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Condition (589,-666)

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Keywords: Condition
Total judgments found: 321

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  • Judgment 2496


    100th Session, 2006
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "A decision as serious as one imposing a disciplinary measure will be lawful only provided that the rights of the staff members concerned to a fully adversarial procedure have been scrupulously respected. Charges must be precisely worded and notified sufficiently early to enable the staff member concerned to defend his case, particularly by establishing evidence and gathering testimonies which he believes are likely to refute the charges in the eyes of the disciplinary body and of the deciding authority, according to the nature of the charges against him."

    Keywords:

    adversarial proceedings; advisory body; condition; date of notification; decision; disciplinary measure; disciplinary procedure; disclosure of evidence; executive head; official; organisation's duties; right; right to reply; testimony; time limit;



  • Judgment 2493


    100th Session, 2006
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    The complainants were issued a written warning on the grounds that they had participated in industrial action which management considered to be unlawful and that caused them to be absent from duty without authorisation. They contend that the Director General had no authority to decide whether the collective action was illegal. "There is no doubt that in the absence of any statutory provisions or collective agreement between the Agency and the staff representatives, it is up to the Director General to take whatever measures are necessary to prevent actions which he deems unlawful, to warn members of staff against participating in such actions and, if necessary, to lay down guidelines for the exercise of the collective rights of staff in accordance with the general principles of international civil service law. From this point of view, one cannot object to the Director General's legitimate right to take action when he, 'in the absence of an agreement with the unions', issued on 13 March 2003 - in other words, three days after the start of the industrial action - an Office Notice setting out 'General provisions applicable in the event of a strike at Eurocontrol'. Nevertheless, the general measures taken by the administration and the individual decisions taken to implement those measures must not have the effect of restricting the exercise of the collective rights of members of staff in such a way as to deprive them of all substance."

    Keywords:

    applicable law; collective rights; competence; condition; consequence; disciplinary measure; effect; enforcement; executive head; general decision; general principle; individual decision; information note; international civil service principles; limits; no provision; organisation's duties; provision; right to strike; staff regulations and rules; staff representative; staff union; staff union agreement; strike; unauthorised absence; warning;

    Consideration 11

    Extract:

    The complainants were issued a written warning on the grounds that they had participated in industrial action which management considered to be unlawful and that caused them to be absent from duty without authorisation. "[I]f it were a work stoppage not involving unlawful actions, the question arises as to whether the Agency could, in view of the provisions of Article 11 of the Staff Regulations whereby an official is bound to ensure the continuity of the service and must not cease to exercise his functions without previous authorisation, deem participation in the collective action by the officials in question to be unlawful. Without overlooking the fact that a strike will necessarily affect continuity of service, the Tribunal considers that, if the answer to that question were yes, it would in practice deprive of all substance the exercise of a right, the existence of which the Agency does not deny and which, according to the case law, is lawful in principle (see, for instance, Judgments 615 and 2342 of the Tribunal). To make the exercise of that right conditional on obtaining leave of absence would clearly be incompatible with the principle itself, the necessary corollary of which is the freedom of officials to follow or not to follow a call to strike duly issued by their representative organisations."

    Reference(s)

    Organization rules reference: Article 11 of the Staff Regulations governing officials of the Agency
    ILOAT Judgment(s): 615, 2342

    Keywords:

    collective rights; condition; consequence; continuance of operations; disciplinary measure; freedom of association; general principle; provision; right to strike; staff member's duties; staff regulations and rules; staff union; strike; unauthorised absence; warning;



  • Judgment 2475


    99th Session, 2005
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "[T]he obligations of an employer to act in good faith and to respect the dignity of its employees determine what is permissible. In particular, these considerations require that an investigation be conducted in a manner designed to ascertain all relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made."

    Keywords:

    appraisal of evidence; condition; good faith; inquiry; investigation; official; organisation's duties; respect for dignity; right to reply;



  • Judgment 2468


    99th Session, 2005
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 16

    Extract:

    The complainant's appointment was terminated for unsatisfactory services. "The defendant is not wrong to point out that, except in a case of manifest error, the Tribunal will not substitute its own assessment of a staff member's services for that of the competent bodies of an international organisation. Nevertheless, such an assessment must be made in full knowledge of the facts, and the considerations on which it is based must be accurate and properly established. The Tribunal, which pays considerable attention to these issues in the case of complaints concerning dismissal at the end of a probationary period or the non-renewal of fixed-term contracts on the grounds of unsatisfactory performance, must be even more vigilant where an organisation terminates the appointment of a staff member holding a contract without limit of time, which in principle should secure him against any risk of job loss or insecurity. This applies particularly in the present case, since the staff member concerned by the termination for unsatisfactory services received on the whole satisfactory or even excellent appraisals over a period of 15 years."

    Keywords:

    complaint; condition; contract; different appraisals; fixed-term; grounds; judicial review; mistake of fact; non-renewal of contract; official; organisation; period; permanent appointment; probationary period; satisfactory service; termination of employment; unsatisfactory service; work appraisal;



  • Judgment 2432


    99th Session, 2005
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "The Tribunal takes the view that, before taking a final decision, any collegiate body must meet to deliberate. A meeting may not be absolutely necessary, however, [...]if the Committee members agree on all the points of their individual reports.
    In this case, in view of the uncertainty regarding the period referred to in assessing the seriousness of the complainant's illness, of the fact that she was suffering from afflictions requiring treatment by different medical specialists and of the differences of opinion which emerged regarding the seriousness of the illness and the incapacity it caused, the Tribunal considers that the Invalidity Committee should have met before issuing its final decision. Since no meeting took place, the procedure leading up to the impugned decision is flawed even though the practitioner appointed by the complainant did not raise any objection. The decision must therefore be set aside and the case sent back to the Organisation for reconsideration of the question [...]"

    Keywords:

    advisory body; condition; due process; invalidity; procedural flaw; remand;



  • Judgment 2418


    98th Session, 2005
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 16

    Extract:

    "Although the EPO has disputed the complainants' claim for costs of these proceedings on the basis that their counsel is a full-time EPO staff member, it is appropriate to award each complainant 1,000 euros to cover their out of pocket expenses, time and trouble."

    Keywords:

    claim; condition; costs; counsel; receivability of the complaint;



  • Judgment 2393


    98th Session, 2005
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 12

    Extract:

    "The general principles allow that a discretionary decision with respect to an appointment may be set aside if applicants have not received equal treatment."

    Keywords:

    appointment; breach; candidate; condition; discretion; equal treatment; general principle; right;



  • Judgment 2389


    98th Session, 2005
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "Under [Staff] Rule [105.3], it is not sufficient for entitlement to home leave that internationally recruited staff members be serving in a country other than that of which they are nationals; they must also meet the required conditions. Thus, paragraph 2a of the Rule stipulates that a staff member shall be eligible for home leave provided that while performing his official duties he continues to reside in a country other than that of which he is a national. This condition is clearly not met in the case of a staff member who lived in his home country only during his early childhood and who, at the time of his appointment, had been residing for several decades, practically without a break, in the country where he performs his official duties."

    Reference(s)

    Organization rules reference: UPU Staff Rule 105.3

    Keywords:

    appointment; condition; difference; duty station; home leave; nationality; non-local status; official; provision; residence; right; staff member's duties; staff regulations and rules;

    Consideration 7

    Extract:

    The home country "is not necessarily that of the staff member's nationality. It could be the country with which he has the closest connection outside the country in which he is employed (see Judgment 1985, under 9), for instance the home country of his wife or of children whom he may have adopted or taken in but who he believes should keep up their connections with their native environment. Thus, according to Staff Rule 105.3, paragraph 4c, the Director General, in exceptional circumstances, may authorise a staff member to take home leave in a country other than the country of his nationality, provided that the latter can show that he maintained his normal residence in that other country for a prolonged period preceding his appointment, that he continues to have close family or personal ties in that country and that his taking home leave there would not be inconsistent with the purpose and intent of Staff Regulation 5.3."

    Reference(s)

    Organization rules reference: UPU Staff Regulation 5.3 and Staff Rule 105.3, paragraph 4c
    ILOAT Judgment(s): 1985

    Keywords:

    adoption; appointment; burden of proof; condition; definition; dependent child; difference; duty station; exception; executive head; family relationship; home leave; nationality; official travel; period; place of origin; residence; staff regulations and rules;

    Consideration 7

    Extract:

    "[T]he purpose of home leave is to enable staff members who, owing to their work, spend a number of years away from the country with which they have the closest personal or material ties to return there in order to maintain those connections. Regulation 5.3, which denies home leave to staff members whose home country is the country of their official duty station or who continue to reside in their home country, is therefore self-explanatory. Regulation 4.5, paragraph 2, reflects the same reasoning, insofar as it provides that a staff member may lose entitlement to home leave if, following a change in his residential status, he is, in the opinion of the Director General, deemed to be a permanent resident of any country other than that of his nationality, provided that the Director General considers that the continuation of such entitlement would be contrary to the purposes for which the benefit was created."

    Reference(s)

    Organization rules reference: UPU Staff Regulations 4.5, paragraph 2, and 5.3

    Keywords:

    amendment to the rules; condition; consequence; difference; duty station; executive head; family relationship; home leave; nationality; official; period; place of origin; purpose; refusal; residence; staff regulations and rules;



  • Judgment 2366


    97th Session, 2004
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 16

    Extract:

    "Ordinarily, the process of decision making involves a series of steps or findings which lead to a final decision. Those steps or findings do not constitute a decision, much less a final decision. They may be attacked as part of a challenge to the final decision but they, themselves, cannot be the subject of a complaint to the Tribunal. Occasionally however, what appears to be a single and final decision may embody more than one decision. That will be the case if separate and distinct issues have to be decided. So, too, a decision which does not resolve an entire dispute may nonetheless constitute a final decision if it is a decision on a separate and distinct issue. The present is such a case."

    Keywords:

    absence of final decision; complaint; condition; decision; definition; difference; general principle; iloat; procedure before the tribunal; provisional decision; receivability of the complaint; settlement out of court;

    Consideration 23

    Extract:

    "It is clear from Judgments 1560, 2112, 2201, and 2213 that a decision becomes binding on an organisation only when it is notified to the official concerned in the prescribed manner or in some other manner that gives rise to an inference that it was intended to notify the official of the decision."

    Reference(s)

    ILOAT Judgment(s): 1560, 2112, 2201, 2213

    Keywords:

    binding character; case law; condition; decision; difference; formal requirements; official; organisation; organisation's duties; purpose;



  • Judgment 2365


    97th Session, 2004
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4(a)

    Extract:

    "The suspension of the complainant was an interim, precautionary measure, which was to last as long as the disciplinary procedure. It was ordered without hearing the complainant's views on the matter beforehand, but the latter's right to be heard was safeguarded since he later had an opportunity to exercise it before the impugned decision was taken. In any case, a decision to suspend need not necessarily be followed by a substantive decision to impose a disciplinary sanction (see Judgment 1927, under 5). Nevertheless, since it imposes a constraint on the staff member, suspension must be legally founded, justified by the requirements of the organisation and in accordance with the principle of proportionality. A measure of suspension will not be ordered except in cases of serious misconduct. Such a decision lies at the discretion of the Director-General. It is subject therefore to only limited review by the Tribunal, that is to say, if it was taken without authority or in breach of a rule of form or of procedure, or was based on an error of fact or of law, or overlooked some essential fact, or was tainted with abuse of authority, or if a clearly mistaken conclusion was drawn from the evidence (see, for instance, Judgment 2262, under 2)."

    Reference(s)

    ILOAT Judgment(s): 1927, 2262

    Keywords:

    breach; condition; decision; decision-maker; disciplinary measure; disciplinary procedure; discretion; disregard of essential fact; executive head; formal flaw; formal requirements; judicial review; limits; measure of distraint; mistake of fact; mistaken conclusion; misuse of authority; official; organisation's duties; period; procedural flaw; proportionality; provisional measures; right to reply; suspensive action;



  • Judgment 2357


    97th Session, 2004
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 10

    Extract:

    "Where a person seeks to bring himself or herself within an exception to a general rule - here, the rule that an education allowance is not payable to persons serving in their own country - it is for that person to establish that he or she falls within the exception."

    Keywords:

    allowance; burden of proof; condition; duty station; education expenses; exception; nationality; official; written rule;

    Consideration 4

    Extract:

    "It was said in Judgments 1835, 1836 and 1837 that the application of Article 71(2)[regarding the conditions of award of an education allowance] 'is at the discretion of the President of the Office'. It is not strictly accurate to describe a decision as to the application of Article 71(2) as discretionary. The question whether a particular school or university corresponds to a 'child's educational stage' is essentially a question of fact, albeit one that may, in some circumstances, permit of a value judgment. However, because of the nature of that question, a decision under Article 71(2) is subject to limited review on the same grounds as a discretionary decision properly so called. Thus, it will be reviewed only for procedural error, mistake of fact or law, the drawing of a clearly mistaken conclusion or misuse of authority. In particular, this Tribunal will not substitute its view of the facts for that reached by the President."

    Reference(s)

    Organization rules reference: Article 71(2) of the Service Regulations for Permanent Employees of the EPO
    ILOAT Judgment(s): 1835, 1836, 1837

    Keywords:

    allowance; case law; condition; decision; discretion; education expenses; enforcement; executive head; grounds; interpretation; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; procedural flaw; provision; staff regulations and rules;



  • Judgment 2354


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

    Considerations 6-7

    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; condition; consequence; decision; due process; duty to inform; executive head; flaw; grade; grounds; independence; lack of evidence; official; organisation's duties; post held by the complainant; provision; staff reduction; staff regulations and rules; termination of employment; written rule;



  • Judgment 2352


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

    Considerations 4-5

    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; condition; consequence; decision; due process; executive head; flaw; formal requirements; organisation's duties; post held by the complainant; provision; purpose; recommendation; staff regulations and rules; termination of employment; written rule;



  • Judgment 2342


    97th Session, 2004
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "Undoubtedly, as recalled in the case law (see, for instance, Judgment 566), as a matter of principle a strike is lawful, but this applies only in the case of a collective work stoppage"

    Reference(s)

    ILOAT Judgment(s): 566

    Keywords:

    case law; condition; right to strike; strike;



  • Judgment 2337


    97th Session, 2004
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "The case law cited [by the complainant] refers to the situation of a staff member who, failing any indication to the contrary, can rely on the continuation of his contractual relations (either not terminated or renewed), since according to the rules of good faith the Organization should warn the staff member if it considers his performance unsatisfactory in order to give him a chance to improve. The situation is different if an organisation [...] restricts the number of fixed term contracts a staff member may be given and lays down specific conditions for the award of an indefinite contract. In this case, the staff member cannot sit back and wait for his contract to be turned into an indefinite contract, since he will be expected to meet stricter requirements. Of course, the Organization is not on that account relieved of its duty of care towards the staff member, and, in accordance with the rules of good faith, it must warn him either if it is convinced that he is simply incapable of performing the duties attached to an indefinite contract, or if it believes that, in order to perform them the staff member must improve the quality of his work still further. This is an obligation the Organization must fulfil particularly in the context of periodic performance appraisals."

    Keywords:

    case law; condition; contract; duty to inform; fixed-term; good faith; legitimate expectation; organisation's duties; performance report; permanent appointment; satisfactory service; successive contracts; unsatisfactory service; work appraisal;



  • Judgment 2316


    96th Session, 2004
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 12

    Extract:

    The complainant wants to be granted her salary increment to step X retroactively. The ITU asserts that the complaint is inadmissible because in Judgment 2170 the Tribunal stated that those pleas were dismissed. "Judgment 2170 was concerned with the complainant's entitlement to her step VIII salary increment, her pleas regarding entitlement to salary increment for step [...] X being dismissed on the basis that they were not and could not be the subject of her first complaint. That being so, there was no final and binding decision on her present claim either expressly or as a necessary step to the decision that she was then entitled to a step VIII increment. Accordingly, the complaint is not barred by res judicata."

    Reference(s)

    ILOAT Judgment(s): 2170

    Keywords:

    absence of final decision; claim; complaint; condition; decision; express decision; general principle; grounds; iloat; increase; increment; judgment of the tribunal; receivability of the complaint; refusal; request by a party; res judicata; right;



  • Judgment 2315


    96th Session, 2004
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 22-23

    Extract:

    "There are two aspects to the rule against retroactivity. The first is a rule of interpretation which requires that a provision not be construed as having retroactive effect unless that is clearly intended. The second is a substantive rule of international civil service law which, as explained in Judgment 1589, prevents a retroactive change in the legal status of staff save in limited circumstances [...]. However, to state the rule in this way is not to expose what is meant by 'retroactive'. In general terms, a provision is retroactive if it effects some change in existing legal status, rights, liabilities or interests from a date prior to its proclamation, but not if it merely affects the procedures to be observed in the future with respect to such status, rights, liabilities or interests."

    Reference(s)

    ILOAT Judgment(s): 1589

    Keywords:

    amendment to the rules; case law; collective rights; condition; consequence; date; definition; effect; exception; general principle; international civil service principles; interpretation; non-retroactivity; official; organisation's interest; procedure before the tribunal; provision; publication; purpose; right; staff member's duties; staff member's interest;

    Consideration 32

    Extract:

    "The Tribunal may, when setting aside a flawed decision not to renew a contract, order renewal for an appropriate term, as was done in Judgments 1298 and 1633. But it does so only if that is clearly the fair course to take. That was the situation in Judgment 1633 where, in practical terms, the question for decision was not whether a contract should be renewed but whether it should be renewed for two or for five years."

    Reference(s)

    ILOAT Judgment(s): 1298, 1633

    Keywords:

    competence of tribunal; condition; contract; decision; equity; flaw; iloat; judgment of the tribunal; non-renewal of contract; period; settlement out of court;

    Consideration 20

    Extract:

    The Commission adopted a directive stipulating that staff members appointed to the Professional and higher categories and internationally recruited staff should not, except in certain limited exceptions, remain in service for more than seven years. In accordance with this directive, the complainant's contract was not renewed. "Although the embodiment of the seven year policy in [the] directive may properly be viewed as the prescribing of a term or condition upon which fixed-term contracts may be granted, it does not itself operate as the imposition of that term or condition. To be effective, a term or condition of the kind now in question must be incorporated in the contract, even if only by reference: a reference to the Staff Regulations and Rules is not sufficient because they do not incorporate the [...] directive in question. By implementing the seven year policy in the way that he purported to do in the present case, the Executive Secretary was attempting to enforce a term or condition that was not incorporated in the contract between the complainant and the Preparatory Commission."

    Keywords:

    appointment; career; complainant; condition; contract; effect; enforcement; exception; executive head; fixed-term; general principle; limits; non-local status; non-renewal of contract; official; organisation; professional category; staff regulations and rules; terms of appointment; written rule;



  • Judgment 2312


    96th Session, 2004
    European Molecular Biology Laboratory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "The complainant asserts that she was not given reasons for the decision not to renew her contract prior to the decision being taken. [...] The right to receive written reasons [...] implies the right to be given detailed reasons for a decision once it has been made, not prior to its making. This right ensures that an appeal can properly be taken from that decision."

    Keywords:

    condition; consequence; contract; date; date of notification; decision; grounds; non-renewal of contract; purpose; right; right of appeal;



  • Judgment 2300


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

    Consideration 4(a)

    Extract:

    "A general decision which establishes the obligations and/or rights of a group of officials, without requiring an implementing decision, may be directly challenged; one example of this would be a decision concerning an electronic clocking-in system (see Judgment 2279 [...]). However, such a decision is not challengeable if its terms are not sufficiently clear in themselves to allow a challenge (see Judgment 2258, under 3)."

    Reference(s)

    ILOAT Judgment(s): 2258, 2279

    Keywords:

    case law; collective rights; condition; direct appeal to tribunal; general decision; individual decision; official; staff member's duties; working hours;



  • Judgment 2296


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

    Consideration 13

    Extract:

    "[T]he right of an international civil servant to recover from his employer the taxes which he has been forced to pay on his tax-exempt income cannot be made contingent upon the employer's right to recover those amounts from the national government concerned."

    Keywords:

    condition; member state; official; organisation; privileges and immunities; refund; refusal; right; tax;

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