Judgment No. 2556
The complaint is dismissed, as are the applications to intervene.
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."
Organization rules reference: OPCW Administrative Directive AD/PER/12
internal appeals body; internal appeal; recommendation; organisation's duties; practice; written rule; administrative instruction; precedence of rules; provision; reckoning; public holiday; refund; advisory opinion; compensatory measure; difference; right
"It is well settled that the principle of equality requires the equal application of the relevant law, not its equal misapplication."
general principle; equal treatment; written rule; enforcement; condition; definition
In support of [her] argument, the complainant relies on the judgment of the European Court of Justice in Case C151/02. In that case it was held that, for the purposes of Council Directive 93/104/EC, a doctor’s on-call duty, when required to be present in a hospital, must be regarded as working time even if the doctor is permitted to rest during periods when not required to perform duties. That decision was based on the terms of the Council Directive there considered and does not have direct relevance to the present case.
european court of justice (ecj)