Registry's translation, the French
text alone being authoritative.
THE ADMINISTRATIVE TRIBUNAL,
Considering the third complaint filed by Miss Anne Eggimann against the International Criminal Police Organization (Interpol) on 3 March 1992, Interpol's reply of 23 April, the complainant's rejoinder of 30 June and the Organization's surrejoinder of 17 September 1992;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Articles 36(3)(d) and (e) of the Staff Regulations and Articles 100(4), (5) and (7) and 101(2) and Section 2 of Appendix VII of the Staff Rules of Interpol;
Having examined the written submissions and decided not to order hearings, which neither party has applied for;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. As stated under A in Judgment 1021, the complainant joined the staff of Interpol on 1 July 1982 as secretary to a head of division. She had her appointment terminated on 13 June 1989 because she turned down an offer of transfer to Lyons when the Organization moved headquarters there from Saint-Cloud. In this case she is pleading breach by Interpol of the following articles of the Staff Rules:
"An official under contract, whose appointment has been terminated for medical reasons in application of Article 36(3,c) of the Staff Regulations, shall be entitled, for the two years following the date of termination of his appointment to priority consideration of his applications for posts which are the subject of vacancy notices ..."
"During the two years [following termination], the Personnel Department shall send the vacancy notices to the former official ... by registered mail."
"A former official entitled to priority consideration of his application may not claim the right to be reappointed to the detriment of any person who is a more suitable candidate for the post to be filled."
and Article 101(2):
"If the Secretary General has terminated the appointment of an official under contract in application of Article 36(3,d) of the Staff Regulations, Article 100(4), (5) and (7) [recte] shall apply, mutatis mutandis."
Article 36(3) of the Regulations reads:
"The Secretary General may also decide to terminate the appointment of an official of the Organization:
(d) if, following:
- suppression of the official's post,
there is no vacant post which is to be filled and for which the Secretary General considers that the official concerned has the requisite qualifications;
(e) if, pursuant to any one of the three situations listed in (d) above, the official concerned refuses to take up the vacant post offered to him by the Secretary General in the belief that the official has the requisite qualifications;
On 26 September 1990 the complainant was sent by the Personnel Department a circular letter along with notices of vacancy. Interpol did not thereafter send her any of the notices of vacancy it issued.
On 21 June 1991 she submitted a "complaint" to the Secretary General alleging breach of the above provisions and claiming damages.
By an individual decision of 1 July 1991 bearing the complainant's name the Secretary General rejected her claims on the grounds that the Organization was under no duty to send notices to former officials who had turned down offers of identical posts in Lyons.
In a letter of 29 July she asked the Secretary General to review his decision.
Her case and similar ones were referred to the Joint Appeals Committee on 2 August. The Secretary General suggested joining them and the Committee did so. Unlike the other appellants the complainant had no objections to joinder. The Committee submitted an advisory opinion to the Secretary General on 27 November 1991. All but one of its members considered the appeals to be receivable and all that they should be rejected as devoid of merit.
By an individual decision of 3 December 1991 the Secretary General informed the complainant that he endorsed that recommendation. That is the decision she impugns.
B. The complainant submits that Interpol's sending her notices of vacancy on 26 September 1990, purportedly "in accordance with Articles 101(2) and 100(4, 5 and 7) of the Staff Rules", establishes her right to be sent any notices it issued in the two years after her dismissal. She was interested in an opening because she was unemployed in the eighteen months following dismissal.
She claims damages in the amount of six months' gross salary plus interest from 13 June 1989, the date of termination, and 10,000 French francs in costs.
C. Interpol replies that Article 101(2) of the Staff Rules applies to termination under Article 36(3)(d) of the Staff Regulations, which covers, among others, cases where it has abolished an official's post and can find no suitable vacancy. When it abolished the complainant's post at Saint-Cloud it did offer her an identical one at Lyons, which she refused. So 101(2) does not apply to her.
Interpol says it sent her the notices on 26 September 1990 just by way of precaution, not by virtue of any right she might have.
As for the injury she alleges, she never expressed interest in posts at Lyons and does not explain how she has reckoned the sum she claims in damages. Even if the Tribunal upheld her allegations of injury she should be awarded less.
D. In her rejoinder the complainant cites Judgment 1021 and maintains that she was asserting her acquired right to her duty station, not refusing the offer of a vacancy. So 36(3)(e) does not apply to her. Sending her the two notices on 26 September 1990 could not but lead her to believe that she came under 36(3)(d); the Organization's own action conferred a right on her. By failing to send her notices either before or after 26 September 1990, and thereby depriving her of the chance to apply, Interpol caused her injury in the two years after dismissal. After deciding to apply to her Articles 101(2) and 100(4), (5) and (7) of the Staff Rules the Organization should have gone on doing so for as long as it was required. She mentions particular posts she learned of in the appeal proceedings and which she might well have been appointed to. She maintains that the amount she claims is reasonable.
E. Interpol develops its pleas in its surrejoinder. In its submission Article 101(2) of the Staff Rules, which refers to Article 100(4), (5) and (7), applies only to someone who has had his appointment terminated under Article 36(3)(d) of the Staff Regulations, i.e. someone whose post was abolished and to whom the Organization could offer no other post. The only other case of termination on abolition is where an official refuses an offer of an alternative post. Such cases come under Article 36(3)(e) of the Regulations, which is the material provision in this case, the complainant having been offered a post she was qualified for. It is surprising that she now says she is willing to compete for a vacancy in Lyons when she could simply have been transferred there. Why did she let the two years run out before accusing Interpol of breaking the rules? Interpol is not liable for the financial consequences of her refusing its offer.
1. The complainant was on the staff of Interpol as secretary to a head of division when it decided, in 1988, to transfer its headquarters from Saint-Cloud to Lyons.
On 12 October 1988 it decided to abolish her post as from 14 June 1989 and offer her a new one in Lyons.
She refused the transfer and was dismissed on 13 June 1989.
2. By a letter of 26 September 1990 Interpol sent her notices of vacancy dated 14 September 1989.
On 21 June 1991 she filed an internal appeal alleging that Interpol had neglected to send her all the notices issued in the two years since her dismissal.
Her case was put to the Joint Appeals Committee, which recommended rejecting her claim as devoid of merit. The Secretary General decided on 3 December to endorse the Committee's recommendation, and that is the decision she impugns.
Although her complaint raises the same issues of law as do those of Miss Burnett, Mr. O'Sullivan and Mr. Vicente-Sandoval, on whose cases the Tribunal rules this day in Judgment 1214, the facts are not quite the same since the complainant was performing duties of a different kind. Her case is therefore not joined to the others.
3. The case is about the complainant's right to receive notices of vacancies in the Organization in the two years following the termination of her appointment.
The provisions about sending such notices are Articles 100(4), (5) and (7) and 101(2) of the Staff Rules. Taken together, those provisions mean that, where an official's appointment has been terminated under Article 36(3)(d) of the Staff Regulations, i.e. for reasons that include "suppression of the official's post" and where "there is no vacant post ... for which the Secretary General considers the official concerned has the requisite qualifications", the official has the right to be sent any notices of vacancy issued in the two years following the date of termination.
The material issue is whether, as the complainant contends, Article 36(3)(d) of the Regulations and Articles 100 and 101 of the Rules apply to her own termination.
4. The applicable Staff Rules prescribe "transitional measures" in Appendix VII, and Section 2 of the appendix sets out in three articles "Special provisions relating to the transfer of the Organization's Headquarters from Saint-Cloud to Lyons".
Article 1 of Section 2 is about officials who have no acquired right to "the location of their duty station", i.e. anyone who "took up his appointment before the date of entry into force" of the Regulations and Rules, who "was informed, in his letter of appointment ... of the future transfer" of headquarters to Lyons and who "accepted ... the fact that he might be transferred ... to Lyons". Article 1(1) adds that "the pertinent provisions" of the Regulations and Rules "shall apply" in particular where the official has not taken up the post he has been assigned to on transfer.
Article 2 of Section 2 is about officials who do have an acquired right to their duty station. It reads:
"The transfer of the Organization's Headquarters to Lyons shall imply first of all the suppression of the posts occupied in Saint Cloud by the officials concerned and, secondly, the simultaneous creation of the same posts in Lyons. Each post thus created shall be offered to the official of the Organization who, on the date of the decision ... occupies the corresponding post in Saint Cloud. ..."
The rest of Article 2 is about notice of termination, the "period for consideration" of the offer of transfer, and the indemnity on termination for someone who turns it down.
The provisions of Article 2 are comprehensive and detailed. Some of them, such as the rules about the period for consideration, are exceptional and special provisions that have no counterpart in the body of the Regulations and Rules, to which indeed Article 2 - unlike Article 1 - contains no reference.
The special character of Article 2 is borne out by the text of Article 3: 3(1) reads:
"Articles 1 and 2 of the present Section shall not prevent application of the appropriate provisions of the Staff Regulations and the present Rules permitting termination of appointment for any other reason, including the suppression of posts in Saint Cloud which are not created in Lyons."
That reference is to termination for reasons other than those stated in Articles 1 and 2, viz. termination under Chapter VI of the Regulations and Chapter VIII of the Rules, which are about "Cessation of service" in general. And one example is termination under 36(3)(d) of the Regulations following "suppression of the official's post" where "there is no vacant post ... for which the Secretary General considers the official concerned has the requisite qualifications".
It is clear from Article 3 that ordinary cases of termination are still to be dealt with under the Regulations and Rules and independently of the special provisions in Articles 1 and 2 of Section 2 of Appendix VII save insofar as Article 1 refers to the "pertinent provisions" of the Regulations and Rules.
The complainant is therefore wrong in contending that Article 2 of Section 2 applies to termination under 36(3)(d). Indeed in the contingency Article 2 provides against, which is abolition of post, another post is to be created in Lyons - perforce a vacant one - and offered to the official. So the two conditions for applying 36(3)(d) can never be met anyway in the circumstances covered by Article 2.
Since Article 101(2) of the Staff Rules and Article 100(4), (5) and (7), to which 101(2) refers, apply only where the official has been terminated under 36(3)(d), they cannot apply to cases covered by Article 2 of Section 2, and Interpol is therefore under no duty in such cases to send notices of vacancy.
5. The complainant is further mistaken in relying on the reference to Articles 100 and 101 in Interpol's letter of 26 September 1990 sending her the notices.
The Organization seems to have acted imprudently rather than in bad faith in sending the notices. Its letter of 26 September 1990, which was in printed form with a blank for the names of the addressee, was, it appears, sent indiscriminately to everyone who had been terminated for any reason, whether entitled to get notices or not. The conclusion is that it had no effect in law and conferred on the complainant no entitlement she did not have under the rules anyway.
6. Since the complainant's main claim is dismissed, so too are her claims to damages and to costs.
For the above reasons,
The complaint is dismissed.
In witness of this judgment Sir William Douglas, Vice-President of the Tribunal, Miss Mella Carroll, Judge, and Mr. Edilbert Razafindralambo, Judge, sign below, as do I, Allan Gardner, Registrar.
Delivered in public in Geneva on 10 February 1993.