Judgment 3020
111th Session, 2011
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
WTO Staff Rule 106.11 provides that "[n]ational income tax on salaries, allowances, indemnities or grants paid by the WTO shall be refunded to the staff member by the WTO." The complainant considers that her salary is indirectly taxed, because it is included in the assessment of her husband's rate of income tax. The Organization rejected her claims for reimbursement of what she describes as "over-taxation by the Swiss tax authorities". The Tribunal holds that "[t]he refusal to provide compensation for the additional amount of tax unfairly levied on the couple's income solely because of the complainant's earned income, although it was exempt from taxation, would have a paradoxical effect. A rule designed to guarantee equal wages would lead to unjustifiable inequality between an official whose earned income was unduly taxed although it was by law exempt from taxation and an official whose tax-exempt salary was taken into account for assessment purposes, thus reducing his/her spouse's disposable income after tax and therefore his/her economic capacity from which the official living with him/her naturally benefits. The impugned decision is therefore unlawful."
Reference(s)
Organization rules reference: WTO Staff Rule 106.11
Keywords:
allowance; breach; compensatory allowance; decision quashed; deduction; domestic law; effect; equal treatment; grounds; marital status; official; organisation; payment; purpose; rate; reckoning; recovery of overpayment; reduction of salary; refund; refusal; request by a party; safeguard; salary; staff regulations and rules; status of complainant; tax; written rule;
Judgment 2847
107th Session, 2009
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"The purpose of the family allowances which Eurocontrol pays to officials with dependent children is to contribute financially towards these children's maintenance, and the aim of the rule laid down in [Article 67(2) of the Staff Regulations], according to which the amount of these allowances must be reduced by the amount of allowances of the same kind paid from other sources, such as family allowances paid by a national authority, is to prevent two benefits from being granted concurrently for the same children, since this would plainly result in the unlawful enrichment of the recipient family.
In this regard, the fact that the [national authority] does not make payments to the official himself, but to his spouse (or, as in this case, his partner), is of course immaterial. If the two benefits in question are being paid for the maintenance of the same children, they cannot be drawn simultaneously by the parents without contravening the very purpose of this rule against concurrent benefits."
Reference(s)
Organization rules reference: Article 67(2) of the Staff Regulations governing officials of the Eurocontrol Agency
Keywords:
accumulation; amount; breach; dependent child; domestic law; family allowance; marital status; parent; purpose; rate; staff regulations and rules; unjust enrichment; written rule;
Consideration 19
Extract:
The complainant received family allowances paid at the full rate by Eurocontrol in respect of his three children but did not declare to the Agency that his partner was drawing family allowances from the competent national social security authority. According to Article 67(2) of the Staff Regulations, the amount of family allowances that Eurocontrol was paying him should have been reduced by the amount of the family allowances received by his partner. The complainant objects to the fact that the Agency has recovered the amount overpaid from the outset, i.e. over a five-year period, whereas in the opposite case, when the Agency makes a mistake to the detriment of an official, it usually benefits from rules of prescription which enable it greatly to reduce the amounts reimbursed.
"[A]ccording to the Tribunal's case law, a claim for recovery of undue payment is not imprescriptible and must be brought - even in the absence of any provision in writing to this effect - in reasonable time (see Judgments 53, under 4, and 2565, under 7(c)). However [...] the five-year period concerned by the recovery of the overpayment [...] cannot be regarded in this case as an unreasonable length of time, particularly because the disputed reimbursement arises from concealment on the part of the complainant and because Eurocontrol did not fail to take the necessary steps to recover the sums in question."
Reference(s)
Organization rules reference: Article 67(2) of the Staff Regulations governing officials of the Eurocontrol Agency
ILOAT Judgment(s): 53, 2565
Keywords:
accumulation; amount; breach; case law; dependent child; difference; domestic law; family allowance; injury; limits; misrepresentation; no provision; organisation's duties; payment; period; rate; reasonable time; recovery of overpayment; request by a party; staff member's duties; staff regulations and rules; time bar;
Consideration 17
Extract:
The complainant received family allowances paid at the full rate by Eurocontrol in respect of his three children but did not declare to the Agency that his partner was drawing family allowances from the competent national social security authority. According to Article 67(2) of the Staff Regulations, the amount of family allowances that Eurocontrol was paying him should have been reduced by the amount of the family allowances received by his partner. The complainant had to reimburse the full amount overpaid.
"The evidence on file shows that the complainant deliberately refrained from declaring to Eurocontrol the family allowances drawn by his partner, although he had been duly informed that, in the Agency's view, they should be deducted from those he was receiving. While it was open to the complainant to challenge - if necessary before the Tribunal - any deductions made by the Agency in calculating the payments, he could not choose of his own accord to evade his duty of disclosure. He must therefore be deemed to have been aware of the unlawfulness of the disputed payments, which was indeed sufficiently obvious for it to be concluded that he could not have been unaware of it."
Reference(s)
Organization rules reference: Article 67(2) of the Staff Regulations governing officials of the Eurocontrol Agency
Keywords:
accumulation; amount; breach; dependent child; domestic law; family allowance; flaw; misrepresentation; payment; rate; reckoning; recovery of overpayment; staff member's duties; staff regulations and rules;
Judgment 2422
98th Session, 2005
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"The Staff Association has submitted an amicus curiae brief. The defendant is not opposed to an examination of those submissions by the Tribunal, but it points out that the staff representatives raised no objection to the implementation of the new salary scale at the IAEA when they were consulted on the matter. That of course does not prevent the Staff Association from expressing different views, which the Tribunal agrees to take into consideration for the reasons set forth in Judgment 2420 [...] whilst emphasising that these submissions are not to be regarded as the brief of an intervener."
Reference(s)
ILOAT Judgment(s): 2420
Keywords:
adjustment; amicus curiae; consultation; icsc decision; intervention; rate; salary; scale; staff union;
Judgment 2420
98th Session, 2005
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 16
Extract:
"[T]he fact that financial considerations were taken into account does not, in itself, invalidate the decision setting the salary scale, provided that the other reasons justifying the decision are correct. In the present case, the evidence on file shows that the scale ultimately adopted was justified by the desire to reduce the imbalances resulting from the application of the previous decisions penalising staff in the higher categories, to restore the remuneration margins in relation to US federal civil servants to values within the range of 110 to 120 and to move closer to attaining the objective of an overall margin level of 115."
Keywords:
adjustment; budgetary reasons; decision; grounds; professional category; rate; salary; scale;
Consideration 15
Extract:
"The complainants' second plea is that the methodology applied by the General Assembly [to review salary levels] does not satisfy the requirements of stability, foreseeability and transparency established by the case law. [...] Given that the application of that methodology can yield results as different as those obtained, on the one hand, by the ICSC, and on the other, by the Fifth Committee and subsequently the General Assembly, one may legitimately query its foreseeability. However, it must be borne in mind that a methodology cannot be applied without a degree of flexibility and without leaving some room for interpretation by the competent authority, which was entitled to take into account the imbalances generated by past applications of the adopted methodology in order to try to attenuate the effects thereof and properly to implement the Noblemaire principle."
Keywords:
adjustment; case law; icsc decision; interpretation; noblemaire principle; organisation's duties; rate; recommendation; salary; scale;
Judgment 2410
98th Session, 2005
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"[M]onthly pension payments are not notified individually except when pensioners are informed of decisions concerning the rate of adjustment decided by CERN's competent bodies. In the circumstances, the Tribunal considers that, while the bank statement does not constitute a decision, it does reflect a decision taken to credit the complainant's account and, just like a payslip, this decision may be challenged by all legal means."
Keywords:
adjustment; date of notification; decision; general decision; individual decision; payslip; pension; rate; receivability of the complaint; salary;
Consideration 6
Extract:
"[I]t is CERN's Council which decides pension adjustments; and the individual decisions on pension rates have as their sole legal basis the general decisions taken periodically by CERN's Council, the lawfulness of which may indeed be challenged in the context of a complaint directed against such individual decisions (see Judgments 1000, 1451 and 2129). In this case, the complainant's objections concern only the lawfulness of the position advocated by the Governing Board of the Pension Fund, when it considered that it could not give its backing to the extraordinary pension adjustment requested by the [CERN Pensioners' Association, of which the complainant is the President]. Since this refusal to support the latter's request before CERN's competent bodies cannot be considered as a legislative act of general application, any pleas based on its alleged unlawfulness must fail."
Reference(s)
Organization rules reference: Article II.1.15 of the Regulations of the CERN's Pension Fund
ILOAT Judgment(s): 1000, 1451, 2129
Keywords:
adjustment; advisory opinion; cern pension fund; decision; executive body; general decision; individual decision; pension; rate; receivability of the complaint;
Judgment 2129
93rd Session, 2002
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
The Organization's Regional Office was transferred from Brazzaville (Congo) to Harare (Zimbabwe). The amount of the per diem the complainants were paid was progressively reduced. "Since the travel per diem is merely intended to cover the essential expenses of a staff member on duty travel, including lodging and food, a high rate of travel per diem cannot be justified where duty travel, which by nature implies that the staff member will continue to work primarily at his or her original duty station, lasts for two years or more."
Keywords:
allowance; amount; assignment; compensatory allowance; compensatory measure; extension of contract; official; payment; period; place of origin; purpose; rate; reduction of salary; transfer; travel expenses;
Considerations 7-8
Extract:
"A steady line of precedent, such as that cited in Judgment 1786, under 5, confirms that when impugning an individual decision that concerns the staff member directly, the latter may challenge the lawfulness of any general measure [...] In this case, the complainants could have challenged the individual application of [the] Information Circular [fixing the rate of their travel per diem] to each of them as long as that circular remained in force. [And as they] did not expressly challenge the individual application of that circular to them in due time, [they] can no longer impugn it. The fact that [they] thought that they might succeed in negotiating an amicable solution and for that reason chose not to appeal does not justify lifting the time bar that applied."
Reference(s)
ILOAT Judgment(s): 1786
Keywords:
administrative instruction; allowance; case law; cause of action; complaint; enforcement; general decision; grounds; individual decision; internal appeal; official; rate; receivability of the complaint; right of appeal; settlement out of court; time bar; time limit;
Judgment 1886
87th Session, 1999
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
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;
Judgment 1516
81st Session, 1996
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
"The complainant wants the Tribunal to 'declare that UNESCO has failed to act and itself make the final determination [regarding the degree of her invalidity] that the organization has for years been refusing' her. Having put up with years of dilatoriness and prevarication,she is understandably anxious to have her entitlements speedily determined. Being unable, however, to rule on the medical aspects of her case, the Tribunal has no choice but to send the case back to the organization for completion of the process of review in keeping with the rules."
Keywords:
competence of tribunal; expert inquiry; iloat statute; invalidity; judicial review; medical board; medical examination; medical opinion; rate;
Judgment 1491
80th Session, 1996
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"CERN has but one obligation under R IV 2.02: to refund taxes paid by officials 'on remuneration and benefits received from the organization'. [...] CERN is not to blame for the resulting increase in the rates of taxation of the complainants' total income. All it can do is pay back to French citizens on its staff the amounts they have paid in tax on their international earnings: it exerts control neither over the tax brackets and rates set by French law, nor over the method of reckoning their total income, which is just a feature of the French manner of processing income tax."
Reference(s)
Organization rules reference: CERN STAFF REGULATION R IV 2.02
Keywords:
domestic law; organisation's duties; privileges and immunities; rate; refund; salary; staff regulations and rules; tax;
Consideration 8
Extract:
In respect of earnings from other sources than CERN, "the staff who are not French do fare better because only their other income counts for the purpose of reckoning rates of income tax and it therefore falls within lower tax brackets, whereas for the French citizens the whole of their income counts for that purpose. But the difference in treatment is not of the organization's making: it is due solely to the working of French tax law."
Keywords:
domestic law; equal treatment; nationality; rate; refund; tax;
Judgment 1095
70th Session, 1991
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The complainant's fees for difficult confinement were refunded at the 100 per cent rate up to a maximum limit reckoned by likening the treatment she received to a surgical operation. Though the Tribunal finds nothing wrong with setting maximum limits in general it holds that there was no valid limit at the material time on costs incurred for difficult confinements and that the complainant was entitled to the refund of her confinement expenses in full.
Keywords:
amount; analogy; flaw; health insurance; maximum limit; medical expenses; no provision; rate; reckoning; refund;
Judgment 1064
70th Session, 1991
World Meteorological Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 3-4
Extract:
[A]n application for interpretation is receivable only if the operative part of the judgment is ambiguous or otherwise unclear. The present application is about the meaning of the term "rates" and therefore qualifies under the rule as stated in that judgment. [...]
The only meaning the term "rates" in point 2 can bear is "rate of salary" and "rate of allowances". Nowhere in the judgment is there any allusion to a "rate of exchange", and the clear intent is that the complainant should receive by way of damages for material injury a lump sum to be calculated by reference to the salary and allowances he was entitled to at the date of separation.
Keywords:
allowance; application for interpretation; interpretation; rate; salary;
Judgment 971
66th Session, 1989
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"The Organization is liable only in respect of 50 per cent of the total incapacity. Accordingly, the Tribunal awards the complainant compensation under this head in the form of an annual invalidity pension equal to one-third of the yearly figure of his pensionable remuneration, i.e. half the full pension."
Keywords:
disability benefit; incapacity; invalidity; liability; organisation; rate;
Judgment 944
65th Session, 1988
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The complainant and her husband are employees of the EPO. In view of the fact that between them they pay a double premium, she is seeking the refund at 100 per cent of their medical expenses, and not 80 per cent as stipulated in the insurance policy. In keeping with the organisation's view, the Tribunal holds that under the material rules of the organisation, "each staff member pays contributions that depend on the amount of salary, yet is entitled to the same benefits, whatever the degree of individual risk or family situation may be. Status as an official will always prevail over status as the member of an official's family, and the right to refund derives solely from the former, not from any marital connection there may be with another official."
Keywords:
consequence; contributions; family relationship; health insurance; medical expenses; official; rate; refund; right;
Judgment 925
65th Session, 1988
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"The scheme member has a duty to support a claim with documents that are clear enough for the administration to be able to tell what the treatment was and to apply the right rate of refund."
Keywords:
burden of proof; disclosure of evidence; evidence; health insurance; illness; insurance; medical expenses; rate; request by a party;
Judgment 875
63rd Session, 1987
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"The information available does not enable the Tribunal to assess whether the accident of 3 April 1982 resulted in all the permanent injuries now suffered by the complainant or only in the permanent injury to his left foot. In these circumstances an examination should be carried out by a medical expert whose terms of reference are set out below."
Keywords:
expert inquiry; further submissions; incapacity; interlocutory order; invalidity; medical examination; professional accident; rate; service-incurred;
Judgment 656
55th Session, 1985
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"Although the experience of examiners and translators counts only in part the reason is that it is of limited use to them in performing their duties at the EPO. But the reason why the experience of lawyers counts in full is that, as the EPO actually admits, they are able to adapt quickly to their new duties [...]. In other words, the difference in the calculation of seniority is due to a difference of fact and there is no tipping of the balance that needs to be offset. What the EPO describes as a kind of compensation in the counting of months is in fact a breach of the principle of equality."
Keywords:
difference; equal treatment; professional experience; rate; reckoning; seniority;
Judgment 479
47th Session, 1982
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
While the complainant's degree of invalidity was assessed by doctors at 80 per cent, he in fact suffered the total loss of his earning capacity. "It is for the Director-General [...] as provided [under the rules] to assess the degree [of invalidity] on the basis of the medical evidence and as applied to the complainant's normal occupation. The Tribunal considers that the only conclusion on the facts of this case is that the complainant was totally unable to carry on his normal occupation or any equivalent occupation. Accordingly the degree of incapacity should be assessed at 100 per cent."
Keywords:
discretion; executive head; incapacity; invalidity; medical records; rate;
Summary
Extract:
The complainant became disabled following a disease contracted during a one-month mission. The complainant receives an invalidity pension. His incapacity was assessed by the Tribunal at 100 per cent. The amount of the pension must be redetermined. The deductions made of a university retirement pension were unwarranted they must be reimbursed, with the amounts being indexed against inflation and with interest [2 per cent]; costs.
Keywords:
amount; disability benefit; illness; incapacity; invalidity; rate; reckoning; refund; service-incurred;
Judgment 463
46th Session, 1981
World Tourism Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 5-6
Extract:
The complainant did not submit a copy of his marriage certificate until one month after he was terminated. But the organization was aware of the fact that the complainant had a wife and child. The only material fact is that he is married, whatever the date on which he produced the required evidence. The application of a provision on family benefit is not relevant: the two matters are basically distinct. In the present case, the amount due should be calculated according to the rate provided for officials with dependants.
Keywords:
allowance; delay; dependant; disclosure of evidence; marital status; rate; terminal entitlements;
Judgment 323
39th Session, 1977
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 29
Extract:
"[T]he comparison of wage rates, especially when they include fringe benefits, is a difficult task, which may often involve delicate choice between several solutions of almost equal merit. [...] The text to be interpreted is a set of principles and not of precise requirements. Where it is alleged that the Director-General has made an error of law in their interpretation, the Tribunal will consider the text broadly and will be careful not to put the Director-General's discretion into a legal straitjacket."
Keywords:
discretion; fringe benefits; interpretation; judicial review; rate; salary;
Judgment 271
36th Session, 1976
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"[I]t is permissible for the Director-General to determine that staff members whose home is in the country of their duty station are not eligible, since the visit would not then serve the purpose of maintaining international links. But once it is accepted that, as the Tribunal has held, on its proper construction the regulation provides that eligible members shall be paid the whole cost, it is not permissible for the Director-General to say that in certain circumstances only those members will be eligible who are prepared to pay part of the cost themselves."
Keywords:
amount; condition; dependant; discretion; home leave; limits; rate; refund;
Consideration 4
Extract:
The partial payment of travel expenses would be contrary to the language of the applicable text and inconsistent with the principle of the regulation. "It is agreed that the object of the regulation is not primarily to make a monetary concession to a staff member. It is to the advantage of the organization [...] that staff members should maintain their links with their home countries [...] If the organization pays for only a part of the journey, the principle of home leave will depend on the willingness and ability of the staff member to pay for the rest himself."
Keywords:
amount; home leave; organisation's interest; purpose; rate; refund; travel expenses;
Considerations 4-5
Extract:
"A rule which applies only to the longer journeys may result in links with the more distant countries being lost. Moreover, if the Director-General has power to rule that only a proportion of the cost of the whole journey need be paid, there can be no reason why he should not in all cases fix the proportion at whatever percentage he thinks the organization can afford." [The Tribunal has established that reasonable expenses should be paid for the whole journey.]
Keywords:
amount; consequence; home leave; rate; refund; travel expenses;
Consideration 3
Extract:
"The words [in the material provision] are an abbreviated way of saying that the organization shall pay the reasonable expenses of the journey to and from the home. This means the reasonable expenses for the whole journey and not just a part of it. The Director-General may settle the details of the way in which the regulation is to be applied - he may, for example, rule that reasonable expenses do not cover first-class travel or an indirect route - but he may not alter the sense of it."
Keywords:
amount; home leave; interpretation; organisation's duties; provision; purpose; rate; refund; staff regulations and rules; travel expenses;
