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Judgment No. 4277

Decision

The complaint is dismissed.

Summary

The complainant, who has been receiving a retirement pension since 1 December 2017, impugns her “pay slip” for January 2018.

Judgment keywords

Keywords

pension; complaint dismissed

Consideration 1

Extract:

The BIPM seeks the joinder of this complaint with that filed by a former staff member of the BIPM who also receives a retirement pension. The complainants are in different legal situations. The decisions they challenge are not all the same and the complaints raise partly different questions of law. Accordingly, the complaints shall not be joined.

Keywords

joinder

Consideration 3

Extract:

[O]nly final decisions can be impugned before the Tribunal (see Judgments 3512, under 3, 3958, under 15, and 4131, under 4).

Reference(s)

ILOAT Judgment(s): 3512, 3958, 4131

Keywords

impugned decision

Consideration 3

Extract:

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 Judgments 3628, under 4, and the case law cited therein, 4008, under 3, and 4119, under 4). Accordingly, the lawfulness of the general decision may only be challenged in the context of a challenge to the individual decisions.

Reference(s)

ILOAT Judgment(s): 3628, 3736, 4008, 4119

Keywords

general decision; cause of action; impugned decision

Consideration 4

Extract:

As regards the claim for the setting aside “more generally” of any other “decision of general application forming the basis” of the impugned decisions, the Tribunal considers that this claim has not been formulated in sufficient detail to allow the challenged decision (or decisions) to be identified.

Keywords

complaint; claim

Consideration 5

Extract:

The complaint is [...] receivable insofar as it is directed against the pay slip for January 2018, which is an individual decision implementing the general decisions establishing a “pension point”, freezing pensions and setting the value of the point. In support of her claims related to that pay slip, the complainant may therefore plead that the general decisions on which it partly rests are unlawful (see Judgment 3931, under 3).

Reference(s)

ILOAT Judgment(s): 3931

Keywords

general decision; individual decision; impugned decision

Consideration 13

Extract:

[A] competent authority is not bound to follow the recommendations of an advisory body which is internal to the organisation, except where a text requires that the advisory body give its assent (see Judgment 4008, under 7).

Reference(s)

ILOAT Judgment(s): 4008

Keywords

final decision

Consideration 16

Extract:

With regard to the decisions concerning pensions, the Tribunal points out that the staff members of international organisations 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 Judgment 3876, consideration 7).
Of course, the position is different if, having regard to the nature and importance of the provision in question, a complainant has an acquired right to its continued application. However, according to the case law established in Judgment 61, clarified in Judgment 832 and confirmed in Judgment 986, 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 (in this connection see also Judgments 2089, 2682, 2986 or 3135).

Reference(s)

ILOAT Judgment(s): 2089, 2682, 2986, 3135, 3876

Keywords

acquired right; pension

Considerations 17-18

Extract:

The complainant alleges a breach of the principle, upheld in the Tribunal’s case law, that the methodology chosen by an organisation to set salary adjustments for its staff must ensure “stable, foreseeable and clearly understood” results. That principle applies both to the remuneration of international civil servants and their retirement pensions (see Judgments 1821, under 7, and the judgments cited therein, and 2793, under 20). In support of this plea, she submits that there were four successive reforms in a period of only eight years, that the Organisation exercises its discretion without adequate safeguards and that the actuarial report contains blatant errors.
As the Tribunal recalled in Judgment 4134 (under 26), the requirement that the results must be stable, foreseeable and clearly understood or transparent does not mean a salary regime is fixed once and for all and is incapable of change (see Judgment 1912, under 14), or that this requirement excludes reasonable variations in the results yielded (see Judgment 3676, under 6). Moreover “a methodology cannot be applied without a degree of flexibility and without leaving some room for interpretation by the competent authority, which [is] entitled to take into account the imbalances generated by past applications of the adopted methodology in order to try to attenuate the effects thereof” (see Judgment 2420, under 15).

Reference(s)

ILOAT Judgment(s): 1821, 1912, 2420, 2793, 3676, 4134

Keywords

salary; pension; methodology

Consideration 20

Extract:

As a rule, the Tribunal will not substitute its own assessment for that of an expert such as an actuary (see Judgments 3360, under 4 and 5, 3538, under 11 to 15, and 4134, under 26). However, since the complainant alleges blatant errors, the Tribunal will examine her objections.

Reference(s)

ILOAT Judgment(s): 3360, 3538, 4134

Keywords

expert inquiry; judicial review; manifest error; actuary

Consideration 20

Extract:

As the Tribunal recalled in Judgment 3538 (under 15), the power clearly vested in the competent authority to alter the pension scheme can be exercised lawfully if it represents a bona fide attempt to secure the pension scheme into the future and is based on what appears to be properly reasoned actuarial advice.

Reference(s)

ILOAT Judgment(s): 3538

Keywords

good faith; pension; actuary; sustainability

Consideration 21

Extract:

[T]he complainant submits that the freezing of the pension point breaches the principle of equality by creating inequality between retired and serving staff members. Reference must be made to the Tribunal’s consistent precedent that the principle of equal treatment requires, on the one hand, that officials in identical or similar situations be subject to the same rules and, on the other, that officials in dissimilar situations be governed by different rules defined so as to take account of this dissimilarity (see, for example Judgments 1990, under 7, 2194, under 6(a), 2313, under 5, or 3029, under 14, 3787, under 3, and 3900, under 12). Retired staff members are not in the same position as serving staff members, and the difference in their treatment relates to this difference in situation. The Tribunal is therefore satisfied that the principle of equality has not been breached here.

Reference(s)

ILOAT Judgment(s): 1990, 2194, 2313, 3029, 3787, 3900

Keywords

equal treatment; pension



 
Last updated: 23.10.2020 ^ top