Judgment 2972
110th Session, 2011
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
Existence of an acquired right to work night shifts and to receive the corresponding allowance.
"An acquired right is breached when 'an amendment adversely affects the balance of contractual obligations by altering fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced him or her to stay on' (see Judgment 2682, under 6)."
Reference(s)
ILOAT Judgment(s): 2682
Keywords:
acceptance; acquired right; amendment to the rules; breach; condition; contract; terms of appointment;
Consideration 6
Extract:
"An acquired right may derive 'from the terms of appointment, the staff rules or from a decision' (see Judgment 2696, under 5)."
Reference(s)
ILOAT Judgment(s): 2696
Keywords:
acquired right; decision; staff regulations and rules; terms of appointment;
Consideration 8
Extract:
"Once it is accepted that an organisation has a right to assign new or different shift work patterns, it follows that a particular shift work pattern cannot constitute an acquired right."
Keywords:
acquired right; assignment; organisation; reorganisation; right; working conditions; working hours;
Consideration 8
Extract:
"It was recognised in Judgment 666 that 'an allowance may form an essential part of the official's contract [...] and its abolition would therefore constitute breach of [an] acquired right'. However, it was also said in that case that an official 'has no acquired right to the actual amount of the allowance or to continuance of any particular method of reckoning it. Indeed, he must expect these to change as circumstances change'."
Reference(s)
ILOAT Judgment(s): 666
Keywords:
acquired right; allowance; amount; contract; night differential; payment; terms of appointment;
Judgment 2696
104th Session, 2008
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"It was said in Judgment 832 that an acquired right is one that a staff member may expect to survive alteration of the staff rules (see also Judgment 1226). The right may derive from the terms of appointment, the staff rules or from a decision. In Judgment 61 it was said that the amendment of a rule to an official's detriment and without his consent amounts to a breach of an acquired right when the structure of the contract of appointment is disturbed or there is impairment of any fundamental term of appointment in consideration of which the official accepted appointment."
Reference(s)
ILOAT Judgment(s): 61, 832, 1226
Keywords:
acquired right; amendment to the rules; breach; condition; consequence; contract; decision; definition; injury; official; provision; request by a party; staff regulations and rules; terms of appointment; written rule;
Judgment 2682
104th Session, 2008
International Olive Oil Council
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"[A]ccording to the case law as established in Judgment 61, clarified in Judgment 832 and confirmed in Judgment 986, an acquired right is breached only when [...] an amendment adversely affects the balance of contractual obligations by altering fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced him or her to stay on. In order to determine whether there has been a breach of acquired rights, it is therefore necessary to ascertain whether the altered terms of employment are fundamental and essential within the meaning of Judgment 832."
Reference(s)
ILOAT Judgment(s): 61, 832, 986
Keywords:
acquired right; amendment to the rules; breach; condition; contract; law of contract; terms of appointment;
Consideration 6
Extract:
"As the Tribunal has already indicated in [...] Judgment 832, when weighing up the consequences of a breach of an acquired right, the financial situation of the organisation applying the terms of appointment in question cannot be discounted."
Reference(s)
ILOAT Judgment(s): 832
Keywords:
acquired right; breach; budgetary reasons; condition; consequence; organisation's interest;
Consideration 6
Extract:
"While the terms of a contract and some decisions will in principle give rise to acquired rights, this is not necessarily true in all circumstances of provisions of staff regulations and rules."
Keywords:
acquired right; condition; contract; staff regulations and rules; terms of appointment;
Judgment 2632
103rd Session, 2007
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"[T]he complainants assert that their acquired rights were breached because the Agency abandoned a practice, applied to them from 1 January to 30 June 2005, involving the application to pensions of the same weightings as were applied to the remuneration of serving officials. But a practice of salary and pension adjustment, even where repeated, does not bind the Organisation that adopted it, which is at liberty to abandon it provided that it does so lawfully (see in this connection Judgment 2089). As for acquired rights, they could not be held to have been breached unless the contested reform impaired a fundamental and essential term of the complainants' conditions of appointment, which include the right to a pension (see aforementioned Judgment 2089 and the case law cited therein). This is clearly not the case here."
Reference(s)
ILOAT Judgment(s): 2089
Keywords:
acquired right; adjustment; amendment to the rules; breach; condition; cost-of-living weighting; discretion; enforcement; formal requirements; injury; organisation's duties; pension; pension adjustment system; pension entitlements; practice; salary; terms of appointment;
Judgment 2218
95th Session, 2003
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 6-7
Extract:
While the complaint is receivable, it is devoid of merit. Although the complainant objects to his new grading, he expressly admits in his rejoinder that he does not contest the fact that he was assimilated into the new career structure according to the applicable principles and procedures. It is the actual content of those principles and procedures that he objects to, particularly because their effect is to place staff holding indefinite contracts in a personal salary position outside the normal salary scale, without any real chance of promotion, which gives rise to a discriminatory situation in relation to other staff members.
The Tribunal notes in this respect that the complainant's acquired rights were not disregarded, since at position Fp0 he retains exactly the same salary as on the previous scale, as well as promotion rights within the new system. The defendant argues that, in any case, the complainant could not be classified in position Fc6 as he claims, since that would have granted him an automatic promotion, which is not allowed under the new rules. Promotion to salary band Fc would also have implied the granting of diplomatic privileges, and would first have required a competitive selection procedure. The Tribunal considers this defence to be pertinent and rejects the plea based on the discrimination the complainant allegedly suffered, considering that 90 members of staff are in the same situation and that being placed in a personal salary position when career structures are being reorganised cannot be regarded in itself as unlawful. The nub of the argument in fact lies elsewhere. The complainant mainly objects to the fact that the technical measures introduced by the defendant to reorganise its career structures hide the Organization's disdain for staff members approaching retirement, and, for the sake of a small budgetary saving, generate considerable disappointment amongst staff members who deserve better. This in fact challenges the way the Organization is managed and not the legal basis for its action, which alone is subject to review by the Tribunal.
Keywords:
acquired right;
Judgment 2089
92nd Session, 2002
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"The complaint attacks a decision [...] amending Article 36 of the [organisation]'s Pension Scheme rules. While the Tribunal cannot grant the claim for quashing that amended article and the complaint is, to that extent, irreceivable, the Tribunal will treat it as a complaint against the application of the amended article in breach of the complainants' acquired rights."
Reference(s)
Organization rules reference: ARTICLE 36 OF THE EMBL'S PENSION SCHEME RULES
Keywords:
acquired right; amendment to the rules; competence of tribunal; general decision; impugned decision; pension; receivability of the complaint;
Judgment 1917
88th Session, 2000
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 7-8
Extract:
The Tribunal noted that since 1974 the health insurance contract has always been concluded for periods of one year and has even been amended several times. It does not agree that the complainant has an absolute claim to a specific system of health insurance, therefore, there has been no impairment of an acquired right.
Keywords:
acquired right; amendment to the rules; health insurance; insurance; staff member's interest;
Judgment 1912
88th Session, 2000
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 19
Extract:
"International civil servants do not have an acquired right [...] to an automatic indexing of their salaries. [...] The establishing of regulations for the periodic adjustment of salary is within the discretion of the organisations provided that these regulations do not violate the principles of international civil service law and their application does not bring about an erosion of salary that could be regarded as substantially jeopardising the contractual balance between those organisations and their staff members."
Reference(s)
ILOAT Judgment(s): 1118
Keywords:
acquired right; adjustment; cost-of-living increase; discretion; international civil service principles; salary; staff regulations and rules; terms of appointment;
Judgment 1886
87th Session, 1999
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9(2)
Extract:
"The fact of accepting the offer of a new contract of indefinite duration cannot deprive the complainant of the rights he acquired whilst he was in the service of the [organisation] under successive fixed-term contracts."
Keywords:
acquired right; continuance of operations; contract; fixed-term; offer; permanent appointment; successive contracts;
Consideration 8
Extract:
The complainant accepted an offer for a permanent contract which provided that the contract would be governed by the Staff Rules and Regulations valid as of 1 January 1997 (which would reduce his expatriation allowance). "By confining himself to the phrase 'without prejudice of my acquired rights', the complainant showed that he had no reason in principle to refuse the offer made to him, but that he merely wished to maintain his right to continue receiving the expatriation allowance at the former rate [...]. [I]n view of the above, and the fact that the [organisation] neither modified, nor proposed to modify its offer, despite the complainant's reservation, it has to be deduced that the employment relationship between the complainant and the [organisation] is based on a contract concluded after 1 January 1997. It is therefore a priori governed by the Staff Rules and Regulations which were in force at that date [...]."
Keywords:
acquired right; amendment to the rules; contract; date; effective date; intention of parties; non-resident allowance; offer; permanent appointment; rate; staff regulations and rules;
Consideration 9(3)
Extract:
"The outright abolition of the expatriation allowance would violate an acquired right, although there is no acquired right to the amount and the conditions of payment of the allowance. Indeed, the staff member should expect amendments to be prompted by changes in circumstances if, for example, the cost of living rises or falls, or the organisation reforms its structure, or even finds itself in financial difficulty. [S]ince it consists of a progressive reduction of the expatriation allowance, and not its outright abolition, resulting from general budgetary restrictions, the Tribunal finds that the impugned decision does not violate the right of the complainant to the maintenance of his acquired rights."
Reference(s)
ILOAT Judgment(s): 366, 371
Keywords:
acquired right; non-resident allowance;
Judgment 1807
86th Session, 1999
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The organisation submits that the contract signed by the complainant was a new contract, not an extension of the old one, since his status had shifted from "paid associate" to "international staff member". So he was not entitled to the protection of acquired rights bestowed by an internal memorandum. According to the Tribunal, "the contract which [the complainant] was offered [...] and which he signed [in October 1995] was not his first fixed-term contract, since he had begun at the [organisation] in 1991 under a fixed-term one that it had renewed more than once. nor was it a new, indefinite contract, since [...] his last contract was a fixed-term one for three years. Under his earlier contracts he was a staff member".
Keywords:
acquired right; contract; extension of contract; fixed-term; official; permanent appointment; successive contracts;
Judgment 1791
86th Session, 1999
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 15-16
Extract:
"The complainants contend that [...] the impugned decision was in breach of [...] their right to a steady level of pay. [...] [T]hey maintain that [...] the Organization acted in breach of the general principle of the international civil service known as Noblemaire. The Tribunal is satisfied that there was no breach here of any principle of the international civil service. [...] [T]he measure the complainants are objecting to was exceptional and limited in time. As for their right to a steady level of pay, that measure neither changed the pay scales nor had any impact whatever on terms of employment in the long term. The conclusion is that there was no breach of acquired rights."
Keywords:
acquired right; amendment to the rules; breach; exception; international civil service principles; noblemaire principle; official; provisional decision; reduction of salary; right; salary; scale; terms of appointment;
Considerations 13-14
Extract:
"The complainants plead breach of their acquired rights [...]. [T]hey argue that those terms are inviolate, particularly the clauses on pay. [...] The financial crisis [facing the Organization] at the material time did amount to exceptional circumstances that warranted the slight reduction in pay that [the Organization] applied, for only one year anyway and in consideration for extra time off."
Keywords:
acquired right; amendment to the rules; budgetary reasons; compensatory leave; contract; exception; proportionality; provisional decision; reduction of salary; salary; terms of appointment;
Judgment 1660
83rd Session, 1997
European Free Trade Association
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
"According to Judgment 1330 [...] and other precedents, the right to appeal to an international administrative tribunal forms part of the essential safeguards that international civil servants must enjoy."
Reference(s)
ILOAT Judgment(s): 1330
Keywords:
acquired right; case law; competence of tribunal; iloat; official; right of appeal; safeguard; terms of appointment;
Judgment 1641
83rd Session, 1997
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7(c)
Extract:
"Though an organisation must observe acquired rights and keep binding promises, it has broad discretion to amend its Staff Regulations either directly or by incorporating the rules of the common system. In the present economic context and if, like many others, it is in financial straits, it may want to cut costs. There is nothing wrong with the common system's having rules that enable it to do so."
Keywords:
acquired right; amendment to the rules; budgetary reasons; coordinated organisations; discretion; limits; organisation; organisation's duties; organisation's interest; promise; purpose; reduction of salary; staff regulations and rules;
Consideration 7(a)
Extract:
Preserving accrued benefits is not the aim of the Flemming principle: "it requires no more than alignment with the best conditions at the duty station."
Keywords:
acquired right; adjustment; flemming principle; purpose; salary; scale;
Judgment 1515
81st Session, 1996
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
Purchasing power at CERN has plainly declined during the last several years and recent rises in pay did not offset the fall, far from it. "Yet the trend does not amount to breach of a fundamental term of the appointment of CERN staff." The Tribunal finds no breach of acquired rights.
Keywords:
acquired right; adjustment; breach; cost-of-living increase; cumulative decisions; reduction of salary; salary; terms of appointment;
Judgment 1514
81st Session, 1996
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
As first set out in Judgment 986 [...] and reaffirmed in Judgment 1368, "the case law is that international officials may allege breach of an acquired right when there is impairment of an essential and fundamental term of conditions of employment; and that is so even where impairment is gradual and due to an accretion of final decisions which are no longer open to challenge and each of which, taken singly, would not itself have been deemed unlawful."
Reference(s)
ILOAT Judgment(s): 986, 1368
Keywords:
acquired right; amendment to the rules; breach; case law; cumulative decisions; judicial review; terms of appointment;
Consideration 12
Extract:
"The complainants put their cumulative loss at some 10 per cent of the purchasing power of their pay since 1990 [...] and say it impairs an essential term of employment. A fall in purchasing power below some critical point may indeed be breach of an official's acquired right. But, save where the written rules require the indexing of pay, not every financial setback the official may suffer will amount to such breach." (The Tribunal cites Judgment 832.)
Reference(s)
ILOAT Judgment(s): 832
Keywords:
acquired right; adjustment; breach; case law; cost-of-living increase; cumulative decisions; reduction of salary; salary; staff regulations and rules; terms of appointment;
Judgment 1446
79th Session, 1995
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"The precedents have it that a right is 'acquired' when someone who has it may, because of its fundamental importance to the balance of rights and duties that define the relationship of employment, demand that it be respected not withstanding any amendment to the rules: see Judgments 61, 368 [...], 832, 986 [...] and, under 6, 1330 [...]."
Reference(s)
ILOAT Judgment(s): 61, 368, 832, 986, 1330
Keywords:
acquired right; amendment to the rules; case law; condition; contract; staff regulations and rules; terms of appointment;
Consideration 13
Extract:
The case law says that "no benefit - not even a long-standing one - may be treated as an acquired right if it has no logical basis: see Judgment 1241 [...] under 24. "
Reference(s)
ILOAT Judgment(s): 1241
Keywords:
acquired right; case law; condition;
Consideration 15
Extract:
The grant of an increase for merit is discretionary under Staff Rule 555.1. "By its very nature such a provision cannot confer an acquired right."
Reference(s)
Organization rules reference: WHO STAFF RULE 555.1
Keywords:
acquired right; condition; discretion; increment; staff regulations and rules;
Considerations 16-17
Extract:
The material issue is whether abolition of the entitlement to a step increase for long service infringed an acquired right by interfering with a fundamental term of service that led the complainants to accept employment. "The Tribunal holds that the prospect of increases in emoluments after 20, 25, 30 and 35 years of satisfactory service was too remote to influence seriously the mind of the ordinary applicant in deciding to accept appointment [within the organization]".
Keywords:
acceptance; acquired right; amendment to the rules; complainant; contract; increment; satisfactory service; seniority; staff regulations and rules; terms of appointment;
Judgment 1419
78th Session, 1995
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 30
Extract:
Since 1982 the ESO has aligned its salary policy with that of the European co-ordinated organisations. "The ESO might no doubt change the reference mark or the arrangements provided that it abided by the procedures and forms prescribed for the purpose in its own rules and regulations. But so long as the present arrangements hold good, its staff are entitled to the safeguards of objectivity and stability they afford. The ESO may not remove such safeguards because of prevailing circumstances or a mere wish to do so."
Keywords:
acquired right; organisation's duties; patere legem; rule of another organisation; security of tenure; staff member's interest; staff regulations and rules;
Judgment 1392
78th Session, 1995
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 34
Extract:
Whereas the right to a pension "is no doubt inviolable, a pension contribution is by its very nature subject to variation [...]. Far from infringing any acquired right a rise in contribution that is warranted for sound actuarial reasons [...] actually affords the best safeguard against the threat that lack of foresight may pose to the future value of pension benefits."
Keywords:
acquired right; actuarial valuation; contributions; increase; pension;
Judgment 1368
77th Session, 1994
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"The plea of breach of acquired rights is receivable and in ruling on it the Tribunal may take into account any issues of fact it deems material." Citing Judgment 986 [...], the Tribunal holds that "an employee may properly plead a decline in his situation tantamount to impairment of the essential and fundamental terms of his employment, even if the decline has been gradual and due to an accumulation of decisions which are no longer open to challenge and none of which, taken singly, would have been declared unlawful."
Reference(s)
ILOAT Judgment(s): 986
Keywords:
acquired right; amendment to the rules; breach; case law; cumulative decisions; flaw; judicial review; receivability of the complaint; terms of appointment;
Consideration 11
Extract:
"For the reasons given in Judgment 1329, under 6, the complainants may not directly seek the quashing of the Council's decision [...]. They may, however, challenge the individual decisions in their pay slips [...] by pleading the unlawfulness of the [Council's decision] and the infringement of any acquired rights they lay claim to under rules or contract."
Reference(s)
ILOAT Judgment(s): 1329
Keywords:
acquired right; application for quashing; breach; contract; general decision; individual decision; payslip; receivability of the complaint; staff regulations and rules;
Judgment 1334
76th Session, 1994
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 22
Extract:
"The purpose of the case law [on acquired rights] is to safeguard the substance of the staff's pay and pensions in the event of amendments to the material rules. The supplementary benefits were intended to afford compensation for constraints that at the time were not part of the complainant's ordinary duties." There was no breach of acquired rights.
Keywords:
acquired right; amendment to the rules; base salary; case law; compensatory allowance; discontinuance; pension; staff regulations and rules;
Consideration 23
Extract:
"Only benefits that have some basis in law may be protected under the doctrine of acquired rights."
Keywords:
acquired right; condition; safeguard;
