Judgment No. 4592
Decision
1. The impugned decision of 21 June 2019 is set aside.
2. The case is remitted to Eurocontrol, in order for the complainant’s internal complaints of 12 November and 12 December 2018 to be duly examined by the Joint Committee for Disputes.
3. Eurocontrol shall pay the complainant moral damages in the amount of 10,000 euros.
4. The Organisation shall also pay him costs in the amount of 7,000 euros.
5. All other claims are dismissed.
Summary
The complainant challenges the calculation of the amounts transferred into the Eurocontrol scheme in respect of his previously-acquired pension rights and seeks compensation for the injury he considers he has suffered as a result of alleged negligence on the part of the Organisation.
Consideration 15
Extract:
[A]ccording to the settled case law of the Tribunal, where the rules applicable to an organisation provide for an internal procedure, that organisation is required to observe and apply those rules under the principle tu patere legem quam ipse fecisti (see Judgments 4506, consideration 5, and 4310, consideration 9). Given that, in the aforementioned Office Notice No. 06/11, Eurocontrol specifically provides that the Joint Committee for Disputes is tasked with giving advisory opinions on complaints made pursuant to Article 92.2 of the Staff Regulations, and that, before taking a decision to reject even a part of such a complaint, the Director General must seek the opinion of that committee, Eurocontrol could not, as it in fact did, reject the complainant’s complaints without first receiving that opinion, which, moreover, it had undertaken to obtain in the present case.
By acting as it did, Eurocontrol effectively decided to make its own finding, without the benefit of such an opinion, that the complainant’s complaint was unfounded and void because of what he had signed on 8 January 2019 and because he had not challenged the final decision of 14 January 2019. The Head of Human Resources thereby disregarded an essential safeguard in the right to an internal appeal, from which all officials of the Organisation are entitled to benefit (see Judgment 4167, under 3), thus rendering the impugned decision unlawful.
Reference(s)
ILOAT Judgment(s): 4167, 4310, 4506
Keywords
internal appeals body; internal appeal; patere legem
Consideration 17
Extract:
In these circumstances the Tribunal’s case law recognises that it is appropriate to remit the matter to the Organisation to allow the internal appeal procedure to proceed to its conclusion (see, for example, Judgment 4499, consideration 13).
In that regard, it should be borne in mind that, according to the consistent case law of the Tribunal, “one of the main justifications for the mandatory nature of an internal appeal procedure is to enable the Tribunal, in the event that a complaint is ultimately filed, to have before it the findings of fact, items of information or assessment resulting from the deliberations of appeal bodies. Appeal bodies play a fundamental role in the resolution of disputes, owing to the guarantees of objectivity derived from their composition and their extensive knowledge of the functioning of the organisation” (see Judgment 4168, consideration 2; see also Judgments 4499, consideration 13, 3067, consideration 20, and 2781, consideration 15). There is all the more justification for the input of the internal appeal body in a case such as the present one which involves technical aspects.
Reference(s)
ILOAT Judgment(s): 2781, 3067, 4168, 4499
Keywords
internal appeal; right of appeal; case sent back to organisation
Judgment keywords
Keywords
complaint allowed; internal appeal; case sent back to organisation; patere legem; transfer of pension rights
Consideration 19
Extract:
Whatever the outcome of the present dispute, the effect of the failure to examine the complainant’s internal complaints was to delay its final settlement. That failure has in itself caused the complainant moral injury which will be fairly redressed by ordering Eurocontrol to pay him compensation of 10,000 euros.
Keywords
moral injury; moral damages
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