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Advisory opinion (579,-666)

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Keywords: Advisory opinion
Total judgments found: 61

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  • Judgment 3291


    116th Session, 2014
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The Tribunal dismisses fifty-six similar complaints on the grounds that they are directed against general and not individual decisions.

    Judgment keywords

    Reference(s)

    Organization rules reference: Articles 77,80, 81 and 83 of the Service Regulations; Circular No. 82; Decisions CA/D 32/08, 27/08, 14/08, 13/09, 28/09, 22/09, 7/10

    Keywords:

    advisory opinion; competence; decision; effect; general decision; general principle; individual decision; internal appeal; internal appeals body; joinder; procedure; receivability of the complaint; same cause of action; same purpose;



  • Judgment 3250


    116th Session, 2014
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant was recognized as a victim of institutional harassment.

    Consideration 9

    Extract:

    "The Tribunal notes that intent is not a necessary element of harassment and, in this case, it is not a single episode which creates the problem, but instead it is the accumulation of repeated events which deeply and adversely affected the complainant’s dignity and career objectives. As such, the JAAB’s finding that “the long series of examples of mismanagement and omissions by the Office […] compromised [the complainant’s] dignity and career” is well founded and the Tribunal is of the opinion that this administrative wrongdoing can be defined as institutional harassment."

    Keywords:

    advisory opinion; complaint allowed in part; harassment; injury; organisation's duties; professional injury; respect for dignity;



  • Judgment 3214


    115th Session, 2013
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant unsuccessfully impugns the decision not to extend his appointment beyond retirement age.

    Consideration 24

    Extract:

    The complainant, who requested the extension of his appointment beyond normal retirement age, takes the Organisation to task for not sending him the Selection Committee’s opinion or the minutes of its deliberations showing its proposal.
    "The Tribunal’s case law has it that, as a general rule, a staff member must have access to all evidence on which the competent authority bases its decisions concerning him or her, especially the opinion issued by such an advisory organ. A document of that nature may be withheld on grounds of confidentiality from a third person but not from the person concerned (see, for example, Judgments 2229, under 3(b), or 2700, under 6).
    [T]he Tribunal observes that the complainant does not say that he asked for the document in question. While the Organisation could not lawfully have refused to grant such a request, it was under no obligation to forward the document of its own accord (see Judgment 2944, under 42). The position would have been different only if – as is not the case here – the reasons given by the competent authority for its decision had been confined to a mere reference to the advisory body’s opinion."

    Reference(s)

    ILOAT Judgment(s): 2229, 2700, 2944

    Keywords:

    advisory body; advisory opinion; age limit; communication to third party; confidential evidence; decision; disclosure of evidence; discretion; duty to inform; exception; extension; general principle; grounds; international civil servant; organisation's duties; proposal; refusal; request by a party; retirement; right; selection board;



  • Judgment 3166


    114th Session, 2013
    International Federation of Red Cross and Red Crescent Societies
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant alleges that he suffered harassment, mobbing and defamation on the part of his supervisors.

    Consideration 17

    Extract:

    "[T]he JAC appears to have retreated from making the ultimate finding of harassment because the complainant’s own attitude “can be construed as ‘a reasonable explanation for the conduct in question’”. The unexpressed assumption in this conclusion is that it is a legitimate response from a senior manager for the latter to intimidate a staff member who challenges, perhaps even inappropriately, his decisions. [...] It cannot be that intimidation by a senior manager is a reasonable response to a subordinate (including a senior subordinate), even if the latter exceeds his or her role by challenging decisions of the manager. In this respect, the JAC erred in its consideration of the complainant’s grievances. There can, of course, be situations where a subordinate’s refusal to accept the authority of his supervisor provides a complete explanation for the conduct of the supervisor. An example is found in the Tribunal’s Judgment 2468. However, in this case the JAC’s findings [relate to] conduct that cannot be explained away on this basis."

    Reference(s)

    ILOAT Judgment(s): 2468

    Keywords:

    advisory body; advisory opinion; complaint allowed; complaint allowed in part; conduct; decision; definition; flaw; harassment; insubordination; supervisor; working relations;



  • Judgment 3152


    114th Session, 2013
    International Fund for Agricultural Development
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant applies for execution of Judgments 2867 and 3003.

    Consideration 11

    Extract:

    The Tribunal recalls that, "according to the provisions of Article VI of its Statute, its judgments are “final and without appeal”, and they are therefore “immediately operative”, as its earliest case law established (see, in particular, Judgment 82, under 6). The Tribunal subsequently noted that the principle that its judgments are immediately operative is also a corollary of their res judicata authority [...]. For this reason, international organisations which have recognised the Tribunal’s jurisdiction are bound to take whatever action a judgment may require (see [...] Judgments 553 and 1328, or Judgment 1338, under 11). Lastly, there is no provision in the Statute or the Rules of the Tribunal stipulating that, notwithstanding these principles, the submission of an application for an advisory opinion to the International Court of Justice under [...] Article XII has the effect of staying the execution of the impugned judgment pending the rendering of that opinion."

    Reference(s)

    ILOAT reference: Articles VI and XII of the Statute of the Tribunal
    ILOAT Judgment(s): 82, 553, 1328, 1338

    Keywords:

    advisory opinion; application for execution; competence of tribunal; complaint allowed; consequence; decision; declaration of recognition; exception; execution of judgment; finality of judgment; icj; iloat statute; judgment of the tribunal; no provision; organisation's duties; request by a party; res judicata; suspensory effects;



  • Judgment 3003


    111th Session, 2011
    International Fund for Agricultural Development
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 15

    Extract:

    "[A]s the Tribunal pointed out in [...] Judgment 82, under 7, the execution of a judgment by an organisation cannot under any circumstances be considered as acceptance of the judgment, nor divest it of its right to submit the judgment to the International Court of Justice for an advisory opinion [under Article XII, paragraph 1, of the Statute of the Tribunal]."

    Reference(s)

    ILOAT reference: Article XII, paragraph 1, of the Statute of the Tribunal
    ILOAT Judgment(s): 82

    Keywords:

    acceptance; advisory opinion; consequence; consultation; effect; execution of judgment; icj; iloat statute; interpretation; judgment of the tribunal; organisation; right of appeal;

    Considerations 40 and 46

    Extract:

    Article XII, paragraph 1, of the Statute of the Tribunal, in the version applicable to the international organisations which have accepted the jurisdiction of the Tribunal, provides that: "In any case in which the Executive Board of an international organization which has made the declaration specified in Article II, paragraph 5, of the Statute of the Tribunal challenges a decision of the Tribunal confirming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed, the question of the validity of the decision given by the Tribunal shall be submitted by the Executive Board concerned, for an advisory opinion, to the International Court of Justice."
    "[I]t must be emphasised that the question of whether international organisations should be allowed to request a stay of execution of a judgment that they intend to challenge under Article XII of the Statute arises in the context of a procedure which is already fundamentally imbalanced to the detriment of staff members. [T]he option of submitting a request to the Court for an opinion on the basis of that article is confined to the organisations. [...]
    Clearly, it is not for the Tribunal to express a critical opinion on a provision of its own Statute. However, it does have to take care, given that this particular provision creates an objective inequality between the parties, to ensure that its own case law does not in any way amplify the consequences of this inequality, which would undeniably occur if requests for a stay of execution submitted by organisations availing themselves of the Article XII procedure were to be considered admissible. To adopt that course would cause serious harm to the legitimate interests of the officials concerned, thereby upsetting the balance between the rights of the organisations and those of their staff members which it is the Tribunal's role to preserve."

    Reference(s)

    ILOAT reference: Article XII, paragraph 1, of the Statute of the Tribunal; Article II, paragraph 5, of the Statute of the Tribunal

    Keywords:

    advisory opinion; competence of tribunal; declaration of recognition; execution of judgment; icj; iloat statute;



  • Judgment 2940


    109th Session, 2010
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 3(b)

    Extract:

    "In accordance with the right to due process, which calls for transparent procedures, a staff member is entitled to be apprised of all items of information material to the outcome of his or her claims. The composition of an advisory body is one such item, since the identity of its members might have a bearing on the reasoning behind and credibility of the body's recommendation or opinion. The staff member is therefore at least entitled to comment on its composition (see Judgment 2767, under 7(a))."

    Reference(s)

    ILOAT Judgment(s): 2767

    Keywords:

    advisory body; advisory opinion; complaint allowed; complaint allowed in part; composition; consequence; due process; duty to inform; effect; elements; equity; general principle; grounds; recommendation; right; right to reply; settlement out of court;



  • Judgment 2833


    107th Session, 2009
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4

    Extract:

    "[T]he Director-General departed from the Joint Advisory Appeals Board's recommendation. He was entitled to do so provided that he gave clear reasons for not following it, which he did. [...] From a formal point of view, therefore, the impugned decision is beyond criticism."

    Keywords:

    advisory opinion; condition; difference; duty to substantiate decision; executive head; formal requirements; grounds; internal appeals body; recommendation; right;



  • Judgment 2829


    107th Session, 2009
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 3 and 5

    Extract:

    The complainant filed an appeal with the WIPO Appeal Board challenging the decision to suspend him from duty. The Board held that the appeal was irreceivable pursuant to the res judicata rule, inasmuch as it had already issued an opinion on the measure of suspension and no new administrative decision had been taken on this matter. The Director General also deemed the appeal irreceivable pursuant to the res judicata rule.
    The Tribunal considers that "[t]he res judicata rule applies to decisions of judicial bodies, but not to opinions or recommendations issued by administrative bodies. The Director General was therefore obviously wrong to cite this rule as the basis for declaring the internal appeal irreceivable on the grounds that the Appeal Board had already given an opinion on the suspension and that no new administrative decision had been taken on this matter."
    [...]
    "The Organization shall pay the complainant 3,000 Swiss francs in compensation for the moral injury which he suffered owing to the fact that the merits of his internal appeal were not examined."

    Keywords:

    advisory opinion; allowance; compensation; complaint allowed; executive head; general principle; grounds; internal appeal; internal appeals body; judgment of the tribunal; moral injury; receivability of the complaint; recommendation; res judicata; suspension;



  • Judgment 2667


    104th Session, 2008
    World Tourism Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "The duty to act independently and impartially is incumbent not only on the authority competent for issuing the final formal decision in proceedings, but also on bodies responsible for giving an advisory opinion or for making a recommendation to this authority, a fortiori where the recommendation is a formal part of the decision-making process (see Judgment 2315, under 27)."

    Reference(s)

    ILOAT Judgment(s): 2315

    Keywords:

    advisory body; advisory opinion; condition; decision; due process; independence; procedure; recommendation;



  • Judgment 2556


    101st Session, 2006
    Organisation for the Prohibition of Chemical Weapons
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 12

    Extract:

    The Organisation adopted a new method of calculating replacement days granted to inspectors returning from a Chemical Weapons Destruction Facilities inspection because of the inconsistency between the practice with regard to replacement days and the terms of Administrative Directive AD/PER/12. The complainant contested that new method. Because the earlier practice had become in its view "well established", the Appeals Council recommended that the appeal be upheld, the previous practice reinstated and the replacement days that should have been granted in accordance with that practice reimbursed. The Tribunal considers that "[a]s the practice of granting a replacement day for each Saturday, Sunday or official OPCW holiday falling during an inspection period is inconsistent with the terms of AD/PER/12, that practice cannot be elevated to the status of law so as to entitle the complainant to additional replacement days, as was seemingly thought by the Appeals Council."

    Reference(s)

    Organization rules reference: OPCW Administrative Directive AD/PER/12

    Keywords:

    administrative instruction; advisory opinion; compensatory measure; difference; internal appeal; internal appeals body; organisation's duties; practice; precedence of rules; provision; public holiday; reckoning; recommendation; refund; right; written rule;



  • Judgment 2524


    100th Session, 2006
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 31

    Extract:

    To advance serious allegations that have not been properly investigated against an official before a body that must issue a decision or recommendation concerning that official amounts to "serious failure of due process and want of fairness and good faith".

    Keywords:

    advisory body; advisory opinion; breach; complaint allowed; complaint allowed in part; decision; due process; equity; good faith; internal appeals body; organisation's duties; respect for dignity; right to reply;



  • Judgment 2410


    98th Session, 2005
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    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 2363


    97th Session, 2004
    Pan American Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    The complainant's application for a post was unsuccessful. "While the complainant is undoubtedly technically qualified for the coveted post, and was found to be so in the two competitions in which she was unsuccessful, she was also, in both cases, found by two separate Selection Committees not to be the most qualified. Although the complainant clearly has a high view of her own merits, the fact that that view is not universally shared by others, whose honesty and good faith the complainant has not been successful in impugning, does not mean that the complainant has been unfairly treated or that she has been denied a promotion which should rightfully have been hers."

    Keywords:

    advisory opinion; breach; candidate; competence; competition; difference; equal treatment; good faith; lack of evidence; post; promotion; qualifications; refusal; right; selection board;



  • Judgment 2356


    97th Session, 2004
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 16

    Extract:

    The complainant claims damages for the injury resulting from the inclusion in her personnel file of a memorandum bearing negative remarks about her performance. "While there is no evidence whatsoever to support the complainant's claim that she was humiliated and that her future career prospects were adversely affected by this memorandum, the fact remains that the Appeals Committee found, and the Director-General accepted, that the document should be removed from her file. That necessarily implies an acceptance by the Organization that it had acted wrongly in putting it there in the first place. This entitles her to a nominal award of moral damages which the Tribunal evaluates at 500 euros."

    Keywords:

    acceptance; advisory opinion; breach; career; claim; complaint allowed; complaint allowed in part; executive head; general service category; grade; injury; internal appeals body; international civil servant; lack of evidence; moral damages; moral injury; personal file; request by a party; respect for dignity; right; supervisor; unsatisfactory service;



  • Judgment 2354


    97th Session, 2004
    World Customs Organization (Customs Co-operation Council)
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 6 and 7

    Extract:

    The complainant's post as a translator was abolished and his appointment was terminated. "According to the [applicable] provisions, the Secretary General was obliged to consult the Staff Committee before terminating [an] appointment. The Tribunal considers that this obligation to consult - which must not be seen as just an unnecessary formality, even though the Secretary General is not bound by the opinion of the advisory body - is not fulfilled unless the advisory body is in such a position that it can give an opinion independently and in full knowledge of the facts, which implies that it must be provided with all the information it needs, and especially the real reasons for the proposed measure, so that it can express an objective opinion. [...] While it emerges from the submissions that the general reasons for reducing the number of translators had been brought to the attention of the Staff Committee, it has not been established that the latter had been given the specific reasons for suppressing the complainant's post, rather than that of another official of the same grade and in the same Directorate, prior to delivering its opinion. [...] In the Tribunal's view, this lack of precise information concerning the specific reason for the decision to suppress the complainant's post in particular and to terminate his appointment invalidated the consultation provided for in [the applicable provisions], which is tantamount to saying that no consultation took place."

    Reference(s)

    Organization rules reference: Staff Regulation 12(a), Staff Rule 12.1(a) and Staff Circular No. 142

    Keywords:

    abolition of post; advisory body; advisory opinion; binding character; complaint allowed; complaint allowed in part; condition; consequence; decision; due process; duty to inform; executive head; flaw; grade; grounds; independence; international civil servant; lack of evidence; organisation's duties; post held by complainant; provision; same; staff reduction; staff regulations and rules; termination; written rule;



  • Judgment 2352


    97th Session, 2004
    World Customs Organization (Customs Co-operation Council)
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 4 and 5

    Extract:

    The complainant's post was abolished and his appointment terminated. "It is clear from the [applicable] provisions that [...] the Staff Committee had to be consulted before the decision was taken to terminate the complainant's appointment. The purpose of consulting an advisory body, prior to terminating an official's appointment, is to allow that body to ensure that all the conditions for taking such a step are met, with a view to submitting a recommendation to the executive head. The Tribunal takes the view that it is established, by the evidence [...], that the Staff Committee was indeed consulted regarding the suppression of the [complainant's] post [...]. However, it considers that the Committee was not formally consulted with regard to the intention to terminate the complainant's appointment. [...] As the impugned decision was taken in breach of the applicable rules, it must be held unlawful and the Tribunal need not rule on the complainant's other pleas."

    Reference(s)

    Organization rules reference: Staff Regulation 12(a), Staff Rule 12.1(a) and Staff Circular No. 142

    Keywords:

    abolition of post; advisory body; advisory opinion; breach; complaint allowed; complaint allowed in part; condition; consequence; decision; due process; executive head; flaw; formal requirements; organisation's duties; post held by complainant; provision; purpose; recommendation; staff regulations and rules; termination; written rule;



  • Judgment 2300


    96th Session, 2004
    International Criminal Police Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 3

    Extract:

    "The complainant contends that the [challenged] decision is unlawful because it is based on an opinion by the Joint Appeals Committee signed by its Chairman alone, whereas it is common practice in Interpol, as in other international organisations, for this type of document to be signed by all members of the Committee. The Organization rightly points out that, in accordance with Article 152(3) of the Staff Rules, the Chairman of the relevant Joint Committee shall sign the consultative opinion. This provision cannot be challenged on the grounds that different practices prevail in other organisations."

    Reference(s)

    Organization rules reference: Article 152(3) of Interpol's Staff Rules

    Keywords:

    advisory body; advisory opinion; decision; difference; flaw; formal flaw; internal appeals body; organisation; practice; provision; staff regulations and rules;



  • Judgment 2297


    96th Session, 2004
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 13

    Extract:

    "[I]f an internal appeal was time-barred and the internal appeals body was wrong to hear it, the Tribunal would not entertain a complaint challenging the decision taken on a recommendation by that body (see Judgment 775, under 1)."

    Reference(s)

    ILOAT Judgment(s): 775

    Keywords:

    advisory opinion; complaint; decision; internal appeal; internal appeals body; mistaken hearing of merits; receivability of the complaint; recommendation; time bar; time limit; tribunal;



  • Judgment 2092


    92nd Session, 2002
    Organisation for the Prohibition of Chemical Weapons
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 10

    Extract:

    "When the executive head of an organisation accepts and adopts the recommendations of an internal appeal body he is under no obligation to give any further reasons than those given by the appeal body itself. Where, however, [...] he rejects those recommendations his duty to give reasons is not fulfilled by simply saying that he does not agree with the appeal body."

    Keywords:

    acceptance; advisory opinion; complaint allowed in part; decision; difference; duty to substantiate decision; executive head; grounds; internal appeals body; organisation's duties; recommendation; refusal; report;

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Last updated: 19.06.2019 ^ top