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- Judgment 1078
70th Session, 1991
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol Agency) on 26 December 1989, Eurocontrol's reply of 5 April 1990, the complainant's
rejoinder of 4 July and Eurocontrol's surrejoinder of 11 October 1990;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal, Article 7 of the Rules of
Court and Articles 92 and 93 of the Staff Regulations governing officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered ...
- ... Eurocontrol's reply of 5 April 1990, the complainant's
rejoinder of 4 July and Eurocontrol's surrejoinder of 11 October 1990;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal, Article 7 of the Rules of
Court and Articles 92 and 93 of the Staff Regulations governing officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal:
Considering ...
- ... Eurocontrol's surrejoinder of 11 October 1990;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal, Article 7 of the Rules of
Court and Articles 92 and 93 of the Staff Regulations governing officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal:
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The ...
- ... the complaint filed by Mr. Jacques-Yves Schaack against the European Organisation for the Safety of
Air Navigation (Eurocontrol Agency) on 26 December 1989, Eurocontrol's reply of 5 April 1990, the complainant's
rejoinder of 4 July and Eurocontrol's surrejoinder of 11 October 1990;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal, Article 7 of the Rules of
Court and Articles 92 and 93 of the Staff Regulations governing officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal:
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant, a citizen of Luxembourg, is a qualified electronics engineer and holds a grade A5 post at
Eurocontrol's Experimental Centre at Brétigny-sur-Orge, in France. The Agency recruited him on 1 June 1965 at
A6. It made him head of Bureau ...
- ... of the Tribunal, Article 7 of the Rules of
Court and Articles 92 and 93 of the Staff Regulations governing officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal:
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant, a citizen of Luxembourg, is a qualified electronics engineer and holds a grade A5 post at
Eurocontrol's Experimental Centre at Brétigny-sur-Orge, in France. The Agency recruited him on 1 June 1965 at
A6. It made him head of Bureau 4 (Administration, Finance and General Services) on 1 April 1977 at grade A6. On
30 November 1978 it promoted him to A5 as from 1 October 1978. Between 1985 and 1989 he headed the list of
those who were recommended for promotion, but he was not promoted. He objected to the lack of promotion and
to the Director's behaviour
towards
him in two minutes ...
- ... his dignity and shows him lack of respect. He had financial
responsibilities before, and the hasty way in which he was moved out, with just three days' notice, was calculated
to arouse suspicion inside and outside the Agency that he had done wrong. It cast doubt on his integrity.
He invites the Tribunal to quash the impugned decision, order his reinstatement in his old job or an award of an
appropriate amount in damages and an award of 27,000 French francs in costs.
C. Eurocontrol replies that the complaint is irreceivable. What the complainant is challenging is not really transfer
but just a move to new duties. As the case law makes plain, internal administrative measures of that kind are not
challengeable. Besides, the lodging of an internal appeal is only one condition of receivability: he ought to be
challenging the decision to reassign him, not the rejection of his internal appeal.
The Organisation has subsidiary pleas on the merits. It submits ...
- ... he is not questioning the Director General's managerial
prerogative, he may challenge a decision he sees as a breach of his rights. In answer to the Agency's other
objection to receivability, he cites Article VII of the Tribunal's Statute and Articles 93(2) and 93(3) of the Staff
Regulations: he has to exhaust the internal means of redress and so the decision he must impugn is the final one,
not the original decision to transfer him.
He points to what he sees as mistakes in Eurocontrol's account of the facts and enlarges on his pleas on the merits.
He observes that he is the only full-time administrative co-ordinator and again affirms that his new appointment
was really a disciplinary sanction because it deprived him of responsibility and of status in regard to the French
authorities. The decision was sudden: he was unable to make final observations until it had been put into effect and
was not allowed to see the Director General.
E. In its surrejoinder the ...
- ... the decision
and he had every opportunity to state his case orally and in writing. He offers no evidence to suggest that anyone
suspected him of misdemeanour. The staff knew well what he thought of the Director, and his behaviour had for
some time become more and more disturbing. There was no injury to his dignity and he was treated considerately
and with respect.
CONSIDERATIONS:
1. The complainant, a citizen of Luxembourg and a qualified engineer, is a staff member of Eurocontrol employed
at grade A5 at its Experimental Centre at Brétigny-sur-Orge. He is seeking the quashing of a decision which the
Director General took on 29 November 1989 to reject his appeal against transfer. A decision of 14 July 1989 had
terminated his appointment as head of the Bureau of Administration, Finance and General Services (Bureau 4) and
transferred him, together with his post, to Division 2 of the Centre as "Administrative Coordinator" of a plan for
automation.
2. For ...
- ... to get people in the Government of Luxembourg to take political action on his behalf.
7. The Director arranged a meeting between him and the Director of Personnel and Finance at headquarters in
Brussels on 13 July 1989. On 11 July he sent the Director General an urgent minute in which he warned of the
"politically serious" consequences of "removing" him and demanded that the text be passed on to the transport
minister of Luxembourg as a member of the Permanent Commission of Eurocontrol.
8. By a memorandum of 14 July 1989 the Director General told the complainant that "in the interests of the Service,
of the good management of the Experimental Centre and in your own best interests" he was transferred from
Bureau 4 to Division 2, where he would serve as administrative co-ordinator of the plan for administrative
automation. Notice of transfer was appended, moving the complainant together with his post to his new duty
station.
9. By a minute of 2 August 1989 ...
- ... complainant ought to have challenged the actual decision of 14 July 1989 to transfer him, not
the decision to reject his internal "complaint".
12. The plea fails. The complainant's internal appeal is against the decision of 14 July 1989, and so the Director
General's memorandum of 29 November 1989, which does no more than reject that appeal, is to be identified with
the decision it explains and upholds. It is the decision of 14 July 1989 that is really under challenge.
13. Eurocontrol's second objection is that the complainant's transfer is just a matter of internal administration, does
not affect his rights under the Staff Regulations and so is not a challengeable decision under Article 93.
14. The answer to that is that even a decision on a matter of internal administration such as transfer may sometimes
impair the staff member's rights and
legitimate
interests. The Organisation is in fact prejudging the merits and the
objection is unsound.
15. Being ...
- ... decision under Article 93.
14. The answer to that is that even a decision on a matter of internal administration such as transfer may sometimes
impair the staff member's rights and
legitimate
interests. The Organisation is in fact prejudging the merits and the
objection is unsound.
15. Being receivable, the complaint will be considered on the merits.
The merits
16. The complainant has two pleas on the merits. The first is that his transfer, though purportedly in Eurocontrol's
interests, was in fact a hidden disciplinary sanction improperly imposed. The second one is that it was an
inadmissible attack on his dignity and a breach of the Organisation's duty to show him consideration and respect as
a member of its staff.
17. He explains that his transfer stripped him of his rank as head of bureau, which brought him close to the
management of the Centre, and relegated him to a position which was separated from management by two levels of
command ...
- ... the treatment of him. It was in all respects a disciplinary sanction, ordered hurriedly and with
none of the safeguards the Staff Regulations afford in such circumstances.
18. There is no substance, he says, to his new duties, and he cannot perform them anyway because the speed of
technical progress has made
his
experience of data-processing obsolete. In his old job, which he had been in for a
dozen years, he could focus on administrative and financial matters.
19. Eurocontrol's answer is that the transfer did not affect his status: he kept his grade and salary and, in the
Organisation's interests, was granted an important new assignment in line with his post description. His behaviour
was making dealings with his supervisor and the management of his unit more and more difficult, and his transfer
was urgently necessary to protect efficiency. There was nothing disciplinary about it.
20. The Tribunal is satisfied on the evidence before it that Eurocontrol ...
- ... answer is that the transfer did not affect his status: he kept his grade and salary and, in the
Organisation's interests, was granted an important new assignment in line with his post description. His behaviour
was making dealings with his supervisor and the management of his unit more and more difficult, and his transfer
was urgently necessary to protect efficiency. There was nothing disciplinary about it.
20. The Tribunal is satisfied on the evidence before it that Eurocontrol did not go beyond the bounds of the
discretion it must be allowed in matters of internal administration and management. There is no reason to suppose
that the transfer impaired the complainant's status. His new post has the right grade and his duties match what the
Administration may expect from someone of his professional attainments. His profession of unfitness for them
betokens uncooperativeness and rigidity that show after the event how right his superiors were to take brisk ...
- ... and rigidity that show after the event how right his superiors were to take brisk action
to sort out a situation they found unacceptable. What they did seems the more reasonable because time and again
the complainant threatened to get political protection from the Government of Luxembourg, in breach of the
principles of objectivity and independence that should govern international civil service.
21. In such circumstances there is no question of any hidden disciplinary sanction. Eurocontrol found no
professional misconduct nor indeed anything that warranted
disciplinary
action. Moreover, there can have been no
loss of dignity for someone who took such an attitude in quarrels with the Administration.
DECISION:
For the above reasons,
The complaint is dismissed.
In witness of this judgment Mr. Jacques Ducoux, President of the Tribunal, Miss Mella Carroll, Judge, and Mr.
Pierre Pescatore, Deputy Judge, have signed hereunder, as have I, Allan Gardner, ...
- Judgment 1074
70th Session, 1991
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol Agency) on 12 January 1990 and corrected on 5 February, Eurocontrol's reply of 26
April, the complainant's rejoinder of 23 May and the Organisation's surrejoinder of 26 July 1990;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal and Articles 40, 91 and 92
of the General Conditions of Employment governing Servants at the Eurocontrol Maastricht Centre;
Having examined the written evidence and decided not to order oral proceedings, which neither ...
- ... Eurocontrol's reply of 26
April, the complainant's rejoinder of 23 May and the Organisation's surrejoinder of 26 July 1990;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal and Articles 40, 91 and 92
of the General Conditions of Employment governing Servants at the Eurocontrol Maastricht Centre;
Having examined the written evidence and decided not to order oral proceedings, which neither party has applied
for;
Considering that the facts of the ...
- ... filed by Mr. Jeffrey Claud Rendall against the European Organisation for the Safety of
Air Navigation (Eurocontrol Agency) on 12 January 1990 and corrected on 5 February, Eurocontrol's reply of 26
April, the complainant's rejoinder of 23 May and the Organisation's surrejoinder of 26 July 1990;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal and Articles 40, 91 and 92
of the General Conditions of Employment governing Servants at the Eurocontrol Maastricht Centre;
Having examined the written evidence and decided not to order oral proceedings, which neither party has applied
for;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant, a British subject who was born in 1932, was appointed to the staff of Eurocontrol in 1972. He
was an electronics technician at grade B3 and did shift work in the Maintenance Division of the Organisation's
Centre for air traffic control ...
- ... 5, and VII, paragraph 1, of the Statute of the Tribunal and Articles 40, 91 and 92
of the General Conditions of Employment governing Servants at the Eurocontrol Maastricht Centre;
Having examined the written evidence and decided not to order oral proceedings, which neither party has applied
for;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant, a British subject who was born in 1932, was appointed to the staff of Eurocontrol in 1972. He
was an electronics technician at grade B3 and did shift work in the Maintenance Division of the Organisation's
Centre for air traffic control at Maastricht, in the Netherlands. On 20 February 1978 he wrote to the head of the
Division to say that for reasons of health he wanted to be taken off shift work. He was not.
Article 40(1) of the General Conditions of Employment of staff at the Centre provides that "An established servant
may, in exceptional circumstances and ...
- ... of contract" not to appoint him to any of
them.
Having got no answer, he filed his complaint on 12 January 1990.
B. The complainant observes that, the Organisation having failed to answer within four months his letter of 11 July
1989 setting out his case, he may infer in accordance with Article 91(2) of the General Conditions of Employment
that his claims have been rejected and may challenge the implied rejection under Article 92.
As to the merits he submits that Eurocontrol has acted in breach of its duty under Article 40(3)(d) of the General
Conditions by failing to reinstate him in any of the several suitable posts that have fallen vacant. Since he had
already performed the duties pertaining to those posts he must have been qualified. One suitable vacancy, for an
electronics technician in the Maintenance Division, was announced towards the end of 1980. There is no provision
in the rules that gives serving staff members preference for appointment to ...
- ...
electronics technician in the Maintenance Division, was announced towards the end of 1980. There is no provision
in the rules that gives serving staff members preference for appointment to vacant posts.
Moreover, although the complainant asked the Organisation - for example in letters of 2 May and 21 June 1989 to
the Head
of
Personnel - to inform him of suitable vacancies as they arose so that he might apply for them, it failed
to do even that.
He contends that Eurocontrol's letter of 30 June 1989 reveals its intention to discriminate against him "on the
grounds of technical competence and age". That it refuses to reinstate him is clear from its doubting his technical
ability without even asking what he has been doing since 1980.
He claims an award of damages, in such amount as the Tribunal deems fit, for loss of employment from 1 January
1981 and he seeks immediate reinstatement or else a declaration of redundancy, the Tribunal's ruling to be based ...
- ... him is clear from its doubting his technical
ability without even asking what he has been doing since 1980.
He claims an award of damages, in such amount as the Tribunal deems fit, for loss of employment from 1 January
1981 and he seeks immediate reinstatement or else a declaration of redundancy, the Tribunal's ruling to be based
on the assumption that he "would have been promoted in the usual way and received all increments in salary and
allowances".
C. In its reply Eurocontrol points out that the post which fell vacant for an electronics technician in 1980 and
which he says he was fit for was advertised in October of that year. He failed to appeal within the time limit for
internal appeal against the failure to appoint him to that post and it is too late for him to do so now. He submitted
claims neither to compensation for non-reinstatement as from 1 January 1981 nor to immediate reinstatement, and
he lodged an internal appeal neither against the refusal ...
- ... against the failure to appoint him to that post and it is too late for him to do so now. He submitted
claims neither to compensation for non-reinstatement as from 1 January 1981 nor to immediate reinstatement, and
he lodged an internal appeal neither against the refusal of compensation nor against the denial of reinstatement. His
complaint is therefore irreceivable under Article VII(1) of the Tribunal's Statute because he has failed to exhaust
the internal means of redress.
Eurocontrol puts forward subsidiary arguments on the merits. It observes that no post in which he could have been
reinstated has fallen vacant since 1 January 1981. He misreads the nature of the Organisation's duty under Article
40. First, that article precludes reinstatement in any post that does not bear his grade. For any post bearing a higher
grade - for example in category A - he must compete on a par with the other candidates. Secondly, reinstatement
under Article 40 is limited to posts ...
- ... that no post in which he could have been
reinstated has fallen vacant since 1 January 1981. He misreads the nature of the Organisation's duty under Article
40. First, that article precludes reinstatement in any post that does not bear his grade. For any post bearing a higher
grade - for example in category A - he must compete on a par with the other candidates. Secondly, reinstatement
under Article 40 is limited to posts at the Maastricht Centre: for suitable posts at other Eurocontrol duty stations he
has to compete along with everyone else. Thirdly, he must satisfy the requirements of the post. The highly technical
and constantly changing nature of his field of work makes reinstatement harder. A further restriction was that not
until the end of 1983 did he say he was fit again for shift work, and that indeed is why he was not offered the post
advertised in October 1980. When he applied for leave to take up a career elsewhere he did not realise the
difficulty ...
- ... the reason why he did not appeal against the
failure to put him on the post for an electronics technician that fell vacant in 1980 was that he did not know at the
time that there was such a vacancy. He believed what the Director of Personnel had told him in the letter of 14
November 1980, namely that there was no suitable vacancy: the Director should have told him that the post was
vacant and asked him whether he could do shift work.
In his letter of 11 July 1989 he invited Eurocontrol to comment on his statement that he had no choice but to go to
the Tribunal: having got no reply he was free to assume that he had exhausted the internal means of redress.
As to the merits he contends that Eurocontrol has acted in breach of its duty towards him as an employer by failing
to inform him of the vacancies that he believes did arise. It did not even ask him what work experience he had
gained since leaving. He did not go off to start a new career, but, as the Organisation ...
- ... Director of Personnel had told him in the letter of 14
November 1980, namely that there was no suitable vacancy: the Director should have told him that the post was
vacant and asked him whether he could do shift work.
In his letter of 11 July 1989 he invited Eurocontrol to comment on his statement that he had no choice but to go to
the Tribunal: having got no reply he was free to assume that he had exhausted the internal means of redress.
As to the merits he contends that Eurocontrol has acted in breach of its duty towards him as an employer by failing
to inform him of the vacancies that he believes did arise. It did not even ask him what work experience he had
gained since leaving. He did not go off to start a new career, but, as the Organisation well knew, to gain experience
that would enhance his prospects of advancement on return. Had he been warned that others would be given
preference for suitable jobs or that his age would tell against him, it is ...
- ... Head of Personnel concluded by setting out
the benefits he would get if he resigned. The letter of 30 June 1989 is identified in the pleadings as the decision
impugned.
5. In reply the complainant wrote on 11 July 1989 stating that the letter of 30 June 1989 suggested that his chance
of ever being taken back was very slim. He alleged that over the years there had been vacancies in his grade at the
Centre which he had been more than adequately qualified to fill. He said that Eurocontrol was in "breach of
contract" by not offering him any of those vacancies and that he was apparently to be "permanently excluded". He
said he had no choice but to put the matter to the Tribunal but before he did so asked for comments. Eurocontrol
made no comments, and the complainant infers rejection of his claim from the absence of reply to his letter. The
essence of his case is therefore that there is an implied decision not to reinstate him, and the relief he seeks is
compensation ...
- ... of 30 June 1989 suggested that his chance
of ever being taken back was very slim. He alleged that over the years there had been vacancies in his grade at the
Centre which he had been more than adequately qualified to fill. He said that Eurocontrol was in "breach of
contract" by not offering him any of those vacancies and that he was apparently to be "permanently excluded". He
said he had no choice but to put the matter to the Tribunal but before he did so asked for comments. Eurocontrol
made no comments, and the complainant infers rejection of his claim from the absence of reply to his letter. The
essence of his case is therefore that there is an implied decision not to reinstate him, and the relief he seeks is
compensation for loss of employment from 1 January 1981 and an order for his immediate reinstatement or
redundancy.
6. The complainant is subject to the General Conditions of Employment governing Servants at the Centre. Under
Article 40(1) an "established ...
- Judgment 1012
68th Session, 1990
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol Agency) on 15 July 1988 by:
Mr. D. Aelvoet (No. 2)
Mrs. V. Alminana (No. 2)
Miss L.T. Aridjis
Mr. C. Barret
Mr. M. Besson
Mrs. D. Boets
Mrs. V. Brown (No. 2)
Mr. J-P. Claes
Mr. D. Daubenspeck
Mr. F.A.C. Degrijse (No. 2)
Mr. R. De Houwer
Mr. P. Delplace
Mr. H.F.R.Y. De Maeyer
Miss J. Drochmans (No. 2)
Mr. F. Dupont (No. 2)
Mrs. M. Engels (No. 2)
Mr. R.J-M. Engels (No.2)
Mr. G.K. Gaydoul
Miss J. Goyens
Mr. D. Hedley
Mr. ...
- ...
Mrs. M. Ribeiro Resende (No. 2)
Mrs. C.L. Richez (No. 2)
Mr. F. Ronchain
Mr. C. Saey (No. 2)
Mr. P. Schmutz
Mr. D. Scordel
Miss E. Talboom
Mr. R. Thacker (No. 2)
Mr. J.A. Thiecke (No. 2)
Miss S. Thoma (No. 2)
Mrs. R. van Cauwelaert (No. 2)
Mr. A. van den Broeck (No. 2)
Mr. P. van der Kraan
Mr. A.M. van Loveren
Mr. J. van Raayen (No. 2)
Miss G. Vermoesen
Mr. J. Wondergem (No. 2)
Mr. A. Xhonneux (No. 2)
Considering Eurocontrol's reply of 27 October to the joint complaint, the complainants' rejoinder of 27 December
1988, Eurocontrol's surrejoinder of 16 March 1989, the complainants' further submissions of 3 May and
Eurocontrol's comments thereon of 18 May as corrected on 22 May 1989;
Considering the second complaint filed by Mr. Pierre Boland and the complaints filed by Mr. Pierre De Groote and
by Mr. Pierre Lefebvre against Eurocontrol on 25 February 1988, Eurocontrol's replies of 29 June, the
complainants' ...
- ... P. Schmutz
Mr. D. Scordel
Miss E. Talboom
Mr. R. Thacker (No. 2)
Mr. J.A. Thiecke (No. 2)
Miss S. Thoma (No. 2)
Mrs. R. van Cauwelaert (No. 2)
Mr. A. van den Broeck (No. 2)
Mr. P. van der Kraan
Mr. A.M. van Loveren
Mr. J. van Raayen (No. 2)
Miss G. Vermoesen
Mr. J. Wondergem (No. 2)
Mr. A. Xhonneux (No. 2)
Considering Eurocontrol's reply of 27 October to the joint complaint, the complainants' rejoinder of 27 December
1988, Eurocontrol's surrejoinder of 16 March 1989, the complainants' further submissions of 3 May and
Eurocontrol's comments thereon of 18 May as corrected on 22 May 1989;
Considering the second complaint filed by Mr. Pierre Boland and the complaints filed by Mr. Pierre De Groote and
by Mr. Pierre Lefebvre against Eurocontrol on 25 February 1988, Eurocontrol's replies of 29 June, the
complainants' rejoinders of 6 September, the Organisation's surrejoinders of 15 December 1988 as supplemented at
the ...
- ... (No. 2)
Miss S. Thoma (No. 2)
Mrs. R. van Cauwelaert (No. 2)
Mr. A. van den Broeck (No. 2)
Mr. P. van der Kraan
Mr. A.M. van Loveren
Mr. J. van Raayen (No. 2)
Miss G. Vermoesen
Mr. J. Wondergem (No. 2)
Mr. A. Xhonneux (No. 2)
Considering Eurocontrol's reply of 27 October to the joint complaint, the complainants' rejoinder of 27 December
1988, Eurocontrol's surrejoinder of 16 March 1989, the complainants' further submissions of 3 May and
Eurocontrol's comments thereon of 18 May as corrected on 22 May 1989;
Considering the second complaint filed by Mr. Pierre Boland and the complaints filed by Mr. Pierre De Groote and
by Mr. Pierre Lefebvre against Eurocontrol on 25 February 1988, Eurocontrol's replies of 29 June, the
complainants' rejoinders of 6 September, the Organisation's surrejoinders of 15 December 1988 as supplemented at
the Tribunal's invitation on 13 June 1989, the complainants' further submissions of 7 July and Eurocontrol's ...
- ... J. Wondergem (No. 2)
Mr. A. Xhonneux (No. 2)
Considering Eurocontrol's reply of 27 October to the joint complaint, the complainants' rejoinder of 27 December
1988, Eurocontrol's surrejoinder of 16 March 1989, the complainants' further submissions of 3 May and
Eurocontrol's comments thereon of 18 May as corrected on 22 May 1989;
Considering the second complaint filed by Mr. Pierre Boland and the complaints filed by Mr. Pierre De Groote and
by Mr. Pierre Lefebvre against Eurocontrol on 25 February 1988, Eurocontrol's replies of 29 June, the
complainants' rejoinders of 6 September, the Organisation's surrejoinders of 15 December 1988 as supplemented at
the Tribunal's invitation on 13 June 1989, the complainants' further submissions of 7 July and Eurocontrol's
observations thereon of 19 September 1989;
Considering the application to intervene filed in Mr. Boland's, Mr. De Groote's and Mr.
Lefebvre's
complaints by:
E. Abel
J. Abramowski
A. Abts ...
- ... Xhonneux (No. 2)
Considering Eurocontrol's reply of 27 October to the joint complaint, the complainants' rejoinder of 27 December
1988, Eurocontrol's surrejoinder of 16 March 1989, the complainants' further submissions of 3 May and
Eurocontrol's comments thereon of 18 May as corrected on 22 May 1989;
Considering the second complaint filed by Mr. Pierre Boland and the complaints filed by Mr. Pierre De Groote and
by Mr. Pierre Lefebvre against Eurocontrol on 25 February 1988, Eurocontrol's replies of 29 June, the
complainants' rejoinders of 6 September, the Organisation's surrejoinders of 15 December 1988 as supplemented at
the Tribunal's invitation on 13 June 1989, the complainants' further submissions of 7 July and Eurocontrol's
observations thereon of 19 September 1989;
Considering the application to intervene filed in Mr. Boland's, Mr. De Groote's and Mr.
Lefebvre's
complaints by:
E. Abel
J. Abramowski
A. Abts
P. Agre
K. Albert
A. ...
- ... comments thereon of 18 May as corrected on 22 May 1989;
Considering the second complaint filed by Mr. Pierre Boland and the complaints filed by Mr. Pierre De Groote and
by Mr. Pierre Lefebvre against Eurocontrol on 25 February 1988, Eurocontrol's replies of 29 June, the
complainants' rejoinders of 6 September, the Organisation's surrejoinders of 15 December 1988 as supplemented at
the Tribunal's invitation on 13 June 1989, the complainants' further submissions of 7 July and Eurocontrol's
observations thereon of 19 September 1989;
Considering the application to intervene filed in Mr. Boland's, Mr. De Groote's and Mr.
Lefebvre's
complaints by:
E. Abel
J. Abramowski
A. Abts
P. Agre
K. Albert
A. Albertini
V. Alminana
H-R. Altmann
B. Anderson-Germis
J. Andriese
R. Angermeyer
H. Ansorge
F. Arrasse
J. Arp
B. Bams
A. Barnby
F. Bartocci
M. Baudot
H-W. Becker
J. Beckers
B. Bedetti
P. ...
- ... Warns
E. Watkins
J. Watson
H. Weis
G. Wendling
F. Werthmann
P. Wildey
H. Wilk
R. Williams
J-P. Willox
D. Winkler
F. Wissink
W. Withofs
M. Woods
R. Xhrouet
D. Young
H. Zandvliet
W. Zieger
J. Zipp
R. Zoellner
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal, the International
Convention on Co-operation for the Safety of Air Navigation concluded on 13 December 1960 (the Eurocontrol
Convention) as amended, in particular as from 1 January 1986 by the Protocol dated 12 February 1981, Articles 63,
64, 65 and 92 of the Staff Regulations governing officials of the Agency and Article 2.2 of Rule No. 27 concerning
the method of calculating remuneration;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that
the
facts of the cases and the pleadings may be summed ...
- ...
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that
the
facts of the cases and the pleadings may be summed up as follows:
A. At its 63rd Session, on 7 July 1983, the Permanent Commission of the European Organisation for the Safety of
Air Navigation decided (a) to bring in a 5 per cent differential between the net pay of staff of the European
Communities and that of Eurocontrol staff; (b) to start the consequent reduction in Eurocontrol pay at the date on
which the International Convention on Co-operation for the Safety of Air Navigation was amended for the purpose;
and (c) to spread the reduction over three years.
At its 62nd Session, on 15 November 1983, the Commission decided to make the differential in stages by holding
Eurocontrol pay in check if pay in the European Communities rose, save that the reduction should not exceed 2 per
cent in any one ...
- ... having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that
the
facts of the cases and the pleadings may be summed up as follows:
A. At its 63rd Session, on 7 July 1983, the Permanent Commission of the European Organisation for the Safety of
Air Navigation decided (a) to bring in a 5 per cent differential between the net pay of staff of the European
Communities and that of Eurocontrol staff; (b) to start the consequent reduction in Eurocontrol pay at the date on
which the International Convention on Co-operation for the Safety of Air Navigation was amended for the purpose;
and (c) to spread the reduction over three years.
At its 62nd Session, on 15 November 1983, the Commission decided to make the differential in stages by holding
Eurocontrol pay in check if pay in the European Communities rose, save that the reduction should not exceed 2 per
cent in any one year.
The Protocol dated 12 February 1981 that ...
- ... (a) to bring in a 5 per cent differential between the net pay of staff of the European
Communities and that of Eurocontrol staff; (b) to start the consequent reduction in Eurocontrol pay at the date on
which the International Convention on Co-operation for the Safety of Air Navigation was amended for the purpose;
and (c) to spread the reduction over three years.
At its 62nd Session, on 15 November 1983, the Commission decided to make the differential in stages by holding
Eurocontrol pay in check if pay in the European Communities rose, save that the reduction should not exceed 2 per
cent in any one year.
The Protocol dated 12 February 1981 that amended the Convention came into force on ratification at 1 January
1986. But not until 7 July 1987, at its 71st Session, did the Commission decide, subject to its later final approval, to
make as from 1 July 1986 the first reduction in staff pay, which was by 0.7 per cent. At its 72nd Session, on 12
November ...
- ... should not exceed 2 per
cent in any one year.
The Protocol dated 12 February 1981 that amended the Convention came into force on ratification at 1 January
1986. But not until 7 July 1987, at its 71st Session, did the Commission decide, subject to its later final approval, to
make as from 1 July 1986 the first reduction in staff pay, which was by 0.7 per cent. At its 72nd Session, on 12
November 1987, it gave that decision its final approval.
Rule No. 27 of Eurocontrol relates to "the method of calculating remuneration by applying Article 64 of the service
regulations and the Eurocontrol internal tax". Article 2.2 of the Rule formerly read:
"Net remuneration shall be determined on the basis of the following factors, and in the following sequence:
a) basic salary, plus the allowances
provided
for in Article 62 of the service regulations, less deductions in
pursuance of Articles 72, 73 and 83 of the aforesaid regulations:
b) application ...
- ... came into force on ratification at 1 January
1986. But not until 7 July 1987, at its 71st Session, did the Commission decide, subject to its later final approval, to
make as from 1 July 1986 the first reduction in staff pay, which was by 0.7 per cent. At its 72nd Session, on 12
November 1987, it gave that decision its final approval.
Rule No. 27 of Eurocontrol relates to "the method of calculating remuneration by applying Article 64 of the service
regulations and the Eurocontrol internal tax". Article 2.2 of the Rule formerly read:
"Net remuneration shall be determined on the basis of the following factors, and in the following sequence:
a) basic salary, plus the allowances
provided
for in Article 62 of the service regulations, less deductions in
pursuance of Articles 72, 73 and 83 of the aforesaid regulations:
b) application of the cost-of-living weighing;
c) deduction of the internal tax applicable at the European Communities in accordance ...
- ... following factors, and in the following sequence:
a) basic salary, plus the allowances
provided
for in Article 62 of the service regulations, less deductions in
pursuance of Articles 72, 73 and 83 of the aforesaid regulations:
b) application of the cost-of-living weighing;
c) deduction of the internal tax applicable at the European Communities in accordance with the rules in force;
d) adjustment of the result obtained under a) so as to give, after deduction of the Eurocontrol internal tax, the same
net figure as obtained under a), b) and c) above."
Making the reduction in pay meant amending 2.2d), and the Director General announced in office note 23/87 of 29
July 1987 that as from 1 July 1986 the clause would read:
"adjustment of the result obtained under a) so as to give, after deduction of the Eurocontrol internal tax, a net
amount of 99.3% of the net figure obtained under a), b) and c) above."
The complainants are all members of the staff of ...
- ... Communities in accordance with the rules in force;
d) adjustment of the result obtained under a) so as to give, after deduction of the Eurocontrol internal tax, the same
net figure as obtained under a), b) and c) above."
Making the reduction in pay meant amending 2.2d), and the Director General announced in office note 23/87 of 29
July 1987 that as from 1 July 1986 the clause would read:
"adjustment of the result obtained under a) so as to give, after deduction of the Eurocontrol internal tax, a net
amount of 99.3% of the net figure obtained under a), b) and c) above."
The complainants are all members of the staff of Eurocontrol. At the end of July 1987 the fifty-eight who have
lodged the joint complaint, and on 14 August 1987 Mr. Boland, on 31 July Mr. De Groote and on 4 August Mr.
Lefebvre got pay slips covering 1986 and the first eight months of 1987: each slip said "Eurocontrol reduction -
0.7%" and gave the actual amount of the reduction in "aggregate ...
- ... tax, the same
net figure as obtained under a), b) and c) above."
Making the reduction in pay meant amending 2.2d), and the Director General announced in office note 23/87 of 29
July 1987 that as from 1 July 1986 the clause would read:
"adjustment of the result obtained under a) so as to give, after deduction of the Eurocontrol internal tax, a net
amount of 99.3% of the net figure obtained under a), b) and c) above."
The complainants are all members of the staff of Eurocontrol. At the end of July 1987 the fifty-eight who have
lodged the joint complaint, and on 14 August 1987 Mr. Boland, on 31 July Mr. De Groote and on 4 August Mr.
Lefebvre got pay slips covering 1986 and the first eight months of 1987: each slip said "Eurocontrol reduction -
0.7%" and gave the actual amount of the reduction in "aggregate arrears". On 31 August 1987 Mr. Boland, on 28
August Mr. De Groote and on 31 August Mr. Lefebvre, and in September 1987 the other complainants each
received ...
- ... of the result obtained under a) so as to give, after deduction of the Eurocontrol internal tax, a net
amount of 99.3% of the net figure obtained under a), b) and c) above."
The complainants are all members of the staff of Eurocontrol. At the end of July 1987 the fifty-eight who have
lodged the joint complaint, and on 14 August 1987 Mr. Boland, on 31 July Mr. De Groote and on 4 August Mr.
Lefebvre got pay slips covering 1986 and the first eight months of 1987: each slip said "Eurocontrol reduction -
0.7%" and gave the actual amount of the reduction in "aggregate arrears". On 31 August 1987 Mr. Boland, on 28
August Mr. De Groote and on 31 August Mr. Lefebvre, and in September 1987 the other complainants each
received a slip showing the amount of the reduction for September. In fact it was a reduction in an increased sum
of pay.
From the end of September 1987 onwards they all filed internal "complaints" under Article 92(2) of the
Eurocontrol Staff Regulations. ...
- ... slip said "Eurocontrol reduction -
0.7%" and gave the actual amount of the reduction in "aggregate arrears". On 31 August 1987 Mr. Boland, on 28
August Mr. De Groote and on 31 August Mr. Lefebvre, and in September 1987 the other complainants each
received a slip showing the amount of the reduction for September. In fact it was a reduction in an increased sum
of pay.
From the end of September 1987 onwards they all filed internal "complaints" under Article 92(2) of the
Eurocontrol Staff Regulations. Having got no answer within the time limit of four months in that article, Mr.
Boland, Mr. De Groote and Mr. Lefebvre lodged the present complaints on 25 February 1988 against the implied
decisions to reject their claims. Letters of 30 March 1988 from the Organisation expressly rejected their claims as
devoid of merit.
By letters dated 18 April 1988 the Administration answered the other complainants that their internal "complaints"
were irreceivable because ...
- ... the pay cut to each of them. Since their appeals were not answered within
the further time limit of four months in 92(2) they appealed to the Tribunal against the implied rejection.
They put forward five pleas on the merits.
(1) They contend that because there has been no formal statement of the reasons the Tribunal may not review the
impugned decisions properly.
In their submission, however, the debates in the Permanent Commission and in the Committee of Management of
Eurocontrol suggest what the
reasons
for the decisions were, and those reasons were mistaken. First, a desire to
make savings is no proper reason since other steps, such as an "internal tax", have already been taken for the
purpose in line with similar arrangements in the European Communities. Secondly, it cannot fairly be said that staff
pay was too high: comparative studies belie that. Thirdly, it is wrong to attribute the reduction to amendments in
the Eurocontrol Convention ...
- ... of
Eurocontrol suggest what the
reasons
for the decisions were, and those reasons were mistaken. First, a desire to
make savings is no proper reason since other steps, such as an "internal tax", have already been taken for the
purpose in line with similar arrangements in the European Communities. Secondly, it cannot fairly be said that staff
pay was too high: comparative studies belie that. Thirdly, it is wrong to attribute the reduction to amendments in
the Eurocontrol Convention since the amendments have made no difference to the sort of work the staff do.
(2) The impugned decisions are in breach of the rules on setting pay, which include custom and usage in
international organisations. Eurocontrol has consistently followed any adjustments made to staff pay in the
Communities. Indeed it was the same rule of parity that prompted Eurocontrol to impose its own internal tax on
pay.
(3) The pay cut offends against the basic principles of proper ...
- ...
purpose in line with similar arrangements in the European Communities. Secondly, it cannot fairly be said that staff
pay was too high: comparative studies belie that. Thirdly, it is wrong to attribute the reduction to amendments in
the Eurocontrol Convention since the amendments have made no difference to the sort of work the staff do.
(2) The impugned decisions are in breach of the rules on setting pay, which include custom and usage in
international organisations. Eurocontrol has consistently followed any adjustments made to staff pay in the
Communities. Indeed it was the same rule of parity that prompted Eurocontrol to impose its own internal tax on
pay.
(3) The pay cut offends against the basic principles of proper management: there was no consultation about it
between the authorities of Eurocontrol and the staff representatives.
(4) It is in breach of the staff's acquired rights in that a fundamental term of conditions of service is parity in pay ...
- ... comparative studies belie that. Thirdly, it is wrong to attribute the reduction to amendments in
the Eurocontrol Convention since the amendments have made no difference to the sort of work the staff do.
(2) The impugned decisions are in breach of the rules on setting pay, which include custom and usage in
international organisations. Eurocontrol has consistently followed any adjustments made to staff pay in the
Communities. Indeed it was the same rule of parity that prompted Eurocontrol to impose its own internal tax on
pay.
(3) The pay cut offends against the basic principles of proper management: there was no consultation about it
between the authorities of Eurocontrol and the staff representatives.
(4) It is in breach of the staff's acquired rights in that a fundamental term of conditions of service is parity in pay
between Eurocontrol and the Communities.
(5) The Organisation's breach of good faith has betrayed the trust the staff reasonably put in it. ...
- ... staff do.
(2) The impugned decisions are in breach of the rules on setting pay, which include custom and usage in
international organisations. Eurocontrol has consistently followed any adjustments made to staff pay in the
Communities. Indeed it was the same rule of parity that prompted Eurocontrol to impose its own internal tax on
pay.
(3) The pay cut offends against the basic principles of proper management: there was no consultation about it
between the authorities of Eurocontrol and the staff representatives.
(4) It is in breach of the staff's acquired rights in that a fundamental term of conditions of service is parity in pay
between Eurocontrol and the Communities.
(5) The Organisation's breach of good faith has betrayed the trust the staff reasonably put in it.
The three complainants ask the Tribunal to quash the initial action taken towards making staff pay 5 per cent lower
in Eurocontrol than in the Communities, the amount of the reduction since ...
- ... followed any adjustments made to staff pay in the
Communities. Indeed it was the same rule of parity that prompted Eurocontrol to impose its own internal tax on
pay.
(3) The pay cut offends against the basic principles of proper management: there was no consultation about it
between the authorities of Eurocontrol and the staff representatives.
(4) It is in breach of the staff's acquired rights in that a fundamental term of conditions of service is parity in pay
between Eurocontrol and the Communities.
(5) The Organisation's breach of good faith has betrayed the trust the staff reasonably put in it.
The three complainants ask the Tribunal to quash the initial action taken towards making staff pay 5 per cent lower
in Eurocontrol than in the Communities, the amount of the reduction since 1 July 1986 being 0.7 per cent. They
want Eurocontrol to pay back to
them,
with interest, the sums wrongly withheld since that date in keeping with the
decision to ...
- ... no consultation about it
between the authorities of Eurocontrol and the staff representatives.
(4) It is in breach of the staff's acquired rights in that a fundamental term of conditions of service is parity in pay
between Eurocontrol and the Communities.
(5) The Organisation's breach of good faith has betrayed the trust the staff reasonably put in it.
The three complainants ask the Tribunal to quash the initial action taken towards making staff pay 5 per cent lower
in Eurocontrol than in the Communities, the amount of the reduction since 1 July 1986 being 0.7 per cent. They
want Eurocontrol to pay back to
them,
with interest, the sums wrongly withheld since that date in keeping with the
decision to reduce pay. They claim an award of costs.
C. The other fifty-eight complainants observe that, in keeping with what the Tribunal said in Judgment 902, they
are not seeking the quashing of the Commission's general decisions, though they do object to the lawfulness ...
- ... breach of the staff's acquired rights in that a fundamental term of conditions of service is parity in pay
between Eurocontrol and the Communities.
(5) The Organisation's breach of good faith has betrayed the trust the staff reasonably put in it.
The three complainants ask the Tribunal to quash the initial action taken towards making staff pay 5 per cent lower
in Eurocontrol than in the Communities, the amount of the reduction since 1 July 1986 being 0.7 per cent. They
want Eurocontrol to pay back to
them,
with interest, the sums wrongly withheld since that date in keeping with the
decision to reduce pay. They claim an award of costs.
C. The other fifty-eight complainants observe that, in keeping with what the Tribunal said in Judgment 902, they
are not seeking the quashing of the Commission's general decisions, though they do object to the lawfulness of
those decisions as a plea in support of their claim to the quashing of the individual ones, of the amendment ...
- ... 902, they
are not seeking the quashing of the Commission's general decisions, though they do object to the lawfulness of
those decisions as a plea in support of their claim to the quashing of the individual ones, of the amendment to
Article 2.2d) of Rule 27 and of the rejection of their internal "complaints". The grounds for rejection stated in the
defendant's letters of 18 April 1988 were mistaken in fact: since the internal "complaints" did challenge individual
decisions Eurocontrol's objections to receivability are unsound.
The fifty-eight complainants have three pleas on the merits.
(1) The main one is breach of their acquired rights. Since the outset one custom at Eurocontrol has been to keep
staff pay on a par with pay in the Communities, and corollaries of such parity include making good the sums that
staff pay in national income tax and the imposition of the tax on salary intended to ease the organisations' financial
troubles. That custom, since it ...
- ... ones, of the amendment to
Article 2.2d) of Rule 27 and of the rejection of their internal "complaints". The grounds for rejection stated in the
defendant's letters of 18 April 1988 were mistaken in fact: since the internal "complaints" did challenge individual
decisions Eurocontrol's objections to receivability are unsound.
The fifty-eight complainants have three pleas on the merits.
(1) The main one is breach of their acquired rights. Since the outset one custom at Eurocontrol has been to keep
staff pay on a par with pay in the Communities, and corollaries of such parity include making good the sums that
staff pay in national income tax and the imposition of the tax on salary intended to ease the organisations' financial
troubles. That custom, since it relates to pay, forms part of the terms of the complainants' appointment. The 0.7 per
cent cut in pay was in breach of those terms and so of their acquired rights. The general decisions being therefore
unlawful, ...
- ... the tax on salary intended to ease the organisations' financial
troubles. That custom, since it relates to pay, forms part of the terms of the complainants' appointment. The 0.7 per
cent cut in pay was in breach of those terms and so of their acquired rights. The general decisions being therefore
unlawful, so are the individual ones giving effect to them.
Judgment 902 rejected, in 27, the objection that custom may not fetter the authority which the Commission draws
from the Eurocontrol
Convention.
(2) The general decisions are in breach of Articles 64 and 65 of the Staff Regulations, which set the criteria for
changing staff pay. The reduction took no account of those criteria, the amount being determined without regard to
any of the factors mentioned in the articles.
(3) The third plea, subsidiary to (2), is that no reasons were stated for the general decisions, or at least none that
will pass muster in law. Since the decisions are unexplained the Tribunal ...
- ... 64 and 65 of the Staff Regulations, which set the criteria for
changing staff pay. The reduction took no account of those criteria, the amount being determined without regard to
any of the factors mentioned in the articles.
(3) The third plea, subsidiary to (2), is that no reasons were stated for the general decisions, or at least none that
will pass muster in law. Since the decisions are unexplained the Tribunal may not exercise its power of review.
Contrary to what Eurocontrol makes out, general decisions do have to be substantiated. As the Tribunal said in
Judgments 899 and 902, an organisation may not cite its own decision-making procedures to avoid compliance
with the rules in dealings with staff.
Though some sort of substantiation may be inferred from the records of the Commission's and the Committee of
Management's proceedings it is mistaken and inadequate. It is mistaken if the Commission thought that the
amendments to the Convention would alter ...
- ... not cite its own decision-making procedures to avoid compliance
with the rules in dealings with staff.
Though some sort of substantiation may be inferred from the records of the Commission's and the Committee of
Management's proceedings it is mistaken and inadequate. It is mistaken if the Commission thought that the
amendments to the Convention would alter the Organisation's functions so as to make fewer demands on staff: the
1981 Protocol changes the functions neither of Eurocontrol nor of its staff. It is inadequate in that the general
decisions would fail in their purpose if pay in the European Communities was allowed to soar and would prove too
drastic if it was kept down.
The fifty-eight complainants ask the Tribunal to order the Organisation to disclose the administrative records about
the impugned decisions and the general ones they give effect to. They seek the quashing of the amendment of
Article 2.2d) of Rule 27; of the individual decisions ...
- ... about
the impugned decisions and the general ones they give effect to. They seek the quashing of the amendment of
Article 2.2d) of Rule 27; of the individual decisions to apply to them that decision of the Director General's and the
general decisions taken by the Commission at its 62nd and 71st Sessions; and of the decisions in the letters of 18
April 1988. They claim costs.
D. In its replies to the complaints filed by Mr. Boland, Mr. De Groote and Mr. Lefebvre Eurocontrol contends that
those complaints are irreceivable: as is stated in point 6 of the complaint forms, they are challenging "the
Permanent Commission's decision of 7 July 1987" whereas the Tribunal may review only decisions of the
appointing authority's.
In arguments which are subsidiary the Organisation addresses the complainants' five pleas on the merits.
(1) In its submission they cannot properly object to the reduction on the grounds that no reasons for it were given.
Reasons ...
- ... decisions, in particular in the replies to their internal appeals. Though the Tribunal may review the
lawfulness of an individual decision, it may not replace the judgment of a legislative body with its own when the
decision is a matter of policy.
Contrary to what the complainants maintain, there has been radical reform of the Organisation's work and finances.
It now depends on work that member States or other countries choose
to
commission from it. Staff pay in
Eurocontrol is on a par with pay in other European organisations and even higher than pay in the United Nations
system. The Permanent Commission was anxious to check the rise in pay, two of its aims being to make for easier
exchange of staff with government departments and to make the cost of services to States more competitive. So the
workload will be as before.
(2) The reduction is not in breach of any rule of law. The approximate alignment of pay in Eurocontrol with pay in
the Communities ...
- ... from it. Staff pay in
Eurocontrol is on a par with pay in other European organisations and even higher than pay in the United Nations
system. The Permanent Commission was anxious to check the rise in pay, two of its aims being to make for easier
exchange of staff with government departments and to make the cost of services to States more competitive. So the
workload will be as before.
(2) The reduction is not in breach of any rule of law. The approximate alignment of pay in Eurocontrol with pay in
the Communities does not amount to a legal obligation for the Organisation even though in practice it does follow
the base rates in force in the Communities. Since the Commission's decisions affect only the arrangements for
reckoning adjustments in base rates to take account of the cost of living and of tax liability, only net pay has been
altered. Articles 63, 64 and 65 of the Staff Regulations and Article 2.2 of Rule 27 do not ordain parity in pay
between Eurocontrol ...
- ... with pay in
the Communities does not amount to a legal obligation for the Organisation even though in practice it does follow
the base rates in force in the Communities. Since the Commission's decisions affect only the arrangements for
reckoning adjustments in base rates to take account of the cost of living and of tax liability, only net pay has been
altered. Articles 63, 64 and 65 of the Staff Regulations and Article 2.2 of Rule 27 do not ordain parity in pay
between Eurocontrol and the Communities. There are no grounds for relying on any subsidiary source of law such
as custom. The purpose of the internal tax was not to establish parity in pay between Eurocontrol and the
Communities. Eurocontrol authorities decide in the last resort on what staff pay is to be.
(3) The charges of breach of the principles of sound management are immaterial; in any event the Organisation has
always been willing to consult staff representatives.
(4) In a subsidiary plea ...
- ... Commission's decisions affect only the arrangements for
reckoning adjustments in base rates to take account of the cost of living and of tax liability, only net pay has been
altered. Articles 63, 64 and 65 of the Staff Regulations and Article 2.2 of Rule 27 do not ordain parity in pay
between Eurocontrol and the Communities. There are no grounds for relying on any subsidiary source of law such
as custom. The purpose of the internal tax was not to establish parity in pay between Eurocontrol and the
Communities. Eurocontrol authorities decide in the last resort on what staff pay is to be.
(3) The charges of breach of the principles of sound management are immaterial; in any event the Organisation has
always been willing to consult staff representatives.
(4) In a subsidiary plea Eurocontrol contends that there has been no breach of the complainants' acquired rights.
For one thing, parity with the Communities is prescribed
neither
in the Staff Regulations nor ...
- ... arrangements for
reckoning adjustments in base rates to take account of the cost of living and of tax liability, only net pay has been
altered. Articles 63, 64 and 65 of the Staff Regulations and Article 2.2 of Rule 27 do not ordain parity in pay
between Eurocontrol and the Communities. There are no grounds for relying on any subsidiary source of law such
as custom. The purpose of the internal tax was not to establish parity in pay between Eurocontrol and the
Communities. Eurocontrol authorities decide in the last resort on what staff pay is to be.
(3) The charges of breach of the principles of sound management are immaterial; in any event the Organisation has
always been willing to consult staff representatives.
(4) In a subsidiary plea Eurocontrol contends that there has been no breach of the complainants' acquired rights.
For one thing, parity with the Communities is prescribed
neither
in the Staff Regulations nor in the contract of
appointment; ...
- ... the Communities. There are no grounds for relying on any subsidiary source of law such
as custom. The purpose of the internal tax was not to establish parity in pay between Eurocontrol and the
Communities. Eurocontrol authorities decide in the last resort on what staff pay is to be.
(3) The charges of breach of the principles of sound management are immaterial; in any event the Organisation has
always been willing to consult staff representatives.
(4) In a subsidiary plea Eurocontrol contends that there has been no breach of the complainants' acquired rights.
For one thing, parity with the Communities is prescribed
neither
in the Staff Regulations nor in the contract of
appointment; for another, the reduction is so small as not to disrupt the structure of that contract.
(5) Since there is no acquired right to parity in pay the allegations of breach of trust are immaterial.
E. In its reply to the joint complaint Eurocontrol contends that it too is irreceivable ...
- ... In a subsidiary plea Eurocontrol contends that there has been no breach of the complainants' acquired rights.
For one thing, parity with the Communities is prescribed
neither
in the Staff Regulations nor in the contract of
appointment; for another, the reduction is so small as not to disrupt the structure of that contract.
(5) Since there is no acquired right to parity in pay the allegations of breach of trust are immaterial.
E. In its reply to the joint complaint Eurocontrol contends that it too is irreceivable under Article VII(1) of the
Statute of the Tribunal because the complainants have failed to exhaust the internal means of redress. They have
not lodged internal "complaints" challenging the individual decisions by the Director General. Their internal
"complaints" challenged the Commission's decisions, not the individual decisions, the only ones they may
challenge before the Tribunal.
The Organisation's pleas on the merits are subsidiary.
(1) ...
- ... have failed to exhaust the internal means of redress. They have
not lodged internal "complaints" challenging the individual decisions by the Director General. Their internal
"complaints" challenged the Commission's decisions, not the individual decisions, the only ones they may
challenge before the Tribunal.
The Organisation's pleas on the merits are subsidiary.
(1) It denies breach of acquired rights. There is, in its submission, no rule of parity in staff pay between
Eurocontrol and the Communities. The Staff Regulations lay down no such rule; indeed they embody many
differences that preclude it. Pay has never been the same in Eurocontrol as in the Communities. The practice the
complainants rely on is not binding. Only for the sake of administrative convenience has the practice been to refer
to basic rates of pay in the Communities. The authorities of the Organisation have consistently declared that
changes in such pay were not biding on them in setting ...
- ... internal
"complaints" challenged the Commission's decisions, not the individual decisions, the only ones they may
challenge before the Tribunal.
The Organisation's pleas on the merits are subsidiary.
(1) It denies breach of acquired rights. There is, in its submission, no rule of parity in staff pay between
Eurocontrol and the Communities. The Staff Regulations lay down no such rule; indeed they embody many
differences that preclude it. Pay has never been the same in Eurocontrol as in the Communities. The practice the
complainants rely on is not binding. Only for the sake of administrative convenience has the practice been to refer
to basic rates of pay in the Communities. The authorities of the Organisation have consistently declared that
changes in such pay were not biding on them in setting pay in Eurocontrol. Since there is no binding custom of
parity there can be no breach of any acquired right. Even if there were such a right it would not fetter the ...
- ... Communities. The Staff Regulations lay down no such rule; indeed they embody many
differences that preclude it. Pay has never been the same in Eurocontrol as in the Communities. The practice the
complainants rely on is not binding. Only for the sake of administrative convenience has the practice been to refer
to basic rates of pay in the Communities. The authorities of the Organisation have consistently declared that
changes in such pay were not biding on them in setting pay in Eurocontrol. Since there is no binding custom of
parity there can be no breach of any acquired right. Even if there were such a right it would not fetter the
Commission's sovereign authority to determine terms of employment as it sees fit. Besides, the practical effect of
the decisions impugned was not so great as to "disturb the structure" of the complainant's contracts, the test applied
by the case law. Indeed their contracts state that they are subject to the Staff Regulations and to ...
- ... and 65 of the Staff Regulations. The Commission's decisions on pay
are untrammelled by automatic indexing. Article 65 says merely that the Committee of Management shall "take
particular account" of certain stated factors: that does not exclude other ones, and the term "take account" shows
that the effect even of the stated factors is not supposed to be binding. The rules are flexible and the impugned
decisions are in keeping with them both in letter and in spirit.
(3) The Eurocontrol Convention does not require the Commission to explain its decisions., Besides, the absence of
a formal statement of the reasons does not prevent the Tribunal from exercising its power of review on the strength
of the evidence before it or of any further evidence it may wish to have. The reasons for the reduction in the
increased figure of pay are plain from the copious records of proceedings of the competent bodies and from other
texts. The Protocol that amended the Convention as ...
- ... evidence it may wish to have. The reasons for the reduction in the
increased figure of pay are plain from the copious records of proceedings of the competent bodies and from other
texts. The Protocol that amended the Convention as from 1 January 1986 altered the Organisation's duties,
operation and financing in radical ways; in sum, it now carries out tasks that member States or other countries
entrust to it and has to keep costs low to stay competitive. Since pay
in
Eurocontrol was double what it was for
similar posts in some member countries it had to be held back. Though some countries would have welcomed more
drastic cuts, the general decisions the complainants object to are in fact fully suited to the Organisation's new
position. Trends in pay in the Communities are immaterial since, contrary to what the complainants contend, an
independent organisation like Eurocontrol is not bound to follow the Communities but may set its own pay scales
as it ...
- ... to it and has to keep costs low to stay competitive. Since pay
in
Eurocontrol was double what it was for
similar posts in some member countries it had to be held back. Though some countries would have welcomed more
drastic cuts, the general decisions the complainants object to are in fact fully suited to the Organisation's new
position. Trends in pay in the Communities are immaterial since, contrary to what the complainants contend, an
independent organisation like Eurocontrol is not bound to follow the Communities but may set its own pay scales
as it pleases.
Lastly, there are no relevant records that have not yet been published.
F. In their rejoinders Mr. Boland, Mr. De Groote and Mr. Lefebvre point out that there can be no doubt about
which decisions they are impugning. Both in the original complaint forms they filed and in their statements of
claim the only dates they mention are those at which they got pays lips showing the reduction in pay. In ...
- ... and Mr. Lefebvre point out that there can be no doubt about
which decisions they are impugning. Both in the original complaint forms they filed and in their statements of
claim the only dates they mention are those at which they got pays lips showing the reduction in pay. In their
submission their complaints are therefore receivable.
As for the merits, they enlarge on their pleas on two issues.
(1) They address mainly the question of the past policy of aligning pay in Eurocontrol and in the Communities.
They maintain that custom is a main source of international law that is binding on the Organisation.
(2) They deny that the obligation to state the reasons for an administrative decision has to be in writing.
G. In their rejoinder the other complainants reaffirm that the Organisation's objections to receivability are mistaken
since their internal appeals expressly challenged the individual decisions reducing their pay.
They develop their pleas on the merits. ...
- ... reaffirm that the Organisation's objections to receivability are mistaken
since their internal appeals expressly challenged the individual decisions reducing their pay.
They develop their pleas on the merits.
(1) As to their plea of breach of acquired rights, they cite a report of 7 January 1988 by the Committee of
Management to the Permanent Commission containing terms which, in their submission, bear out their contention
that there is a custom of parity in pay between Eurocontrol and the Communities. That custom is binding in law:
Eurocontrol has abided by it for over twenty years, as the written records again show. Besides income tax policy
and the levy, they see evidence of parity in the wording of Article 2.2c) of Rule 27 and in Eurocontrol's giving
effect to a ruling by the Court of Justice of the European Communities on the yearly adjustment of pay in the
Communities. The level of pay is an essential element of the terms of their appointment. Whatever ...
- ... mistaken
since their internal appeals expressly challenged the individual decisions reducing their pay.
They develop their pleas on the merits.
(1) As to their plea of breach of acquired rights, they cite a report of 7 January 1988 by the Committee of
Management to the Permanent Commission containing terms which, in their submission, bear out their contention
that there is a custom of parity in pay between Eurocontrol and the Communities. That custom is binding in law:
Eurocontrol has abided by it for over twenty years, as the written records again show. Besides income tax policy
and the levy, they see evidence of parity in the wording of Article 2.2c) of Rule 27 and in Eurocontrol's giving
effect to a ruling by the Court of Justice of the European Communities on the yearly adjustment of pay in the
Communities. The level of pay is an essential element of the terms of their appointment. Whatever the
Commission's authority may be and whatever their contracts ...
- ... cite a report of 7 January 1988 by the Committee of
Management to the Permanent Commission containing terms which, in their submission, bear out their contention
that there is a custom of parity in pay between Eurocontrol and the Communities. That custom is binding in law:
Eurocontrol has abided by it for over twenty years, as the written records again show. Besides income tax policy
and the levy, they see evidence of parity in the wording of Article 2.2c) of Rule 27 and in Eurocontrol's giving
effect to a ruling by the Court of Justice of the European Communities on the yearly adjustment of pay in the
Communities. The level of pay is an essential element of the terms of their appointment. Whatever the
Commission's authority may be and whatever their contracts may say, Eurocontrol must respect the general rule
that an international organisation may not unilaterally impair essential and therefore acquired rights. In answer to
the Organisation's plea that the ...
- ... by it for over twenty years, as the written records again show. Besides income tax policy
and the levy, they see evidence of parity in the wording of Article 2.2c) of Rule 27 and in Eurocontrol's giving
effect to a ruling by the Court of Justice of the European Communities on the yearly adjustment of pay in the
Communities. The level of pay is an essential element of the terms of their appointment. Whatever the
Commission's authority may be and whatever their contracts may say, Eurocontrol must respect the general rule
that an international organisation may not unilaterally impair essential and therefore acquired rights. In answer to
the Organisation's plea that the amount of the reduction was too small to disturb the structure of their contracts, the
complainants observe that the material issue is not the content but the nature of the right impaired. Besides, if small
changes were admissible they might be allowed to build up into a big one.
(2) The complainants ...
- ... and therefore acquired rights. In answer to
the Organisation's plea that the amount of the reduction was too small to disturb the structure of their contracts, the
complainants observe that the material issue is not the content but the nature of the right impaired. Besides, if small
changes were admissible they might be allowed to build up into a big one.
(2) The complainants enlarge on their plea of breach of Articles 64 and 65 of the Staff Regulations, observing that
Eurocontrol, in disregard of the criteria for adjustment and of actual circumstances, has simply decreed a reduction
by a fixed and invariable percentage in relation to what the Communities
may
decide.
(3) They submit that a statement of the reasons for a decision is required even if the rules do not say so. Since the
individual decisions are not explained, at least the general ones must be. The Organisation misrepresents the effects
of the Protocol, which did not reduce the importance ...
- ... to what the Communities
may
decide.
(3) They submit that a statement of the reasons for a decision is required even if the rules do not say so. Since the
individual decisions are not explained, at least the general ones must be. The Organisation misrepresents the effects
of the Protocol, which did not reduce the importance of its functions at all and indeed gave it new ones. Even if it
needed fewer staff the quality of those it did need would be as before. Eurocontrol may no longer carry on
operational activities, but the Communities never have anyway. Comparison with pay for like employment in
member States is irrelevant: pay has to be higher in Eurocontrol to attract good recruits. The need to keep costs
down is an implausible argument: the system prescribed in the Staff Regulations for adapting staff pay -
particularly in the first paragraph of Article 65 - already holds rises in check, as has the levy on salaries. The
reasons for the reduction ...
- ... are not explained, at least the general ones must be. The Organisation misrepresents the effects
of the Protocol, which did not reduce the importance of its functions at all and indeed gave it new ones. Even if it
needed fewer staff the quality of those it did need would be as before. Eurocontrol may no longer carry on
operational activities, but the Communities never have anyway. Comparison with pay for like employment in
member States is irrelevant: pay has to be higher in Eurocontrol to attract good recruits. The need to keep costs
down is an implausible argument: the system prescribed in the Staff Regulations for adapting staff pay -
particularly in the first paragraph of Article 65 - already holds rises in check, as has the levy on salaries. The
reasons for the reduction in pay are therefore mistaken. they are also inadequate - and Eurocontrol has failed to
address the point - in that the reduction is predetermined as a fixed and unalterable percentage of amounts ...
- ... have anyway. Comparison with pay for like employment in
member States is irrelevant: pay has to be higher in Eurocontrol to attract good recruits. The need to keep costs
down is an implausible argument: the system prescribed in the Staff Regulations for adapting staff pay -
particularly in the first paragraph of Article 65 - already holds rises in check, as has the levy on salaries. The
reasons for the reduction in pay are therefore mistaken. they are also inadequate - and Eurocontrol has failed to
address the point - in that the reduction is predetermined as a fixed and unalterable percentage of amounts to be set
by authorities outside the Organisation: if pay in the Communities actually doubled, so would pay in Eurocontrol,
subject only to the cut of 5 per cent.
H. In its surrejoinders on the cases of Mr. Boland, Mr. De Groote and Mr. Lefebvre the Organisation contends that
by entering the Commission's decision of 7 July 1987 as the impugned decision under ...
- ... for adapting staff pay -
particularly in the first paragraph of Article 65 - already holds rises in check, as has the levy on salaries. The
reasons for the reduction in pay are therefore mistaken. they are also inadequate - and Eurocontrol has failed to
address the point - in that the reduction is predetermined as a fixed and unalterable percentage of amounts to be set
by authorities outside the Organisation: if pay in the Communities actually doubled, so would pay in Eurocontrol,
subject only to the cut of 5 per cent.
H. In its surrejoinders on the cases of Mr. Boland, Mr. De Groote and Mr. Lefebvre the Organisation contends that
by entering the Commission's decision of 7 July 1987 as the impugned decision under point 6 of the complaint
forms the complainants have set the context of the dispute: their case turns entirely
on
that decision, not on the
perfectly proper application thereof.
Eurocontrol enlarges on its pleas on the merits.
I. ...
- ... actually doubled, so would pay in Eurocontrol,
subject only to the cut of 5 per cent.
H. In its surrejoinders on the cases of Mr. Boland, Mr. De Groote and Mr. Lefebvre the Organisation contends that
by entering the Commission's decision of 7 July 1987 as the impugned decision under point 6 of the complaint
forms the complainants have set the context of the dispute: their case turns entirely
on
that decision, not on the
perfectly proper application thereof.
Eurocontrol enlarges on its pleas on the merits.
I. In its surrejoinder on the joint complaint the Organisation points out, as to receivability, that the internal
"complaints" not only failed to challenge individual decisions but were premature in that they were filed before 12
November 1987, when the Permanent Commission gave final approval to its decision to reduce pay, and before
individual decisions were taken to give effect to that general one of the Commission's. Those individual decisions, ...
- ... say they are impugning under point 6 of the complaint form is a decision of
"July 1987" notified to them, according to point 7, "on 29 July 1987, at the end of July 1987 and in September
1987". In fact 29 July is the date of office note No. 23/87 informing the staff of the likely application of the first
reduction in pay subject to later final approval by the Permanent Commission. So that note cannot be treated as a
challengeable decision either.
As to the merits Eurocontrol develops its earlier pleas and seeks to refute those developed in the complainants'
rejoinder.
J. In a supplement to its surrejoinder on the complaints of Mr. Boland, Mr. De Groote and Mr. Lefebvre
Eurocontrol again maintains that they are irreceivable. It observes that it was after
reading
Judgment 902 of 30 June
1988 that the complainants shifted ground and argued in their rejoinders that they had indeed challenged individual
decisions. So it is only by way of subsidiary ...
- ... July is the date of office note No. 23/87 informing the staff of the likely application of the first
reduction in pay subject to later final approval by the Permanent Commission. So that note cannot be treated as a
challengeable decision either.
As to the merits Eurocontrol develops its earlier pleas and seeks to refute those developed in the complainants'
rejoinder.
J. In a supplement to its surrejoinder on the complaints of Mr. Boland, Mr. De Groote and Mr. Lefebvre
Eurocontrol again maintains that they are irreceivable. It observes that it was after
reading
Judgment 902 of 30 June
1988 that the complainants shifted ground and argued in their rejoinders that they had indeed challenged individual
decisions. So it is only by way of subsidiary argument that Eurocontrol seeks to show that the alleged individual
decisions applying the general reduction in pay are not challengeable. Not until 12 November 1987 did the
Permanent Commission make its decision ...
- ... pleas and seeks to refute those developed in the complainants'
rejoinder.
J. In a supplement to its surrejoinder on the complaints of Mr. Boland, Mr. De Groote and Mr. Lefebvre
Eurocontrol again maintains that they are irreceivable. It observes that it was after
reading
Judgment 902 of 30 June
1988 that the complainants shifted ground and argued in their rejoinders that they had indeed challenged individual
decisions. So it is only by way of subsidiary argument that Eurocontrol seeks to show that the alleged individual
decisions applying the general reduction in pay are not challengeable. Not until 12 November 1987 did the
Permanent Commission make its decision to reduce net pay. So the notifications, which are mere pay slips, cannot
be treated as individual decisions applying a policy decision that had not yet become final. Though office note No.
23/87 of 29 July 1987 explained that the policy decision was still only provisional they took no notice of ...
- ... appeals were premature because they were lodged
before the Permanent Commission had finally approved the reduction. Once they had got their pay slips their
internal appeals were receivable under Article 92(2) of the Staff Regulations. And the objection overlooks the rule
that later approval of a decision that is already under challenge in judicial proceedings has retroactive
effect.
M. In comments on the further submissions of Mr. Boland, Mr. De Groote and Mr. Lefebvre Eurocontrol says that
it has never denied that pay slips can amount to challengeable individual decisions. But the decision the pay slips
were based on was not yet a final and therefore not yet open to challenge in a complaint to the Tribunal. Estoppel
applies only if the conduct of one party has led the other to take up a particular stance and if the other party has
suffered prejudice on that account. Neither condition is met here.
N. In further submissions on the joint complaint ...
- ... challengeable under Article 92 of the Staff Regulations. Moreover, the internal appeals were not based
even on any transitional measure of the Permanent Commission's and did not become receivable by virtue of the
retroactive effect of the Commission's final approval of its decision. Such a notion of retroactivity would impair the
stability of relations between the parties in law.
CONSIDERATIONS:
1. The European Organisation for the Safety of Air Navigation, known as Eurocontrol, is an institution which six
European countries set up in 1960, and of which two others later in turn became members. At the time the pay of
staff of the Agency which serves as the secretariat of the Organisation was on a par with that of staff of the
European Communities.
For several years the representatives
of
some member States advocated changing that policy, and the upshot of
much debate on the subject was a decision the Permanent Commission - the governing board ...
- ... institution which six
European countries set up in 1960, and of which two others later in turn became members. At the time the pay of
staff of the Agency which serves as the secretariat of the Organisation was on a par with that of staff of the
European Communities.
For several years the representatives
of
some member States advocated changing that policy, and the upshot of
much debate on the subject was a decision the Permanent Commission - the governing board of Eurocontrol - took
at its 71st Session, on 7 July 1987. Its decision was to keep to the policy of alignment but as from 1 July 1986 to
make the net pay of Eurocontrol staff 0.7 per cent lower than that of staff in the Communities. That was the first
step in an exercise which was to be spread over three years and to bring in a 5 per cent differential in pay between
the two organisations.
The Director General of Eurocontrol - the "appointing authority" - conveyed the matter to the staff in ...
- ... which serves as the secretariat of the Organisation was on a par with that of staff of the
European Communities.
For several years the representatives
of
some member States advocated changing that policy, and the upshot of
much debate on the subject was a decision the Permanent Commission - the governing board of Eurocontrol - took
at its 71st Session, on 7 July 1987. Its decision was to keep to the policy of alignment but as from 1 July 1986 to
make the net pay of Eurocontrol staff 0.7 per cent lower than that of staff in the Communities. That was the first
step in an exercise which was to be spread over three years and to bring in a 5 per cent differential in pay between
the two organisations.
The Director General of Eurocontrol - the "appointing authority" - conveyed the matter to the staff in office notes
dated 23 and 29 July 1987, and in July, August and September 1987 the staff accordingly received pay slips
notifying both payment of sums due ...
- ... was a decision the Permanent Commission - the governing board of Eurocontrol - took
at its 71st Session, on 7 July 1987. Its decision was to keep to the policy of alignment but as from 1 July 1986 to
make the net pay of Eurocontrol staff 0.7 per cent lower than that of staff in the Communities. That was the first
step in an exercise which was to be spread over three years and to bring in a 5 per cent differential in pay between
the two organisations.
The Director General of Eurocontrol - the "appointing authority" - conveyed the matter to the staff in office notes
dated 23 and 29 July 1987, and in July, August and September 1987 the staff accordingly received pay slips
notifying both payment of sums due in arrears and reductions in current monthly salary.
In conclusion the Commission approved at its 72nd Session, on 12 November 1987, its decision of 7 July.
2. Hundreds of Eurocontrol officials submitted appeals to the Director General. Having got no answer within ...
- ... in pay between
the two organisations.
The Director General of Eurocontrol - the "appointing authority" - conveyed the matter to the staff in office notes
dated 23 and 29 July 1987, and in July, August and September 1987 the staff accordingly received pay slips
notifying both payment of sums due in arrears and reductions in current monthly salary.
In conclusion the Commission approved at its 72nd Session, on 12 November 1987, its decision of 7 July.
2. Hundreds of Eurocontrol officials submitted appeals to the Director General. Having got no answer within the
time limit of four months set in the Staff Regulations, three of them - Mr. Boland, Mr. De Groote and Mr. Lefebvre
- filed their complaints with the Tribunal on 25 February 1988. Others awaited an express decision before doing so,
the decision came on 18 April and the joint complaint was lodged with the Tribunal on 15 July.
All the complaints, which unquestionably respect the time limits, raise the ...
- ... and Mr. Lefebvre's complaints from staff
members who have the same rights as they. The applications are receivable and the Tribunal's ruling will apply to
the interveners as to the complainants themselves.
3. In support of its contention that the complaints are irreceivable the Organisation puts forward different pleas
about different complaints; it later adduces further arguments.
4. In its replies to the complaints filed by Mr. Boland, Mr. De Groote and Mr. Lefebvre Eurocontrol submits that
what they are challenging is "the Permanent Commission's decision of 7 July 1987" and that that is one of a
general nature and not of the kind the Tribunal may review, namely decisions by the Director General.
As for the joint complaint by Mr. Aelvoet and others, the Organisation argues that their internal appeals did not
challenge the lawfulness of the individual decisions applying the general one and that since those appeals were
therefore irreceivable so is their ...
- ... irreceivable so is their complaint to the Tribunal.
The pleas are flawed because they rest in part on mistakes of fact.
In their internal appeals Mr. Aelvoet and others each sought, under points 2(a) and (b), the quashing of the general
decisions and, under 2(c), the quashing of "the individual decision applying the general decision referred to in (a)
and (b)", and they explained that the individual decisions consisted in "the pay slips showing payment of arrears
(Eurocontrol reduction) as from 1 July 1986 and received at the end of July 1987 and the pay slips for September
1987". In its replies
Eurocontrol
distinguished between the two claims and rejected the appeals as irreceivable only
insofar as they challenged the Commission's general decision.
In the statement of their claims in the complaint forms and at the end of their brief Mr. Boland, Mr. De Groote and
Mr. Lefebvre explain that what they are challenging are the individual decisions ...
- ... appeals Mr. Aelvoet and others each sought, under points 2(a) and (b), the quashing of the general
decisions and, under 2(c), the quashing of "the individual decision applying the general decision referred to in (a)
and (b)", and they explained that the individual decisions consisted in "the pay slips showing payment of arrears
(Eurocontrol reduction) as from 1 July 1986 and received at the end of July 1987 and the pay slips for September
1987". In its replies
Eurocontrol
distinguished between the two claims and rejected the appeals as irreceivable only
insofar as they challenged the Commission's general decision.
In the statement of their claims in the complaint forms and at the end of their brief Mr. Boland, Mr. De Groote and
Mr. Lefebvre explain that what they are challenging are the individual decisions which applied the general decision
and which first came to their notice on the issue of their pay slips showing the payment of arrears and ...
- ... was made.
In any event the reduction applies not just to the period in which there was the pay rise but also to the period
before that because the reduction was retroactive to 1 July 1986. For that reason alone the complaints are partly
receivable.
7. Having been issued before the Commission's decision setting the new pay scales and making the reduction took
effect, the pay slips have no basis in law and must be set aside insofar as they cause the complainants injury.
Eurocontrol shall therefore make over to them the sums withheld and pay them interest thereon at the rate of 10 per
cent a year as from the date at which the deduction was made.
The further flaw the complainants point to in the pay slips - their retroactive effect - is of lesser gravity and maybe
subsumed in the greater one.
8. Though the pay slips are set aside insofar as they reduce pay, the complaints go much further in that what they
also impugn is the
lawfulness
of the actual ...
- ... into effect, they
apply only to the period they cover and cannot be treated as giving effect to a decision that had not yet become
final.
Not a single complainant has challenged an individual decision subsequent to 12 November 1987. The Tribunal is
therefore bound, regrettable, to declare the claims irreceivable insofar as they object to future reductions in pay.
9. Since the impugned decisions are st aside the complainants are entitled to awards towards costs against
Eurocontrol as follows: a total of 100,000 Belgian francs to Mr. Boland, Mr. De Groote and Mr. Lefebvre; and a
total of 100,000 Belgian francs to Mr. Aelvoet and the other complainants.
DECISION:
For the above reasons,
1. The pay slips issued by Eurocontrol before the Permanent Commission's decision of 12 November 1987 took
effect are set aside insofar as they reduce staff pay by 0.7 per cent.
2. The Organisation shall refund the sums withheld and pay interest thereon at the rate ...
- ... bound, regrettable, to declare the claims irreceivable insofar as they object to future reductions in pay.
9. Since the impugned decisions are st aside the complainants are entitled to awards towards costs against
Eurocontrol as follows: a total of 100,000 Belgian francs to Mr. Boland, Mr. De Groote and Mr. Lefebvre; and a
total of 100,000 Belgian francs to Mr. Aelvoet and the other complainants.
DECISION:
For the above reasons,
1. The pay slips issued by Eurocontrol before the Permanent Commission's decision of 12 November 1987 took
effect are set aside insofar as they reduce staff pay by 0.7 per cent.
2. The Organisation shall refund the sums withheld and pay interest thereon at the rate of 10 per cent a year as from
the date of withholding.
3. The same ruling shall apply to the interveners ,whose applications are receivable.
4. The Organisatoin shall pay towards costs as set out in 9 above.
5. The complainants' other claims are dismissed. ...
- Judgment 992
68th Session, 1990
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol Agency) on 30 November 1988 and corrected on 6 January 1989, the Agency's reply of 29
March, the complainant's rejoinder of 27 June and Eurocontrol's surrejoinder of 21 September 1989;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Article 92(2) of the Staff Regulations governing
officials of the Agency and Articles 20 and 25 ter of Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence, oral proceedings having been neither ...
- ... Eurocontrol's surrejoinder of 21 September 1989;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Article 92(2) of the Staff Regulations governing
officials of the Agency and Articles 20 and 25 ter of Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed up as follows: ...
- ... 1989;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Article 92(2) of the Staff Regulations governing
officials of the Agency and Articles 20 and 25 ter of Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. Article 20 of Eurocontrol Rule No. 10 concerning sickness and accident insurance states in paragraph 1:
"The subsistence expenses relating to a cure at a health resort prescribed by the practitioner, which is recognized as
strictly necessary by the medical officer, for which prior authorization has been granted and which is carried out
under medical supervision, shall be reimbursed ...
...
Applications must be accompanied by the medical prescription and a detailed medical report to the medical officer ...
- ... which is recognized as
strictly necessary by the medical officer, for which prior authorization has been granted and which is carried out
under medical supervision, shall be reimbursed ...
...
Applications must be accompanied by the medical prescription and a detailed medical report to the medical officer
showing the necessity for the cure and specifying where this is to take place."
The complainant, a French citizen, is employed as a principal assistant at grade B at Eurocontrol's Experimental
Centre at Brétigny-sur-Orge, in France.
In 1986 and 1987 the Sickness Insurance Scheme granted him permission to undergo treatment at a thermal centre
at Amélie- les-Bains for a nasal infection. On 14 April 1988 he forwarded to the Scheme an application, made out
by his doctor and accompanied by a medical certificate from a doctor at the centre, for a third spell of treatment. A
letter of 6 May 1988 rejected his application on the grounds that it was not clear ...
- ... centre
at Amélie- les-Bains for a nasal infection. On 14 April 1988 he forwarded to the Scheme an application, made out
by his doctor and accompanied by a medical certificate from a doctor at the centre, for a third spell of treatment. A
letter of 6 May 1988 rejected his application on the grounds that it was not clear that the treatment was "essential".
On 18 May his doctor made out another application, this time with the comment "third thermal treatment
indispensable". Eurocontrol turned down the second application as well on 7 June on the grounds that it still did not
show the treatment to be strictly necessary, the addition of the word "indispensable" without explanation being
thought insufficient.On 4 July the complainant submitted an internal "complaint" to the Director General against
that decision and in keeping with Article 25 ter of Rule No. 10 the matter was referred for an opinion to the
Management Committee of the Scheme.
In its opinion, which ...
- ... may
never find that the treatment applied for qualifies. The purpose of requiring the medical officer to declare the
treatment "strictly necessary", and not "indispensable", is to discard applications for treatment that will serve no
therapeutic purpose and to make sure that the patient does need the treatment. The complainant says that he knows
for certain that the treatment he has undergone twice already did do him good and made his sick leave less
frequent. So Eurocontrol drew direct benefit.
The complainant asks the Tribunal to quash the implied decision by the Scheme and to authorise the treatment
prescribed by his doctor. He claims costs.
C. Eurocontrol replies that according to Article 20 of Rule No. 10 it is the medical officer who determines whether
the treatment is "strictly necessary" and he does so on the strength of the detailed medical records that are supposed
to be appended to the prescription. That treatment should be useful is not ...
- ... applications for treatment that will serve no
therapeutic purpose and to make sure that the patient does need the treatment. The complainant says that he knows
for certain that the treatment he has undergone twice already did do him good and made his sick leave less
frequent. So Eurocontrol drew direct benefit.
The complainant asks the Tribunal to quash the implied decision by the Scheme and to authorise the treatment
prescribed by his doctor. He claims costs.
C. Eurocontrol replies that according to Article 20 of Rule No. 10 it is the medical officer who determines whether
the treatment is "strictly necessary" and he does so on the strength of the detailed medical records that are supposed
to be appended to the prescription. That treatment should be useful is not enough. The Scheme's rejection of the
applications was founded on the adverse report the medical officer had made on the papers
the
complainant had
supplied. The Management Committee ...
- ... was not based on any written and substantiated findings by the
medical officer, whose findings were put to paper only after he had submitted his internal "complaint".
The Organisation's refusal to let him undergo further medical examination on the grounds that it is not expressly
provided for in the rules betrays its view that its medical officer's findings are beyond challenge, a posture that is
quite inadmissible and contrary to fundamental rights.
E. In its surrejoinder Eurocontrol rebuts the pleas in the rejoinder and enlarges on its own case.
It observes in particular that it is not the medical officer's function to have Scheme members undergo examinations
to obtain second opinions. It is the Scheme itself that decides on applications for treatment on the strength of the
medical officer's findings. The Organisation denies that the findings were made after the complainant lodged his
appeal and that there was procedural irregularity
in
handling the ...
- ... that it is not the medical officer's function to have Scheme members undergo examinations
to obtain second opinions. It is the Scheme itself that decides on applications for treatment on the strength of the
medical officer's findings. The Organisation denies that the findings were made after the complainant lodged his
appeal and that there was procedural irregularity
in
handling the complainant's applications.
CONSIDERATIONS:
1. The complainant, who works at Eurocontrol's Experimental Centre at Brétigny-sur-Orge, in France, is
challenging a decision not to authorise him to take a cure prescribed by his doctor.
2. The complainant was twice granted permission to undergo treatment for a nasal infection at a thermal centre at
Amélie-les-Bains, and according to certificates made out at the time the treatment was successful. His doctor, Dr.
Barthes, applied on 14 April 1988 for authorisation of a third cure at the same establishment, but the medical
officer ...
- ... Centre at Brétigny-sur-Orge, in France, is
challenging a decision not to authorise him to take a cure prescribed by his doctor.
2. The complainant was twice granted permission to undergo treatment for a nasal infection at a thermal centre at
Amélie-les-Bains, and according to certificates made out at the time the treatment was successful. His doctor, Dr.
Barthes, applied on 14 April 1988 for authorisation of a third cure at the same establishment, but the medical
officer of Eurocontrol objected on the grounds that the doctor's application did not make it clear that the cure was
strictly necessary, and so Eurocontrol refused to authorise it.
3. On 18 May Dr. Barthes applied again, this time affirming that the cure was "indispensable". But on 7 June
Eurocontrol informed the complainant that its medical officer still refused to accept it as such.
4. On 4 July the complainant filed an internal "complaint" with the Director General under Article 92(2) of the
Staff ...
- ... The complainant was twice granted permission to undergo treatment for a nasal infection at a thermal centre at
Amélie-les-Bains, and according to certificates made out at the time the treatment was successful. His doctor, Dr.
Barthes, applied on 14 April 1988 for authorisation of a third cure at the same establishment, but the medical
officer of Eurocontrol objected on the grounds that the doctor's application did not make it clear that the cure was
strictly necessary, and so Eurocontrol refused to authorise it.
3. On 18 May Dr. Barthes applied again, this time affirming that the cure was "indispensable". But on 7 June
Eurocontrol informed the complainant that its medical officer still refused to accept it as such.
4. On 4 July the complainant filed an internal "complaint" with the Director General under Article 92(2) of the
Staff Regulations. That complaint was referred for an opinion to the Management Committee of the Sickness
Insurance Scheme. In the course ...
- ... made out at the time the treatment was successful. His doctor, Dr.
Barthes, applied on 14 April 1988 for authorisation of a third cure at the same establishment, but the medical
officer of Eurocontrol objected on the grounds that the doctor's application did not make it clear that the cure was
strictly necessary, and so Eurocontrol refused to authorise it.
3. On 18 May Dr. Barthes applied again, this time affirming that the cure was "indispensable". But on 7 June
Eurocontrol informed the complainant that its medical officer still refused to accept it as such.
4. On 4 July the complainant filed an internal "complaint" with the Director General under Article 92(2) of the
Staff Regulations. That complaint was referred for an opinion to the Management Committee of the Sickness
Insurance Scheme. In the course of the ensuing proceedings the medical officer twice commented on the
complainant's application.
5. In a minute he addressed to the Scheme on 14 ...
- ...
6. On 17 November 1988 the Management Committee informed the Director General that the majority opinion was
that the medical officer should examine the complainant.
7. The complainant filed this complaint on 30 November 1988. He pointed out that since his internal appeal of 4
July 1988 was still pending after over four months he was entitled under Article 92(2) of the Staff Regulations to
file a complaint challenging the rejection of his claim to be inferred from Eurocontrol's failure to answer it.
8. So as to comply with the prescribed procedure the Director General sent the complainant on 22 December 1988,
after he had filed his complaint, an express decision rejecting the internal appeal and observing that the sole issue
in dispute was the refund of the subsistence expenses of the cure since the cost of the actual treatment might be
covered by a doctor's prescription. The Director General added that he saw no need for the complainant to undergo
medical ...
- ...
12. As the medical officer correctly observed in his letter of 8 November 1988, the application cited no clinical
examination and merely referred to the records supplied earlier by the complainant himself. Moreover, the case
records being so slight, the Director General was not at fault in rejecting the Management Committee's suggestion
of further medical examination.
13. Since the papers the complainant has filed do not afford a shred of evidence to suggest that Eurocontrol was
remiss or that its medical officer made any improper medical assessment, the complaint
must
fail.
DECISION:
For the above reasons,
The complaint is dismissed.
In witness of this judgment by Mr. Jacques Ducoux, President of the Tribunal, Tun Mohamed Suffian, Vice-
President, and Pierre Pescatore, Deputy Judge, the aforementioned have signed hereunder, as have I, Allan
Gardner, Registrar.
Delivered in public sitting in Geneva 23 January 1990.
(Signed) ...
- Judgment 963
66th Session, 1989
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol Agency) on 28 July 1988, the Agency's
replies of 13 October 1988, the complainants' rejoinders of 19 January 1989 and the Agency's surrejoinders of 7
April 1989;
Considering the applications to intervene filed by:
J. Abramowski
A. Abts
V. Alminana
A. Barnby
D. Bell
F. Bidaud
B. Boerrigter
P. Boland
J. Bralet
V. Brown
H. Buck
H. Burgbacher
M. Chauvet
P. Crick
F. Dahlbuedding
B. Darke
P. De Groote
P. de la Haye
J. ...
- ... Rensink
F. Roth
J-C. Salard
G. Schoeling
J. Schraa
N. Schreurs
M. Schwaller
K. Seipke
F. Skerhut
P. Slingerland
E. Snijders
S. Starlander
F. Steijns
E. Steiner
R. Ueberhofen
J. Uhl
M. van der Sluis
A. van Dooren
S. van Dronkelaar
A. van Zanten
D. Vanderstraeten
W. Viertelhauzen
J-C. Vollant
N. Vrancken
E. Vreede
G. Wendling
J-P. Willox
D. Winkler
W. Withofs
J. Zipp
and Eurocontrol's observations thereon of 28 April 1989;
Considering Articles II, paragraph 5, and VII, paragraph 3, of the Statute of the Tribunal and Articles 2, 62, 67 and
92(2) of the applicable staff regulations of the Agency;
Having examined the written evidence,
oral
proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. At its 62nd Session, on 7 July 1983, ...
- ... 1989;
Considering Articles II, paragraph 5, and VII, paragraph 3, of the Statute of the Tribunal and Articles 2, 62, 67 and
92(2) of the applicable staff regulations of the Agency;
Having examined the written evidence,
oral
proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. At its 62nd Session, on 7 July 1983, the Permanent Commission of Eurocontrol decided to bring in a 5 per cent
differential between net pay in the European Communities and net pay at Eurocontrol. At its 71st Session, on 7
July 1987, it approved as from 1 July 1986 an initial reduction of 0.7 per cent in staff pay.
The complainants, who are officials of the Agency, found on getting their pay slips in December 1987 that amounts
corresponding to 0.7 per cent had been deducted from the sums refunded to them against education expenses they
had incurred for ...
- ... 67 and
92(2) of the applicable staff regulations of the Agency;
Having examined the written evidence,
oral
proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. At its 62nd Session, on 7 July 1983, the Permanent Commission of Eurocontrol decided to bring in a 5 per cent
differential between net pay in the European Communities and net pay at Eurocontrol. At its 71st Session, on 7
July 1987, it approved as from 1 July 1986 an initial reduction of 0.7 per cent in staff pay.
The complainants, who are officials of the Agency, found on getting their pay slips in December 1987 that amounts
corresponding to 0.7 per cent had been deducted from the sums refunded to them against education expenses they
had incurred for the period from July 1986 to June 1987. Those are the decisions which Mr. Roussot challenged on
2 March 1988, Mr. Niesing ...
- ... to be refunded and they have respected the time limits.
They put forward the following pleas on the merits.
Their first plea is that, like the reduction in pay challenged in complaints pending before the Tribunal by Mr.
Boland, Mr. De Groote and Mr. Lefebvre, the decisions to reduce the amounts refunded to them are unlawful
because no valid reasons have been stated and because they are in breach of the rules on the determination of the
pay and pension entitlements of Eurocontrol staff, of the staff's acquired rights, of their reasonable expectations
and of the principle of equal treatment.
Secondly, the complainants submit that even supposing that it was lawful to reduce their pay, it was not lawful to
make any deduction from the sums refunded to them against education expenses, which, being refunded only on
the strength of supporting evidence, are not a component of pay.
Thirdly, the reduction in the sums refunded discriminates between different ...
- ... of staff.
Fourthly, neither the complainants themselves nor the staff in general were ever informed of the decision, which
therefore has no foundation in law and is not substantiated.
The complainants ask the Tribunal to set aside the decisions to deduct 0.7 per cent from the amounts refunded to
them against education expenses they had incurred in the period from July 1986 to June 1987 and to award them
the sums wrongfully withheld. They claim costs.
C. In its replies Eurocontrol submits that, contrary to what the complainants contend, the "education allowance" is,
according to Articles 62 and 67 of the staff regulations, a component of staff pay: it consists of a payment of a
regular allowance and of "other education expenses" which are refunded on the strength of supporting evidence.
The complaints are irreceivable:
first,
because the pay slips the complainants got in December 1987 merely
confirmed the decisions to reduce pay which they had had ...
- ... first time about the 0.7 per cent reduction, and, secondly, that their complaints are distinct
from those of Mr. Boland, Mr. De Groote and Mr. Lefebvre.
They enlarge on their pleas on the merits, particularly on their allegations about the discriminatory nature of the
reduction in the amounts refunded, a reduction which in their submission the Permanent Commission neither
intended nor approved and which has been applied incorrectly and arbitrarily.
E. In its surrejoinders Eurocontrol maintains that according to the provisions it cited in its reply the education
allowance does form part of staff pay, that the complainants' submissions betray a fundamental misunderstanding
on that score and that their whole line of argument is therefore misconceived.
CONSIDERATIONS:
1. The complainants are asking the Tribunal to set aside decisions notified to them in their pay slips for December
1987 to reduce by 0.7 per cent the refundable amount of education expenses they ...
- ... within the time-limit of sixty
days, they inferred rejection and filed with the Tribunal on 28 July 1988.
Since the complaints raise the same issues and have the same purpose, they are joined to form the subject of a
single ruling.
2. The Organisation contends that the complaints are irreceivable for two reasons.
One reason is that the pay slips they got in December 1987 merely confirmed earlier decisions, viz. a general
decision which the Permanent Commission of Eurocontrol took on 7 July 1987, an office note dated 29 July and
the pay slips for September.
The pay slips for December, which have prompted these complaints, mention a reduction of 0.7 per cent in the
amount of the education expenses that Eurocontrol is refunding for the period from July 1986 to June 1987. The
decisions are individual ones that cause the complainants injury. What is more, they do not constitute mere
repetition of the general decision of 7 July 1987 and the office note ...
- ... Organisation contends that the complaints are irreceivable for two reasons.
One reason is that the pay slips they got in December 1987 merely confirmed earlier decisions, viz. a general
decision which the Permanent Commission of Eurocontrol took on 7 July 1987, an office note dated 29 July and
the pay slips for September.
The pay slips for December, which have prompted these complaints, mention a reduction of 0.7 per cent in the
amount of the education expenses that Eurocontrol is refunding for the period from July 1986 to June 1987. The
decisions are individual ones that cause the complainants injury. What is more, they do not constitute mere
repetition of the general decision of 7 July 1987 and the office note of 29 July 1987, which, in accordance with
rulings by the Tribunal such as Judgment 902 (in re Aelvoet and others), are not directly challengeable.
As for the pay slips for September 1987, the Organisation states that they also deal with the matter ...
- ... Mr. Lefebvre in which the present
complainants
have applied to
intervene.
They filed their complaints on 28 July 1988 and their applications to intervene in the other cases at the same date.
But, even supposing that the present complaints and those applications do to some extent have a similar purpose,
an application to intervene in another case cannot make the present complaints irreceivable, their validity being
neither more nor less than what it is anyway.
Eurocontrol's objections accordingly fail.
4. Besides being receivable the complaints are well-founded.
As was said above, what the complainants want is the quashing of decisions to reduce by 0.7 per cent the amount
of education expenses to be refunded to them for the period from July 1986 to June 1987. The Director General
took the decisions in the exercise of his authority under Articles 2 and 62 of the staff regulations and in furtherance
of a decision the Permanent Commission of the ...
- ... cannot stand. The complainants are sent back to the Organisation for calculation of the sums wrongfully
withheld from the amounts refunded to them.
6. The interveners have the same entitlements insofar as they are in the same position in law as the complainants
themselves.
7. The complainants are entitled to an award of costs, which the Tribunal sets at 750 Swiss francs each.
DECISION:
For the above reasons,
1. The impugned decisions by the Director General of Eurocontrol are set aside.
2. The Organisation shall refund the complainants
the
sums wrongfully withheld from the amounts of education
expenses refunded to them for the period before July 1987.
3. The interveners shall have the same entitlements insofar as they are in the same position in law as the
complainants.
4. The Organisation shall pay each of the complainants 750 Swiss francs in costs.
In witness of this judgment by Mr. Jacques Ducoux, President of the Tribunal, Tun ...
- Judgment 961
66th Session, 1989
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol
Agency), Eurocontrol's replies of 24 November 1988, the
complainants' rejoinders of 26 December 1988 and Eurocontrol's
surrejoinders of 24 April 1989;
Considering the applications to intervene filed by:
J. Abramowski
A. Abts
P. Agre
A. Albertini
V. Alminana
H-R. Altmann
J. Andriese
R. Angermeyer
H. Ansorge
F. Arasse
J. Arp
B. Bams
A. Barnby
F. Bartocci
S. Basu
B. Baudier
J. Beaufils
H-W. Becker
B. Bedetti ...
- ... Eurocontrol's replies of 24 November 1988, the
complainants' rejoinders of 26 December 1988 and Eurocontrol's
surrejoinders of 24 April 1989;
Considering the applications to intervene filed by:
J. Abramowski
A. Abts
P. Agre
A. Albertini
V. Alminana
H-R. Altmann
J. Andriese
R. Angermeyer
H. Ansorge
F. Arasse
J. Arp
B. Bams
A. Barnby
F. Bartocci
S. Basu
B. Baudier
J. Beaufils
H-W. Becker
B. Bedetti
D. Bell
B. ...
- ...
SIXTY-SIXTH SESSION
In re F. J. (No. 2), LAURENT and VAN DER SLUIS
Judgment 961
THE ADMINISTRATIVE TRIBUNAL,
Considering the second complaint filed by Mr. G. F. J. and the
complaints filed by Mr. Dominique Laurent and Mr. Marinus
Huibert van der Sluis on 28 July 1988 against the European
Organisation for the Safety of Air Navigation (Eurocontrol
Agency), Eurocontrol's replies of 24 November 1988, the
complainants' rejoinders of 26 December 1988 and Eurocontrol's
surrejoinders of 24 April 1989;
Considering the applications to intervene filed by:
J. Abramowski
A. Abts
P. Agre
A. Albertini
V. Alminana
H-R. Altmann
J. Andriese
R. Angermeyer
H. Ansorge
F. Arasse
J. Arp
B. Bams
A. Barnby
F. Bartocci
S. Basu
B. Baudier
J. Beaufils
H-W. Becker
B. Bedetti
D. Bell
B. Berecq
H. Bergevoet
G. Bernard
J. Bero
J. Berthommier
J. Beyer
M. Biardeau ...
- ...
M. Vatinel
P. Vergauts
J. Verlinden
M. Verschaffel
W. Viertelhauzen
Y. Viroux
J-C. Vollant
N. Vrancken
E. Vreede
F. Wagner
W. Warner
O. Warns
D. Waters
J. Watson
H. Weis
G. Wendling
F. Werthmann
P. Wildey
M. Wildner
R. Williams
J-P. Willox
D. Winkler
F. Wissink
W. Wolf
J. Wondergem
P. Wood
M. Woods
R. Xhrouet
D. Young
W. Zieger
J. Zipp
R. Zoellner
and Eurocontrol's comments thereon of 28 April and 3 May
1989;
Considering Articles II, paragraph 5, and VII, paragraphs 2 and
3, of the Statute of the Tribunal and Articles 82 and 92(1) and (2)
of the Staff Regulations governing officials of the Agency;
Having examined the written evidence, oral proceedings having
been neither applied for by the parties nor ordered by the
Tribunal;
Considering that the facts of the case and the pleadings may be
summed up as follows:
A. As ...
- ... oral proceedings having
been neither applied for by the parties nor ordered by the
Tribunal;
Considering that the facts of the case and the pleadings may be
summed up as follows:
A. As the Tribunal recounted in Judgment 902 (in re Aelvoet and
others), under A, the Permanent Commission of the Organisation
decided at its 70th Session, on 25 November 1986, to bring about
a 5 per cent differential between pensions in the European
Communities and pensions in Eurocontrol as from the date at
which the differential in pay attained the full rate, which was also
5 per cent, and to amend Article 82 of the Staff
Regulations
for
the purpose. That decision became final, on 7 July 1987, when
the Commission approved it at the 71st Session, as the staff was
informed by an office notice of 16 July. In September and
October several hundred staff members lodged with the
Administration a "request" for a decision under Article 92(1) of
the ...
- ... the 60 days prescribed in Article VII(2) of the Statute of
the Tribunal, they filed their complaints in accordance with
Article
VII(3)
of the Statute.
As to the merits, they submit that the decision the Commission
approved on 7 July 1987 is flawed in that no valid reason is
stated for it and it is in breach of the rules on the reckoning of
pension entitlements, of their acquired rights and of their trust in
the Organisation. It also discriminates between Eurocontrol staff
and the staff of the European Communities and between groups
of Eurocontrol staff.
They ask the Tribunal to order Eurocontrol to respect their rights
under the text of Article 82 of the Staff Regulations as in force
up to the date of amendment by the Commission at its 70th
Session and to award them costs.
C. In its replies Eurocontrol maintains that the complaints are
irreceivable: they fail to challenge an individual decision by the
appointing authority ...
- ... their complaints in accordance with
Article
VII(3)
of the Statute.
As to the merits, they submit that the decision the Commission
approved on 7 July 1987 is flawed in that no valid reason is
stated for it and it is in breach of the rules on the reckoning of
pension entitlements, of their acquired rights and of their trust in
the Organisation. It also discriminates between Eurocontrol staff
and the staff of the European Communities and between groups
of Eurocontrol staff.
They ask the Tribunal to order Eurocontrol to respect their rights
under the text of Article 82 of the Staff Regulations as in force
up to the date of amendment by the Commission at its 70th
Session and to award them costs.
C. In its replies Eurocontrol maintains that the complaints are
irreceivable: they fail to challenge an individual decision by the
appointing authority as Article 92(2) of the Staff Regulations
requires, and the claims are inadmissible in ...
- ...
of the Statute.
As to the merits, they submit that the decision the Commission
approved on 7 July 1987 is flawed in that no valid reason is
stated for it and it is in breach of the rules on the reckoning of
pension entitlements, of their acquired rights and of their trust in
the Organisation. It also discriminates between Eurocontrol staff
and the staff of the European Communities and between groups
of Eurocontrol staff.
They ask the Tribunal to order Eurocontrol to respect their rights
under the text of Article 82 of the Staff Regulations as in force
up to the date of amendment by the Commission at its 70th
Session and to award them costs.
C. In its replies Eurocontrol maintains that the complaints are
irreceivable: they fail to challenge an individual decision by the
appointing authority as Article 92(2) of the Staff Regulations
requires, and the claims are inadmissible in that the Tribunal may
not order the Organisation ...
- ... of
pension entitlements, of their acquired rights and of their trust in
the Organisation. It also discriminates between Eurocontrol staff
and the staff of the European Communities and between groups
of Eurocontrol staff.
They ask the Tribunal to order Eurocontrol to respect their rights
under the text of Article 82 of the Staff Regulations as in force
up to the date of amendment by the Commission at its 70th
Session and to award them costs.
C. In its replies Eurocontrol maintains that the complaints are
irreceivable: they fail to challenge an individual decision by the
appointing authority as Article 92(2) of the Staff Regulations
requires, and the claims are inadmissible in that the Tribunal may
not order the Organisation to disregard amendments the
Commission has made in the Staff Regulations. Moreover, the
Tribunal may not rule on allegations of future injury on which no
figure can yet be put.
The Organisation puts forward subsidiary ...
- ... the claims are inadmissible in that the Tribunal may
not order the Organisation to disregard amendments the
Commission has made in the Staff Regulations. Moreover, the
Tribunal may not rule on allegations of future injury on which no
figure can yet be put.
The Organisation puts forward subsidiary arguments to show that
none of the complainants' pleas on the merits is sound.
D. In their rejoinders the complainants enlarge on their pleas and
seek to refute Eurocontrol's replies.
On the issue of receivability they maintain in particular that in
keeping with precedent
the
Tribunal may declare the
Commission's decision unlawful, void and therefore inapplicable
to them. In their submission there is no question of the Tribunal's
addressing orders to the Organisation. They give estimates of the
expected reduction in the amount of the pensions they will be
paid on retirement.
E. In its surrejoinders the Organisation develops its ...
- ... on retirement.
E. In its surrejoinders the Organisation develops its earlier pleas
and discusses in detail the complainants', which it contends are
mistaken. As to receivability, it again avers that no individual
decision has yet been taken and observes that the complaints are
premature because the precise effects of the Commission's
decision cannot be determined.
CONSIDERATIONS:
1. At its 70th Session, on 25 November 1986, the Permanent
Commission of Eurocontrol took a decision of policy to bring
about a 5 per cent differential between staff pensions in the
European Communities and pensions in Eurocontrol - the latter
to be the lower - to apply the differential to pension rights for the
period after the date at which the differential that applied also to
pay reached the full rate of 5 per cent, and to amend Article 82 of
the Staff Regulations for the purpose.
The Commission gave those decisions final approval at its 71st
Session, ...
- ... are
mistaken. As to receivability, it again avers that no individual
decision has yet been taken and observes that the complaints are
premature because the precise effects of the Commission's
decision cannot be determined.
CONSIDERATIONS:
1. At its 70th Session, on 25 November 1986, the Permanent
Commission of Eurocontrol took a decision of policy to bring
about a 5 per cent differential between staff pensions in the
European Communities and pensions in Eurocontrol - the latter
to be the lower - to apply the differential to pension rights for the
period after the date at which the differential that applied also to
pay reached the full rate of 5 per cent, and to amend Article 82 of
the Staff Regulations for the purpose.
The Commission gave those decisions final approval at its 71st
Session, on 7 July 1987, and by an office notice of 16 July the
Director General announced that they had come into force.
A few months later ...
- ... issues and
should form the subject of a single ruling.
3. The Organisation submits that for two reasons the complaints
are irreceivable. One reason is that the complainants are not
challenging individual decisions by the "appointing authority", as
Article 92 of the Staff Regulations and other provisions require.
The other reason is that their claims are inadmissible because
allowing them would be tantamount to the Tribunal's issuing
orders to the Organisation. Eurocontrol further submits that the
Tribunal may not rule on allegations of injury on which no figure
has been put.
4. The three complainants are serving officials of the
Organisation. The implied decisions of rejection, which they
impugn, are decisions not to give a formal undertaking that their
rights under the old text of Article 82 of the Staff Regulations
will be respected. The decisions put no figure on their pension
entitlements, a matter that will be determined only ...
- Judgment 951
65th Session, 1988
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol Agency) on 9 December 1987, corrected on 4 January 1988, and Eurocontrol's reply of 25
March 1988;
Considering that by a letter of 28 April 1988 the complainant informed the Registrar of the Tribunal that he wished
to withdraw suit;
Considering the observations submitted by Eurocontrol on 26 May 1988 on the withdrawal of suit;
CONSIDERATIONS:
By a letter which the Registrar received on 3 May 1988 the complainant withdrew suit.
Having been so informed the Organisation ...
- ... Eurocontrol's reply of 25
March 1988;
Considering that by a letter of 28 April 1988 the complainant informed the Registrar of the Tribunal that he wished
to withdraw suit;
Considering the observations submitted by Eurocontrol on 26 May 1988 on the withdrawal of suit;
CONSIDERATIONS:
By a letter which the Registrar received on 3 May 1988 the complainant withdrew suit.
Having been so informed the Organisation contends that the withdrawal is tainted with inaccuracies that cause it
moral ...
- ... re
GROSCHEL
Judgment 951
THE ADMINISTRATIVE TRIBUNAL,
Considering the complaint filed by Mr. Eugen Groschel against the European Organisation for the Safety of Air
Navigation (Eurocontrol Agency) on 9 December 1987, corrected on 4 January 1988, and Eurocontrol's reply of 25
March 1988;
Considering that by a letter of 28 April 1988 the complainant informed the Registrar of the Tribunal that he wished
to withdraw suit;
Considering the observations submitted by Eurocontrol on 26 May 1988 on the withdrawal of suit;
CONSIDERATIONS:
By a letter which the Registrar received on 3 May 1988 the complainant withdrew suit.
Having been so informed the Organisation contends that the withdrawal is tainted with inaccuracies that cause it
moral injury. It asks the Tribunal not to record the withdrawal but to rule on the complaint by dismissing some of
the claims as irreceivable and others as devoid of merit.
When a complainant withdraws suit the Tribunal ...
- Judgment 941
65th Session, 1988
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol Agency) on 30 May 1988, Eurocontrol's reply of 19
July, the complainant's rejoinder of 30 August and Eurocontrol's
surrejoinder of 13 October 1988;
Considering Articles II, paragraph 5, and VII, paragraphs 1 and
3, of the Statute of the Tribunal, Articles 72 and 92(1) and (2) of
the Staff Regulations governing officials of the Agency and Rule
No. 10 relating to sickness and accident insurance;
Having examined the written evidence, oral proceedings having
been neither ...
- ... Eurocontrol's reply of 19
July, the complainant's rejoinder of 30 August and Eurocontrol's
surrejoinder of 13 October 1988;
Considering Articles II, paragraph 5, and VII, paragraphs 1 and
3, of the Statute of the Tribunal, Articles 72 and 92(1) and (2) of
the Staff Regulations governing officials of the Agency and Rule
No. 10 relating to sickness and accident insurance;
Having examined the written evidence, oral proceedings having
been neither applied for by the parties nor ordered ...
- ... Eurocontrol's
surrejoinder of 13 October 1988;
Considering Articles II, paragraph 5, and VII, paragraphs 1 and
3, of the Statute of the Tribunal, Articles 72 and 92(1) and (2) of
the Staff Regulations governing officials of the Agency and Rule
No. 10 relating to sickness and accident insurance;
Having examined the written evidence, oral proceedings having
been neither applied for by the parties nor ordered by the
Tribunal;
Considering that the facts of the case and the pleadings ...
- ... Articles 72 and 92(1) and (2) of
the Staff Regulations governing officials of the Agency and Rule
No. 10 relating to sickness and accident insurance;
Having examined the written evidence, oral proceedings having
been neither applied for by the parties nor ordered by the
Tribunal;
Considering that the facts of the case and the pleadings may be
summed up as follows:
A. The complainant, a British subject, is employed as an
assistant principal at grade B at Eurocontrol's centre for air
navigation in Luxembourg. On 15 July and 19 August 1987 he
applied to the Sickness Insurance Scheme of Eurocontrol for
refund of the cost of vaccinations. A statement dated 7
September 1987 from the Scheme showed such costs as not
refundable. On 2 October 1987 the complainant made a "request"
for a decision on refund. A minute of 12 November 1987 from a
Scheme officer acknowledged receipt and said that the matter
would be put to the Management ...
- ... accident insurance;
Having examined the written evidence, oral proceedings having
been neither applied for by the parties nor ordered by the
Tribunal;
Considering that the facts of the case and the pleadings may be
summed up as follows:
A. The complainant, a British subject, is employed as an
assistant principal at grade B at Eurocontrol's centre for air
navigation in Luxembourg. On 15 July and 19 August 1987 he
applied to the Sickness Insurance Scheme of Eurocontrol for
refund of the cost of vaccinations. A statement dated 7
September 1987 from the Scheme showed such costs as not
refundable. On 2 October 1987 the complainant made a "request"
for a decision on refund. A minute of 12 November 1987 from a
Scheme officer acknowledged receipt and said that the matter
would be put to the Management Committee of the Scheme at an
early meeting and he would then be told the decision. No
decision having come, he lodged an internal ...
- ... 30 May.
As to the merits, he observes that officials of other European
organisations are refunded the cost of vaccination; that that is
just common sense, prevention being better than cure; and that
the office notice of 22 February 1979 on which he says the
decision rests has never been approved by the Management
Committee.
He asks the Tribunal to order the refund of the cost of the
vaccinations at the prevailing rates and to award him costs.
C. In its reply Eurocontrol submits that the complaint is
irreceivable because the complainant has failed to respect the
time limits for appeal.
Eurocontrol's submissions on
the
merits are subsidiary. It
observes that it is not bound by the rules in other European
organisations save insofar as it has incorporated them in its own
rules. The complainant may not establish the existence of a right
by pleading his own ideas of common sense. The basis for
refusing the refund is not the ...
- ... is
just common sense, prevention being better than cure; and that
the office notice of 22 February 1979 on which he says the
decision rests has never been approved by the Management
Committee.
He asks the Tribunal to order the refund of the cost of the
vaccinations at the prevailing rates and to award him costs.
C. In its reply Eurocontrol submits that the complaint is
irreceivable because the complainant has failed to respect the
time limits for appeal.
Eurocontrol's submissions on
the
merits are subsidiary. It
observes that it is not bound by the rules in other European
organisations save insofar as it has incorporated them in its own
rules. The complainant may not establish the existence of a right
by pleading his own ideas of common sense. The basis for
refusing the refund is not the office notice of 22 February 1979
but Article 72 of the Staff Regulations and Article 1 of Rule No.
10 relating to sickness and accident ...
- ... to seek a decision from the
Director General in case he wanted to follow the appeal
procedure. The Organisation has acted in breach of the principles
of sound administration by never letting him have its views in
writing.
As to the merits he seeks to refute the Organisation's pleas and
enlarges on his own.
E. In its surrejoinder the Organisation enlarges on its pleas on
receivability and on the merits.
CONSIDERATIONS:
1. The complainant, an official of Eurocontrol, is in dispute with
the Administration about the refund by the Sickness Insurance
Scheme of the cost of vaccinations he
had
in 1987 before going
on holiday to the tropics.
2. According to a statement of 7 September 1987 the Scheme
refused payment and on 2 October the complainant submitted a
"request" under Article 92(1) of the Staff Regulations to the
Director General pressing his claim: in his submission both
common sense and financial interest should favour ...
- ... Article 92(1) of the Staff Regulations to the
Director General pressing his claim: in his submission both
common sense and financial interest should favour prevention
over cure, and other European organisations did refund such
vaccinations.
3. On 12 November 1987 an officer of the Scheme answered that
his claim would come up at the next meeting of the Management
Committee and he would then be told of the decision. No such
decision was ever taken.
4. Eurocontrol having vouchsafed no reply, the complainant
submitted an internal "complaint" on 7 March 1988 under Article
92(2). Still getting no answer, he filed this complaint with the
Tribunal on 30 May 1988.
5. In its reply the Organisation's main plea is that the complaint
is irreceivable. Its argument is that the statement of 7 September
1987 was the "act adversely affecting" the complainant, that his
"request" of 2 October 1987 ought therefore to be treated as a
92(2) "complaint" ...
- ...
92(2) "complaint" and that for want of a reply there was by 2
February 1988 an implied decision to reject it. The time limit for
going to the Tribunal therefore ran out on 3 May 1988.
6. The Organisation may not plead its own failure to act. The
complainant had good reason to infer from the interim reply of
12 November 1987 that his claim was still under review. The
Tribunal will therefore go into the merits without further
consideration of receivability.
7. Eurocontrol submits on the merits that sickness insurance does
not ordinarily cover the cost of vaccination: Article 72 of the
Staff Regulations says that the staff member and his dependants
"are insured against sickness", and that is the purport also of
Article 1 of Rule No. 10 relating to sickness and accident
insurance.
8. In other words the Scheme does not ordinarily cover
preventive treatment, apart from some kinds of vaccination
expressly provided for in the office notice ...
- ... treatment, apart from some kinds of vaccination
expressly provided for in the office notice of 22 February 1979,
which the complainant cites.
9. The Organisation's position is correct. As the texts stand
vaccinations are not ordinarily covered by the Scheme and any
precautions the staff member or his family may take are at their
own discretion and on their own responsibility. That the policy
of other European organisations is more liberal is an example
Eurocontrol may wish but is not bound to follow.
10. It appears from the foregoing that whether the complaint is
receivable or not it is devoid of merit.
DECISION:
For the above reasons,
The complaint is dismissed.
In witness of this judgment by Mr. Jacques Ducoux, President of
the Tribunal, Mr. Héctor Gros Espiell, Deputy Judge, and Mr.
Pierre Pescatore, Deputy Judge, the aforementioned have signed
hereunder, as
have
I, Allan Gardner, Registrar.
Delivered in ...
- Judgment 925
65th Session, 1988
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol Agency) on 24 May 1988, Eurocontrol's reply of 19 July, the complainant's rejoinder
of 8 September as corrected on 12 September and Eurocontrol's surrejoinder of 13 October 1988;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Article 92(2) of the Staff Regulations governing
officials of the Agency and Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence and disallowed the complainant's application for oral proceedings; ...
- ... Eurocontrol's reply of 19 July, the complainant's rejoinder
of 8 September as corrected on 12 September and Eurocontrol's surrejoinder of 13 October 1988;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Article 92(2) of the Staff Regulations governing
officials of the Agency and Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence and disallowed the complainant's application for oral proceedings;
Considering that the facts of the ...
- ... Eurocontrol's surrejoinder of 13 October 1988;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Article 92(2) of the Staff Regulations governing
officials of the Agency and Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence and disallowed the complainant's application for oral proceedings;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant applied to the Sickness Insurance ...
- ... of 13 October 1988;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Article 92(2) of the Staff Regulations governing
officials of the Agency and Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence and disallowed the complainant's application for oral proceedings;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant applied to the Sickness Insurance Scheme of Eurocontrol on 9 November 1987 for the refund
of medical expenses incurred for his daughters Anne and Laurence. In reply he was sent a statement dated 25
November. The statement recorded as "consulting general practitioner" two appointments charged at 400 French
francs each that had been entered as "examination" in the certificates of treatment and refunded as such. On 18
January 1988 the complainant lodged a "complaint" under Article 92(2) of the Staff Regulations claiming, among
other ...
- ... claiming, among
other things, the refund of the cost of the
two
appointments at the rate in force for examinations - 80 per cent - and
not at the lower rate that applied to consultation of a general practitioner. The Scheme having failed to respond, he
is challenging the implied decision to reject his claim.
B. The complainant contends that the Scheme has made the mistake of unilaterally changing, without explanation,
the description of treatment by a specialist. Eurocontrol is also in breach of Article 25 of Rule No. 10 concerning
sickness and accident insurance, which in such instances requires referral to the Management Committee of the
Scheme.
He asks the Tribunal to order the Scheme to refund the cost of the two appointments at the rate in force for
examinations, to order Eurocontrol to pay him at least 100,000 Luxembourg francs in damages for "putting him
through vexatious and pointless internal proceedings" and to award him costs. He also ...
- ... The complainant contends that the Scheme has made the mistake of unilaterally changing, without explanation,
the description of treatment by a specialist. Eurocontrol is also in breach of Article 25 of Rule No. 10 concerning
sickness and accident insurance, which in such instances requires referral to the Management Committee of the
Scheme.
He asks the Tribunal to order the Scheme to refund the cost of the two appointments at the rate in force for
examinations, to order Eurocontrol to pay him at least 100,000 Luxembourg francs in damages for "putting him
through vexatious and pointless internal proceedings" and to award him costs. He also applies for joinder with his
first and third complaints.
C. In its reply Eurocontrol submits that the claim to damages is irreceivable because it is made for the first time in
the complaint.
As to the merits Eurocontrol contends that the complainant has had his due under Rule No. 10. The two
appointments were described ...
- ... insurance, which in such instances requires referral to the Management Committee of the
Scheme.
He asks the Tribunal to order the Scheme to refund the cost of the two appointments at the rate in force for
examinations, to order Eurocontrol to pay him at least 100,000 Luxembourg francs in damages for "putting him
through vexatious and pointless internal proceedings" and to award him costs. He also applies for joinder with his
first and third complaints.
C. In its reply Eurocontrol submits that the claim to damages is irreceivable because it is made for the first time in
the complaint.
As to the merits Eurocontrol contends that the complainant has had his due under Rule No. 10. The two
appointments were described by his doctor, without any explanation, as "examination", a term that does not appear
in the exhaustive list, in Article 16 of Rule No. 10, of forms of medical treatment refundable at 80 per cent. Neither
he nor his doctor, to whom Eurocontrol ...
- ... to refund the cost of the two appointments at the rate in force for
examinations, to order Eurocontrol to pay him at least 100,000 Luxembourg francs in damages for "putting him
through vexatious and pointless internal proceedings" and to award him costs. He also applies for joinder with his
first and third complaints.
C. In its reply Eurocontrol submits that the claim to damages is irreceivable because it is made for the first time in
the complaint.
As to the merits Eurocontrol contends that the complainant has had his due under Rule No. 10. The two
appointments were described by his doctor, without any explanation, as "examination", a term that does not appear
in the exhaustive list, in Article 16 of Rule No. 10, of forms of medical treatment refundable at 80 per cent. Neither
he nor his doctor, to whom Eurocontrol sent a letter on the matter, has given any explanation of the nature of the
treatment.
The Organisation objects to
joinder
with ...
- ... submits that the claim to damages is irreceivable because it is made for the first time in
the complaint.
As to the merits Eurocontrol contends that the complainant has had his due under Rule No. 10. The two
appointments were described by his doctor, without any explanation, as "examination", a term that does not appear
in the exhaustive list, in Article 16 of Rule No. 10, of forms of medical treatment refundable at 80 per cent. Neither
he nor his doctor, to whom Eurocontrol sent a letter on the matter, has given any explanation of the nature of the
treatment.
The Organisation objects to
joinder
with his first and third complaints.
D. In his rejoinder the complainant maintains that his claim to damages is receivable because, though he did not
make it in his internal appeal, he refrained from doing so in the hope of settling his disputes with the Organisation
out of court.
As to the merits he points out that there is a heading "sundry ...
- ... objects to
joinder
with his first and third complaints.
D. In his rejoinder the complainant maintains that his claim to damages is receivable because, though he did not
make it in his internal appeal, he refrained from doing so in the hope of settling his disputes with the Organisation
out of court.
As to the merits he points out that there is a heading "sundry examinations" in the Scheme's schedule of forms of
treatment. He enlarges on his pleas and accuses Eurocontrol of poor management. He says that he has never seen
any letter from Eurocontrol to his doctor, who has since sent him a certificate, which he supplies, declaring that the
examinations come under item K 10 of the French medical insurance schedule. He presses his claims.
E. In its surrejoinder Eurocontrol explains that, although "sundry examinations" is a catch-all heading that for
accounting purposes covers several kinds of examination, the Scheme member is still bound to give ...
- ... the complainant maintains that his claim to damages is receivable because, though he did not
make it in his internal appeal, he refrained from doing so in the hope of settling his disputes with the Organisation
out of court.
As to the merits he points out that there is a heading "sundry examinations" in the Scheme's schedule of forms of
treatment. He enlarges on his pleas and accuses Eurocontrol of poor management. He says that he has never seen
any letter from Eurocontrol to his doctor, who has since sent him a certificate, which he supplies, declaring that the
examinations come under item K 10 of the French medical insurance schedule. He presses his claims.
E. In its surrejoinder Eurocontrol explains that, although "sundry examinations" is a catch-all heading that for
accounting purposes covers several kinds of examination, the Scheme member is still bound to give an account of
the treatment he is claiming the refund of. The medical officer of the ...
- ... court.
As to the merits he points out that there is a heading "sundry examinations" in the Scheme's schedule of forms of
treatment. He enlarges on his pleas and accuses Eurocontrol of poor management. He says that he has never seen
any letter from Eurocontrol to his doctor, who has since sent him a certificate, which he supplies, declaring that the
examinations come under item K 10 of the French medical insurance schedule. He presses his claims.
E. In its surrejoinder Eurocontrol explains that, although "sundry examinations" is a catch-all heading that for
accounting purposes covers several kinds of examination, the Scheme member is still bound to give an account of
the treatment he is claiming the refund of. The medical officer of the Scheme got further information from the
complainant's doctor which showed that the treatment was mere consultation. The certificate appended to his
rejoinder ought to have been submitted at the right time to the Scheme.
CONSIDERATIONS: ...
- ... purposes covers several kinds of examination, the Scheme member is still bound to give an account of
the treatment he is claiming the refund of. The medical officer of the Scheme got further information from the
complainant's doctor which showed that the treatment was mere consultation. The certificate appended to his
rejoinder ought to have been submitted at the right time to the Scheme.
CONSIDERATIONS:
1. The complainant is an assistant principal at grade B1 with Eurocontrol and works at its centre for air navigation
in Luxembourg. This case is about the refund by the Eurocontrol Sickness Insurance Scheme of the cost of
treatment of his daughters Anne and Laurence by a general practitioner.
2. His daughters received treatment from the general practitioner in Paris at a cost of 400 French francs each. The
Scheme recorded the treatment as "consulting general practitioner" and paid the sum of 535 Belgian francs each, or
a total of 1,070 Belgian francs, ...
- ... treatment he is claiming the refund of. The medical officer of the Scheme got further information from the
complainant's doctor which showed that the treatment was mere consultation. The certificate appended to his
rejoinder ought to have been submitted at the right time to the Scheme.
CONSIDERATIONS:
1. The complainant is an assistant principal at grade B1 with Eurocontrol and works at its centre for air navigation
in Luxembourg. This case is about the refund by the Eurocontrol Sickness Insurance Scheme of the cost of
treatment of his daughters Anne and Laurence by a general practitioner.
2. His daughters received treatment from the general practitioner in Paris at a cost of 400 French francs each. The
Scheme recorded the treatment as "consulting general practitioner" and paid the sum of 535 Belgian francs each, or
a total of 1,070 Belgian francs, the complainant being left to pay the balance of 3,897 Belgian francs.
3. On 18 January 1988 the complainant ...
- ... as "consulting general practitioner" and paid the sum of 535 Belgian francs each, or
a total of 1,070 Belgian francs, the complainant being left to pay the balance of 3,897 Belgian francs.
3. On 18 January 1988 the complainant lodged an internal "complaint" alleging that the treatment ought to have
been refunded as "examinations", the term that appeared on the doctor's bills, at the rate of 80 per cent.
4. Having got no answer, he lodged this complaint on 24 May 1988 accusing Eurocontrol of unmistakable abuse of
authority, "passivity" and "inadmissible silence". He asks the Tribunal:
(a) to order the Scheme to record the treatment as "examinations" and refund the cost as such at the prevailing rate;
(b) to order the Organisation to pay his costs;
(c) to join the complaint with his first and third ones; and
(d) to order Eurocontrol to pay him at least 100,000 Luxembourg francs in damages for putting him through
vexatious and pointless internal proceedings. ...
- ... on the doctor's bills, at the rate of 80 per cent.
4. Having got no answer, he lodged this complaint on 24 May 1988 accusing Eurocontrol of unmistakable abuse of
authority, "passivity" and "inadmissible silence". He asks the Tribunal:
(a) to order the Scheme to record the treatment as "examinations" and refund the cost as such at the prevailing rate;
(b) to order the Organisation to pay his costs;
(c) to join the complaint with his first and third ones; and
(d) to order Eurocontrol to pay him at least 100,000 Luxembourg francs in damages for putting him through
vexatious and pointless internal proceedings.
5. The Organisation's reply is that his claim (d) is irreceivable because he is making it for the first time. It objects to
joinder on the grounds that the conditions laid down in the case law (Judgments 656 and 657 of 28 March 1985 and
663 of 19 June 1985) are not met: for the Tribunal to order joinder the complaints must rest on the same facts and
have ...
- ... in damages for putting him through
vexatious and pointless internal proceedings.
5. The Organisation's reply is that his claim (d) is irreceivable because he is making it for the first time. It objects to
joinder on the grounds that the conditions laid down in the case law (Judgments 656 and 657 of 28 March 1985 and
663 of 19 June 1985) are not met: for the Tribunal to order joinder the complaints must rest on the same facts and
have the same purpose.
6. On the merits Eurocontrol points out that the
bills
refer merely to "examination", a term that does not match any
of the headings in the material rules. So it put the treatment under the broadest category, "consulting general
practitioner", warranting the refund of only 535 Belgian francs for each child.
7. The complainant rejoins that the Scheme's schedule of forms of treatment does include "sundry examinations"
and he cites the Scheme's statement to him of 13 August 1987, which shows such examinations ...
- ... per cent. He supplies a certificate from the doctor who treated his daughters saying that the treatment came
under heading "K 10" in the French medical insurance schedule.
8. In its surrejoinder the Organisation acknowledges that the heading "sundry examinations" does appear in the
Scheme's own schedule, but it points out that the claimant has to explain the nature of the examinations in the
papers he supplies and that the complainant failed to do so. The surrejoinder adds that Eurocontrol's medical officer
got in touch with the doctor and obtained from him in professional confidence further information about the sort of
treatment he had given. The information was that the examinations had amounted to "consultation", a term which,
according to Article 15 of the French medical insurance rules covers not just clinical examination but also ordinary
diagnosis and minor medical care. The treatment of the complainant's daughters went no further than that. The
Organisation ...
- ... issues
9. The complainant's application for joinder is disallowed. Although this and his first and third complaints all arise
out of disputes with the Scheme, they raise different issues of fact and of law, so that the conditions for joinder are
not met.
10. The Organisation's objections to receivability relate to claim (d), which is really a claim to an award of costs
and which the Tribunal will therefore take up after the merits.
The merits
11. As Eurocontrol says, the Scheme member has a duty to support a claim with documents that are clear enough
for the Administration to be able to tell what the treatment was and to apply the right rate of refund. The duty was
drawn to the staff's notice in a circular of 16 June 1981 and in office notice 17/82, which are cited in Judgment 923
about the complainant's first case. The duty is the more imperative because the rules guarantee freedom to choose a
practitioner either in the country of their ...
- ... schemes. So where the details are wanting the
Scheme may either refuse refund altogether or else put the treatment under the commonest heading.
12. The bills put in by the complainant, each of which comes to 400 French francs, are on French social security
forms filled up by a doctor practising in the sixteenth district of Paris,
and
all they give by way of explanation is the
word "examination".
13. Since the bills give a general and largely meaningless description Eurocontrol was quite right to put the
treatment under the commonest heading - "consulting general practitioner" - and refund at the corresponding rate.
The later amendments by the doctor, though immaterial, corroborate the Organisation's original stance.
14. For the foregoing reasons the complaint fails, including the claim to costs. There is therefore no need to rule on
the receivability of claim (d). Besides, the complainant is himself to blame for any delay in dealing with his claim
to ...
- Judgment 924
65th Session, 1988
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol Agency) on 8 March 1988 and corrected on 12 April, Eurocontrol's reply of 7 July, the
complainant's rejoinder of 1 August and Eurocontrol's surrejoinder of 28 September 1988;
Considering Articles II, paragraph 5, and VII, paragraph 3, of the Statute of the Tribunal, Articles 72 and 92 of the
Staff Regulations governing officials of the Agency and Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence and disallowed the complainant's application ...
- ... Eurocontrol's reply of 7 July, the
complainant's rejoinder of 1 August and Eurocontrol's surrejoinder of 28 September 1988;
Considering Articles II, paragraph 5, and VII, paragraph 3, of the Statute of the Tribunal, Articles 72 and 92 of the
Staff Regulations governing officials of the Agency and Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence and disallowed the complainant's application for oral proceedings;
Considering that the facts of the ...
- ... Eurocontrol's surrejoinder of 28 September 1988;
Considering Articles II, paragraph 5, and VII, paragraph 3, of the Statute of the Tribunal, Articles 72 and 92 of the
Staff Regulations governing officials of the Agency and Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence and disallowed the complainant's application for oral proceedings;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. As is stated in Judgment ...
- ... II, paragraph 5, and VII, paragraph 3, of the Statute of the Tribunal, Articles 72 and 92 of the
Staff Regulations governing officials of the Agency and Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence and disallowed the complainant's application for oral proceedings;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. As is stated in Judgment 923 on the complainant's first complaint, under A, Eurocontrol staff and their
dependants are covered under Article 72 of the Staff Regulations by a scheme of sickness insurance which is
governed by Rule No. 10.
Article 2(2) of Rule No. 10 prescribes coverage of the official's spouse "provided that ..., if he or she is gainfully
employed, he or she is covered by a public scheme of sickness insurance and his or her annual income from such
employment does not exceed" a stated amount before tax. Article 3(1) stipulates that "Where a member ...
- ...
employment does not exceed" a stated amount before tax. Article 3(1) stipulates that "Where a member
or
a person
covered by his insurance may claim reimbursement of expenses incurred under any other compulsory sickness
insurance, the member shall ... (b) in the first instance apply, or have the person concerned apply, for
reimbursement under the other scheme". And according to 3(2) any sum paid by the other scheme will be
subtracted from the amount to be paid by Eurocontrol.
The complainant's wife is covered by a public scheme of sickness insurance in Luxembourg and at the material
time her earnings did not exceed the amount stated. From April to November 1985 she incurred expenses
amounting to 11,376 Belgian francs for medical and dental treatment in Belgium. On 14 January 1986 the
complainant claimed the full amount from Eurocontrol. In a minute of 10 March 1986 the Director of Personnel
and Finance, who is in charge of its scheme, observed that ...
- ... And according to 3(2) any sum paid by the other scheme will be
subtracted from the amount to be paid by Eurocontrol.
The complainant's wife is covered by a public scheme of sickness insurance in Luxembourg and at the material
time her earnings did not exceed the amount stated. From April to November 1985 she incurred expenses
amounting to 11,376 Belgian francs for medical and dental treatment in Belgium. On 14 January 1986 the
complainant claimed the full amount from Eurocontrol. In a minute of 10 March 1986 the Director of Personnel
and Finance, who is in charge of its scheme, observed that Mrs. Boland had not complied with the rules of the
Luxembourg scheme and that the Eurocontrol scheme would therefore not refund any amount that scheme would
have paid. In a minute of 11 April to the Director the complainant denied that his wife had failed to comply with
the rules of her scheme, which he said the Director had misconstrued: though she had applied to her ...
- ... and at the material
time her earnings did not exceed the amount stated. From April to November 1985 she incurred expenses
amounting to 11,376 Belgian francs for medical and dental treatment in Belgium. On 14 January 1986 the
complainant claimed the full amount from Eurocontrol. In a minute of 10 March 1986 the Director of Personnel
and Finance, who is in charge of its scheme, observed that Mrs. Boland had not complied with the rules of the
Luxembourg scheme and that the Eurocontrol scheme would therefore not refund any amount that scheme would
have paid. In a minute of 11 April to the Director the complainant denied that his wife had failed to comply with
the rules of her scheme, which he said the Director had misconstrued: though she had applied to her scheme on 28
May 1985 for prior consent to the treatment she had been refused because she had chosen to be treated in another
country, and in no circumstances could she have got payment from the Luxembourg scheme. ...
- ... complainant submitted to the Director General what he termed a
"request" under Article 92(1) of the Staff Regulations for a decision on his claim to the full costs of his wife's
treatment. Having got no answer, he filed a "complaint" on 12 October 1987 with the Director General under 92(2)
against the implied decision to reject that request. Having still got no answer, he is challenging the implied decision
to reject the internal "complaint".
B. The complainant accuses the Eurocontrol scheme of obstructiveness and bad faith. That his wife had no hope of
getting from the Luxembourg scheme any of the costs of her treatment in Belgium is borne out by a minute which
the Eurocontrol scheme's officer in Luxembourg sent to the Brussels office on 27 October 1986 saying that the
rules of the Luxembourg scheme had been complied with.
He asks the Tribunal to join his first and third complaints. He seeks full refund in accordance with the rules and at
the rates in force ...
- ... got no answer, he filed a "complaint" on 12 October 1987 with the Director General under 92(2)
against the implied decision to reject that request. Having still got no answer, he is challenging the implied decision
to reject the internal "complaint".
B. The complainant accuses the Eurocontrol scheme of obstructiveness and bad faith. That his wife had no hope of
getting from the Luxembourg scheme any of the costs of her treatment in Belgium is borne out by a minute which
the Eurocontrol scheme's officer in Luxembourg sent to the Brussels office on 27 October 1986 saying that the
rules of the Luxembourg scheme had been complied with.
He asks the Tribunal to join his first and third complaints. He seeks full refund in accordance with the rules and at
the rates in force and an award of costs.
C. Eurocontrol replies that the complaint is time-barred. According to Article 92(2) of the Staff Regulations a
"complaint against an act adversely affecting" the employee ...
- ... That his wife had no hope of
getting from the Luxembourg scheme any of the costs of her treatment in Belgium is borne out by a minute which
the Eurocontrol scheme's officer in Luxembourg sent to the Brussels office on 27 October 1986 saying that the
rules of the Luxembourg scheme had been complied with.
He asks the Tribunal to join his first and third complaints. He seeks full refund in accordance with the rules and at
the rates in force and an award of costs.
C. Eurocontrol replies that the complaint is time-barred. According to Article 92(2) of the Staff Regulations a
"complaint against an act adversely affecting" the employee must be lodged within three months. The "act
adversely affecting" the complainant was the refusal to pay the share of the costs the Luxembourg scheme should
have borne and it was conveyed to him in the minute of 10 March 1986 from the Director of Personnel and
Finance. It was his own minute of 11 April 1986 to the Director that ...
- ... was the 92(2) "complaint". The Director
General not having
notified
"his reasoned decision within four months" from that date, there was an implied
decision by 12 August 1986 to reject it under 92(2), and he should have appealed to the Tribunal within the three-
month time limit in Article VII(3) of its Statute. Neither his communication of 16 March 1987 to the Director
General nor his alleged "complaint" of 12 October 1987 set off any new time limit.
Subsidiarily, Eurocontrol submits that the complaint is devoid of merit. In accordance with 3(l)(b) and (2) of Rule
No. 10 it has agreed to pay the difference between the sum due under that Rule and the lesser sum the Luxembourg
scheme would have paid had Mrs. Boland complied with the rules. Before the complainant claims for his wife from
the Eurocontrol scheme he must get her to claim as much as she is entitled to from her own scheme or else show
that she could not have claimed anything. Though it did refuse ...
- ... his communication of 16 March 1987 to the Director
General nor his alleged "complaint" of 12 October 1987 set off any new time limit.
Subsidiarily, Eurocontrol submits that the complaint is devoid of merit. In accordance with 3(l)(b) and (2) of Rule
No. 10 it has agreed to pay the difference between the sum due under that Rule and the lesser sum the Luxembourg
scheme would have paid had Mrs. Boland complied with the rules. Before the complainant claims for his wife from
the Eurocontrol scheme he must get her to claim as much as she is entitled to from her own scheme or else show
that she could not have claimed anything. Though it did refuse her claim, what matters is the reason for its refusal.
In fact she failed to comply with the social insurance law of Luxembourg, which says that though treatment abroad
requires prescription by a doctor and the scheme's prior consent Mrs. Boland did not submit such a prescription in
support of the claim she put to the Luxembourg ...
- ... her to claim as much as she is entitled to from her own scheme or else show
that she could not have claimed anything. Though it did refuse her claim, what matters is the reason for its refusal.
In fact she failed to comply with the social insurance law of Luxembourg, which says that though treatment abroad
requires prescription by a doctor and the scheme's prior consent Mrs. Boland did not submit such a prescription in
support of the claim she put to the Luxembourg scheme.
Eurocontrol is opposed to joinder of this complaint with the first one.
D. In his rejoinder the complainant maintains that his complaint is receivable. His minute of 11 April 1986 was not
described and is not to be treated, as a 92(2) "complaint". Such a "complaint" is supposed to be addressed to the
appointing authority - the Director General - whereas he was writing
to
the Director of Personnel and Finance. It
was plain from the Director's reaction that the matter might be reviewed. ...
- ... It
was plain from the Director's reaction that the matter might be reviewed. Moreover, had the minute of 11 April
1986 been treated at the time as a "complaint" the Director General would have consulted the Management
Committee of the scheme about it in accordance with Article 25 ter of Rule No. 10. But he did not. Besides, the
letter of 17 October 1986 from the Luxembourg scheme, which gave the reason for its refusal to pay, was a new
fact warranting a new claim to Eurocontrol. His true 92(2) "complaint" was his letter of 12 October 1987 to the
Director General.
As to the merits the complainant submits that the Luxembourg scheme will not pay where the claimant chooses to
have treatment abroad. Being covered by the Eurocontrol scheme, his wife is free to choose where she wants to be
treated, and her freedom cannot be restricted by limitations on her entitlements under another scheme. Eurocontrol's
position makes for inequality between those covered ...
- ... it in accordance with Article 25 ter of Rule No. 10. But he did not. Besides, the
letter of 17 October 1986 from the Luxembourg scheme, which gave the reason for its refusal to pay, was a new
fact warranting a new claim to Eurocontrol. His true 92(2) "complaint" was his letter of 12 October 1987 to the
Director General.
As to the merits the complainant submits that the Luxembourg scheme will not pay where the claimant chooses to
have treatment abroad. Being covered by the Eurocontrol scheme, his wife is free to choose where she wants to be
treated, and her freedom cannot be restricted by limitations on her entitlements under another scheme. Eurocontrol's
position makes for inequality between those covered by its scheme.
The complainant presses his claims and seeks 100,000 Luxembourg francs in costs.
E. In its surrejoinder Eurocontrol observes that the complainant has never told it how much his wife might have got
from the Luxembourg scheme. Not until 28 May ...
- ... to pay, was a new
fact warranting a new claim to Eurocontrol. His true 92(2) "complaint" was his letter of 12 October 1987 to the
Director General.
As to the merits the complainant submits that the Luxembourg scheme will not pay where the claimant chooses to
have treatment abroad. Being covered by the Eurocontrol scheme, his wife is free to choose where she wants to be
treated, and her freedom cannot be restricted by limitations on her entitlements under another scheme. Eurocontrol's
position makes for inequality between those covered by its scheme.
The complainant presses his claims and seeks 100,000 Luxembourg francs in costs.
E. In its surrejoinder Eurocontrol observes that the complainant has never told it how much his wife might have got
from the Luxembourg scheme. Not until 28 May 1985 did Mrs. Boland apply to that scheme for permission to incur
in Belgium the expense of medical treatment that began by 31 May.
The Organisation enlarges on its ...
- ... submits that the Luxembourg scheme will not pay where the claimant chooses to
have treatment abroad. Being covered by the Eurocontrol scheme, his wife is free to choose where she wants to be
treated, and her freedom cannot be restricted by limitations on her entitlements under another scheme. Eurocontrol's
position makes for inequality between those covered by its scheme.
The complainant presses his claims and seeks 100,000 Luxembourg francs in costs.
E. In its surrejoinder Eurocontrol observes that the complainant has never told it how much his wife might have got
from the Luxembourg scheme. Not until 28 May 1985 did Mrs. Boland apply to that scheme for permission to incur
in Belgium the expense of medical treatment that began by 31 May.
The Organisation enlarges on its pleas on receivability and its subsidiary arguments on the merits.
CONSIDERATIONS:1. The complainant, a Belgian citizen holding a grade B1 post as assistant principal with the
Eurocontrol Agency, ...
- ... Eurocontrol observes that the complainant has never told it how much his wife might have got
from the Luxembourg scheme. Not until 28 May 1985 did Mrs. Boland apply to that scheme for permission to incur
in Belgium the expense of medical treatment that began by 31 May.
The Organisation enlarges on its pleas on receivability and its subsidiary arguments on the merits.
CONSIDERATIONS:1. The complainant, a Belgian citizen holding a grade B1 post as assistant principal with the
Eurocontrol Agency, works at its centre for air navigation in Luxembourg. This case is about his claim to refund by
Eurocontrol's Sickness Insurance Scheme of the cost of medical treatment of his wife in Belgium.
The material rules
2. According to Article 72 of the Staff Regulations of Eurocontrol a staff member is insured against sickness in
accordance with rules drawn up by the Director General. So is a spouse.
3. The implementing text is Rule No. 10 concerning sickness and accident insurance, ...
- ... Not until 28 May 1985 did Mrs. Boland apply to that scheme for permission to incur
in Belgium the expense of medical treatment that began by 31 May.
The Organisation enlarges on its pleas on receivability and its subsidiary arguments on the merits.
CONSIDERATIONS:1. The complainant, a Belgian citizen holding a grade B1 post as assistant principal with the
Eurocontrol Agency, works at its centre for air navigation in Luxembourg. This case is about his claim to refund by
Eurocontrol's Sickness Insurance Scheme of the cost of medical treatment of his wife in Belgium.
The material rules
2. According to Article 72 of the Staff Regulations of Eurocontrol a staff member is insured against sickness in
accordance with rules drawn up by the Director General. So is a spouse.
3. The implementing text is Rule No. 10 concerning sickness and accident insurance, which in Article 1 sets up the
Sickness Insurance Scheme.
4. According to Article 2.2 of the Rule the spouse ...
- ... enlarges on its pleas on receivability and its subsidiary arguments on the merits.
CONSIDERATIONS:1. The complainant, a Belgian citizen holding a grade B1 post as assistant principal with the
Eurocontrol Agency, works at its centre for air navigation in Luxembourg. This case is about his claim to refund by
Eurocontrol's Sickness Insurance Scheme of the cost of medical treatment of his wife in Belgium.
The material rules
2. According to Article 72 of the Staff Regulations of Eurocontrol a staff member is insured against sickness in
accordance with rules drawn up by the Director General. So is a spouse.
3. The implementing text is Rule No. 10 concerning sickness and accident insurance, which in Article 1 sets up the
Sickness Insurance Scheme.
4. According to Article 2.2 of the Rule the spouse shall be covered if not independently a member of the scheme
and not gainfully employed or, if so employed, covered by a public scheme of sickness insurance and having a ...
- ... which in Article 1 sets up the
Sickness Insurance Scheme.
4. According to Article 2.2 of the Rule the spouse shall be covered if not independently a member of the scheme
and not gainfully employed or, if so employed, covered by a public scheme of sickness insurance and having a
yearly income from the employment that does not exceed a stated amount (at the material time 933,032 Belgian
francs).
5. Article 3 of Rule No. 10 says that where someone covered by the Eurocontrol scheme is also a member of some
other compulsory sickness insurance scheme an application must in the first instance be made for reimbursement
under the other scheme. In that event, by what is known as "supplementary coverage", Eurocontrol merely makes
up any difference between benefits granted under the other scheme and benefits due under its own.6. Lastly, Article
5(1) of the Rule stipulates that "Persons covered by this Scheme shall be free to choose their practitioners and
hospitals ...
- ... scheme of sickness insurance and having a
yearly income from the employment that does not exceed a stated amount (at the material time 933,032 Belgian
francs).
5. Article 3 of Rule No. 10 says that where someone covered by the Eurocontrol scheme is also a member of some
other compulsory sickness insurance scheme an application must in the first instance be made for reimbursement
under the other scheme. In that event, by what is known as "supplementary coverage", Eurocontrol merely makes
up any difference between benefits granted under the other scheme and benefits due under its own.6. Lastly, Article
5(1) of the Rule stipulates that "Persons covered by this Scheme shall be free to choose their practitioners and
hospitals or clinics".
The material facts and the issue of receivability
7. The complainant's
wife
has gainful employment in Luxembourg and is required by law to be a member of the
Private Employees' Sickness Insurance Scheme ...
- ... other scheme and benefits due under its own.6. Lastly, Article
5(1) of the Rule stipulates that "Persons covered by this Scheme shall be free to choose their practitioners and
hospitals or clinics".
The material facts and the issue of receivability
7. The complainant's
wife
has gainful employment in Luxembourg and is required by law to be a member of the
Private Employees' Sickness Insurance Scheme of that country. Since her earnings are below the maximum set in
Eurocontrol's rules she qualifies for the supplementary coverage.
8. Wanting to be treated in Belgium, she wrote to the Luxembourg scheme on 28 May 1985 asking it to meet the
cost. She was treated between 31 May and 26 November 1985 and then put to that scheme a claim to refund of the
cost, which came to 11,376 Belgian francs. The scheme refused refund on the grounds that the cost had been
incurred abroad. On 14 January 1986 the complainant claimed the amount from the Eurocontrol scheme. The ...
- ... in
Eurocontrol's rules she qualifies for the supplementary coverage.
8. Wanting to be treated in Belgium, she wrote to the Luxembourg scheme on 28 May 1985 asking it to meet the
cost. She was treated between 31 May and 26 November 1985 and then put to that scheme a claim to refund of the
cost, which came to 11,376 Belgian francs. The scheme refused refund on the grounds that the cost had been
incurred abroad. On 14 January 1986 the complainant claimed the amount from the Eurocontrol scheme. The
answer, in a letter of 10 March 1986, was that it would not entertain the claim but would meet its obligation to
provide supplementary coverage.
9. Having got a refusal from both schemes the complainant embarked on lengthy correspondence with each of
them. Neither was inclined to act, and matters did not become clear until 17 October 1986, when the Luxembourg
scheme gave Mrs. Boland its final decision with a statement of the reasons for it. The complainant thereupon ...
- ... in a letter of 10 March 1986, was that it would not entertain the claim but would meet its obligation to
provide supplementary coverage.
9. Having got a refusal from both schemes the complainant embarked on lengthy correspondence with each of
them. Neither was inclined to act, and matters did not become clear until 17 October 1986, when the Luxembourg
scheme gave Mrs. Boland its final decision with a statement of the reasons for it. The complainant thereupon asked
the Eurocontrol scheme, by a letter of 27 October, to review his claim.
10. Getting no answer, he wrote to the Director General on 16 March 1987 making a "request" for a decision in
accordance with Article 92(1) of the Staff Regulations, affirming the principle of freedom to choose a practitioner
and applying for refund of the costs.
11. Again he received no answer, and on 12 October 1987 he wrote a letter lodging an internal "complaint"
under
Article 92(2) of the Staff Regulations. Having ...
- ... General on 16 March 1987 making a "request" for a decision in
accordance with Article 92(1) of the Staff Regulations, affirming the principle of freedom to choose a practitioner
and applying for refund of the costs.
11. Again he received no answer, and on 12 October 1987 he wrote a letter lodging an internal "complaint"
under
Article 92(2) of the Staff Regulations. Having got no reply to that either, he lodged this complaint with the
Tribunal on 8 March 1988.
12. Eurocontrol's main plea is that the complaint is irreceivable because it is time-barred. It argues that its letter of
10 March 1986 was the only decision it took before the dispute arose and was an "act adversely affecting" the
complainant within the meaning of Article 92. It reckons from that date the time limits for filing the internal appeal
and then the complaint to the Tribunal and contends that the time limit for the latter ran out on 13 November 1986.
13. The plea fails. Since the obligations ...
- ... the complaint is irreceivable because it is time-barred. It argues that its letter of
10 March 1986 was the only decision it took before the dispute arose and was an "act adversely affecting" the
complainant within the meaning of Article 92. It reckons from that date the time limits for filing the internal appeal
and then the complaint to the Tribunal and contends that the time limit for the latter ran out on 13 November 1986.
13. The plea fails. Since the obligations of the Eurocontrol scheme turned on what the Luxembourg scheme had
decided, the time limits could not start until it had, and it did not take its final decision until 17 October 1986.
Eurocontrol was refusing at the time to give the complainant any answer whatever, whereas he was doing
everything that might be reasonably expected of him to get it to respond. The Organisation may not therefore
properly plead irreceivability.
The merits
14. The gist of the complainant's case in his internal appeals ...
- ... affecting" the
complainant within the meaning of Article 92. It reckons from that date the time limits for filing the internal appeal
and then the complaint to the Tribunal and contends that the time limit for the latter ran out on 13 November 1986.
13. The plea fails. Since the obligations of the Eurocontrol scheme turned on what the Luxembourg scheme had
decided, the time limits could not start until it had, and it did not take its final decision until 17 October 1986.
Eurocontrol was refusing at the time to give the complainant any answer whatever, whereas he was doing
everything that might be reasonably expected of him to get it to respond. The Organisation may not therefore
properly plead irreceivability.
The merits
14. The gist of the complainant's case in his internal appeals and in his pleadings to the Tribunal is that his wife did
her utmost to get the costs of her treatment refunded by the Luxembourg scheme but inevitably failed because its
rules ...
- ... of the complainant's case in his internal appeals and in his pleadings to the Tribunal is that his wife did
her utmost to get the costs of her treatment refunded by the Luxembourg scheme but inevitably failed because its
rules preclude the freedom to choose a practitioner outside Luxembourg, particularly because of the requirement of
a prescription from a Luxembourg doctor. The scheme upheld that position in its final substantiated decision, and
the complainant is asking the Eurocontrol scheme to refund
the
cost under its own rules, thereby respecting the
freedom of choice prescribed in Article 5 of Rule No. 10.
15. He is asking the Tribunal (a) to order the Eurocontrol scheme to entertain his claim to his wife's expenses and
refund them in keeping with its rules and at the prevailing rates, and (b) to order the Organisation to pay him
100,000 Luxembourg francs in costs.
16. The Organisation's retort is that Article 3 of Rule No. 10 requires the ...
- ... failed because its
rules preclude the freedom to choose a practitioner outside Luxembourg, particularly because of the requirement of
a prescription from a Luxembourg doctor. The scheme upheld that position in its final substantiated decision, and
the complainant is asking the Eurocontrol scheme to refund
the
cost under its own rules, thereby respecting the
freedom of choice prescribed in Article 5 of Rule No. 10.
15. He is asking the Tribunal (a) to order the Eurocontrol scheme to entertain his claim to his wife's expenses and
refund them in keeping with its rules and at the prevailing rates, and (b) to order the Organisation to pay him
100,000 Luxembourg francs in costs.
16. The Organisation's retort is that Article 3 of Rule No. 10 requires the spouse in the first instance to exhaust the
entitlements due under the other insurance scheme; that the complainant's wife failed to follow the procedure
prescribed by the Luxembourg scheme rules ...
- ... spouse in the first instance to exhaust the
entitlements due under the other insurance scheme; that the complainant's wife failed to follow the procedure
prescribed by the Luxembourg scheme rules because she did not support her application for prior consent to her
being treated abroad with a recommendation from a practitioner in Luxembourg; and that freedom to choose a
practitioner is immaterial.
17. According to Article 3(1)(b) of Rule No. 10 someone who is covered by the Eurocontrol scheme and who may
claim reimbursement under any other compulsory sickness insurance scheme shall "in the first instance apply ... for
reimbursement under the other scheme". That is what Mrs. Boland did, but the Luxembourg scheme refused her
claim, its reason for doing so being that it lays down conditions that do not allow freedom to choose the
practitioner. Such freedom is a right that Article 5 of Rule No. 10 confers on "persons covered" by the Eurocontrol
scheme, and under ...
- ... is covered by the Eurocontrol scheme and who may
claim reimbursement under any other compulsory sickness insurance scheme shall "in the first instance apply ... for
reimbursement under the other scheme". That is what Mrs. Boland did, but the Luxembourg scheme refused her
claim, its reason for doing so being that it lays down conditions that do not allow freedom to choose the
practitioner. Such freedom is a right that Article 5 of Rule No. 10 confers on "persons covered" by the Eurocontrol
scheme, and under Article 2 they include, besides "members", "persons covered by their insurance" and, in
particular, according to 2(2), the spouse.
18. Since it has a duty to provide supplementary coverage the Organisation was bound, under its own rules, to
refund the full cost of Mrs. Boland's treatment in Belgium.
19. The implied final decision must therefore be set aside and the case sent back to Eurocontrol for a new decision
on the refund of the costs incurred by Mrs. ...
- ... Article 5 of Rule No. 10 confers on "persons covered" by the Eurocontrol
scheme, and under Article 2 they include, besides "members", "persons covered by their insurance" and, in
particular, according to 2(2), the spouse.
18. Since it has a duty to provide supplementary coverage the Organisation was bound, under its own rules, to
refund the full cost of Mrs. Boland's treatment in Belgium.
19. The implied final decision must therefore be set aside and the case sent back to Eurocontrol for a new decision
on the refund of the costs incurred by Mrs. Boland, with due regard to the freedom of choice guaranteed in Rule
No. 10.
20. Since the complainant succeeds he is entitled to the award of 100,000 Luxembourg francs in costs which he
seeks.
DECISION:
For the above reasons,
1. The Tribunal sets aside the implied decision by the Eurocontrol Sickness Insurance Scheme to refuse to entertain
the claim to refund of the expenses incurred by the complainant's ...
- ... treatment in Belgium.
19. The implied final decision must therefore be set aside and the case sent back to Eurocontrol for a new decision
on the refund of the costs incurred by Mrs. Boland, with due regard to the freedom of choice guaranteed in Rule
No. 10.
20. Since the complainant succeeds he is entitled to the award of 100,000 Luxembourg francs in costs which he
seeks.
DECISION:
For the above reasons,
1. The Tribunal sets aside the implied decision by the Eurocontrol Sickness Insurance Scheme to refuse to entertain
the claim to refund of the expenses incurred by the complainant's wife for treatment in Belgium and to refund them
according to the Organisation's rules.
2. The case is sent back to Eurocontrol for a new decision.
3. Eurocontrol shall pay the complainant 100,000 Luxembourg francs in costs.
In witness of this judgment by Mr. Jacques Ducoux, President of the Tribunal, Miss Mella Carroll, Judge, and Mr.
Pierre Pescatore, Deputy ...
- ... Rule
No. 10.
20. Since the complainant succeeds he is entitled to the award of 100,000 Luxembourg francs in costs which he
seeks.
DECISION:
For the above reasons,
1. The Tribunal sets aside the implied decision by the Eurocontrol Sickness Insurance Scheme to refuse to entertain
the claim to refund of the expenses incurred by the complainant's wife for treatment in Belgium and to refund them
according to the Organisation's rules.
2. The case is sent back to Eurocontrol for a new decision.
3. Eurocontrol shall pay the complainant 100,000 Luxembourg francs in costs.
In witness of this judgment by Mr. Jacques Ducoux, President of the Tribunal, Miss Mella Carroll, Judge, and Mr.
Pierre Pescatore, Deputy Judge, the aforementioned have signed hereunder, as have I, Allan Gardner, Registrar.
Delivered in public sitting in Geneva on 8 December 1988.
(Signed)
Jacques Ducoux
Mella Carroll
P. Pescatore
A.B. Gardner
Updated by PFR. Approved ...
- ... succeeds he is entitled to the award of 100,000 Luxembourg francs in costs which he
seeks.
DECISION:
For the above reasons,
1. The Tribunal sets aside the implied decision by the Eurocontrol Sickness Insurance Scheme to refuse to entertain
the claim to refund of the expenses incurred by the complainant's wife for treatment in Belgium and to refund them
according to the Organisation's rules.
2. The case is sent back to Eurocontrol for a new decision.
3. Eurocontrol ...
- Judgment 923
65th Session, 1988
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol Agency) on 10 February 1988, Eurocontrol's reply of 2 June, the complainant's rejoinder
of 26 July and Eurocontrol's surrejoinder of 6 October 1988;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Article 72 of the Staff Regulations governing
officials of the Agency and Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. Eurocontrol ...
- ... Eurocontrol's reply of 2 June, the complainant's rejoinder
of 26 July and Eurocontrol's surrejoinder of 6 October 1988;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Article 72 of the Staff Regulations governing
officials of the Agency and Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. Eurocontrol staff and their dependants are ...
- ... Eurocontrol's surrejoinder of 6 October 1988;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Article 72 of the Staff Regulations governing
officials of the Agency and Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. Eurocontrol staff and their dependants are covered by a sickness insurance scheme in accordance with Article 72
of the ...
- ... Agency) on 10 February 1988, Eurocontrol's reply of 2 June, the complainant's rejoinder
of 26 July and Eurocontrol's surrejoinder of 6 October 1988;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Article 72 of the Staff Regulations governing
officials of the Agency and Rule No. 10 concerning sickness and accident insurance;
Having examined the written evidence;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. Eurocontrol staff and their dependants are covered by a sickness insurance scheme in accordance with Article 72
of the Staff Regulations. Rule No. 10 governs sickness and accident insurance. According to Article 10 of the Rule
four-fifths of the fees paid to doctors for surgery appointments shall be reimbursed up to the maximum set in the
annex to the Rule, under I. The cost of orthodontic treatment may also be refunded to the extent of four-fifths,
again up to the maximum stated in the annex, ...
- ... scheme in accordance with Article 72
of the Staff Regulations. Rule No. 10 governs sickness and accident insurance. According to Article 10 of the Rule
four-fifths of the fees paid to doctors for surgery appointments shall be reimbursed up to the maximum set in the
annex to the Rule, under I. The cost of orthodontic treatment may also be refunded to the extent of four-fifths,
again up to the maximum stated in the annex, under IV.
The complainant, a Belgian, is employed by Eurocontrol at its air navigation centre in Luxembourg. His two
dependent daughters received orthodontic treatment from a dentist in Brussels
which
continued until some unstated
date in 1986. One of them, Anne, visited the dentist's surgery on 21 June and 20 December 1986; the other,
Laurence, on 30 August and 20 December 1986. The complainant claimed refund of the cost of the four
appointments. On 21 April 1987 he learned from the Insurance Scheme that they had refused on the assumption ...
- ... the Scheme. Having received no further response, he is challenging the implied decision to reject his
claim.B. The complainant observes that he has a personal interest in obtaining the refund of four-fifths of the cost
of two appointments for Anne and the proper attribution of the refunded costs of two for Laurence. The case is also
of interest to the staff at large because it is yet another instance of the Scheme's "deplorable" behaviour. He claims
costs.
C. In its reply Eurocontrol
gives
an account of the facts. It explains that the Scheme was unable to answer the
claim. The matter had to go to its Management Committee, which could not meet because the staff representatives,
of whom the complainant was one, had resigned.
By a letter of 17 May 1988 the Director General answered the complainant's claim. He said that, so that the limit on
the refundable cost of orthodontic treatment could not be evaded by a claim for surgery appointments, the Scheme
ordinarily ...
- ...
of whom the complainant was one, had resigned.
By a letter of 17 May 1988 the Director General answered the complainant's claim. He said that, so that the limit on
the refundable cost of orthodontic treatment could not be evaded by a claim for surgery appointments, the Scheme
ordinarily refused such a claim for six months after the end of the treatment. After another look at the case,
however, the Director General was taking an "exceptional" decision to allow the claim.
Eurocontrol contends that the complaint is irreceivable because the complainant has got satisfaction.
It also has pleas on the merits that are summed up under 6 below.
D. In his rejoinder the complainant objects to several points in Eurocontrol's version, pointing out that the staff
representatives on the Management Committee did not resign and the Committee could have met. As the Director
of Personnel and Finance informed the President of the Staff Committee in a minute of 21 November ...
- ... for surgery appointments, the Scheme
ordinarily refused such a claim for six months after the end of the treatment. After another look at the case,
however, the Director General was taking an "exceptional" decision to allow the claim.
Eurocontrol contends that the complaint is irreceivable because the complainant has got satisfaction.
It also has pleas on the merits that are summed up under 6 below.
D. In his rejoinder the complainant objects to several points in Eurocontrol's version, pointing out that the staff
representatives on the Management Committee did not resign and the Committee could have met. As the Director
of Personnel and Finance informed the President of the Staff Committee in a minute of 21 November 1987, the
reason why the Management Committee had not met was the "heavy workload" of its members. The answer to his
claim came after he had lodged his complaint, which Eurocontrol's silence drove him to make in order to safeguard
his ...
- ... rejoinder the complainant objects to several points in Eurocontrol's version, pointing out that the staff
representatives on the Management Committee did not resign and the Committee could have met. As the Director
of Personnel and Finance informed the President of the Staff Committee in a minute of 21 November 1987, the
reason why the Management Committee had not met was the "heavy workload" of its members. The answer to his
claim came after he had lodged his complaint, which Eurocontrol's silence drove him to make in order to safeguard
his rights. It allowed his claim only because it knew he was right.
As to the merits, he submits that he did supply full information in support of his claim. The six-month rule
Eurocontrol cites appears in no text, was not mentioned by the medical officer and is unknown to the Management
Committee. Eurocontrol has shown scant regard for "good management": according to Article 25 ter of Rule No. 10
the Director General should have ...
- ... the President of the Staff Committee in a minute of 21 November 1987, the
reason why the Management Committee had not met was the "heavy workload" of its members. The answer to his
claim came after he had lodged his complaint, which Eurocontrol's silence drove him to make in order to safeguard
his rights. It allowed his claim only because it knew he was right.
As to the merits, he submits that he did supply full information in support of his claim. The six-month rule
Eurocontrol cites appears in no text, was not mentioned by the medical officer and is unknown to the Management
Committee. Eurocontrol has shown scant regard for "good management": according to Article 25 ter of Rule No. 10
the Director General should have consulted the Committee before taking a decision.
The Scheme is high-handed and often careless.
The statement of his claims is in 7 below.
E. Eurocontrol's surrejoinder is summed up in 8 below.
CONSIDERATIONS:
1. The complainant, ...
- ... met was the "heavy workload" of its members. The answer to his
claim came after he had lodged his complaint, which Eurocontrol's silence drove him to make in order to safeguard
his rights. It allowed his claim only because it knew he was right.
As to the merits, he submits that he did supply full information in support of his claim. The six-month rule
Eurocontrol cites appears in no text, was not mentioned by the medical officer and is unknown to the Management
Committee. Eurocontrol has shown scant regard for "good management": according to Article 25 ter of Rule No. 10
the Director General should have consulted the Committee before taking a decision.
The Scheme is high-handed and often careless.
The statement of his claims is in 7 below.
E. Eurocontrol's surrejoinder is summed up in 8 below.
CONSIDERATIONS:
1. The complainant, a grade B1 assistant principal with Eurocontrol, is at its air navigation centre in Luxembourg.
His dispute with it is over ...
- ... he did supply full information in support of his claim. The six-month rule
Eurocontrol cites appears in no text, was not mentioned by the medical officer and is unknown to the Management
Committee. Eurocontrol has shown scant regard for "good management": according to Article 25 ter of Rule No. 10
the Director General should have consulted the Committee before taking a decision.
The Scheme is high-handed and often careless.
The statement of his claims is in 7 below.
E. Eurocontrol's surrejoinder is summed up in 8 below.
CONSIDERATIONS:
1. The complainant, a grade B1 assistant principal with Eurocontrol, is at its air navigation centre in Luxembourg.
His dispute with it is over the refund by the Agency's Insurance Scheme of the cost of dental treatment for his
daughters Anne and Laurence.
2. His daughters received orthodontic treatment from two dentists in Belgium and the issue is whether he is to
recover the cost of dental appointments, two for Anne ...
- ... by the medical officer and is unknown to the Management
Committee. Eurocontrol has shown scant regard for "good management": according to Article 25 ter of Rule No. 10
the Director General should have consulted the Committee before taking a decision.
The Scheme is high-handed and often careless.
The statement of his claims is in 7 below.
E. Eurocontrol's surrejoinder is summed up in 8 below.
CONSIDERATIONS:
1. The complainant, a grade B1 assistant principal with Eurocontrol, is at its air navigation centre in Luxembourg.
His dispute with it is over the refund by the Agency's Insurance Scheme of the cost of dental treatment for his
daughters Anne and Laurence.
2. His daughters received orthodontic treatment from two dentists in Belgium and the issue is whether he is to
recover the cost of dental appointments, two for Anne on 21 June and 20 December 1986 and two for Laurence on
30 August and 20 December 1986. The charge for each appointment was 800 ...
- ... centre in Luxembourg.
His dispute with it is over the refund by the Agency's Insurance Scheme of the cost of dental treatment for his
daughters Anne and Laurence.
2. His daughters received orthodontic treatment from two dentists in Belgium and the issue is whether he is to
recover the cost of dental appointments, two for Anne on 21 June and 20 December 1986 and two for Laurence on
30 August and 20 December 1986. The charge for each appointment was 800 Belgian francs. Eurocontrol took the
view that the appointments formed part of the orthodontic treatment authorised by the Scheme, of which the cost is
refundable only up to a maximum total of 60,500 Belgian francs under the Scheme's rules. The cost of Anne's
appointments was refused because she had already reached the maximum; the cost of Laurence's was allowed, but
under the heading of orthodontic treatment.
3. The complainant objected on the grounds that his daughters
had
had ordinary appointments ...
- ... already reached the maximum; the cost of Laurence's was allowed, but
under the heading of orthodontic treatment.
3. The complainant objected on the grounds that his daughters
had
had ordinary appointments quite distinct from
the orthodontic treatment and that he ought to have been refunded the cost under the rules for such appointments.
4. Having got no answer to his claim of 17 July 1987, he lodged his complaint on 10 February 1988.
5. By a letter of 17 May 1988 Eurocontrol informed him that though it held to its original view of the matter it had
taken an exceptional decision to allow his claim. In its reply of 2 June 1988 to the complaint it gives its version of
the dispute and asks the Tribunal to declare the complaint irreceivable as devoid of substance.
6. On the merits Eurocontrol explains that to prevent evasion of the maximum the rules allow its practice is to
refuse the refund of dental appointments in the six months following the end of orthodontic ...
- ... rules for such appointments.
4. Having got no answer to his claim of 17 July 1987, he lodged his complaint on 10 February 1988.
5. By a letter of 17 May 1988 Eurocontrol informed him that though it held to its original view of the matter it had
taken an exceptional decision to allow his claim. In its reply of 2 June 1988 to the complaint it gives its version of
the dispute and asks the Tribunal to declare the complaint irreceivable as devoid of substance.
6. On the merits Eurocontrol explains that to prevent evasion of the maximum the rules allow its practice is to
refuse the refund of dental appointments in the six months following the end of orthodontic treatment unless the
appointments are shown to be distinct. It cites a circular dated 16 June 1981 and office notice 17/82 of 30 July
1982, which say that to qualify for full refund the staff member must make sure that bills state the nature of the
treatment. In its submission the evidence put in by the complainant ...
- ... and office notice 17/82 of 30 July
1982, which say that to qualify for full refund the staff member must make sure that bills state the nature of the
treatment. In its submission the evidence put in by the complainant fails to show that the appointments were not for
orthodontic treatment; indeed they actually state that to be the purpose.
7. In his rejoinder the complainant goes into the merits in greater detail and asks the Tribunal (a) to hold that in
allowing the cost Eurocontrol acknowledged the "true nature" of the treatment and (b) to award him 100,000
Luxembourg francs in costs, an amount he justifies on the grounds of the Organisation's "stubborn refusal" to
answer his claim and its agreeing only after he had
filed
his complaint.
8. In its surrejoinder the Organisation maintains that the complaint is both irreceivable and devoid of merit. It
submits a certificate from the medical officer saying that orthodontic treatment always ends with bracing ...
- ... that the complaint is both irreceivable and devoid of merit. It
submits a certificate from the medical officer saying that orthodontic treatment always ends with bracing which
requires check-ups every three to six months. Since at the material time the complainant's daughters were plainly at
that stage of treatment the connection between their orthodontic treatment and the later appointments is beyond
doubt.
9. The complainant's claims, which he is pressing even after Eurocontrol's ex gratia decision in his favour, call for
the following comments.
10. The first claim, to a declaration about the nature of the treatment, is irreceivable because his purpose is to get a
ruling on a question of principle that is immaterial to the outcome.
11. His claim to costs is receivable because the Organisation did not answer his claim to the refund and indeed did
nothing at all until he had actually filed this complaint. A ruling on costs requires some consideration ...
- ... pleas, though there is no need for the oral proceedings the complainant has applied for.
12. Where the cost of treatment is refundable only up to a stated maximum an organisation may seek to prevent
evasion by determining whether forms of treatment are connected. For that purpose it may take account of any
material factor: for example, the practitioner may be the same; the forms of treatment may be provided at about the
same time; and their nature may also be relevant. As Eurocontrol says, in case of doubt
it
is for the staff member to
show exactly what the treatment was if he is contending that the maximum limit does not apply.
13. The material fact is that the bills submitted by the complainant actually mention "orthodontic treatment". So
Eurocontrol was right to conclude that his daughters' later appointments formed part of their orthodontic treatment.
14. The complainant's suit therefore never had the slightest chance of success. His claim having ...
- ... it may take account of any
material factor: for example, the practitioner may be the same; the forms of treatment may be provided at about the
same time; and their nature may also be relevant. As Eurocontrol says, in case of doubt
it
is for the staff member to
show exactly what the treatment was if he is contending that the maximum limit does not apply.
13. The material fact is that the bills submitted by the complainant actually mention "orthodontic treatment". So
Eurocontrol was right to conclude that his daughters' later appointments formed part of their orthodontic treatment.
14. The complainant's suit therefore never had the slightest chance of success. His claim having been allowed ex
gratia, he had even less reason to take it to the Tribunal.
DECISION:
For the above reasons,
The complaint is dismissed.
In witness of this judgment by Mr. Jacques Ducoux, President of the Tribunal, Miss Mella Carroll, Judge, and Mr.
Pierre Pescatore, Deputy ...
- Judgment 902
64th Session, 1988
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol
Agency) on 9 September 1987 by:
Mr. D. Aelvoet
Mrs. V. Alminana
Mrs. B. Anderson
Mr. C. Barret
Mrs. J. Bero
Mr. J. Beyer
Mr. J. Blume
Mr. W. Bodenstein
Mrs. V. Brown
Mrs. M. Campion
Mrs. L. Charon
Mr. N. Clinton
Mrs. C. Correa
Mr. J-M. Cosyns
Mr. P. Cracco
Mr. M. de Faria e Torres
Mr. F.A.C. Degrijse
Mrs. J. Denolle
Mrs. E.M. Deter
Mrs. J. Drochmans
Mr. F.E. Dupont
Mrs. M. Engels
Mr. R.J-M. Engels
Mr. ...
- ...
Mrs. M.M. Schoeling
Mr. H. Schröter
Mrs. A. Stickland
Miss E.S. Taylor
Mr. R. Thacker
Mr. J.A. Thiecke
Miss S. Thoma
Mr. R.P. Tielemans
Miss P. van Berckel
Mrs. R. van Cauwelaert
Mr. A. van den Broeck
Mr. P. van den Wijngaard
Mr. H. van Droogenbroeck
Mr. J. van Raayen
Mrs. H. Vermaesen
Mr. F. Vermoesen
Mr. W.E. Warner
Mr. J. Wondergem
Mr. M.A. Woods
Mr. A. Xhonneux
Mrs. R.M. Xhrouet
Considering Eurocontrol's replies of 8 December 1987, the complainants' rejoinders of 12 February 1988 and
Eurocontrol's surrejoinders of 28 April 1988;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Articles 1(2), 5 and 6.2(a) of the International
Convention on Co-operation for the Safety of Air Navigation, concluded on 13 December 1960 and amended on 12
February 1981, Articles 3, 4 and 12 of Annex I to the Convention (the Statute of the Agency) and Articles 2, 62 to
87, 92 and ...
- ... R. Thacker
Mr. J.A. Thiecke
Miss S. Thoma
Mr. R.P. Tielemans
Miss P. van Berckel
Mrs. R. van Cauwelaert
Mr. A. van den Broeck
Mr. P. van den Wijngaard
Mr. H. van Droogenbroeck
Mr. J. van Raayen
Mrs. H. Vermaesen
Mr. F. Vermoesen
Mr. W.E. Warner
Mr. J. Wondergem
Mr. M.A. Woods
Mr. A. Xhonneux
Mrs. R.M. Xhrouet
Considering Eurocontrol's replies of 8 December 1987, the complainants' rejoinders of 12 February 1988 and
Eurocontrol's surrejoinders of 28 April 1988;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Articles 1(2), 5 and 6.2(a) of the International
Convention on Co-operation for the Safety of Air Navigation, concluded on 13 December 1960 and amended on 12
February 1981, Articles 3, 4 and 12 of Annex I to the Convention (the Statute of the Agency) and Articles 2, 62 to
87, 92 and 93 of the Staff Regulations governing officials of the Agency;
Considering that the complaints ...
- ... decision;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. At its 70th Session, on 25 November 1986, the Permanent Commission of the European Organisation for the
Safety of Air Navigation decided:(a) to introduce a 5 per cent differential between pensions in the European
Communities and pensions in Eurocontrol;
(b) to apply it to pension rights for the period after the date at which the pay differential attained the full rate of
five per cent; and
(c) to approve a new text of Article 82 of the Staff Regulations for the purpose.
Although the decision did not become final until the Commission's 71st Session, on 7 July 1987, the complainants,
who are staff members of Eurocontrol, filed internal "complaints" on 20 February 1987 under Article 92(2) of the
Staff Regulations asking that ...
- ... to introduce a 5 per cent differential between pensions in the European
Communities and pensions in Eurocontrol;
(b) to apply it to pension rights for the period after the date at which the pay differential attained the full rate of
five per cent; and
(c) to approve a new text of Article 82 of the Staff Regulations for the purpose.
Although the decision did not become final until the Commission's 71st Session, on 7 July 1987, the complainants,
who are staff members of Eurocontrol, filed internal "complaints" on 20 February 1987 under Article 92(2) of the
Staff Regulations asking that it be set aside. By letters of 11 June 1987 they were informed that their appeals had
been rejected as irreceivable and, subsidiarily, as devoid of merit.
B. The complainants submit that their complaints are receivable. Not only was the decision they challenge
confirmed by the Commission at its 71st Session, on 7 July 1987, but the absence of individual decisions applying it ...
- ... 92(2) says that appeal will lie against a "measure of a general nature". Besides,
when such a measure is to affect the individual staff member only in the distant future so that in the meantime he
cannot know what his rights will be, he has the right to appeal without further ado.
Turning to the merits, the complainants allege breach of their acquired rights. They submit that the usage of an
international organisation forms part of the terms of appointment of its staff; that Eurocontrol has always adjusted
staff pay, and so staff pensions as well, to pay and pensions in the European Communities; and that in approving
the 5 per cent differential the Commission has unilaterally altered a fundamental and acquired right.
They further observe that no reasons are stated for the decision or at least none that are admissible in law, a mere
wish to keep a formal connection between pensions and pay, to which the 5 per cent differential also applies, not
being a ...
- ... the administrative procedure laid down in the new text of Article 82 of the Staff Regulations for
applying the Commission's decision of 7 July 1987 and so have failed to exhaust the internal means of redress.
What is more, that decision is beyond challenge because it was not taken by the appointing authority.
The Organisation has subsidiary arguments on the merits. It maintains that since neither its Staff Regulations nor its
usage prescribes parity in pay and pensions between Eurocontrol and the European Communities there has been no
breach of acquired rights.
The plea that no reasons have been stated for the decision is unsound because the duty to state reasons for a
decision, as laid down in the Staff Regulations, applies only to individual decisions by the appointing authority, not
to general rules adopted by the Commission.
D. In their rejoinders the complainants submit that it is wrong to say a general decision is unchallengeable: their
complaints are ...
- ... reasons for a
decision, as laid down in the Staff Regulations, applies only to individual decisions by the appointing authority, not
to general rules adopted by the Commission.
D. In their rejoinders the complainants submit that it is wrong to say a general decision is unchallengeable: their
complaints are receivable because they have exhausted the internal means of redress in keeping with 92(2).
They develop their submissions on the merits.
E. In its surrejoinders Eurocontrol enlarges on its objections to receivability and on its subsidiary submission that
the claims are devoid of merit.
CONSIDERATIONS:
1. The complaints have been filed by 94 officials of Eurocontrol who seek the
quashing
of a decision the
Permanent Commission of the Organisation took at its 70th Session and duly approved, on 7 July 1987, at its 71st
Session. The decision brought in a 5 per cent differential between pensions in Eurocontrol and pensions in the
European ...
- ... the complainants submit that it is wrong to say a general decision is unchallengeable: their
complaints are receivable because they have exhausted the internal means of redress in keeping with 92(2).
They develop their submissions on the merits.
E. In its surrejoinders Eurocontrol enlarges on its objections to receivability and on its subsidiary submission that
the claims are devoid of merit.
CONSIDERATIONS:
1. The complaints have been filed by 94 officials of Eurocontrol who seek the
quashing
of a decision the
Permanent Commission of the Organisation took at its 70th Session and duly approved, on 7 July 1987, at its 71st
Session. The decision brought in a 5 per cent differential between pensions in Eurocontrol and pensions in the
European Communities and for that purpose amended Article 82 of the Staff Regulations.
The material rules
2. The Organisation was set up under the International Convention on Co-operation for the Safety of Air ...
- ...
E. In its surrejoinders Eurocontrol enlarges on its objections to receivability and on its subsidiary submission that
the claims are devoid of merit.
CONSIDERATIONS:
1. The complaints have been filed by 94 officials of Eurocontrol who seek the
quashing
of a decision the
Permanent Commission of the Organisation took at its 70th Session and duly approved, on 7 July 1987, at its 71st
Session. The decision brought in a 5 per cent differential between pensions in Eurocontrol and pensions in the
European Communities and for that purpose amended Article 82 of the Staff Regulations.
The material rules
2. The Organisation was set up under the International Convention on Co-operation for the Safety of Air
Navigation, which was concluded on 13 December 1960 and amended by a protocol of 12 February 1981. Its
activities are carried on by an Agency whose Statute is in Annex I to the Convention. According to Articles 1(2)
and 5 of the Convention and 3 ...
- ... 65 provides
for the periodic adjustment of pay and Article 82 for that of pensions. By a decision of 15 November 1986 the
Organisation curtailed a pay rise.
5. After taking note of comments by the staff, an oral report from the Director General and a written one from the
Committee
of
Management (WP/CN/70/5) the Permanent Commission decided on 7 July 1987 under the rules set
out above:
"(i) to introduce a 5 per cent differential between European Communities and Eurocontrol pensions;
(ii) to apply the measure to pension rights in respect of the period after the date at which the remuneration
differential attained the full rate of five per cent;
(iii) to approve the new wording of Article 82 of the service regulations ...".
6. The new text of 82 authorised applying the "differential" to the "weighting", a factor that had till then been used
only to take account of differences in "living conditions" and "income tax system" between the countries ...
- ... internal "complaints" to the Director General under
Article 92(2) of the Staff Regulations. On 11 June 1987 they got identical replies rejecting their appeals as
irreceivable and, subsidiarily, as unfounded. The terms of the appeals
and
replies are repeated in the parties'
submissions to the Tribunal.
10. The complainants have two pleas on the merits: breach of their acquired rights and lack of reasons for the
decision.
11. The former is their main plea. Eurocontrol has, they say, always followed the European Communities in the
matter of pay and pensions by making the same adjustments, including an emergency levy. In their submission the
practice is a fundamental term of employment at Eurocontrol and the unilateral amendment of it is in breach of the
staff's acquired rights.
12. Their other plea is a subsidiary one: no reasons were given for the impugned decision, or at least none that pass
muster in law. The only explanation is a reference ...
- ...
and
replies are repeated in the parties'
submissions to the Tribunal.
10. The complainants have two pleas on the merits: breach of their acquired rights and lack of reasons for the
decision.
11. The former is their main plea. Eurocontrol has, they say, always followed the European Communities in the
matter of pay and pensions by making the same adjustments, including an emergency levy. In their submission the
practice is a fundamental term of employment at Eurocontrol and the unilateral amendment of it is in breach of the
staff's acquired rights.
12. Their other plea is a subsidiary one: no reasons were given for the impugned decision, or at least none that pass
muster in law. The only explanation is a reference to
the preparatory papers, and those papers refer in turn to the earlier decision to make the same cut in the pay of
serving staff, a decision which the parties say is also under challenge.
13. The Organisation's main plea in reply ...
- ... by the "appointing authority" within the meaning of Article 92 of the
Staff Regulations. Its consequences are not yet quantifiable: what is at stake for the time being is "potential rights",
not a situation that is specific in law. The collective nature of the complaints prevents review of the position
of
each complainant.
14. In answer to the plea of breach of acquired rights the Organisation points out that the Staff Regulations do not
prescribe parity between pay in Eurocontrol and pay in the European Communities. Although it broadly follows the
rules in the Communities it is not bound always to do so.
15. The Organisation further observes that it took care not to make the decision retroactive. According to precedent
the doctrine of acquired rights does not bar non-retroactive amendment to the Staff Regulations. Besides
Judgments 29 (in re Shérif) and 51 (in re Poulain d'Andecy), there was such a ruling in Judgment 429 (in re Gubin
and Nemo) on a case ...
- ... it broadly follows the
rules in the Communities it is not bound always to do so.
15. The Organisation further observes that it took care not to make the decision retroactive. According to precedent
the doctrine of acquired rights does not bar non-retroactive amendment to the Staff Regulations. Besides
Judgments 29 (in re Shérif) and 51 (in re Poulain d'Andecy), there was such a ruling in Judgment 429 (in re Gubin
and Nemo) on a case about an increase in contributions to the Eurocontrol pension scheme: "An organisation's
rules do not confer any acquired right on staff members except where ... the amendment of the rules will
substantially alter conditions of service which they were entitled to expect would continue." (9).
16. To the plea that the reasons for the decision were unstated the Organisation's answer is that under the Staff
Regulations reasons must be given only for individual decisions by the appointing authority, not for rules adopted
by the Permanent ...
- ... that is fatal. The decision was taken by the Permanent Commission in exercise of the authority
bestowed on it by Article 12 of the Annex, which empowers it, on the Committee of Management's proposal, to
approve the Staff Regulations, including salary scales and pensions. Since the Commission is not the appointing
authority its decisions are not subject to appeal under 92 and 93.
26. Though that is the conclusion to be drawn from the Convention and the Staff Regulations, Eurocontrol staff do
have means of redress if they believe their interests to have been unlawfully infringed by a decision of the
Permanent Commission's. They may seek relief once the appointing authority has taken, on the strength of the
decision now impugned, a decision challengeable under 92 and 93. Both parties give figures to bear out their
contentions. Whatever value the figures may have as evidence, the possibility of appeal is a real one, even though
some time may have to go by first. ...
- Judgment 743
58th Session, 1986
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol
Agency) by Mr. Peter Flick on 6 February 1985 and corrected on 5 March, Eurocontrol's reply of 12 June, the
complainant's rejoinder filed on 5 July and Eurocontrol's surrejoinder of 2 August 1985;
Considering the brief submitted on 4 December 1985 by Mr. Kees Scholts at the Tribunal's invitation and the
observations thereon filed by the complainant on 17 December 1985 and by Eurocontrol on 8 January 1986;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Articles ...
- ... Eurocontrol's reply of 12 June, the
complainant's rejoinder filed on 5 July and Eurocontrol's surrejoinder of 2 August 1985;
Considering the brief submitted on 4 December 1985 by Mr. Kees Scholts at the Tribunal's invitation and the
observations thereon filed by the complainant on 17 December 1985 and by Eurocontrol on 8 January 1986;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Articles 62, 67(1)(a) and (b) and (2) and 91 of
the General Conditions of Employment governing ...
- ... Eurocontrol's surrejoinder of 2 August 1985;
Considering the brief submitted on 4 December 1985 by Mr. Kees Scholts at the Tribunal's invitation and the
observations thereon filed by the complainant on 17 December 1985 and by Eurocontrol on 8 January 1986;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Articles 62, 67(1)(a) and (b) and (2) and 91 of
the General Conditions of Employment governing officials of the Eurocontrol Agency and Article 2 of Eurocontrol
Rule 7 ...
- ... the complaint filed against the European Organisation for the Safety of Air Navigation (Eurocontrol
Agency) by Mr. Peter Flick on 6 February 1985 and corrected on 5 March, Eurocontrol's reply of 12 June, the
complainant's rejoinder filed on 5 July and Eurocontrol's surrejoinder of 2 August 1985;
Considering the brief submitted on 4 December 1985 by Mr. Kees Scholts at the Tribunal's invitation and the
observations thereon filed by the complainant on 17 December 1985 and by Eurocontrol on 8 January 1986;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Articles 62, 67(1)(a) and (b) and (2) and 91 of
the General Conditions of Employment governing officials of the Eurocontrol Agency and Article 2 of Eurocontrol
Rule 7 concerning remuneration;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed ...
- ... rejoinder filed on 5 July and Eurocontrol's surrejoinder of 2 August 1985;
Considering the brief submitted on 4 December 1985 by Mr. Kees Scholts at the Tribunal's invitation and the
observations thereon filed by the complainant on 17 December 1985 and by Eurocontrol on 8 January 1986;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Articles 62, 67(1)(a) and (b) and (2) and 91 of
the General Conditions of Employment governing officials of the Eurocontrol Agency and Article 2 of Eurocontrol
Rule 7 concerning remuneration;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant is an official of the Agency in Maastricht. He has a son, Thorsten, by his first wife. On 18 July
1984 he married as his second wife Dianne née Stenvert, the former wife of ...
- ... July and Eurocontrol's surrejoinder of 2 August 1985;
Considering the brief submitted on 4 December 1985 by Mr. Kees Scholts at the Tribunal's invitation and the
observations thereon filed by the complainant on 17 December 1985 and by Eurocontrol on 8 January 1986;
Considering Article II, paragraph 5, of the Statute of the Tribunal, Articles 62, 67(1)(a) and (b) and (2) and 91 of
the General Conditions of Employment governing officials of the Eurocontrol Agency and Article 2 of Eurocontrol
Rule 7 concerning remuneration;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant is an official of the Agency in Maastricht. He has a son, Thorsten, by his first wife. On 18 July
1984 he married as his second wife Dianne née Stenvert, the former wife of another Agency official, Mr. Kees
Scholts. ...
- ... adopted child
of an official, or of his spouse, who is actually being maintained by the official". Pim Scholts is beyond question
living under the complainant's roof and, as he can readily prove, being maintained by him. There is nothing in the
rules which says that the complainant's rights thereunder can be affected by the rights of any other, even Pim's
father. He seeks the quashing of the decision and payment of the child allowance as from 18 July 1984.
C. In its reply Eurocontrol observes that the complainant does not mind receiving the allowance from the Agency
for his own child Thorsten, yet expects the Agency to pay him the allowance for Pim Scholts as well. Although Pim
lives under the complainant's roof, what Article 2(2) of Rule
7
requires is that the child be "actually being
maintained by the official". Under the divorce settlement his mother is receiving from Mr. Scholts a monthly sum
for maintenance of their son, and her second marriage has ...
- ... from Mr. Scholts a monthly sum
for maintenance of their son, and her second marriage has not shifted responsibility for his maintenance to the
complainant. The latter does not even deny that Pim remains Mr. Scholts's dependant. What he wants is that the
allowance be paid twice over. That clearly runs counter to the letter and spirit of Article 2 of Rule 7 and Article
67(1)(a) and (2) of the General Conditions of Employment.
D. In his rejoinder the complainant observes that Eurocontrol admit by implication that if Mr. Scholts were not a
staff member the complainant would be entitled to the allowance provided he was actually maintaining the child.
The distinction Eurocontrol draw between actual maintenance and letting Pim live under the complainant's roof is a
false one: there is nothing in Rule 7 to suggest that the mere payment of alimony as a contribution towards the
costs of bringing up a child amounts to maintenance. What counts is the provision of food, lodging, ...
- ... Pim remains Mr. Scholts's dependant. What he wants is that the
allowance be paid twice over. That clearly runs counter to the letter and spirit of Article 2 of Rule 7 and Article
67(1)(a) and (2) of the General Conditions of Employment.
D. In his rejoinder the complainant observes that Eurocontrol admit by implication that if Mr. Scholts were not a
staff member the complainant would be entitled to the allowance provided he was actually maintaining the child.
The distinction Eurocontrol draw between actual maintenance and letting Pim live under the complainant's roof is a
false one: there is nothing in Rule 7 to suggest that the mere payment of alimony as a contribution towards the
costs of bringing up a child amounts to maintenance. What counts is the provision of food, lodging, education, care
and so on, and that depends on the complainant, even if contributions come from elsewhere. There is nothing in
Article 67 of the General Conditions of Employment or ...
- ... of food, lodging, education, care
and so on, and that depends on the complainant, even if contributions come from elsewhere. There is nothing in
Article 67 of the General Conditions of Employment or in Rule 7 which precludes giving the complainant
satisfaction. He is neither challenging nor upholding Mr. Scholts's rights, which are immaterial, nor has he ever
acknowledged that the child is still Mr. Scholts's dependant. He presses his claims.
E. In their surrejoinder Eurocontrol
develop
in detail the arguments in their reply and seek to rebut the pleas in the
rejoinder. They submit in particular that it is Mr. Scholts who is actually maintaining the child and who has the
legal obligation to do so; that if the complainant is dissatisfied with the amount of the alimony, the solution is to
apply to the courts for an increase; that the payment of the allowance to Mr. Scholts is not in question; and that the
wording of Article 67 is not consistent with ...
- ... the payment of the allowance to Mr. Scholts is not in question; and that the
wording of Article 67 is not consistent with paying the allowance to two officials for the same child, as is borne out
by the case law of the Court of Justice of the European Communities.
F. At the Tribunal's invitation Mr. Scholts filed observations on the complaint, reply, rejoinder and surrejoinder. He
says it is not for him to comment on the complainant's claim to payment of a child allowance by Eurocontrol, but
observes that the complainant is receiving such an allowance for his own son Thorsten, who is in the custody of his
former wife, and that the rules cannot be applied differently to different staff members. In his observations on Mr.
Scholts's brief the complainant says he does not deny that Mr. Scholts is making a contribution to the costs of
maintaining Pim, but he observes that that does not mean he is not himself actually maintaining the child. In their
further observations ...
- ... that the complainant is receiving such an allowance for his own son Thorsten, who is in the custody of his
former wife, and that the rules cannot be applied differently to different staff members. In his observations on Mr.
Scholts's brief the complainant says he does not deny that Mr. Scholts is making a contribution to the costs of
maintaining Pim, but he observes that that does not mean he is not himself actually maintaining the child. In their
further observations Eurocontrol develop their earlier submissions in the light of Mr. Scholts's and the
complainant's additional briefs.
CONSIDERATIONS:
1. Article 62 of the General Conditions of Employment of Eurocontrol applicable to the staff in Maastricht reads:
"In accordance with the
terms
of a ruling of the Director General and save as otherwise expressly provided, a
servant who is duly appointed shall be entitled to the remuneration carried by his grade and step ... Remuneration
shall comprise: ...
- ... members. In his observations on Mr.
Scholts's brief the complainant says he does not deny that Mr. Scholts is making a contribution to the costs of
maintaining Pim, but he observes that that does not mean he is not himself actually maintaining the child. In their
further observations Eurocontrol develop their earlier submissions in the light of Mr. Scholts's and the
complainant's additional briefs.
CONSIDERATIONS:
1. Article 62 of the General Conditions of Employment of Eurocontrol applicable to the staff in Maastricht reads:
"In accordance with the
terms
of a ruling of the Director General and save as otherwise expressly provided, a
servant who is duly appointed shall be entitled to the remuneration carried by his grade and step ... Remuneration
shall comprise: ... 2) family allowances...". Article 67(1) states that the family allowances comprise: "b) Dependent
child allowance of BF 4,881 per child per month", an amount which, according to the Agency's ...
- ... to the Agency's surrejoinder, has
since been increased to 5,237 Belgian francs. Over and above the dependent child allowance the staff member is
paid the household allowance and possibly the education allowance.
Article 2(2) of Rule 7 concerning remuneration states that the term "dependent child" means "the legitimate, natural
or adopted child of an official, or of his spouse, who is actually being maintained by the official".
2. Dianne Stenvert married Kees Scholts, a Eurocontrol staff member, and had a child by him in 1978, called Pim.
The marriage was dissolved and the divorce decree awarded custody of Pim to his mother, his father being ordered
to pay her a monthly alimony of 350 guilders.
On 18 July 1984 the former Mrs. Scholts married the complainant, an air traffic controller also on the Eurocontrol
staff.
In accordance with Article 67(2) of the General Conditions of Employment the complainant informed the Agency
of his marriage and stated that ...
- ...
or adopted child of an official, or of his spouse, who is actually being maintained by the official".
2. Dianne Stenvert married Kees Scholts, a Eurocontrol staff member, and had a child by him in 1978, called Pim.
The marriage was dissolved and the divorce decree awarded custody of Pim to his mother, his father being ordered
to pay her a monthly alimony of 350 guilders.
On 18 July 1984 the former Mrs. Scholts married the complainant, an air traffic controller also on the Eurocontrol
staff.
In accordance with Article 67(2) of the General Conditions of Employment the complainant informed the Agency
of his marriage and stated that Pim's father was paying his former wife 350 guilders a month; he asked that Pim
should now be treated as his dependent child.
Eurocontrol have gone on paying the child allowance to Mr. Scholts since his divorce and they rejected the
complainant's
claim
on the grounds that Pim should be deemed to be still the dependant ...
- ... mother, his father being ordered
to pay her a monthly alimony of 350 guilders.
On 18 July 1984 the former Mrs. Scholts married the complainant, an air traffic controller also on the Eurocontrol
staff.
In accordance with Article 67(2) of the General Conditions of Employment the complainant informed the Agency
of his marriage and stated that Pim's father was paying his former wife 350 guilders a month; he asked that Pim
should now be treated as his dependent child.
Eurocontrol have gone on paying the child allowance to Mr. Scholts since his divorce and they rejected the
complainant's
claim
on the grounds that Pim should be deemed to be still the dependant of his father. They submit
that they are bound to pay only 5,237 Belgian francs each month in respect of the child of the marriage between
Dianne Stenvert and Kees Scholts. If they granted the complainant's claim they would seek repayment of the sums
already paid to the father. The municipal court ...
- ... deemed to be still the dependant of his father. They submit
that they are bound to pay only 5,237 Belgian francs each month in respect of the child of the marriage between
Dianne Stenvert and Kees Scholts. If they granted the complainant's claim they would seek repayment of the sums
already paid to the father. The municipal court determined the amount of the father's contribution to the child's
maintenance and in doing so took account of the child allowance he is receiving from Eurocontrol.
The complainant's case is that, together with his wife, he is actually maintaining the child. Eurocontrol were not a
party to the case in which the court delivered judgment, and that judgment cannot alter his rights as a Eurocontrol
official.
3. The Tribunal is therefore required to construe the term "dependent child" in Article 2(2) of Rule 7.
Both interpretations will square with the wording. The notion of dependence and that of maintenance may be
differently understood. ...
- ... each month in respect of the child of the marriage between
Dianne Stenvert and Kees Scholts. If they granted the complainant's claim they would seek repayment of the sums
already paid to the father. The municipal court determined the amount of the father's contribution to the child's
maintenance and in doing so took account of the child allowance he is receiving from Eurocontrol.
The complainant's case is that, together with his wife, he is actually maintaining the child. Eurocontrol were not a
party to the case in which the court delivered judgment, and that judgment cannot alter his rights as a Eurocontrol
official.
3. The Tribunal is therefore required to construe the term "dependent child" in Article 2(2) of Rule 7.
Both interpretations will square with the wording. The notion of dependence and that of maintenance may be
differently understood. It may be argued either that even a contribution is a form of maintenance or that anything
short of ...
- ... claim they would seek repayment of the sums
already paid to the father. The municipal court determined the amount of the father's contribution to the child's
maintenance and in doing so took account of the child allowance he is receiving from Eurocontrol.
The complainant's case is that, together with his wife, he is actually maintaining the child. Eurocontrol were not a
party to the case in which the court delivered judgment, and that judgment cannot alter his rights as a Eurocontrol
official.
3. The Tribunal is therefore required to construe the term "dependent child" in Article 2(2) of Rule 7.
Both interpretations will square with the wording. The notion of dependence and that of maintenance may be
differently understood. It may be argued either that even a contribution is a form of maintenance or that anything
short of full maintenance is not maintenance at all. The text being unclear, the Tribunal has to identify what the
purpose of the allowance ...
- ... decree. The Tribunal and that court are on quite different ground.
5. A copy of the complaint has been passed on to Mr. Scholts and he has filed observations. The attitude the
Agency should take towards him in the light of this judgment is no concern of the Tribunal's. Nor is the Tribunal
called upon to rule on the complainant's position with regard to Thorsten, his own son by an earlier marriage, of
whom his former wife has custody.
6. The complainant is referred to Eurocontrol for execution of this decision.
7. Eurocontrol shall pay him 3,000 guilders in costs.
DECISION:
For the above reasons,
1. The impugned decision is set aside.
2. The complainant is referred to Eurocontrol for execution of the decision.
3. Eurocontrol shall pay him 3,000 guilders in costs.
In witness of this judgment by Mr. André Grisel, President of the Tribunal, Mr. Jacques Ducoux, Vice-President,
and the Right Honourable the Lord Devlin, Judge, the aforementioned ...
- ... different ground.
5. A copy of the complaint has been passed on to Mr. Scholts and he has filed observations. The attitude the
Agency should take towards him in the light of this judgment is no concern of the Tribunal's. Nor is the Tribunal
called upon to rule on the complainant's position with regard to Thorsten, his own son by an earlier marriage, of
whom his former wife has custody.
6. The complainant is referred to Eurocontrol for execution of this decision.
7. Eurocontrol shall pay him 3,000 guilders in costs.
DECISION:
For the above reasons,
1. The impugned decision is set aside.
2. The complainant is referred to Eurocontrol for execution of the decision.
3. Eurocontrol shall pay him 3,000 guilders in costs.
In witness of this judgment by Mr. André Grisel, President of the Tribunal, Mr. Jacques Ducoux, Vice-President,
and the Right Honourable the Lord Devlin, Judge, the aforementioned have signed hereunder, as have I, Allan
Gardner, ...
- ... the light of this judgment is no concern of the Tribunal's. Nor is the Tribunal
called upon to rule on the complainant's position with regard to Thorsten, his own son by an earlier marriage, of
whom his former wife has custody.
6. The complainant is referred to Eurocontrol for execution of this decision.
7. Eurocontrol shall pay him 3,000 guilders in costs.
DECISION:
For the above reasons,
1. The impugned decision is set aside.
2. The complainant is referred to Eurocontrol for execution of the decision.
3. Eurocontrol shall pay him 3,000 guilders in costs.
In witness of this judgment by Mr. André Grisel, President of the Tribunal, Mr. Jacques Ducoux, Vice-President,
and the Right Honourable the Lord Devlin, Judge, the aforementioned have signed hereunder, as have I, Allan
Gardner, Registrar.
Delivered in public sitting in Geneva on 17 March 1986.
André Grisel
Jacques Ducoux
Devlin
A.B. Gardner
Updated by PFR. Approved ...
- ... Nor is the Tribunal
called upon to rule on the complainant's position with regard to Thorsten, his own son by an earlier marriage, of
whom his former wife has custody.
6. The complainant is referred to Eurocontrol for execution of this decision.
7. Eurocontrol shall pay him 3,000 guilders in costs.
DECISION:
For the above reasons,
1. The impugned decision is set aside.
2. The complainant is referred to Eurocontrol for execution of the decision.
3. Eurocontrol ...
- Judgment 727
58th Session, 1986
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol
Agency) by Mr. Alexander Eckhardt on 22 November 1985, as supplemented on 3 December;
Considering Articles II, paragraph 5, and VII, paragraph 2, of the Statute of the Tribunal and Article 8, paragraph 3,
of the Rules of Court;
Having examined the written evidence;
CONSIDERATIONS:
The facts
1. The complainant joined the staff of Eurocontrol on 4 October 1971 as a trainee controller at its centre in
Maastricht.
By a letter of 14 February 1974 the Director of Personnel ...
- ... TRIBUNAL,
Considering the complaint filed against the European Organisation for the Safety of Air Navigation (Eurocontrol
Agency) by Mr. Alexander Eckhardt on 22 November 1985, as supplemented on 3 December;
Considering Articles II, paragraph 5, and VII, paragraph 2, of the Statute of the Tribunal and Article 8, paragraph 3,
of the Rules of Court;
Having examined the written evidence;
CONSIDERATIONS:
The facts
1. The complainant joined the staff of Eurocontrol on 4 October 1971 as a trainee controller at its centre in
Maastricht.
By a letter of 14 February 1974 the Director of Personnel and Administration informed him that "in the light of the
medical advice" he could not be kept on at Maastricht but that there was a vacant post in Brussels he could apply
for.
After an abortive attempt to lodge an appeal, the complainant agreed to work temporarily in Brussels and asked for
special leave.
On 16 December 1974 he informed the ...
- ... December 1974 he informed the Director that he did not want to be permanently stationed in Brussels, that
he waived his special leave and that he would like to go back to Maastricht.
On 18 March 1973 the Head of Personnel wrote to say that he was deemed to have resigned as from 1 March 1975.
On 14 August 1975 the Director of Personnel and Administration overruled his objections and upheld the decision
of 18 March.
2. In mid-September 1975 the complainant filed suit against Eurocontrol with a Dutch court in the District of
Sittard.
On 3 November 1975 Eurocontrol informed him through its agent that should he file a complaint with the Tribunal
it would treat the time bar as suspended from 15 September 1975.
On 25 June 1976 the Sittard court declared that it was competent but that the action was irreceivable.
The complainant then appealed to the Maastricht District Court, which on 12 January 1984 held that the Sittard
court had not been competent.
3. In ...
- ... in Brussels, that
he waived his special leave and that he would like to go back to Maastricht.
On 18 March 1973 the Head of Personnel wrote to say that he was deemed to have resigned as from 1 March 1975.
On 14 August 1975 the Director of Personnel and Administration overruled his objections and upheld the decision
of 18 March.
2. In mid-September 1975 the complainant filed suit against Eurocontrol with a Dutch court in the District of
Sittard.
On 3 November 1975 Eurocontrol informed him through its agent that should he file a complaint with the Tribunal
it would treat the time bar as suspended from 15 September 1975.
On 25 June 1976 the Sittard court declared that it was competent but that the action was irreceivable.
The complainant then appealed to the Maastricht District Court, which on 12 January 1984 held that the Sittard
court had not been competent.
3. In his complaint, which was filed on 22 November 1985, the complainant invites the Tribunal ...
- ... that should he file a complaint with the Tribunal
it would treat the time bar as suspended from 15 September 1975.
On 25 June 1976 the Sittard court declared that it was competent but that the action was irreceivable.
The complainant then appealed to the Maastricht District Court, which on 12 January 1984 held that the Sittard
court had not been competent.
3. In his complaint, which was filed on 22 November 1985, the complainant invites the Tribunal to declare that
Eurocontrol was in breach of its obligations in failing to submit his internal appeal to a medical board, in refusing
to reinstate him and in accepting his so-called resignation. He seeks an award of the remuneration he believes he is
entitled to.
Subsidiarily, he seeks a declaration that Eurocontrol broke his contract of appointment and should pay him 294,000
guilders in damages.
Receivability
4. Article VII(2) of the Statute of the Tribunal provides that, to be receivable, a ...
- ... on 12 January 1984 held that the Sittard
court had not been competent.
3. In his complaint, which was filed on 22 November 1985, the complainant invites the Tribunal to declare that
Eurocontrol was in breach of its obligations in failing to submit his internal appeal to a medical board, in refusing
to reinstate him and in accepting his so-called resignation. He seeks an award of the remuneration he believes he is
entitled to.
Subsidiarily, he seeks a declaration that Eurocontrol broke his contract of appointment and should pay him 294,000
guilders in damages.
Receivability
4. Article VII(2) of the Statute of the Tribunal provides that, to be receivable, a complaint must be filed within 90
days of the date of notification of the decision impugned. The complainant's principal and subsidiary pleas are
directed at Eurocontrol's decisions of 18 March and 14 August 1975. Since he filed it out of time his complaint is
irreceivable.
The complainant ...
- ... He seeks an award of the remuneration he believes he is
entitled to.
Subsidiarily, he seeks a declaration that Eurocontrol broke his contract of appointment and should pay him 294,000
guilders in damages.
Receivability
4. Article VII(2) of the Statute of the Tribunal provides that, to be receivable, a complaint must be filed within 90
days of the date of notification of the decision impugned. The complainant's principal and subsidiary pleas are
directed at Eurocontrol's decisions of 18 March and 14 August 1975. Since he filed it out of time his complaint is
irreceivable.
The complainant is mistaken in his contention that the filing of a suit with the municipal courts can have any effect
on the receivability of a complaint lodged with the Tribunal. Suing Eurocontrol before the Sittard court did not
have the effect of suspending the time limit for filing this complaint.
It is immaterial that the Organisation's agent agreed to waive the time ...
- ... be receivable, a complaint must be filed within 90
days of the date of notification of the decision impugned. The complainant's principal and subsidiary pleas are
directed at Eurocontrol's decisions of 18 March and 14 August 1975. Since he filed it out of time his complaint is
irreceivable.
The complainant is mistaken in his contention that the filing of a suit with the municipal courts can have any effect
on the receivability of a complaint lodged with the Tribunal. Suing Eurocontrol before the Sittard court did not
have the effect of suspending the time limit for filing this complaint.
It is immaterial that the Organisation's agent agreed to waive the time limit from 15 September 1975. Article VII(2)
of the Statute of the Tribunal is mandatory and the parties are not free, even by mutual consent, to waive its
application.
Besides, in undertaking not to plead the time bar the Organisation's agent was presumably referring only to the
proceedings before ...
- Judgment 698
57th Session, 1985
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol
Agency) by Mr. Manuel Vázquez Ventura on 8 February 1985, Eurocontrol's reply of 18 April, the complainant's
rejoinder of 14 May and Eurocontrol's surrejoinder of 18 July 1985;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal, Articles 1, 3, 48 and 92 of
the Staff Regulations governing officials of the Eurocontrol Agency, Article 8 of the Association Agreement
concluded between Eurocontrol and the Government of Spain on 17 December 1971, ...
- ... Eurocontrol's reply of 18 April, the complainant's
rejoinder of 14 May and Eurocontrol's surrejoinder of 18 July 1985;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal, Articles 1, 3, 48 and 92 of
the Staff Regulations governing officials of the Eurocontrol Agency, Article 8 of the Association Agreement
concluded between Eurocontrol and the Government of Spain on 17 December 1971, Article 4 of the Co-operation
Agreement concluded between Eurocontrol ...
- ... Eurocontrol's surrejoinder of 18 July 1985;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal, Articles 1, 3, 48 and 92 of
the Staff Regulations governing officials of the Eurocontrol Agency, Article 8 of the Association Agreement
concluded between Eurocontrol and the Government of Spain on 17 December 1971, Article 4 of the Co-operation
Agreement concluded between Eurocontrol and the former Spanish Civil Aviation Department on 21 August 1974,
and ...
- ... TRIBUNAL,
Considering the complaint filed against the European Organisation for the Safety of Air Navigation (Eurocontrol
Agency) by Mr. Manuel Vázquez Ventura on 8 February 1985, Eurocontrol's reply of 18 April, the complainant's
rejoinder of 14 May and Eurocontrol's surrejoinder of 18 July 1985;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal, Articles 1, 3, 48 and 92 of
the Staff Regulations governing officials of the Eurocontrol Agency, Article 8 of the Association Agreement
concluded between Eurocontrol and the Government of Spain on 17 December 1971, Article 4 of the Co-operation
Agreement concluded between Eurocontrol and the former Spanish Civil Aviation Department on 21 August 1974,
and Articles 1, 2, 4 and 6 of the Bilateral Agreement concluded between Eurocontrol and the Department, also on
21 August 1974;
Having examined the written evidence, oral proceedings having been neither applied for by ...
- ... for the Safety of Air Navigation (Eurocontrol
Agency) by Mr. Manuel Vázquez Ventura on 8 February 1985, Eurocontrol's reply of 18 April, the complainant's
rejoinder of 14 May and Eurocontrol's surrejoinder of 18 July 1985;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal, Articles 1, 3, 48 and 92 of
the Staff Regulations governing officials of the Eurocontrol Agency, Article 8 of the Association Agreement
concluded between Eurocontrol and the Government of Spain on 17 December 1971, Article 4 of the Co-operation
Agreement concluded between Eurocontrol and the former Spanish Civil Aviation Department on 21 August 1974,
and Articles 1, 2, 4 and 6 of the Bilateral Agreement concluded between Eurocontrol and the Department, also on
21 August 1974;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered,
by the Tribunal;
Considering that the facts of ...
- ... reply of 18 April, the complainant's
rejoinder of 14 May and Eurocontrol's surrejoinder of 18 July 1985;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal, Articles 1, 3, 48 and 92 of
the Staff Regulations governing officials of the Eurocontrol Agency, Article 8 of the Association Agreement
concluded between Eurocontrol and the Government of Spain on 17 December 1971, Article 4 of the Co-operation
Agreement concluded between Eurocontrol and the former Spanish Civil Aviation Department on 21 August 1974,
and Articles 1, 2, 4 and 6 of the Bilateral Agreement concluded between Eurocontrol and the Department, also on
21 August 1974;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered,
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant was assigned to the Agency on 2 April 1973 ...
- ... 5, and VII, paragraph 1, of the Statute of the Tribunal, Articles 1, 3, 48 and 92 of
the Staff Regulations governing officials of the Eurocontrol Agency, Article 8 of the Association Agreement
concluded between Eurocontrol and the Government of Spain on 17 December 1971, Article 4 of the Co-operation
Agreement concluded between Eurocontrol and the former Spanish Civil Aviation Department on 21 August 1974,
and Articles 1, 2, 4 and 6 of the Bilateral Agreement concluded between Eurocontrol and the Department, also on
21 August 1974;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered,
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant was assigned to the Agency on 2 April 1973 as a grade B1 air traffic controller in accordance
with an association agreement which the Spanish Government and Eurocontrol had concluded in 1971. His ...
- ... concluded between Eurocontrol and the Department, also on
21 August 1974;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered,
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant was assigned to the Agency on 2 April 1973 as a grade B1 air traffic controller in accordance
with an association agreement which the Spanish Government and Eurocontrol had concluded in 1971. His status
was that of a Spanish civil servant on "leave on secondment".
A
co-operation agreement replacing the association
agreement was concluded on 21 August 1974 between Eurocontrol and the Spanish Civil Aviation Department
("the Department"). On the same day Eurocontrol and the Department concluded a bilateral agreement on the status
and duties of the Spanish citizens in the Agency's employ. By a decision of 25 September 1974 the complainant
had ...
- ...
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant was assigned to the Agency on 2 April 1973 as a grade B1 air traffic controller in accordance
with an association agreement which the Spanish Government and Eurocontrol had concluded in 1971. His status
was that of a Spanish civil servant on "leave on secondment".
A
co-operation agreement replacing the association
agreement was concluded on 21 August 1974 between Eurocontrol and the Spanish Civil Aviation Department
("the Department"). On the same day Eurocontrol and the Department concluded a bilateral agreement on the status
and duties of the Spanish citizens in the Agency's employ. By a decision of 25 September 1974 the complainant
had his appointment confirmed for the duration of the co-operation agreement as from 1 January 1974.
On 10 April 1984 the Director of Personnel and Administration wrote to the complainant to say that the Spanish
Civil ...
- ... The complainant was assigned to the Agency on 2 April 1973 as a grade B1 air traffic controller in accordance
with an association agreement which the Spanish Government and Eurocontrol had concluded in 1971. His status
was that of a Spanish civil servant on "leave on secondment".
A
co-operation agreement replacing the association
agreement was concluded on 21 August 1974 between Eurocontrol and the Spanish Civil Aviation Department
("the Department"). On the same day Eurocontrol and the Department concluded a bilateral agreement on the status
and duties of the Spanish citizens in the Agency's employ. By a decision of 25 September 1974 the complainant
had his appointment confirmed for the duration of the co-operation agreement as from 1 January 1974.
On 10 April 1984 the Director of Personnel and Administration wrote to the complainant to say that the Spanish
Civil Aviation Authority ("the Authority") had asked the Director General in a communication of 24 ...
- ... as from 1 June. On 25 April the complainant protested against his
recall to Spain and the termination, but on 17 and 24 May the Agency confirmed that his appointment would end
automatically on 1 June. In fact he was later given a short extension to 30 June so as to let his children finish the
school year. Meanwhile, on 16 May, he had applied to the Spanish Minister of Transport, whom the Authority
comes under, for conversion of his position from "leave on secondment" to Eurocontrol to "leave on request", and
the change was made on 14 June as from 1 July 1984. By a minute of 4 July he asked Eurocontrol to take the view
that, being no longer on secondment, he still held a valid appointment, but the Director General confirmed on 25
July that his appointment had ended on 30 June. On 20 September he submitted a "complaint" against the decision
of 25 July. The
Director
General dismissed his complaint on 22 January 1985 on the grounds that it was irreceivable ...
- ... 24 May the Agency confirmed that his appointment would end
automatically on 1 June. In fact he was later given a short extension to 30 June so as to let his children finish the
school year. Meanwhile, on 16 May, he had applied to the Spanish Minister of Transport, whom the Authority
comes under, for conversion of his position from "leave on secondment" to Eurocontrol to "leave on request", and
the change was made on 14 June as from 1 July 1984. By a minute of 4 July he asked Eurocontrol to take the view
that, being no longer on secondment, he still held a valid appointment, but the Director General confirmed on 25
July that his appointment had ended on 30 June. On 20 September he submitted a "complaint" against the decision
of 25 July. The
Director
General dismissed his complaint on 22 January 1985 on the grounds that it was irreceivable
and in any case devoid of merit.
B. The complainant submits that the final decision was that of 25 July 1984 and that ...
- ... his appointment had ended on 30 June. On 20 September he submitted a "complaint" against the decision
of 25 July. The
Director
General dismissed his complaint on 22 January 1985 on the grounds that it was irreceivable
and in any case devoid of merit.
B. The complainant submits that the final decision was that of 25 July 1984 and that his internal "complaint",
submitted on 20 September, was therefore filed within the three-month time limit in Article 92(2) of the
Eurocontrol Staff Regulations. His position being altered from "leave on secondment" to "leave on request" on 14
June, the decision of 25 July was taken in a new context and was therefore the one that was challengeable under
Article 92(2).
As to the merits, he observes that his appointment was stated to be for the duration of the co-operation agreement,
and since the agreement is still in force he is entitled to be kept on. To Eurocontrol's argument that it could not
keep a Spanish civil ...
- ... three-month time limit in Article 92(2) of the
Eurocontrol Staff Regulations. His position being altered from "leave on secondment" to "leave on request" on 14
June, the decision of 25 July was taken in a new context and was therefore the one that was challengeable under
Article 92(2).
As to the merits, he observes that his appointment was stated to be for the duration of the co-operation agreement,
and since the agreement is still in force he is entitled to be kept on. To Eurocontrol's argument that it could not
keep a Spanish civil servant whose secondment the Authority had refused to extend, he submits that the Authority
may not abolish a post at Eurocontrol, that the termination of secondment need not entail the termination of an
appointment in an international organisation, and that in any event, being on "leave on request", he could not be
recalled to Spain.
He invites the Tribunal to declare that he still holds an appointment with Eurocontrol, ...
- ... of 25 July was taken in a new context and was therefore the one that was challengeable under
Article 92(2).
As to the merits, he observes that his appointment was stated to be for the duration of the co-operation agreement,
and since the agreement is still in force he is entitled to be kept on. To Eurocontrol's argument that it could not
keep a Spanish civil servant whose secondment the Authority had refused to extend, he submits that the Authority
may not abolish a post at Eurocontrol, that the termination of secondment need not entail the termination of an
appointment in an international organisation, and that in any event, being on "leave on request", he could not be
recalled to Spain.
He invites the Tribunal to declare that he still holds an appointment with Eurocontrol, that of 25 September 1974
being still in force; to quash the impugned decision; and to award him remuneration and any other moneys due as
from 1 July 1984 plus interest at 12 per ...
- ... argument that it could not
keep a Spanish civil servant whose secondment the Authority had refused to extend, he submits that the Authority
may not abolish a post at Eurocontrol, that the termination of secondment need not entail the termination of an
appointment in an international organisation, and that in any event, being on "leave on request", he could not be
recalled to Spain.
He invites the Tribunal to declare that he still holds an appointment with Eurocontrol, that of 25 September 1974
being still in force; to quash the impugned decision; and to award him remuneration and any other moneys due as
from 1 July 1984 plus interest at 12 per cent a year, damages amounting to 500,000 Belgian francs for moral injury,
and costs.
C. Eurocontrol
replies,
as to receivability, that since the complainant's position in law is defined by an international
agreement he is not a Eurocontrol official within the meaning of Article 1 of the Staff ...
- ... organisation, and that in any event, being on "leave on request", he could not be
recalled to Spain.
He invites the Tribunal to declare that he still holds an appointment with Eurocontrol, that of 25 September 1974
being still in force; to quash the impugned decision; and to award him remuneration and any other moneys due as
from 1 July 1984 plus interest at 12 per cent a year, damages amounting to 500,000 Belgian francs for moral injury,
and costs.
C. Eurocontrol
replies,
as to receivability, that since the complainant's position in law is defined by an international
agreement he is not a Eurocontrol official within the meaning of Article 1 of the Staff Regulations. Moreover, the
Director General's minute of 24 May 1984 telling him the Authority had cancelled his appointment and he was
deemed to have resigned constituted the decision that had to be challenged within the three months. Since his
"complaint" was not lodged until 20 September ...
- ... declare that he still holds an appointment with Eurocontrol, that of 25 September 1974
being still in force; to quash the impugned decision; and to award him remuneration and any other moneys due as
from 1 July 1984 plus interest at 12 per cent a year, damages amounting to 500,000 Belgian francs for moral injury,
and costs.
C. Eurocontrol
replies,
as to receivability, that since the complainant's position in law is defined by an international
agreement he is not a Eurocontrol official within the meaning of Article 1 of the Staff Regulations. Moreover, the
Director General's minute of 24 May 1984 telling him the Authority had cancelled his appointment and he was
deemed to have resigned constituted the decision that had to be challenged within the three months. Since his
"complaint" was not lodged until 20 September it was time-barred under Article 92(2) of the Staff Regulations. The
complaint is therefore irreceivable on the grounds of failure to exhaust ...
- ... Moreover, the
Director General's minute of 24 May 1984 telling him the Authority had cancelled his appointment and he was
deemed to have resigned constituted the decision that had to be challenged within the three months. Since his
"complaint" was not lodged until 20 September it was time-barred under Article 92(2) of the Staff Regulations. The
complaint is therefore irreceivable on the grounds of failure to exhaust the internal means of redress.
As to the merits, Eurocontrol gives an account of the provisions of the relevant agreements and maintains that it
cannot keep on someone whose secondment has been ended. It observes that he was not appointed on the terms
prescribed in the Staff Regulations, but under the bilateral agreement, and he was not appointed to any permanent
post, but seconded by the Authority. It was only for reasons of sound administration that he was assimilated to a
staff member. The notion that termination of secondment does not ...
- ... Regulations, but under the bilateral agreement, and he was not appointed to any permanent
post, but seconded by the Authority. It was only for reasons of sound administration that he was assimilated to a
staff member. The notion that termination of secondment does not necessarily terminate an appointment within an
international organisation does not apply in this case because Spain is not a member State and because the
complainant was not a staff member of the Organisation.
Eurocontrol concludes that the complaint is irreceivable and in any case devoid of merit.
D. The complainant maintains in his rejoinder that his complaint is receivable: the minute of 24 May 1984, which
said his appointment would end on
1
June, was not the final decision since he remained at Eurocontrol after that
date. As to the merits, he enlarges on the arguments submitted in his complaint, seeking to show that Eurocontrol
did treat him as a staff member and that the termination of ...
- ... within an
international organisation does not apply in this case because Spain is not a member State and because the
complainant was not a staff member of the Organisation.
Eurocontrol concludes that the complaint is irreceivable and in any case devoid of merit.
D. The complainant maintains in his rejoinder that his complaint is receivable: the minute of 24 May 1984, which
said his appointment would end on
1
June, was not the final decision since he remained at Eurocontrol after that
date. As to the merits, he enlarges on the arguments submitted in his complaint, seeking to show that Eurocontrol
did treat him as a staff member and that the termination of his appointment was therefore unlawful. He presses his
claims.
E. In its surrejoinder Eurocontrol develops its submissions on receivability. As to the merits, it goes further into
details of fact and observes in particular that there are two categories of Spanish citizens employed in the Agency: ...
- ... was not a staff member of the Organisation.
Eurocontrol concludes that the complaint is irreceivable and in any case devoid of merit.
D. The complainant maintains in his rejoinder that his complaint is receivable: the minute of 24 May 1984, which
said his appointment would end on
1
June, was not the final decision since he remained at Eurocontrol after that
date. As to the merits, he enlarges on the arguments submitted in his complaint, seeking to show that Eurocontrol
did treat him as a staff member and that the termination of his appointment was therefore unlawful. He presses his
claims.
E. In its surrejoinder Eurocontrol develops its submissions on receivability. As to the merits, it goes further into
details of fact and observes in particular that there are two categories of Spanish citizens employed in the Agency:
those recruited in accordance with the Staff Regulations, who are Eurocontrol staff members; and those who are
seconded ...
- ... maintains in his rejoinder that his complaint is receivable: the minute of 24 May 1984, which
said his appointment would end on
1
June, was not the final decision since he remained at Eurocontrol after that
date. As to the merits, he enlarges on the arguments submitted in his complaint, seeking to show that Eurocontrol
did treat him as a staff member and that the termination of his appointment was therefore unlawful. He presses his
claims.
E. In its surrejoinder Eurocontrol develops its submissions on receivability. As to the merits, it goes further into
details of fact and observes in particular that there are two categories of Spanish citizens employed in the Agency:
those recruited in accordance with the Staff Regulations, who are Eurocontrol staff members; and those who are
seconded under the bilateral agreement, and who are governed only subsidiarily by the Staff Regulations.
CONSIDERATIONS:
The complainant's Position in Eurocontrol
1. ...
- ... in his complaint, seeking to show that Eurocontrol
did treat him as a staff member and that the termination of his appointment was therefore unlawful. He presses his
claims.
E. In its surrejoinder Eurocontrol develops its submissions on receivability. As to the merits, it goes further into
details of fact and observes in particular that there are two categories of Spanish citizens employed in the Agency:
those recruited in accordance with the Staff Regulations, who are Eurocontrol staff members; and those who are
seconded under the bilateral agreement, and who are governed only subsidiarily by the Staff Regulations.
CONSIDERATIONS:
The complainant's Position in Eurocontrol
1. Though not a member of Eurocontrol, Spain concluded an association agreement with it on 17 December 1971.
Article 8(1) of the agreement stated that Eurocontrol might recruit Spanish citizens to its staff, Article 8(2) that the
Spanish Government might second to the Agency's headquarters ...
- ... Eurocontrol develops its submissions on receivability. As to the merits, it goes further into
details of fact and observes in particular that there are two categories of Spanish citizens employed in the Agency:
those recruited in accordance with the Staff Regulations, who are Eurocontrol staff members; and those who are
seconded under the bilateral agreement, and who are governed only subsidiarily by the Staff Regulations.
CONSIDERATIONS:
The complainant's Position in Eurocontrol
1. Though not a member of Eurocontrol, Spain concluded an association agreement with it on 17 December 1971.
Article 8(1) of the agreement stated that Eurocontrol might recruit Spanish citizens to its staff, Article 8(2) that the
Spanish Government might second to the Agency's headquarters officials whose employment it would finance and
who would be in charge of giving effect to the agreement.
It was in accordance with Article 8(2) that the complainant was assigned to Eurocontrol ...
- ... on receivability. As to the merits, it goes further into
details of fact and observes in particular that there are two categories of Spanish citizens employed in the Agency:
those recruited in accordance with the Staff Regulations, who are Eurocontrol staff members; and those who are
seconded under the bilateral agreement, and who are governed only subsidiarily by the Staff Regulations.
CONSIDERATIONS:
The complainant's Position in Eurocontrol
1. Though not a member of Eurocontrol, Spain concluded an association agreement with it on 17 December 1971.
Article 8(1) of the agreement stated that Eurocontrol might recruit Spanish citizens to its staff, Article 8(2) that the
Spanish Government might second to the Agency's headquarters officials whose employment it would finance and
who would be in charge of giving effect to the agreement.
It was in accordance with Article 8(2) that the complainant was assigned to Eurocontrol headquarters, being
appointed on ...
- ... of Spanish citizens employed in the Agency:
those recruited in accordance with the Staff Regulations, who are Eurocontrol staff members; and those who are
seconded under the bilateral agreement, and who are governed only subsidiarily by the Staff Regulations.
CONSIDERATIONS:
The complainant's Position in Eurocontrol
1. Though not a member of Eurocontrol, Spain concluded an association agreement with it on 17 December 1971.
Article 8(1) of the agreement stated that Eurocontrol might recruit Spanish citizens to its staff, Article 8(2) that the
Spanish Government might second to the Agency's headquarters officials whose employment it would finance and
who would be in charge of giving effect to the agreement.
It was in accordance with Article 8(2) that the complainant was assigned to Eurocontrol headquarters, being
appointed on 2 April 1973 to grade B.1, step 1, as from 1 April. His position was that of a Spanish civil servant on
"leave on secondment". ...
- ...
1. Though not a member of Eurocontrol, Spain concluded an association agreement with it on 17 December 1971.
Article 8(1) of the agreement stated that Eurocontrol might recruit Spanish citizens to its staff, Article 8(2) that the
Spanish Government might second to the Agency's headquarters officials whose employment it would finance and
who would be in charge of giving effect to the agreement.
It was in accordance with Article 8(2) that the complainant was assigned to Eurocontrol headquarters, being
appointed on 2 April 1973 to grade B.1, step 1, as from 1 April. His position was that of a Spanish civil servant on
"leave on secondment".
2. The association agreement expired on 31 December 1973 and was replaced on 21 August 1974 by a co-operation
agreement,
which
came into effect as from 1 January 1974 for an indefinite period.
Unlike the association agreement the co-operation agreement does not expressly distinguish between Spanish civil
servants ...
- ... 31 December 1973 and was replaced on 21 August 1974 by a co-operation
agreement,
which
came into effect as from 1 January 1974 for an indefinite period.
Unlike the association agreement the co-operation agreement does not expressly distinguish between Spanish civil
servants who are recruited and those who are seconded. Article 4(2) provides that the arrangements for assignment,
the number and the status of Spanish staff shall be determined by a further agreement between Eurocontrol and the
Spanish Civil Aviation Department ("the Department"). Under Article 6(1) the Department undertakes to pay the
Organisation a yearly contribution of 8,750,000 Belgian francs.
3. The agreement provided for in Article 4(2) of the co-operation agreement (known as the "Bilateral Agreement")
was concluded on the same date, 21 August 1974, between the Department and Eurocontrol and relates to the
"status and duties of Spanish citizens on the staff of the Organisation". ...
- ...
the number and the status of Spanish staff shall be determined by a further agreement between Eurocontrol and the
Spanish Civil Aviation Department ("the Department"). Under Article 6(1) the Department undertakes to pay the
Organisation a yearly contribution of 8,750,000 Belgian francs.
3. The agreement provided for in Article 4(2) of the co-operation agreement (known as the "Bilateral Agreement")
was concluded on the same date, 21 August 1974, between the Department and Eurocontrol and relates to the
"status and duties of Spanish citizens on the staff of the Organisation".
Under Article 1 of the bilateral agreement the Department shall second six Spanish civil servants to Eurocontrol
headquarters for the duration of the co-operation agreement. According to Article 2 their duties include "(a)
participation, within their special areas, in current and future research and other joint activities of Eurocontrol and
the Department: ... (c) representation ...
- ... to pay the
Organisation a yearly contribution of 8,750,000 Belgian francs.
3. The agreement provided for in Article 4(2) of the co-operation agreement (known as the "Bilateral Agreement")
was concluded on the same date, 21 August 1974, between the Department and Eurocontrol and relates to the
"status and duties of Spanish citizens on the staff of the Organisation".
Under Article 1 of the bilateral agreement the Department shall second six Spanish civil servants to Eurocontrol
headquarters for the duration of the co-operation agreement. According to Article 2 their duties include "(a)
participation, within their special areas, in current and future research and other joint activities of Eurocontrol and
the Department: ... (c) representation of the Department on Eurocontrol working parties to whose work it wishes to
contribute; (d) co-ordination and supervision of the training programme established by the Department and
INSTILUX...".
Article 4(2) ...
- ... 21 August 1974, between the Department and Eurocontrol and relates to the
"status and duties of Spanish citizens on the staff of the Organisation".
Under Article 1 of the bilateral agreement the Department shall second six Spanish civil servants to Eurocontrol
headquarters for the duration of the co-operation agreement. According to Article 2 their duties include "(a)
participation, within their special areas, in current and future research and other joint activities of Eurocontrol and
the Department: ... (c) representation of the Department on Eurocontrol working parties to whose work it wishes to
contribute; (d) co-ordination and supervision of the training programme established by the Department and
INSTILUX...".
Article 4(2) provides that any appointment conferred on a Spanish civil servant under the association agreement
shall be extended for as long as necessary and for the duration of the co-operation agreement.
4. Despite these changes in the ...
- ... and duties of Spanish citizens on the staff of the Organisation".
Under Article 1 of the bilateral agreement the Department shall second six Spanish civil servants to Eurocontrol
headquarters for the duration of the co-operation agreement. According to Article 2 their duties include "(a)
participation, within their special areas, in current and future research and other joint activities of Eurocontrol and
the Department: ... (c) representation of the Department on Eurocontrol working parties to whose work it wishes to
contribute; (d) co-ordination and supervision of the training programme established by the Department and
INSTILUX...".
Article 4(2) provides that any appointment conferred on a Spanish civil servant under the association agreement
shall be extended for as long as necessary and for the duration of the co-operation agreement.
4. Despite these changes in the relationship between the Spanish Government and the Organisation the complainant ...
- ... be extended for as long as necessary and for the duration of the co-operation agreement.
4. Despite these changes in the relationship between the Spanish Government and the Organisation the complainant
kept his status as a Spanish civil servant on "leave on secondment". On 25 September 1974 his appointment was
confirmed for the duration of the co-operation agreement as from 1 January 1974.
On 24 February 1984 the Spanish Civil Aviation Authority ("the Authority") informed Eurocontrol that it required
the services of the seconded Spanish civil servants and it asked that the complainant's appointment terminate on 1
June.
Eurocontrol informed the complainant of that instruction, which the Authority confirmed on 9 April. The
Organisation asked the complainant what he intended to do, and he replied that it should make up its own mind. By
a minute of 24 May Eurocontrol told him he must go back to Spain after 1 June 1984 and was deemed to have
resigned under ...
- ... Government and the Organisation the complainant
kept his status as a Spanish civil servant on "leave on secondment". On 25 September 1974 his appointment was
confirmed for the duration of the co-operation agreement as from 1 January 1974.
On 24 February 1984 the Spanish Civil Aviation Authority ("the Authority") informed Eurocontrol that it required
the services of the seconded Spanish civil servants and it asked that the complainant's appointment terminate on 1
June.
Eurocontrol informed the complainant of that instruction, which the Authority confirmed on 9 April. The
Organisation asked the complainant what he intended to do, and he replied that it should make up its own mind. By
a minute of 24 May Eurocontrol told him he must go back to Spain after 1 June 1984 and was deemed to have
resigned under Article 48(2) of the Staff Regulations governing officials of the Eurocontrol Agency. In a minute of
30 May he replied that he interpreted the minute of 24 May ...
- ...
On 24 February 1984 the Spanish Civil Aviation Authority ("the Authority") informed Eurocontrol that it required
the services of the seconded Spanish civil servants and it asked that the complainant's appointment terminate on 1
June.
Eurocontrol informed the complainant of that instruction, which the Authority confirmed on 9 April. The
Organisation asked the complainant what he intended to do, and he replied that it should make up its own mind. By
a minute of 24 May Eurocontrol told him he must go back to Spain after 1 June 1984 and was deemed to have
resigned under Article 48(2) of the Staff Regulations governing officials of the Eurocontrol Agency. In a minute of
30 May he replied that he interpreted the minute of 24 May to mean that the "appointing authority" had accepted
his so-called "resignation". On 5 June Eurocontrol sent him a telegram saying that his return to Spain would be not
later than 30 June and that he would be paid no salary for July. ...
- ... and it asked that the complainant's appointment terminate on 1
June.
Eurocontrol informed the complainant of that instruction, which the Authority confirmed on 9 April. The
Organisation asked the complainant what he intended to do, and he replied that it should make up its own mind. By
a minute of 24 May Eurocontrol told him he must go back to Spain after 1 June 1984 and was deemed to have
resigned under Article 48(2) of the Staff Regulations governing officials of the Eurocontrol Agency. In a minute of
30 May he replied that he interpreted the minute of 24 May to mean that the "appointing authority" had accepted
his so-called "resignation". On 5 June Eurocontrol sent him a telegram saying that his return to Spain would be not
later than 30 June and that he would be paid no salary for July. On 6 June he reaffirmed his position: he refused to
leave.
5. Meanwhile, on 16 May, he had asked the Spanish Government to alter his status from "leave
on
secondment" ...
- ... asked the complainant what he intended to do, and he replied that it should make up its own mind. By
a minute of 24 May Eurocontrol told him he must go back to Spain after 1 June 1984 and was deemed to have
resigned under Article 48(2) of the Staff Regulations governing officials of the Eurocontrol Agency. In a minute of
30 May he replied that he interpreted the minute of 24 May to mean that the "appointing authority" had accepted
his so-called "resignation". On 5 June Eurocontrol sent him a telegram saying that his return to Spain would be not
later than 30 June and that he would be paid no salary for July. On 6 June he reaffirmed his position: he refused to
leave.
5. Meanwhile, on 16 May, he had asked the Spanish Government to alter his status from "leave
on
secondment" to
"leave on request". On 14 June the Authority informed him that if he did not take up duty in Spain within one
month he would be declared to be on "leave on request". He answered ...
- ... On 6 June he reaffirmed his position: he refused to
leave.
5. Meanwhile, on 16 May, he had asked the Spanish Government to alter his status from "leave
on
secondment" to
"leave on request". On 14 June the Authority informed him that if he did not take up duty in Spain within one
month he would be declared to be on "leave on request". He answered on 6 July that since the time limit had
expired he was now on "leave on request".
Two days earlier he had informed Eurocontrol of his view that, being on "leave on request", he could no longer be
deemed to have resigned and that his Eurocontrol appointment of 25 September 1974 was still in force. On 25 July
the Organisation retorted that notwithstanding his "leave on request" he was no longer on secondment from the
Authority and as from 1 July 1984 the earlier decisions had ceased to apply to him. By telexes of 16 and 23 July
1984 the Authority had already confirmed that his appointment with Eurocontrol ...
- ... to alter his status from "leave
on
secondment" to
"leave on request". On 14 June the Authority informed him that if he did not take up duty in Spain within one
month he would be declared to be on "leave on request". He answered on 6 July that since the time limit had
expired he was now on "leave on request".
Two days earlier he had informed Eurocontrol of his view that, being on "leave on request", he could no longer be
deemed to have resigned and that his Eurocontrol appointment of 25 September 1974 was still in force. On 25 July
the Organisation retorted that notwithstanding his "leave on request" he was no longer on secondment from the
Authority and as from 1 July 1984 the earlier decisions had ceased to apply to him. By telexes of 16 and 23 July
1984 the Authority had already confirmed that his appointment with Eurocontrol had ended by 1 July 1984.
The complainant's internal appeal of 20 September 1984 was rejected on 22 January 1985 by a ...
- ... of his view that, being on "leave on request", he could no longer be
deemed to have resigned and that his Eurocontrol appointment of 25 September 1974 was still in force. On 25 July
the Organisation retorted that notwithstanding his "leave on request" he was no longer on secondment from the
Authority and as from 1 July 1984 the earlier decisions had ceased to apply to him. By telexes of 16 and 23 July
1984 the Authority had already confirmed that his appointment with Eurocontrol had ended by 1 July 1984.
The complainant's internal appeal of 20 September 1984 was rejected on 22 January 1985 by a decision which is
impugned in the present complaint.
Receivability
6. According to Article VII(1) of the Statute of the Tribunal a complaint shall not be receivable unless the person
concerned has exhausted such other means of resisting it as are open to him under the applicable staff regulations.
Moreover, under Article 92(2) of the Eurocontrol Staff Regulations ...
- ... with Eurocontrol had ended by 1 July 1984.
The complainant's internal appeal of 20 September 1984 was rejected on 22 January 1985 by a decision which is
impugned in the present complaint.
Receivability
6. According to Article VII(1) of the Statute of the Tribunal a complaint shall not be receivable unless the person
concerned has exhausted such other means of resisting it as are open to him under the applicable staff regulations.
Moreover, under Article 92(2) of the Eurocontrol Staff Regulations anyone to whom the article applies must lodge
within three
months his internal "complaint" against an act adversely affecting him, where the Director General has either taken
an express decision or failed to do so. For his complaint to the Tribunal to be receivable the staff member must
first
respect
the three-month time limit, and the Tribunal will determine whether the complainant did so in this
case.
7. Eurocontrol's decision of 24 May 1984 to ...
- ... under Article 92(2) of the Eurocontrol Staff Regulations anyone to whom the article applies must lodge
within three
months his internal "complaint" against an act adversely affecting him, where the Director General has either taken
an express decision or failed to do so. For his complaint to the Tribunal to be receivable the staff member must
first
respect
the three-month time limit, and the Tribunal will determine whether the complainant did so in this
case.
7. Eurocontrol's decision of 24 May 1984 to treat the complainant as having resigned was explicit enough. As he
acknowledged in his letter of 30 May 1984, the purport of it was that the appointing authority had accepted his
alleged resignation. That being an "act adversely affecting him" within the meaning of Article 92(2), he was
required to challenge it, if he wished to do so, within three months. In fact he did not lodge his appeal until 20
September 1984, and by then it was no longer ...
- ... his failure to exhaust the internal means of
redress.
It is immaterial that there was correspondence after the decision of 24 May. Insofar as that correspondence related
to the issues decided on 24 May it merely confirmed the decision and set off no new time limit for lodging an
internal appeal.
Nor may the complainant derive from the principle of good faith support for his contention that the time limit ought
to have been extended. In the letters it wrote after 24 May Eurocontrol never gave any hint that it would consider
reviewing its decision of that date. It merely spoke of the steps it had taken to secure the Authority's consent to
extension of the complainant's secondment.
8. After the decision of 24 May 1984 the complainant's position altered from "leave on secondment" to "leave on
request". Accordingly, the decision of 24 May 1984 did not determine any rights he might have as an official on
"leave on request". That was a new issue and one on which ...
- ... of the internal complaint. The present complaint is therefore receivable
insofar as it relates to the complainant's position on "leave on request".
Merits
9. For the foregoing reasons, although the Tribunal need not take up the issues decided on 24 May 1984, it will rule
on the complainant's status as an official on "leave on request".
Although the Authority was not opposed to his being on "leave on request", it refused to extend his secondment
beyond 30 June 1984. Eurocontrol maintained the same stand after he obtained "leave on request", i.e. it continued
to take the view that his appointment had terminated on 30 June 1984. To be more specific, it refused to confirm
his appointment either by maintaining him in his former post or by granting him a new one. Accordingly, his new
status as an official on "leave on request" did not confer on him any right that was enforceable against the
Organisation. No claim against the Organisation will succeed on that ...
- ... against the
Organisation. No claim against the Organisation will succeed on that account, neither a claim to reinstatement nor a
claim to damages, and the Tribunal concludes that insofar as it is receivable the complaint is devoid of merit.
10. In any event, even if the complaint were receivable insofar as it challenges the decision of 24 May 1984, it
would again be devoid of merit.
The complainant held a double status. On the one hand he had an appointment with
Eurocontrol
and appeared on
its staff list. On the other, as an official on "leave on secondment" he was responsible for matters relating to civil
aviation in Spain, and it was the Spanish Government that met the cost of his secondment. Thus, although the
agreements do not actually say so, his position at Eurocontrol depended on the Authority's consent, and on the
termination of his secondment he ceased to be in the Organisation's employ. That is clear from the reference in the
terms ...
- ... as it challenges the decision of 24 May 1984, it
would again be devoid of merit.
The complainant held a double status. On the one hand he had an appointment with
Eurocontrol
and appeared on
its staff list. On the other, as an official on "leave on secondment" he was responsible for matters relating to civil
aviation in Spain, and it was the Spanish Government that met the cost of his secondment. Thus, although the
agreements do not actually say so, his position at Eurocontrol depended on the Authority's consent, and on the
termination of his secondment he ceased to be in the Organisation's employ. That is clear from the reference in the
terms of his appointment of 25 September 1974 to Article 3(2) of the Staff Regulations, which limits the duration
of the appointment of seconded staff to the period of secondment. Eurocontrol therefore acted correctly in
terminating the complainant's appointment on 24 May 1984 in accordance with the Authority's instruction ...
- ... Spanish Government that met the cost of his secondment. Thus, although the
agreements do not actually say so, his position at Eurocontrol depended on the Authority's consent, and on the
termination of his secondment he ceased to be in the Organisation's employ. That is clear from the reference in the
terms of his appointment of 25 September 1974 to Article 3(2) of the Staff Regulations, which limits the duration
of the appointment of seconded staff to the period of secondment. Eurocontrol therefore acted correctly in
terminating the complainant's appointment on 24 May 1984 in accordance with the Authority's instruction of 24
February. Even if the decision were challengeable, the Tribunal would hold that it complied with the agreements.
Lastly, the complainant submits that according to the Tribunal's case law the termination of secondment need not
entail the termination of appointment in an international organisation. The plea is mistaken. Whatever the rule may
be, ...
- ... the complainant's appointment on 24 May 1984 in accordance with the Authority's instruction of 24
February. Even if the decision were challengeable, the Tribunal would hold that it complied with the agreements.
Lastly, the complainant submits that according to the Tribunal's case law the termination of secondment need not
entail the termination of appointment in an international organisation. The plea is mistaken. Whatever the rule may
be, it cannot apply to relations between Eurocontrol and Spain, which is not a member State.
DECISION:
For the above reasons,
The case is dismissed.
In witness of this judgment by Mr. André Grisel, President of the Tribunal, Mr. Jacques Ducoux, Vice-President,
and the Right Honourable the Lord Devlin, Judge, the aforementioned have signed hereunder, as have I, Allan
Gardner, Registrar.
Delivered in public sitting in Geneva on 14 November 1985.
(Signed)
André Grisel
Jacques Ducoux
Devlin
A.B. Gardner ...
- Judgment 684
57th Session, 1985
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol Agency) by Mr. Günter Gerhard Jansen on 14 December 1984 and corrected on 21 December,
Eurocontrol's reply of 13 March 1985, and the complainant's letter of 14 April 1985 to the Registrar of the Tribunal
stating that he did not wish to rejoin;
Considering Articles II, paragraph 5, and VIII, of the Statute of the Tribunal and Articles 26, 43, 48 and 91 of the
General Conditions of Employment of officials of the Eurocontrol Agency and Eurocontrol Rule 3 relating to the
establishment ...
- ... Eurocontrol's reply of 13 March 1985, and the complainant's letter of 14 April 1985 to the Registrar of the Tribunal
stating that he did not wish to rejoin;
Considering Articles II, paragraph 5, and VIII, of the Statute of the Tribunal and Articles 26, 43, 48 and 91 of the
General Conditions of Employment of officials of the Eurocontrol Agency and Eurocontrol Rule 3 relating to the
establishment of the periodic staff report;
Having examined the written evidence and disallowed the complainant's ...
- ... Organisation for the Safety of Air Navigation
(Eurocontrol Agency) by Mr. Günter Gerhard Jansen on 14 December 1984 and corrected on 21 December,
Eurocontrol's reply of 13 March 1985, and the complainant's letter of 14 April 1985 to the Registrar of the Tribunal
stating that he did not wish to rejoin;
Considering Articles II, paragraph 5, and VIII, of the Statute of the Tribunal and Articles 26, 43, 48 and 91 of the
General Conditions of Employment of officials of the Eurocontrol Agency and Eurocontrol Rule 3 relating to the
establishment of the periodic staff report;
Having examined the written evidence and disallowed the complainant's application for the hearing of witnesses;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant was a programmer in the software section of the Engineering Division of an air navigation
control centre at Karlsruhe, in the Federal Republic of Germany. Information on his ...
- ... the Safety of Air Navigation
(Eurocontrol Agency) by Mr. Günter Gerhard Jansen on 14 December 1984 and corrected on 21 December,
Eurocontrol's reply of 13 March 1985, and the complainant's letter of 14 April 1985 to the Registrar of the Tribunal
stating that he did not wish to rejoin;
Considering Articles II, paragraph 5, and VIII, of the Statute of the Tribunal and Articles 26, 43, 48 and 91 of the
General Conditions of Employment of officials of the Eurocontrol Agency and Eurocontrol Rule 3 relating to the
establishment of the periodic staff report;
Having examined the written evidence and disallowed the complainant's application for the hearing of witnesses;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant was a programmer in the software section of the Engineering Division of an air navigation
control centre at Karlsruhe, in the Federal Republic of Germany. Information on his career in Eurocontrol ...
- ... Rule 3 relating to the
establishment of the periodic staff report;
Having examined the written evidence and disallowed the complainant's application for the hearing of witnesses;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant was a programmer in the software section of the Engineering Division of an air navigation
control centre at Karlsruhe, in the Federal Republic of Germany. Information on his career in Eurocontrol appears
in Judgments 637, 638 and 639, under A. His employment with the Agency was terminated on grounds of
invalidity as from 1 April 1984 under Article 48 of the General Conditions of Employment. By a letter of 25
October 1983 the head of the Engineering Division sent the complainant the report on his performance -- his "staff
report" -- for the period from 1 July 1981 to 30 June 1983. On
the
first page it said that his immediate supervisors
had been consulted but, ...
- Judgment 683
57th Session, 1985
European Organisation for the Safety of Air Navigation
Full Judgment Text: EN,
FR
- ... Eurocontrol
Agency) by Mr. Jeffrey Peter Finney on 4 March 1985, Eurocontrol's reply of 15 May, the complainant's rejoinder
of 30 June and Eurocontrol's surrejoinder of 4 October 1985;
Considering Articles II, paragraph 5, and VII, paragraphs 1 and 2, of the Statute of the Tribunal, Articles 20, 70, 92
and 93 of the Staff Regulations governing officials of the Eurocontrol Agency and Eurocontrol Rule 8 concerning
reimbursement of expenses;
Having examined the written evidence, oral proceedings ...
- ... Eurocontrol's reply of 15 May, the complainant's rejoinder
of 30 June and Eurocontrol's surrejoinder of 4 October 1985;
Considering Articles II, paragraph 5, and VII, paragraphs 1 and 2, of the Statute of the Tribunal, Articles 20, 70, 92
and 93 of the Staff Regulations governing officials of the Eurocontrol Agency and Eurocontrol Rule 8 concerning
reimbursement of expenses;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered ...
- ... Eurocontrol's surrejoinder of 4 October 1985;
Considering Articles II, paragraph 5, and VII, paragraphs 1 and 2, of the Statute of the Tribunal, Articles 20, 70, 92
and 93 of the Staff Regulations governing officials of the Eurocontrol Agency and Eurocontrol Rule 8 concerning
reimbursement of expenses;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the facts of the case and the pleadings ...
- ... TRIBUNAL,
Considering the complaint filed against the European Organisation for the Safety of Air Navigation (Eurocontrol
Agency) by Mr. Jeffrey Peter Finney on 4 March 1985, Eurocontrol's reply of 15 May, the complainant's rejoinder
of 30 June and Eurocontrol's surrejoinder of 4 October 1985;
Considering Articles II, paragraph 5, and VII, paragraphs 1 and 2, of the Statute of the Tribunal, Articles 20, 70, 92
and 93 of the Staff Regulations governing officials of the Eurocontrol Agency and Eurocontrol Rule 8 concerning
reimbursement of expenses;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant, a British subject, joined the Agency in Brussels on 1 August 1983 as an administrative
assistant. When he applied for the post, on 7 December 1982, he was employed in Brussels ...
- ... the complaint filed against the European Organisation for the Safety of Air Navigation (Eurocontrol
Agency) by Mr. Jeffrey Peter Finney on 4 March 1985, Eurocontrol's reply of 15 May, the complainant's rejoinder
of 30 June and Eurocontrol's surrejoinder of 4 October 1985;
Considering Articles II, paragraph 5, and VII, paragraphs 1 and 2, of the Statute of the Tribunal, Articles 20, 70, 92
and 93 of the Staff Regulations governing officials of the Eurocontrol Agency and Eurocontrol Rule 8 concerning
reimbursement of expenses;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the facts of the case and the pleadings may be summed up as follows:
A. The complainant, a British subject, joined the Agency in Brussels on 1 August 1983 as an administrative
assistant. When he applied for the post, on 7 December 1982, he was employed in Brussels by a company known ...
- ... his claims. Having received no answer,
he states he is challenging the implied decision to reject the claims as set out in his letter of 5 October 1984.
B. The complainant submits that his residence in Tervuren prior to taking up his appointment was purely temporary
despite the length of the lease, the practice in Belgium being to conclude leases for periods of 3, 6 or 9 years. The
bulk of his household and personal effects had remained in Manchester. On his appointment to Eurocontrol his stay
in Belgium ceased to be temporary. Indeed he was required to settle in Brussels by Article 20 of the Eurocontrol
Staff Regulations, which reads: "An official shall reside either in the place where he is employed or at no greater
distance therefrom [than] is compatible with the proper performance of his duties". He had to leave Tervuren
because his house there had been found and paid for by his former employer. He asks the Tribunal to order
Eurocontrol to perform its ...
- ... in his letter of 5 October 1984.
B. The complainant submits that his residence in Tervuren prior to taking up his appointment was purely temporary
despite the length of the lease, the practice in Belgium being to conclude leases for periods of 3, 6 or 9 years. The
bulk of his household and personal effects had remained in Manchester. On his appointment to Eurocontrol his stay
in Belgium ceased to be temporary. Indeed he was required to settle in Brussels by Article 20 of the Eurocontrol
Staff Regulations, which reads: "An official shall reside either in the place where he is employed or at no greater
distance therefrom [than] is compatible with the proper performance of his duties". He had to leave Tervuren
because his house there had been found and paid for by his former employer. He asks the Tribunal to order
Eurocontrol to perform its obligations under Article 70 of the Staff Regulations
(1)
and Article 1 of Rule 8
concerning reimbursement of expenses. ...
- ... to Eurocontrol his stay
in Belgium ceased to be temporary. Indeed he was required to settle in Brussels by Article 20 of the Eurocontrol
Staff Regulations, which reads: "An official shall reside either in the place where he is employed or at no greater
distance therefrom [than] is compatible with the proper performance of his duties". He had to leave Tervuren
because his house there had been found and paid for by his former employer. He asks the Tribunal to order
Eurocontrol to perform its obligations under Article 70 of the Staff Regulations
(1)
and Article 1 of Rule 8
concerning reimbursement of expenses.
C. The Agency submits that the complaint is irreceivable. The original "act adversely affecting" him within the
meaning of Article 92(2) of the
Staff
Regulations was the decision of 23 May 1984 rejecting his claims of 15 May.
His letter of 2 July therefore constituted a "complaint" under that article. Since the present complaint was ...
- ... official ... settled at the place
where he is employed". Thus it is the act of settling at te place of employment tat gives entitlement. Since the
complainant was already in Brussels this claim too is unsound and the gain would be unwarranted.
D. In a brief rejoinder te complainant seeks to rebut the reply. He submits, as to receivability, that he wanted to
make sure of exhausting te internal means of redress before coming to the Tribunal. As to te merits, he observes
that Eurocontrol has just arbitrarily assumed that he incurred no expenses for installation because he had been
living in Brussels since August 1982. He challenges te Agency's construction of te rules and accuses it of confusing
the issue with its mistaken contention that ineligibility for refund of installation expenses precludes payment of the
installation allowance.
E. In its surrejoinder the Agency enlarges on its reply. It contends that the arguments in the rejoinder are either
irrelevant ...
- ... reply. It contends that the arguments in the rejoinder are either
irrelevant or mistaken and in no way weaken the force of its pleas both as to receivability and as to the merits.
CONSIDERATIONS:
Receivability
1. Article VII(1) of te Statute of the Tribunal states that a complaint shall not be receivable unless the staff member
has exhausted such means of resisting it as are open to him under the applicable Staff Regulations.
The Staff Regulations governing officials of Eurocontrol provide two internal means of redress. One is a "request"
under Article 92(1) that the Director General take a decision, the other is a "complaint" under Article 92(2) against
an act adversely affecting the staff member. As the Tribunal has consistently held, any application
challenging
a
decision must be treated as an Article 92(2) "complaint".
According to Article 93(2) the decision on a "complaint" may be challenged before the Tribunal. Article 93(3)
confirms Article ...
- ... of 23 May and was
submitting an Article 92(2) "complaint".
On 18 July the Director rejected his claim and confirmed the decision of 23 May.
For his present complaint to be valid the complainant ought to have filed it not later than three months from 18
July 1984, the date of the decision on his 92(2) "complaint". Since he filed out of time, on 4 March 1985, his
complaint is irreceivable.
The complainant did challenge, in a letter of 31 August 1984, the reasons given by Eurocontrol for its decision of
18 July, and in another letter of 5 October he said he was submitting a "complaint" against that decision. But
neither letter prompted any decision and so neither of them set off
any
new time limit.
Merits
3. Since the complaint is irreceivable the Tribunal need not go into the merits.
DECISION:
For the above reasons,
The complaint is dismissed.
In witness of this judgment by Mr. André Grisel, President of the Tribunal, Mr. Jacques ...
- Judgment 660
56th Session, 1985
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol Agency) by Mrs. Catharina Adriana de Louw on 27 August 1984 and corrected on 6 September,
Eurocontrol's reply of 19 November 1984, the complainant's rejoinder of 7 February 1985 and Eurocontrol's
surrejoinder of 12 April 1985;
Considering Articles II, paragraph 5, and VII of the Statute of the Tribunal and Articles 72, 92 and 93 of the
General Conditions of Employment of officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither ...
- ... Eurocontrol's reply of 19 November 1984, the complainant's rejoinder of 7 February 1985 and Eurocontrol's
surrejoinder of 12 April 1985;
Considering Articles II, paragraph 5, and VII of the Statute of the Tribunal and Articles 72, 92 and 93 of the
General Conditions of Employment of officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the material facts ...
- ...
Registry's translation, the French text alone being authoritative.
FIFTY-SIXTH ORDINARY SESSION
In re DE LOUW (No. 2)
Judgment No. 660
THE ADMINISTRATIVE TRIBUNAL,
Considering the second complaint filed against the European Organisation for the Safety of Air Navigation
(Eurocontrol Agency) by Mrs. Catharina Adriana de Louw on 27 August 1984 and corrected on 6 September,
Eurocontrol's reply of 19 November 1984, the complainant's rejoinder of 7 February 1985 and EEurocontrol's
surrejoinder of 12 April 1985;
Considering Articles II, paragraph 5, and VII of the Statute of the Tribunal and Articles 72, 92 and 93 of the
General Conditions of Employment of officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the material facts of the case are as follows:
A. The complainant held a fixed-term appointment with the Agency ...
- ... filed against the European Organisation for the Safety of Air Navigation
(Eurocontrol Agency) by Mrs. Catharina Adriana de Louw on 27 August 1984 and corrected on 6 September,
Eurocontrol's reply of 19 November 1984, the complainant's rejoinder of 7 February 1985 and Eurocontrol's
surrejoinder of 12 April 1985;
Considering Articles II, paragraph 5, and VII of the Statute of the Tribunal and Articles 72, 92 and 93 of the
General Conditions of Employment of officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the material facts of the case are as follows:
A. The complainant held a fixed-term appointment with the Agency which expired on 31 December 1983. At that
date she ceased to be covered by the Eurocontrol sickness insurance scheme. On 23 January 1984 she addressed to
the Director General a request that he authorise extension ...
- ... the Statute of the Tribunal and Articles 72, 92 and 93 of the
General Conditions of Employment of officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the material facts of the case are as follows:
A. The complainant held a fixed-term appointment with the Agency which expired on 31 December 1983. At that
date she ceased to be covered by the Eurocontrol sickness insurance scheme. On 23 January 1984 she addressed to
the Director General a request that he authorise extension of her membership of the scheme. On 7 February she
was granted a six-month extension under Article 72 of the General Conditions of Employment. On 9 February she
filed an appeal against that decision asking that she benefit under the clause in Article 72 allowing extension of
sickness insurance coverage without limit of time. On 2 March the Director of Personnel ...
- ... during
the last few months of her employment with the Agency. Because of the serious and chronic nature of her ailments
she cannot obtain coverage for hospital treatment under the national insurance scheme. She invites the Tribunal to
quash the Agency's decision to refuse her continued membership of the sickness scheme, order the Agency to apply
the material provisions of the General Conditions of Employment and grant her any further redress it sees fit.
C. In its reply Eurocontrol contends that the complainant's letter of 23 January 1984 was a "request" within the
meaning of Article 92.1 of the General Conditions of Employment. It was based on Article 72, and she was told in
reply that she was granted a six-month extension by virtue of the first clause of paragraph 1 bis of that article.
The
complainant's letter of 9 February challenging that decision was a "complaint" under Article 92.2 and was rejected
on 2 March 1984. She failed to submit a complaint ...
- ... of 24 April and 5 June 1984, which were answered on 2 August, merely
confirmed the decision of 2 March and did not set new time limits. The Agency submits subsidiary arguments on
the merits. As a member of the Belgian sickness insurance scheme the complainant is covered by a "public scheme
of sickness insurance" and fails to satisfy one of the conditions laid down in Article 72, paragraph 1 bis.
D. In her rejoinder the complainant maintains, as to receivability, that it was Eurocontrol's letter of 2 March 1984
that amounted to rejection within the meaning of Article 92.1. Accordingly, on 24 April 1984 she submitted a
"complaint" under Article 92.2. The letter of 2 August was a response to that "complaint". The time limit of three
months for filing the complaint therefore began on 2 August and she respected it since she filed her present
complaint on 24 August. As to the merits, the complainant discusses Article 72 and maintains that Eurocontrol
misapplied ...
- ... that it was Eurocontrol's letter of 2 March 1984
that amounted to rejection within the meaning of Article 92.1. Accordingly, on 24 April 1984 she submitted a
"complaint" under Article 92.2. The letter of 2 August was a response to that "complaint". The time limit of three
months for filing the complaint therefore began on 2 August and she respected it since she filed her present
complaint on 24 August. As to the merits, the complainant discusses Article 72 and maintains that Eurocontrol
misapplied it.
E. In its surrejoinder the Agency retorts, on the question of receivability, that the wording of its reply to the
complainant's letters of 24 April and 5 June 1984 leaves no doubt: the letter of 2 August was mere confirmation of
the earlier decision and could not reopen a time limit which had expired two months earlier. The Agency enlarges
on its pleas on the merits.
CONSIDERATIONS:
Receivability
1. Under Article VII(1) of the Statute of the Tribunal ...
- ... letter of 2 August was mere confirmation of
the earlier decision and could not reopen a time limit which had expired two months earlier. The Agency enlarges
on its pleas on the merits.
CONSIDERATIONS:
Receivability
1. Under Article VII(1) of the Statute of the Tribunal a complaint shall not be receivable unless the complainant
has exhausted such means of resisting it as are open to him under the applicable Staff Regulations.
The General Conditions of Employment of Eurocontrol provide two internal means of redress. One is a "request"
under Article 92.1 that the Director General take a decision; the other is a"complaint" under Article 92.2 against an
act adversely affecting the staff member. As the Tribunal held in Judgment 398, any application challenging a
decision must be treated as an Article 92.2 "complaint".
According to Article 93.2 it is the decision on a "complaint" that may be challenged before the Tribunal. Article
93.3 confirms Article VII(2) ...
- Judgment 659
56th Session, 1985
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol
Agency) by Mrs. Catharina Adriana de Louw on 19 July 1984 and corrected on 11 September, Eurocontrol's reply
of 13 December, the complainant's rejoinder of 31 March 1985 and Eurocontrol's surrejoinder of 14 May 1985;
Considering Articles II, paragraph 5, and VII of the Statute of the Tribunal and Articles 59, 78, 92 and 93 of the
General Conditions of Employment of officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither ...
- ... Eurocontrol's reply
of 13 December, the complainant's rejoinder of 31 March 1985 and Eurocontrol's surrejoinder of 14 May 1985;
Considering Articles II, paragraph 5, and VII of the Statute of the Tribunal and Articles 59, 78, 92 and 93 of the
General Conditions of Employment of officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the material facts of the ...
- ... Eurocontrol's surrejoinder of 14 May 1985;
Considering Articles II, paragraph 5, and VII of the Statute of the Tribunal and Articles 59, 78, 92 and 93 of the
General Conditions of Employment of officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the material facts of the case are as follows:
A. The complainant joined the staff of the Agency in September ...
- ... complaint filed against the European Organisation for the Safety of Air Navigation (Eurocontrol
Agency) by Mrs. Catharina Adriana de Louw on 19 July 1984 and corrected on 11 September, Eurocontrol's reply
of 13 December, the complainant's rejoinder of 31 March 1985 and Eurocontrol's surrejoinder of 14 May 1985;
Considering Articles II, paragraph 5, and VII of the Statute of the Tribunal and Articles 59, 78, 92 and 93 of the
General Conditions of Employment of officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the material facts of the case are as follows:
A. The complainant joined the staff of the Agency in September 1974. On 10 January 1975 as she was going home
from work she sustained injury in a motor accident. On 8 November 1983 she submitted to the Director General a
request for an invalidity pension. After consulting ...
- ...
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the material facts of the case are as follows:
A. The complainant joined the staff of the Agency in September 1974. On 10 January 1975 as she was going home
from work she sustained injury in a motor accident. On 8 November 1983 she submitted to the Director General a
request for an invalidity pension. After consulting Eurocontrol's medical officer the Director General answered on
17 November that there were no grounds for convening an invalidity committee. On 22 November the complainant
wrote to the Director General asking that the invalidity committee be convened. The Director General dismissed
her request on 20 December 1983. On 25 December the complainant sent the Director General a further letter
which she described as a "complaint" against the decision of 17 November. She received no answer. Her post ...
- ... of the General Conditions of Employment.
It was only after discussing the medical officer's function with the Administration that she submitted her formal
"complaint", on 25 December 1983. The Agency ought to have replied by 25 April, and she was therefore entitled
to submit her complaint to the Tribunal at any date up to and including 25 July. The reason why she waited until
almost the end of that
period
was that she believed that review of her case would lead Eurocontrol to fulfil its
obligations. As to the merits, she discusses at length the question of competence to convene the invalidity
committee. She concludes by inviting the Tribunal to order Eurocontrol to convene the committee forthwith so that
it may grant claims (c) and (d) of her complaint. Since the award of a pension does not have retroactive effect she
asks for reinstatement as from 1 January 1984 up to the date of the meeting of the committee, or else an award of
damages. She also ...
- ... The Agency ought to have replied by 25 April, and she was therefore entitled
to submit her complaint to the Tribunal at any date up to and including 25 July. The reason why she waited until
almost the end of that
period
was that she believed that review of her case would lead Eurocontrol to fulfil its
obligations. As to the merits, she discusses at length the question of competence to convene the invalidity
committee. She concludes by inviting the Tribunal to order Eurocontrol to convene the committee forthwith so that
it may grant claims (c) and (d) of her complaint. Since the award of a pension does not have retroactive effect she
asks for reinstatement as from 1 January 1984 up to the date of the meeting of the committee, or else an award of
damages. She also seeks costs.
E. In its surrejoinder Eurocontrol develops its pleas on receivability. The complainant's letter of 22 November 1983
did amount to a "complaint" within the meaning of the rules: ...
- ... she discusses at length the question of competence to convene the invalidity
committee. She concludes by inviting the Tribunal to order Eurocontrol to convene the committee forthwith so that
it may grant claims (c) and (d) of her complaint. Since the award of a pension does not have retroactive effect she
asks for reinstatement as from 1 January 1984 up to the date of the meeting of the committee, or else an award of
damages. She also seeks costs.
E. In its surrejoinder Eurocontrol develops its pleas on receivability. The complainant's letter of 22 November 1983
did amount to a "complaint" within the meaning of the rules: since it was rejected on 20 December 1983 her
present complaint, which she did not file until 19 July 1984, is time-barred. Claims (b), (c) and (d) are in any event
irreceivable on the grounds of her failure to exhaust the internal means of redress. Eurocontrol also briefly
discusses the merits. The Agency again invites the Tribunal to dismiss ...
- ... or else an award of
damages. She also seeks costs.
E. In its surrejoinder Eurocontrol develops its pleas on receivability. The complainant's letter of 22 November 1983
did amount to a "complaint" within the meaning of the rules: since it was rejected on 20 December 1983 her
present complaint, which she did not file until 19 July 1984, is time-barred. Claims (b), (c) and (d) are in any event
irreceivable on the grounds of her failure to exhaust the internal means of redress. Eurocontrol also briefly
discusses the merits. The Agency again invites the Tribunal to dismiss the complaint.
CONSIDERATIONS:
Receivability of claim (a)
1. Under claim (a) the complainant asserts her right to have the invalidity committee convened. The Tribunal will
rule first on the receivability of the claim.
2. Under Article VII(1) of the Statute of the Tribunal a complaint shall not be receivable unless the complainant
has exhausted such means of resisting it as are open to ...
- ...
CONSIDERATIONS:
Receivability of claim (a)
1. Under claim (a) the complainant asserts her right to have the invalidity committee convened. The Tribunal will
rule first on the receivability of the claim.
2. Under Article VII(1) of the Statute of the Tribunal a complaint shall not be receivable unless the complainant
has exhausted such means of resisting it as are open to him under
the applicable Staff Regulations.
The General Conditions of Employment of Eurocontrol
provide
two internal means of redress. One is a "request" --
under Article 92.1 -- that the Director General take a decision; the other is a "complaint" under Article 92.2 against
an act adversely affecting the staff member. As the Tribunal held in Judgment 398, any application challenging a
decision must be treated as an Article 92.2 "complaint".
According to Article 93.2 the decision on a "complaint" may be challenged before the Tribunal. Article 93.3
confirms Article ...
- Judgment 639
54th Session, 1984
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
- ... Eurocontrol
Agency) by Mr. Günter Gerhard Jansen on 10 March 1984 and corrected on 31 March, the Agency's reply of 13
July, the complainant's rejoinder of 14 September and the Agency's surrejoinder of 19 October 1984;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal and Article 41 and Annex
II of the General Conditions of Employment of officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither ...
- ... complaint filed against the European Organisation for the Safety of Air Navigation (Eurocontrol
Agency) by Mr. Günter Gerhard Jansen on 10 March 1984 and corrected on 31 March, the Agency's reply of 13
July, the complainant's rejoinder of 14 September and the Agency's surrejoinder of 19 October 1984;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal and Article 41 and Annex
II of the General Conditions of Employment of officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the material facts of the case are as follows:
A. Information on the complainant's career in Eurocontrol appears in Judgments Nos. 637 and 638, under A. He
was employed as a B.2 programmer in the software section of the Eurocontrol Centre at Karlsruhe. On 7 July 1983
the Permanent Commission, the "budgetary authority" ...
- ... surrejoinder of 19 October 1984;
Considering Articles II, paragraph 5, and VII, paragraph 1, of the Statute of the Tribunal and Article 41 and Annex
II of the General Conditions of Employment of officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the material facts of the case are as follows:
A. Information on the complainant's career in Eurocontrol appears in Judgments Nos. 637 and 638, under A. He
was employed as a B.2 programmer in the software section of the Eurocontrol Centre at Karlsruhe. On 7 July 1983
the Permanent Commission, the "budgetary authority" referred to in Article 41 of the General Conditions of
Employment, abolished some 120 posts at the Centre as from 1 January 1984, the date on which the Centre was
taken over by the West German civil aviation authority. Only a score of software technicians were to be kept ...
- ... Article 41 and Annex
II of the General Conditions of Employment of officials of the Eurocontrol Agency;
Having examined the written evidence, oral proceedings having been neither applied for by the parties nor ordered
by the Tribunal;
Considering that the material facts of the case are as follows:
A. Information on the complainant's career in Eurocontrol appears in Judgments Nos. 637 and 638, under A. He
was employed as a B.2 programmer in the software section of the Eurocontrol Centre at Karlsruhe. On 7 July 1983
the Permanent Commission, the "budgetary authority" referred to in Article 41 of the General Conditions of
Employment, abolished some 120 posts at the Centre as from 1 January 1984, the date on which the Centre was
taken over by the West German civil aviation authority. Only a score of software technicians were to be kept on.
Two vacancies were advertised in August 1983 for grade B.1/B.2 assistants to help the residual software team, and
the ...
- ... and wholly devoid of merit.
B. The complainant submits that under Article 41(3) non-active status confers priority for reinstatement in a post in
the same category, that there are two vacant posts at Karlsruhe for which he has applied and that it is therefore in
breach of the General Conditions of Employment to keep him in such status. It is also in breach of West German
legislation for the protection of the disabled, which, as he contended in his first complaint, applies to Eurocontrol
staff, and of various standards of international organisations. He claims payment of his full salary until he is
awarded the invalidity pension he claims in his second complaint.
C. In Its reply
the
Agency contends that any claims based on West German law or international standards are time-
barred it rejected such claims by a decision of 27 January 1983, and the complainant did not appeal to the Tribunal
in time. Besides, such claims form part of his first complaint ...
- ... are therefore subsidiary. It enlarges on its contentions
that he was correctly put on non-active status and that the procedure was properly followed. It invites the Tribunal
to dismiss the complaint.
CONSIDERATIONS:
The decision not to reinstate the complainant
1. Under an agreement signed on 11 July 1983 the Centre which the Agency had set up at Karlsruhe was transferred
on 1 January 1984 to the West German Department of Civil Aviation. The Permanent Commission of Eurocontrol
therefore abolished some 120 budget posts at the Centre with effect from 1 January 1984. The only posts to survive
were a score held by "software" specialists, which were to last for five years.
On 24 October 1983 the Director General decided to put the complainant, who had been
employed
as a
programmer at the Centre, on non-active status. In support of his complaint
against that decision the complainant submits that the Agency ought to have put him on one of two posts ...
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