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Judgment No. 3407

Decision

1. The implied decision of the Director General of Eurocontrol rejecting the request for a review of the pensionable years credited to the complainant and disputed by him, and the decision of 20 December 2012 rejecting his internal complaint, are set aside.
2. The case is remitted to Eurocontrol in order that the pensionable years in question be determined as indicated in consideration 22.
3. Eurocontrol shall pay the complainant costs in the amount of 3,000 euros.

Summary

The complainant successfully challenges the implied decision to reject his claim against the new calculation of his pension rights.

Judgment keywords

Keywords

decision quashed; case sent back to organisation; transfer of pension rights; complaint dismissed

Consideration 12

Extract:

[I]t must be recalled that the rules governing the receivability of complaints before the Tribunal are established exclusively by its own Statute. In particular, the possibility of lodging a complaint against an implied rejection is governed solely by the provisions of Article VII, paragraph 3, of the Statute, which states that an official may file a complaint “[w]here the Administration fails to take a decision upon any claim of an official within sixty days from the notification of the claim to it”. When an organisation forwards a claim before the expiry of the prescribed period of sixty days to the competent advisory appeal body, this step itself constitutes “a decision upon [the] claim” within the meaning of these provisions, which forestalls an implied rejection which could be referred to the Tribunal (see, on these points, Judgments 532, 762, 786, 2681 or 3034).

Reference(s)

ILOAT reference: Article VII, paragraph 3, of the Statute
Jugement(s) TAOIT: 532, 762, 786, 2681, 3034

Keywords

direct appeal to tribunal

Consideration 12

Extract:

[A]s the complainant took care in his rejoinder to impugn, “if appropriate”, the aforementioned express decision [...] which had been taken in the meantime, the complaint must be deemed to be directed against that decision (see, for a similar precedent, Judgment 3356, under 15 and 16).

Reference(s)

Jugement(s) TAOIT: 3356

Keywords

express decision; impugned decision

Consideration 15

Extract:

As is well established in the case law, bad faith cannot be presumed and must therefore be proven by the submissions (see, for example, Judgments 2282, under 6, 2293, under 11, or 2800, under 21). This case law must be applied particularly rigorously in the instant case, where the allegation of bad faith levelled at the complainant is tantamount to an accusation of fraud, or the use of forged documents in legal proceedings.

Reference(s)

Jugement(s) TAOIT: 2282, 2293, 2800

Keywords

good faith

Consideration 17

Extract:

If the Organisation wished to dispute the authenticity of the document produced by the complainant, [...] it should have investigated the matter more thoroughly, or obtained an expert opinion, which as the file shows, it failed to do.

Keywords

evidence; admissibility of evidence

Consideration 19

Extract:

[A] steady line of precedent has it that, although rules of procedure should ordinarily be strictly complied with, they must not set traps for staff members who are trying to defend their rights, and they must not therefore be construed with too much formalism. For this reason, the fact that an application has been submitted to the wrong authority does not make it irreceivable and, in these circumstances, it is up to that authority to forward it to the body within the organisation which is competent to examine it (see, for example, Judgments 1832, under 6, 2882, under 6, or 3027, under 7). Contrary to the defendant’s submissions, the scope of this case law is not limited to mistakes affecting the filing of internal appeals, even though in practice that is the most frequent situation in which it applies.

Reference(s)

Jugement(s) TAOIT: 1832, 2882, 3027

Keywords

internal remedies exhausted; internal procedure



 
Dernière mise à jour: 11.06.2020 ^ haut