints that it will reconsider a decision affecting a staff member, it cannot reasonably expect the latter to challenge that decision. Nor may the staff member lodge an appeal against it unless the administration expressly states that the appeal procedure will take its course despite attempts to settle the case. In such instances, the rule that confirmation of an earlier decision sets off no new time limit for appeal does not apply."

  Keywords:

  case law; confirmatory decision; decision; enforcement; exception; express decision; good faith; internal appeal; receivability of the complaint; staff member's duties; start of time limit; time bar; time limit;
  

  
  
  

• Judgment 2003

  
  90th Session, 2001
  European Organisation for the Safety of Air Navigation
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 6

  Extract:

  The complainants did not challenge the initial decisions denying them an installation grant and therefore "those decisions became final and the complainants were barred from challenging them by filling up application forms years later and claiming the quashing of the decisions refusing them by implication the allowance for which their assignment to Maastricht made them eligible. The Joint Committee for Disputes was right to cite the principle of legal certainty which must govern relations between an organisation and its staff' and to note that it was not possible to [exempt] the persons concerned from the time bar, which the Tribunal is in any event bound to apply since it is mandatory'."

  Keywords:

  binding character; decision; effective date; exception; iloat statute; mandatory time limit; organisation's duties; staff member's interest; time bar; time limit;
  

  
  
  

• Judgment 1968

  
  89th Session, 2000
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Considerations 17-18

  Extract:

  "In the present case, the President sought, but failed to obtain, the Promotion Board's approval for his proposal to promote Mr C. While the President clearly has a residual discretion not to make promotions which the Board recommends, he may only make promotions in accordance with the Board's recommendations. Since the Board declined to recommend Mr C. for promotion, his promotion was irregular. [...] Furthermore, as the appointing authority, it was clearly inappropriate for the President, having urged the Promotion Board to treat Mr C. as a special case, to then disregard the Board's refusal to recommend the promotion. The decision cannot stand."

  Keywords:

  advisory opinion; discretion; exception; executive head; flaw; promotion; promotion board; refusal;
  

  
  
  

• Judgment 1962

  
  89th Session, 2000
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 5

  Extract:

  The Tribunal recalls that it has the inherent power to impose costs on a complainant. But it specifies that it will only exercise this power in exceptional circumstances. "In the present case, it is clear that a full withdrawal of suit would have been desirable once Judgment 1864 had upheld the rules [at issue]. However, neither the fact that the complainant filed his complaint later than his colleagues, nor his failure to reply to the invitation made by the legal services to withdraw suit in the week following [...] can be considered as constituting abuse. The Tribunal finds that in the circumstances, this is not one of the exceptional cases in which it could penalise the filing or maintenance of a complaint as being abusive. It therefore dismisses the EPO's counterclaims."

  Reference(s)

  ILOAT Judgment(s): 1864
  

  Keywords:

  condition; costs; counterclaim; exception; vexatious complaint; withdrawal of suit;
  

  
  
  

• Judgment 1946

  
  88th Session, 2000
  World Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 2

  Extract:

  "Consistent precedent has it that only in exceptional circumstances may the requirement to exhaust the internal remedies be set aside, and only in cases where on the evidence the organization seems unlikely to reach a decision within a reasonable time."

  Keywords:

  administrative delay; direct appeal to tribunal; exception; internal remedies exhausted; reasonable time; time limit;
  

  
  
  

• Judgment 1897

  
  88th Session, 2000
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 11(a)

  Extract:

  "In keeping with the rule that similar acts require similar procedures, the modification of a rule - including allowing an exception - must respect the same process which was used for its adoption."

  Keywords:

  amendment to the rules; exception; formal requirements; general principle; parallelism of form; provision; staff regulations and rules; written rule;
  

  
  
  

• Judgment 1849

  
  87th Session, 1999
  World Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Considerations 18-19

  Extract:

  "The Tribunal considers that, in accordance with its jurisprudence, if an official receives an overpayment by mistake it should be reimbursed. Nevertheless, the organization should take into account any circumstances which would make it unfair or unjust to require repayment. [...] In the Tribunal's opinion there is no indebtedness by the complainant to the organization. It was responsible for making payments on behalf of the United Nations, but has been fully reimbursed. The organization therefore, was not entitled to withhold the grants due or make deductions from salary under rule 380.5.2 since the complainant was not indebted to it."

  Reference(s)

  Organization rules reference: STAFF RULE 380.5.2 OF WHO
  
  

  Keywords:

  amount; criteria; debt; deduction; equity; exception; recovery of overpayment; refund; unjust enrichment;
  

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