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Judgment No. 4458

Decision

The complaint is dismissed, as are the applications to intervene.

Summary

The complainant seeks the setting aside of the information circular which, according to her, announced the closure of the UNESCO Commissary.

Judgment keywords

Keywords

general decision; competence of tribunal; facilities; ratione materiae; complaint dismissed

Consideration 6

Extract:

[T]he contested measure affects the complainant not in her capacity as a former official of UNESCO, but in her – legally distinct – capacity as a member of the Commissary. The complainant herself makes this clear in her complaint by submitting that the decision to end the Commissary’s activity “directly breaches [her] entitlements as a member of the Commissary”, and the nature of the arguments raised in her submissions confirms that she intends to file a complaint with the Tribunal in that capacity.
However, the opportunity to use the services of the Commissary, which was merely a facility offered to UNESCO staff members – and indeed to other categories of persons [...] – was not covered by the provisions of the complainant’s employment contract when she retired nor by the provisions of the Organization’s Staff Regulations [...].

Keywords

locus standi; status of complainant; competence; facilities; ratione materiae

Consideration 8

Extract:

[I]t should be noted that, although the opportunity to purchase consumer goods free of duty or tax was plainly financially advantageous to the officials who joined the Commissary, it cannot be regarded as part of their remuneration. As the Tribunal has already held, the benefits of access to a commissary cannot be so classified, since they result from a tax privilege granted directly to the officials concerned by the host country and not from an expense borne by the organisation concerned (see Judgments 1000, consideration 16, and 1001, consideration 16).

Reference(s)

ILOAT Judgment(s): 1000, 1001

Keywords

salary; facilities; host state

Consideration 12

Extract:

In his [...] letter [...] responding to UNESCO’s final observations, counsel for the complainant submits that a decision to decline jurisdiction would result in “a flagrant denial of justice on account of the lack of alternative remedies”. However, even though it may prove impossible to settle the dispute in another jurisdiction, that risk cannot allow the Tribunal to rule on a complaint which does not fall within its own jurisdiction. It should be borne in mind that, as the Tribunal has always made clear since its earliest judgments, its jurisdiction is limited and, as such, it is “bound to apply the mandatory provisions governing its competence” (see Judgment 67, consideration 3, or, more recently, Judgment 2657, consideration 5).

Reference(s)

ILOAT Judgment(s): 67, 2657

Keywords

competence of tribunal; vested competence; denial of justice

Consideration 13

Extract:

The complainant has applied for oral proceedings. However, in view of the Tribunal’s lack of jurisdiction, which renders any discussion of the receivability or merits of the complaint pointless, this request must be dismissed as being without object.

Keywords

oral proceedings

Consideration 14

Extract:

UNESCO has requested that the complainant’s further submissions and the appended documents be disregarded. It argues that their submission, as an exception to the rule under which proceedings before the Tribunal are ordinarily limited to the filing of two briefs by each of the parties, is not warranted by exceptional circumstances, as required by the precedent set, in particular, by Judgment 1684. This request cannot be granted, since the submission in question was, in this case, duly authorised by the President of the Tribunal.

Reference(s)

ILOAT Judgment(s): 1684

Keywords

additional written submissions

Consideration 15

Extract:

In his [...] letter [...], counsel for the complainant requested the Tribunal to disregard various arguments put in UNESCO’s final observations on the ground that those arguments, relating to the receivability of the complaint and the Tribunal’s jurisdiction to hear it, were not specifically intended to respond to the [...] further submissions. However, while it would certainly not have been permissible for UNESCO to raise new objections to receivability at that stage of the proceedings, it cannot be considered improper for it to have used this final submission, as it did in this case, to expand its arguments relating to the objections raised in its previous submissions, since the President of the Tribunal did not require it to restrict the scope of its final observations to the new points contained in the complainant’s further submissions. It should also be pointed out that those observations could not have had a decisive influence on the outcome of this case, because in any event it is for the Tribunal to ascertain of its own motion whether it has jurisdiction to hear the complaints submitted to it.

Keywords

additional written submissions

Considerations 7 and 10

Extract:

The Commissary – which in 1958 lost its previous status, granted in 1949, as a cooperative society – was undoubtedly an integral part of the UNESCO Secretariat, and the aforementioned provisions in its regard appeared in the Administrative Manual until they were removed by the contested circular. However, in the absence of any reference to this facility in the employment contracts of UNESCO officials or the provisions of the Staff Regulations, this does not imply that entitlement to use the Commissary’s services may be regarded as a term of employment the alteration of which can be challenged before the Tribunal.
[...]
Lastly, the Tribunal observes that it is unsurprising that access to the UNESCO Commissary is not one of the benefits granted to staff members listed in their employment contracts or the Staff Regulations. Indeed, from the time of its creation, and despite the fact that this occurred against the backdrop of the consumer goods shortage prevailing in France at the time owing to the economic devastation wreaked by the Second World War, entitlement to use the Commissary’s services was not conceived as a term of employment of UNESCO staff but merely as a facility offered with a view to enabling them – in the words of the resolution adopted by the General Conference in September 1947 on this matter – to “improve [their] living conditions” by obtaining items necessary for their “personal comfort”. In the decades that followed, and until the closure of the Commissary, the fact that it existed merely as a facility became all the more obvious as the supply problems that had originally justified its establishment disappeared. It should also be noted that the opportunity to join the Commissary was not restricted to serving UNESCO staff members, since it was also open, inter alia, to former UNESCO staff members, members and staff of permanent delegations to UNESCO and officials of the United Nations and specialised agencies assigned to Paris, which confirms that this benefit was not conceived as a term of employment attaching to the status of UNESCO staff member.

Keywords

contract; facilities; conditions of service

Consideration 9

Extract:

[T]he Tribunal’s case law makes plain that international civil servants’ social protection forms an integral part of their terms of employment (see, inter alia, Judgment 3506, consideration 9) [...].

Reference(s)

ILOAT Judgment(s): 3506

Keywords

conditions of service; social protection



 
Last updated: 09.06.2022 ^ top