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Judgment No. 3636

Decision

1. ESO shall pay to the complainant the amounts deducted in respect of pension benefits from the material damages awarded in Judgment 3282, together with interest as indicated in consideration 4.
2. ESO shall pay the complainant 1,000 euros in costs.
3. All other claims are dismissed.

Summary

The complainant has filed an application for execution of Judgment 3282.

Judgment keywords

Reference(s)

Jugement(s) TAOIT: 3282

Keywords

application for execution; complaint allowed

Consideration 3

Extract:

The Tribunal did not order the complainant’s reinstatement in Judgment 3282, nor did it order ESO to grant him a “notional reinstatement”, i.e. to pay the amounts the complainant would have earned if he had had his contract renewed. As the Tribunal did not order his reinstatement, his contract expired on 31 December 2011. As noted above, the Tribunal limited the award of compensation to “material damages in the amount equivalent to two years’ salary, including all benefits, entitlements and emoluments plus interest at a rate of 5 per cent per annum, less any amounts he has earned in that period”. Had it been its intent, the Tribunal would have specifically awarded payment of the amount equivalent to the contributions for the complainant’s pension and Health Insurance and Long Term Care Schemes. See, for example, Judgment 2621, consideration 5[.] Moreover, considering that access to the CERN Pension Fund requires a staff member to have a valid contract of employment, and that as of 1 January 2012 the complainant no longer had that status, it follows that he was not entitled to any contributions to the Pension Fund after the end of his contract on 31 December 2011.

Reference(s)

Jugement(s) TAOIT: 2621, 3282

Keywords

application for execution; material damages

Consideration 4

Extract:

The complainant claims that the pension benefits he received from the CERN Pension Fund for the year 2013 and from the German pension system should not have been deducted as earnings from the material damages awarded to him. This claim is well founded. It is true that the concurrent payment of a sum equivalent to salary and an anticipated retirement pension could, in certain circumstances, render an award of material damages redundant. However, as noted above, in Judgment 3282 the Tribunal did not order ESO to grant the complainant a notional reinstatement; it decided to award material damages for loss of a valuable opportunity by reference to “an amount equivalent to two years’ salary, including all benefits, entitlements and emoluments”. In so doing, the Tribunal intended to provide a criterion for determining the amount of money to be paid as material damages. As stated in consideration 3 above, it did not intend to award the complainant the amounts he would have earned if his contract had been renewed for two years. In these circumstances, ESO’s argument that the amounts received by the complainant in pension benefits would render the award of material damages redundant is irrelevant, as no concurrent payment of salary and pension arises. It is also at odds with the Tribunal’s reasoning in this case, which does not involve notional reinstatement. ESO must therefore pay the complainant the relevant deducted amounts, together with interest at an annual rate of 15 per cent (covering damages for moral injury) from the date on which the material damages awarded in Judgment 3282 were paid until the date of the final payment.

Reference(s)

Jugement(s) TAOIT: 3282

Keywords

earnings



 
Dernière mise à jour: 02.06.2020 ^ haut