Judgment No. 3515
The complaints are dismissed, as is the EPO’s counterclaim.
The complainants, in their capacity as staff representatives, impugn the decision to pay a collective reward to permanent or contract employees in active service during 2011.
general decision; joinder; fringe benefits; staff representative; complaint dismissed
The EPO challenges the receivability of the complaints. It does so on the basis that the complainants were challenging a decision of general application that had not been individually and prejudicially applied to them. It refers, in particular, to Judgment 1852, consideration 2, and Judgment 3291, consideration 8, and quotes passages from each. It also refers to Judgments 61, 92, 103 and 622.
In their rejoinder, the complainants refer to Judgment 1147, consideration 4, Judgment 1618, consideration 7, Judgment 2649, consideration 8, Judgment 2791, consideration 2, and Judgment 2919, consideration 5, in support of the proposition that a staff committee member can challenge a general decision which adversely affects staff or groups of staff. Also, and more specifically, they argue that even if a staff representative cannot challenge the substantive provisions of a general decision, the representative is always in a position to challenge a breach of procedure.
The complaints are irreceivable. The general decision in CA/D 17/12 is plainly a decision that would have required implementation. When that occurred staff aggrieved by the implementation could have pursued their grievances internally with the possibility, if the grievance was unresolved, of pursuing it before the Tribunal. However a staff representative cannot challenge a general decision governing all officials which will require individual implementing decisions. Judgment 3427 (at considerations 35 and 36) is a recent illustration of a case in which complaints were dismissed as irreceivable on this basis. To the extent that Judgment 2919 (which the complainants rely upon), indicates otherwise, it is at odds with the general jurisprudence of the Tribunal. There is a an oblique reference in the complainants’ pleas that there had not been proper consultation with the General Advisory Committee (GAC) and this is said to render the complaints receivable or at least the complaint of Mr T., who was a member of the GAC. However that issue was not raised in the internal application for review and cannot be raised in the Tribunal.
ILOAT Judgment(s): 1147, 1618, 1852, 2649, 2791, 2919, 3291, 3427
locus standi; cause of action; staff representative