Judgment No. 4482
1. That part of the decision of the Administrative Council introducing by Article 6 of decision CA/D 2/14 a new clause (5) of Article 35 of the Service Regulations in substitution for clause 6 of Article 35 of the pre-existing Service Regulations, is quashed but without retroactive effect.
2. Order 1 will operate prospectively for future elections but does not affect the tenure of staff representatives already elected under the election regime put in place by decision CA/D 2/14.
3. Clause 6 of Article 35 of the Service Regulations in force before decision CA/D 2/14, will apply, mutatis mutandis, to the future election of staff representatives for the Central Staff Committee and Local Staff Committees as established by decision CA/D 2/14.
4. Circular No. 355 is quashed.
5. The EPO shall pay the complainant 500 euros costs.
6. All other claims are dismissed.
The complainant contests the “social democracy” reform introduced by decision CA/D 2/14.
complaint allowed; general decision; freedom of association; plenary judgment
The EPO raises, as a threshold issue, whether the relief sought is within the competence of the Tribunal and the related question of whether the complaint is receivable in all respects. Foundational to this argument is that a member of staff cannot impugn in proceedings in the Tribunal a general decision of the governing organ of an organisation which is regulatory in character unless and until an individual decision which affects the member of staff personally is made based on the general decision.
This issue was recently addressed in several judgments involving the EPO concerning the right to strike, which is an aspect of freedom of association. The following discussion is found in one of those judgments, namely Judgment 4430. There is a long line of Tribunal case law to the effect that a general decision cannot be challenged by a staff member unless and until an individual decision is taken adversely affecting the staff member (see, for example, Judgment 4274, consideration 4). But the Tribunal’s case law contains an exception or limitation. As the Tribunal said in Judgment 3761 at consideration 14: “In general, [an administrative decision of general application] is not subject to challenge until an individual decision adversely affecting the individual involved has been taken. However, there are exceptions where the general decision does not require an implementing decision and immediately and adversely affects individual rights.”
It has long been recognised that staff of international organisations have a right to strike and that generally it is lawful to exercise that right (see, for example, Judgment 2342, consideration 5). This is equally true of the more general right to associate freely (see, for example, Judgments 496, consideration 6, and 3414, consideration 4). As the Tribunal observed in that latter case, all officials of international organisations have a right to associate and an implied contractual term in the appointment of each that the relevant organisation will not infringe that right. Accordingly, the complainant can invoke the Tribunal’s jurisdiction to seek to argue that his rights have been directly affected by the amendments to the Service Regulations effected by the impugned decision.
Jugement(s) TAOIT: 496, 2342, 3414, 3761, 4274, 4430
general decision; freedom of association
The complainant also seeks to impugn decision CA/D 2/14 on the basis that a number of anterior procedural and allied irregularities attended the adoption of the decision and impact on its lawfulness. These arguments are not available to the complainant. The complainant cannot approbate and reprobate. The invocation of the right to freely associate upon which he wishes to engage the Tribunal’s jurisdiction renders irrelevant the question whether the decision was legally flawed for the other reasons raised by the complainant in this case. Consequently, there is a legal boundary for arguments the complainant may maintain.
general decision; procedural flaw
There is a consistent line of case law of the Tribunal which makes clear, in a variety of ways, that organisations should not interfere in the affairs of a staff association or union (however described) and the association or union must have the concomitant right to conduct its own affairs and regulate its own activities (see, for example, Judgment 4043, consideration 13). It also includes the right to freely elect their own representatives. This is so whether the association or union is established and operates under and by reference to staff regulations or came into existence and operates outside the confines of such regulations (see Judgment 2672, considerations 9 and 10). There are obvious reasons for this approach. The role of staff associations or unions is to represent the interests of members primarily in dealing with their employing organisation on issues concerning the staff. Staff associations or unions should be able to do so unhindered or uninfluenced by the Administration of the employing organisation. Were it otherwise, the role would be compromised.
There are other less obvious reasons. A staff association or union is likely to be more robust and thus more effective if the members perceive it to be independent and have confidence in it allied to a sense of ownership of it. Any involvement by the employing organisation in its activities, including elections, would most likely affect that perception and diminish or dampen that confidence and sense of ownership. While this latter reason should not be overstated, it nonetheless should be recognised (see Judgment 403, consideration 3).
Jugement(s) TAOIT: 403, 2672, 4043
staff union; freedom of association
This case presents a situation where a remedy, which may intrude into the exercise of power by the Administrative Council, is appropriate to protect a fundamental right of a member of staff and, indeed, all members of staff which was a term of their appointment as officials of the EPO. The adoption of those parts of the new rules concerning elections by decision CA/D 2/14 entailed non-observance of that term of appointment. There can be no doubt that freedom of association is a well-recognised and acknowledged universal right which all workers should enjoy. It is recognised as a right by the Tribunal (see Judgment 4194). It is a right recognised in the 1998 ILO Declaration on Fundamental Principles and Rights at Work, Article 2(a), as an obligation for all ILO Member States arising from the very fact of their membership in the ILO. Freedom of association is a right recognised by the 1966 International Covenant on Civil and Political Rights, Article 22, and also by the 1966 International Covenant on Economic, Social and Cultural Rights, Article 8.
Jugement(s) TAOIT: 4194
international instrument; terms of appointment; freedom of association; compensation; ilo instruments
Having regard to the fact that those amendments violated the complainant’s right to freedom of association as already discussed and created this tension, it is appropriate to quash those elements of decision CA/D 2/14 which had this effect, namely the introduction by Article 6 of decision CA/D 2/14 of a new clause (5) of Article 35 of the Service Regulations in substitution for clause 6 of Article 35 of the pre-existing Service Regulations. The central order the Tribunal will make is intended to operate prospectively. That is to say, is intended to operate in relation to future elections but not affect the tenure of staff representatives already elected under the election regime put in place by decision CA/D 2/14. Retrospective operation would create unacceptable legal uncertainty about the actions, including decisions, of staff representatives and committees in the lengthy period since decision CA/D 2/14 was adopted. It is also intended to apply the pre-existing provisions, mutatis mutandis, to the election of staff representatives for the Central Staff Committee and Local Staff Committees as established by decision CA/D 2/14. In this respect, the order revives the pre-existing rules (see Judgment 365, consideration 4). Necessarily the applicable Implementing Rules, Circular No. 355, will have no legal effect.
Jugement(s) TAOIT: 365
order; freedom of association; compensation
Insofar as the complainant seeks moral damages for the length of the internal appeal, it is by no means obvious that he suffered a moral injury having left the Organisation in 2016, and, in any event, he has not demonstrated that he has.
moral injury; former official; delay in internal procedure