Judgment No. 2899
1. The decision of the Secretary-General of EFTA of 15 January 2008 and those of 17 September 2007 and 18 October 2007 are quashed.
2. The sum owed to EFTA by the complainant in respect of the rent allowance which he drew without entitlement is reduced from 19,620 euros to 14,715 euros including interest.
3. The Association shall pay the complainant the sum of 4,905 euros by way of restitution of the amount paid in excess of that stipulated in the previous paragraph, plus interest at 5 per cent per annum as from 17 October 2007.
4. The Association shall pay the complainant moral damages in the amount of 8,684 euros.
5. It shall also pay him 1,000 euros in costs.
6. All other claims are dismissed.
"As the Tribunal recently confirmed in Judgment 2781, under 15, the right to an internal appeal is a safeguard which international civil servants enjoy in addition to their right of appeal to a judicial authority. Consequently, save in cases where the staff member concerned forgoes the lodging of an internal appeal, an official should not in principle be denied the possibility of having the decision which he or she challenges effectively reviewed by the competent appeal body."
ILOAT Judgment(s): 2781
internal appeal; right of appeal; safeguard
"[T]he Tribunal's case law has it that an international organisation which has mistakenly overpaid an official must take into account any circumstances which would make it unfair or unjust to require repayment of the sum in question - at least the full amount thereof. Relevant circumstances include the good or bad faith of the staff member, the sort of mistake made, the respective responsibilities of the organisation and the person concerned for the causes of the mistake and the inconvenience to which the staff member would be put by repayment that is required as a result of the organisation's oversight (see Judgments 1111, under 2, and 1849, under 16 and 18)."
ILOAT Judgment(s): 1111, 1849
liability; organisation; case law; equity; good faith; organisation's duties; recovery of overpayment; refund; mistake of fact; cause; condition; consequence; request by a party; official
"[T]he decision of the chief executive officer of an organisation to recover an unduly paid sum of money falls within his or her discretionary authority and is subject to only limited review by the Tribunal, but this decision must nevertheless be censured if it is tainted with a formal or procedural irregularity, or if it was based on a mistake of fact or of law."
decision; recovery of overpayment; judicial review; discretion; executive head; limits; formal flaw; procedural flaw; mistake of fact
"By [...] basing his decision on an essential document without having given the person concerned an opportunity to refute its content, the competent authority breached the right to be heard which every staff member possesses and his decision was thus tainted by a major procedural flaw (in this connection, see for example Judgments 69, under 2, and 1881, under 18 to 20)."
ILOAT Judgment(s): 69, 1881
confidential evidence; disclosure of evidence; right to reply; breach; procedural flaw; official
The complainant refused to accede to EFTA's request for reimbursement of an amount allegedly overpaid.
"Contrary to his submissions, the complainant could not refuse [...] to comply with the Association's express and repeated requests for reimbursement. As the internal appeal procedure does not have a suspensory effect, and even though [EFTA] would no doubt have been wiser to await its completion before demanding payment of the debt, he was bound to comply with these requests. His refusal to accede to them thus constituted misconduct which could lead to a disciplinary sanction [...]."
procedure before the tribunal; internal appeal; suspensory effects; recovery of overpayment; breach; refund; staff member's duties; disciplinary measure; condition; refusal; request by a party
"[T]he right to be heard must be respected in an especially rigorous manner in disciplinary proceedings."
right to reply; organisation's duties; disciplinary procedure