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Judgment No. 2256

Decision

1. THE IMPUGNED DECISION IS SET ASIDE.
2. THE ORGANISATION SHALL REIMBURSE THE COMPLAINANT FOR ALL US TAXES PAID ON HIS OPCW EARNINGS, INCLUDING PROVIDENT FUND EMPLOYER CONTRIBUTIONS, IN THE 1998 AND 2000 TAX YEARS USING THE "LAST-INCOME" METHOD.
3. IT SHALL PAY THE COMPLAINANT MORAL DAMAGES IN THE AMOUNT OF 5,000 EUROS AND COSTS IN THE AMOUNT OF 2,000 EUROS.
4. HIS OTHER CLAIMS ARE DISMISSED.

Considerations 14-16

Extract:

"With regard to the role of a tax reimbursement agreement, the Tribunal stated the following [in judgment 2032]: "It would be strange indeed if the absence of [a tax reimbursement agreement (TRA)] could be invoked by an international organisation or its member states to deprive some staff members and not others of their tax-exempt status. If a member state in breach of its international obligations taxes the exempt income of a staff member, the reimbursement of that tax cannot be made to depend upon the grace and favour of that state."[T]he evident corollary of that statement is that it would similarly be strange if the existence of an agreement could be invoked by an international organisation to deprive some staff members and not others of their tax-exempt status. Such an agreement is meant to set the terms of a member state's commitment to refund an organisation for tax reimbursements. It must, however, conform with international law and cannot be used to undermine the fundamental principles of tax exemption recalled by the Tribunal. Thus, even if the text of the TRA had the reach which the organisation contends for it, which may be doubted, it would simply be unenforceable as being contrary to law. [...] It is likewise with the provisions of the Staff Regulations which, in the organisation's submissions, would limit the complainant's right to tax reimbursement to the amounts actually paid to the organisation by the United States under the TRA. Like the TRA itself, the Staff Regulations must be in conformity with the requirements of the law and where they are not, they are simply unenforceable."

Reference(s)

ILOAT Judgment(s): 2032

Keywords

equal treatment; member state; international civil service principles; staff regulations and rules; no provision; salary; privileges and immunities; tax; refund



 
Last updated: 18.08.2020 ^ top