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Judgment No. 1450

Decision

THE COMPLAINTS ARE DISMISSED.

Consideration 15

Extract:

"The decision is authoritative in the three official versions - English, French and German [...]. The EPO says that the German was the original in the preparatory work. But neither that nor the drafting of the complainants' contracts in German confers any greater authority on that version. In law there is but one decision, and the interpretation of it, which must be objective, must match its terms and purpose."

Keywords

decision; written rule; authentic version; interpretation; language of rule; purpose

Consideration 19

Extract:

"The Tribunal has never ruled out municipal law a priori. Although it is ordinarily and essentially competent in a context of international law, it may well have to heed some provisions of municipal law where, as indeed in this case, there is renvoi to such law in a contract of service or in an organisation's rules. Precedent further has it that there may be reference to municipal law for the sake of comparison and so as to educe certain general principles of law that apply to the international civil service."

Keywords

tribunal; applicable law; case law; general principle; international civil service principles; domestic law; staff regulations and rules; contract

Consideration 20

Extract:

Having been denied permanent appointments, the complainants are seeking compensation failing reinstatement. The EPO pleads that the claim is irreceivable for failure to exhaust the internal remedies open to them. "The EPO fails in its preliminary objection to the complainants' claim to damages. [...] The organisation must realise, it is precisely in cases like this, about termination of employment, that the Tribunal may [...] itself award damages if it deems reinstatement impossible."

Keywords

claim; receivability of the complaint; internal remedies exhausted; reinstatement; application of law ex officio; subsidiary; material damages

Consideration 20

Extract:

Having been denied permanent appointments, the complainants are seeking compensation failing reinstatement. The EPO pleads that the claim is irreceivable for failure to exhaust the internal remedies open to them. "The EPO fails in its preliminary objection to the complainants' claim to damages. [...] It may not refuse the complainants access to the appeal procedure on the grounds that they are 'auxiliary' staff, yet say that they ought, in what amounted to preliminary appeal [...] to have demarcated the full ambit of any future litigation."

Keywords

claim; status of complainant; receivability of the complaint; internal appeal; internal remedies exhausted; good faith; organisation's duties; material damages

Consideration 23

Extract:

"However municipal law on the grant of fixed-term contracts may vary from country to country, the fact is that in the international civil service such contracts are common and the policy is seen as a proper and even necessary method of administration. So the EPO acted unimpeachably in resorting to fixed-term contracts to get auxiliary work done and so ease the undue rigidity of its staff structure."

Keywords

international civil service principles; practice; domestic law; contract; duration of appointment; fixed-term; organisation's interest

Consideration 23

Extract:

"[E]specially when there is not full employment, the decision not to renew a contract on expiry may cause hardship. But that is why, in keeping with precedent, the Tribunal will in each case look to the circumstances in which the decision not to renew or not to convert to permanent appointment may have come about."

Keywords

case law; contract; fixed-term; permanent appointment; non-renewal of contract; judicial review

Consideration 24

Extract:

"The organisation is free to make whatever use it wishes of the possibility of granting fixed-term contracts. The Tribunal will not interfere in the exercise of such discretion. So there is another issue that it will not entertain, namely whether [...] the complainants' duties were permanent or temporary. Whether duties are permanent or not will depend not just on the sort of work to be done but also on the organisation's own shifting requirements."

Keywords

post description; contract; duration of appointment; fixed-term; judicial review; discretion; organisation's interest

Consideration 25

Extract:

The complainants "quite wittingly consented [...] to the contracts of service they were offered and were aware that, being for a fixed term ,the contracts could not run beyond the period of two years they set. [They may not] object a posteriori to an essential term of the contract, viz. its duration, in an attempt to have it converted to a permanent appointment. They have adduced not a jot of evidence to suggest that the organisation acted in any but its own legitimate interests either when the contracts were made out or when they came to an end."

Keywords

evidence; lack of evidence; terms of appointment; contract; duration of appointment; fixed-term; permanent appointment; misuse of authority; acceptance



 
Last updated: 02.11.2017 ^ top