Judgment No. 3146
The complaint is dismissed.
general decision; complaint dismissed
Since the complainant has presented his case extensively in his written submissions, and, as will appear, it turns on a preliminary question of law, the Tribunal sees no need to order hearings. The complainant’s request for oral hearings is therefore rejected.
[I]t is well settled that a staff member who challenges an individual decision may, at the same time and in the same internal appeal, challenge the related underlying decision. Thus, it was said in Judgment 1786, under 5, in relevant part:
“the staff member must impugn an individual decision applying a general one and, if need be, may for that purpose challenge the lawfulness of the general one without any risk of being told that such challenge is timebarred.”
Similarly, it was said in Judgment 1329, under 7, in relevant part:
“Firm precedent has it – see for example Judgment 1000 […] – that an international civil servant may, in challenging a decision that affects him directly, plead the unlawfulness of any general measure that affords the basis for it in law. The indisputable basis in law for the individual decisions challenged in this case is the Council’s decision of 20 December 1991 setting the rate of the rise in staff pay for 1992. The conclusion is that the complainants may plead the unlawfulness of the Council’s decision.”
It follows from what was said in Judgments 1786 and 1329 that, if an individual decision is set aside because of the unlawfulness of the underlying decision, the latter must also be set aside.
Jugement(s) TAOIT: 1000, 1329, 1786
Although Judgment 1601, under 10 and 11, allows that “a complainant may challenge ‘a decision affecting a class of officials’”, it does not follow that an official may pursue separate appeals with respect to a decision of that kind and individual decisions affecting him that are based on a decision of the former kind. It is a general principle of law that a person may not submit the same matter for decision in more than one proceeding. Particularly is that so if separate proceedings are brought before separate bodies. That principle applies both in relation to original proceedings and appellate proceedings. As the complainant purported to lodge separate appeals before separate bodies, it was necessary for one of the appellate bodies to defer to the other. As the Administrative Council could not determine the appeal with respect to the individual decisions affecting the complainant, it was incumbent on it to defer to the President of the Office and the Internal Appeals Committee, as they, and only they, have jurisdiction to determine all aspects of the complainant’s appeals. Accordingly, the decision of the Administrative Council to refer the complainant’s appeals to the President and the Internal Appeals Committee involved no error of law.
Jugement(s) TAOIT: 1601
general decision; parallel proceedings