Judgment No. 4028
1. The complaint of Ms F. is dismissed.
2. The ITU shall pay moral damages in the amount of 10,000 euros to Ms D. and likewise to Mr D.
3. The ITU shall pay each of them 2,000 euros in costs.
4. All other claims by Ms D. and Mr D. are dismissed.
5. The applications to intervene are dismissed.
The complainants challenge Service Order No.14/10 changing the health insurance scheme at the ITU, as well as individual decisions implementing that service order.
As the complaints seek the same redress and rest on submissions which are, for the most part, identical, it is appropriate that they be joined to form the subject of a single ruling.
[W]hen an internal appeal is tainted with a flaw – other than late submission – which prevents it from being considered as properly filed, it is for the appeals body, in the exercise of its duty of care, to enable the appellant to correct the appeal by granting her or him a reasonable period of time in which to do so (see Judgments 3943, under 5, and 3127, under 10)[.]
ILOAT Judgment(s): 3127, 3943
internal appeal; duty of care
Considerations 3, 5, 6
The complainants request the setting aside of Service Order No. 14/10. However, as the Tribunal recalled in Judgment 3736, under 3, “according to the case law, a general decision that requires individual implementation cannot be impugned; it is only the individual implementing decisions which may be challenged (see Judgment 3628, under 4, and the case law cited therein)”. In these circumstances, the claims seeking the setting aside of Service Order No. 14/10 are irreceivable and must be dismissed. [...]
Since the claims seeking the setting aside of Service Order No. 14/10 must be dismissed, as stated in consideration 3 above, the same applies to the claims directed against the Secretary-General’s final decision insofar as it concerns the decisions of 23 July 2014 on the requests for review that were directed solely against the aforementioned service order.
Ms F. has not challenged any individual decision implementing Service Order No. 14/10. Her complaint is therefore irreceivable.
However, Ms D. and Mr D. submitted requests for review of their pay slips reflecting an increase in the deduction for health insurance. Ms D. submitted a further request for review of a calculation of reimbursements of health-related expenses which showed that a deductible had been applied. These decisions are individual decisions implementing Service Order No. 14/10 which, as stated above, are open to appeal.
ILOAT Judgment(s): 3628, 3736
general decision; individual decision
It is apparent from these conclusions and recommendations that the Appeal Board did not give an opinion on the merits of the appeal. As a result, the complainants were deprived of an essential safeguard inherent in their right of appeal, namely that the Secretary-General be informed by the Board’s opinion when taking his final decision.
It follows that the impugned decision is unlawful as it was not taken in the light of such an opinion.
internal appeals body; internal appeal
At this stage of the proceedings, the Tribunal would ordinarily set aside the impugned decision and remit the case to the ITU for the appeal to be given proper consideration. However, in the particular circumstances of the case, the Tribunal does not consider this course appropriate, since it would prolong detrimental uncertainty as to the lawfulness of the new health insurance scheme to which the ITU’s current and former staff members are affiliated. The Tribunal will hence rule on the complainants’ submissions regarding the lawfulness of the scheme.
case sent back to organisation
As the Tribunal found in Judgment 3909, under 12, international organisations’ staff members are not entitled to have all the conditions of employment or retirement laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career and retirement. Most of those conditions can be altered during or after an employment relationship as a result of amendments to those provisions (see also Judgment 3876, under 7).
The Tribunal has consistently held that the position is of course different if, having regard to the nature and importance of the provision in question, the complainant has an acquired right to its continued application. However, the amendment of a provision governing an official’s situation to her or his detriment constitutes a breach of an acquired right only when such an amendment adversely affects the balance of contractual obligations, or alters fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced her or him to stay on. In order for there to be a breach of an acquired right, the amendment to the applicable text must therefore relate to a fundamental and essential term of employment within the meaning of Judgment 832 (see, for example, Judgments 2089, 2682, 2986, 3135 and 3909 cited above).
In this case, the Tribunal finds that the change to another health insurance scheme does not affect the staff’s actual right to membership of a social security scheme, but concerns solely the terms and conditions for giving effect to this right. [...]
The Tribunal considers that, having regard to these factors, the change to another health insurance scheme which is criticised by the complainants does not adversely affect the balance of contractual obligations or alter a fundamental term of employment in consideration of which they accepted an appointment, or which subsequently induced them to stay on. Hence, it cannot be considered as constituting a breach of an acquired right within the meaning of the case law cited above.
ILOAT Judgment(s): 2089, 2682, 2986, 3135, 3876, 3909, 3909
[A]s the complainants point out, the burden of the new measures is borne by the insured persons alone. It must however be remembered that, despite a fall in its income resulting from a zero growth budget and the drop in contributions from some member States, the ITU continues to fund 50 per cent of the scheme for staff members and two thirds of it for retirees. As the defendant organisation explains, the new measures which have been put in place seek to maintain the financial equilibrium of the new insurance plan in order to ensure its continuity and stability while respecting the principles of solidarity and mutualisation of risks.
In Judgment 1241, under 19, the Tribunal considered that “the change the complainants object[ed] to [was] part of wider reforms the [organisation] made to put the [health insurance] scheme on a sounder financial footing over the long term” and that the organisation in question was “right to pursue that aim by all suitable means at its disposal, [including by] measures to ensure that, in keeping with the notion of mutual aid, everyone bears a fair share of costs”.
This consideration applies mutatis mutandis to the present complaints.
ILOAT Judgment(s): 1241
budgetary reasons; medical expenses; health insurance
Several applications to intervene have been filed. The procedural flaw affecting the internal appeal of Ms D. and Mr D. concerns only these two complainants. As the remaining pleas have been dismissed, the applications to intervene must also be dismissed.