Judgment No. 3428
Decision
The complaints are dismissed.
Summary
The complainants unsuccessfully challenge decisions that were not followed by individual implementing decisions.
Judgment keywords
Keywords
receivability of the complaint; pension; complaint dismissed
Consideration 6
Extract:
Almost all the complainants have asked for the convening of a hearing. In view of the abundant and sufficiently clear submissions and evidence produced by the parties, the Tribunal considers that it is fully informed about the case and does not therefore deem it necessary to grant this request.
Keywords
oral proceedings
Consideration 7
Extract:
The complaints have the same basic purpose, essentially raise the same issues of receivability and are based on similar facts. Moreover, they are closely interconnected in that some of them refer to the submissions in the others. Despite the reservation expressed in this regard by the defendant, the Tribunal therefore finds it appropriate to join them in order that they may form the subject of a single judgment (see Judgment 3291, under 5).
Reference(s)
Jugement(s) TAOIT: 3291
Keywords
joinder; same purpose
Consideration 11
Extract:
The Tribunal will not accept the complainants’ surprising argument that questions pertaining to the nature of the impugned decisions and their cause of action to request the setting aside thereof have no bearing on the receivability of their claims. According to the complainants, the only requirements regarding the receivability of complaints laid down by the Statute of the Tribunal are those mentioned in Article VII, namely that all internal means of redress must have been exhausted, that a final decision must have been taken and that the time limit for filing a complaint with the Tribunal must have been respected. However, these rules concern only the procedural aspect of receivability. Receivability is also governed by Article II of the Statute, which, by defining the nature of disputes which the Tribunal has competence to hear ratione personae and ratione materiae, establishes further rules of receivability pertaining to the substantive aspect thereof. Thus a complaint will be receivable only if it is directed against a decision which is of a kind that may be challenged before the Tribunal and if it is filed by an official who shows a cause of action (see, among innumerable examples, Judgments 1756, under 5, 1786, under 5 and 6, 2379, under 5, or 3136, under 11).
Reference(s)
ILOAT reference: Articles II and VII of the Statute
Jugement(s) TAOIT: 1756, 1786, 2379, 3136
Keywords
receivability of the complaint; cause of action; iloat statute
Consideration 12
Extract:
The decisions of the Administrative Council [...] are regulatory texts or, in other words, general decisions governing all officials subject to them. As the Tribunal has consistently held, where such texts must ordinarily be followed by individual implementing decisions, [...] they are not open to challenge before the Tribunal. When these texts are adopted, they affect the protected personal interests of individual employees only in theory, and it is not until a subsequent individual decision is taken that they produce a practical legal effect. It is only the latter decision which may form the subject of a complaint before the Tribunal, and if the official concerned wishes to challenge the regulatory text which affords the basis for it in law, he must plead the unlawfulness of that decision in this complaint (see, for example, Judgments 1786, under 5, 1852, under 3, 2379, under 5, 2822, under 6, 2953, under 2, and, for recent confirmation of this case law, the aforementioned Judgment 3291, under 8).
Reference(s)
Jugement(s) TAOIT: 1786, 1852, 2379, 2822, 2953, 3291
Keywords
general decision; individual decision; cause of action
Consideration 16
Extract:
[T]his approach conflicts with the general legal principle that a person cannot litigate the same matter in separate, concurrent proceedings.
Keywords
duplication of proceedings
Consideration 18
Extract:
[T]he rules governing the receivability of complaints filed with the Tribunal are established exclusively by its own Statute. Thus, the possibility of filing a complaint against an implied decision of rejection is governed solely by Article VII, paragraph 3, of the Statute, which states that “[w]hen the Administration fails to take a decision upon any claim of an official within sixty days from the notification of the claim to it”, the person concerned may have recourse to the Tribunal. Article 109 of the Service Regulations could not therefore apply here. Moreover, that article unlawfully provides for a period of “two months” which is different, albeit only slightly, from the sixty days specified in the Statute. When, before the expiry of the latter time limit, an organisation forwards an appeal to the competent advisory appeal body or takes any other action to deal with it, this step in itself constitutes “a decision upon [the] claim” within the meaning of Article VII, paragraph 3, of the Statute of the Tribunal which forestalls an implied rejection that could be challenged before the Tribunal (see, on these points, Judgments 532, 762, 786, 2681, 2948 or 3034).
Reference(s)
ILOAT reference: Article VII, paragraph 3, of the Statute
Organization rules reference: Article 109 du Statut des fonctionnaires
Keywords
direct appeal to tribunal; iloat statute
Consideration 19
Extract:
The complainants’ reliance on the case law established in Judgments 408, 1684, 2132 and 2443, according to which an exception to the rule that internal means of redress must be exhausted can be made if an appeal is not dealt with by the competent bodies within a reasonable period of time, is misplaced. In this connection, the complainants refer to the “incredible delays” with which the Internal Appeals Committee of the EPO usually considers the cases submitted to it, but it must be found that this criticism is irrelevant in the instant cases where the complainants waited for scarcely one or two months following the referral to the Committee before bringing the case directly to the Tribunal. Clearly the fact that their appeals were not examined during this brief interlude could not in any way be described as a breach of the Organisation’s duty to deal with them within a reasonable period of time.
Reference(s)
Jugement(s) TAOIT: 408, 1684, 2132, 2443
Keywords
direct appeal to tribunal; internal remedies exhausted; reasonable time
Consideration 21
Extract:
[T]he complainants requested subsidiarily that the Tribunal should order the EPO “correctly to interpret the capping in Art[icle] 10 [of the New Pension Scheme Regulations]” [...]. The Tribunal may not, however, issue such injunctions to an international organisation. Hence these claims are [...] irreceivable (see, for example, Judgments 1456, under 31, 2244, under 12, or 2793, under 21).
Reference(s)
Jugement(s) TAOIT: 1456, 2244, 2793
Keywords
claim; competence of tribunal; order
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