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- Judgment 4019
126th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to grant her a promotion in the 2013 promotion exercise.
- ... Eurocontrol
126th Session Judgment No. 4019
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Ms L. S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
12 December
2014,
Eurocontrol's
reply
of
13 March
2015,
the
complainant's
rejoinder
of
1 June
and
Eurocontrol's
surrejoinder
of
4 September 2015;
Considering Articles II, paragraph 5, and ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
S. (No. 2)
v.
Eurocontrol
126th Session Judgment No. 4019
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Ms L. S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
12 December
2014,
Eurocontrol's
reply
of
13 March
2015,
the
complainant's
rejoinder
of
1 June
and
Eurocontrol's
surrejoinder
of
4 September 2015;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows: ...
- ... Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
S. (No. 2)
v.
Eurocontrol
126th Session Judgment No. 4019
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Ms L. S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
12 December
2014,
Eurocontrol's
reply
of
13 March
2015,
the
complainant's
rejoinder
of
1 June
and
Eurocontrol's
surrejoinder
of
4 September 2015;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant
challenges the
decision ...
- ... French text alone
being authoritative.
S. (No. 2)
v.
Eurocontrol
126th Session Judgment No. 4019
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the second complaint filed by Ms L. S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on
12 December
2014,
Eurocontrol's
reply
of
13 March
2015,
the
complainant's
rejoinder
of
1 June
and
Eurocontrol's
surrejoinder
of
4 September 2015;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant
challenges the
decision
not
to
grant her a
promotion in the 2013 promotion exercise.
On 7 February 2013 Eurocontrol published ...
- ...
Eurocontrol's
surrejoinder
of
4 September 2015;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant
challenges the
decision
not
to
grant her a
promotion in the 2013 promotion exercise.
On 7 February 2013 Eurocontrol published Office Notice No. 1/13,
announcing that a procedure for grade promotion would be organised
for 2013. The complainant, who was working at the Maastricht Upper
Area
Control
Centre,
was eligible for
promotion. She sent the
Staff
Committee
a
form dated
4 February
2013, asking
it
to
support
her
promotion
before
the
Promotion
Board,
but
the
Staff
Committee
disregarded it because she had ...
- ... for years
to "block any promotion" for her, which in her view amounted to moral
harassment. She requested, amongst other things, the cancellation of the
decision not to promote her.
The Joint Committee for Disputes, to which the case was referred,
gave its opinion on 5 August 2014. Three of its members considered
that the promotion exercise had complied with Article 46 of the General
Conditions
of
Employment
Governing
Servants
at
the
Eurocontrol
Maastricht
Centre
and
Rule
of
Application
No. 20
concerning
the
grade-promotion procedure, and that the complainant's allegations of
moral harassment were insufficiently substantiated and should therefore
be dismissed. The fourth member held that the complainant's file had
probably
not
been
passed
on
to
the
Promotion
Board, in
breach
of
Article 7 of the aforementioned Rule of Application. In addition, ...
- ...
of
the
majority
of the
Committee
members,
her
internal
complaint
had
been
dismissed
as
unfounded. That is the impugned decision.
The complainant requests the setting aside of that decision and an
award of compensation in the amount of 20,000 euros, plus interest, to
redress the injury resulting from the lost opportunity for promotion,
compensation of 20,000 euros for moral injury and 5,000 euros in costs.
Eurocontrol
asks
the
Tribunal
to
dismiss
the
complaint
as
unfounded.
CONSIDERATIONS
1.
The
complainant
impugns
the
decision
of
1 October
2014
dismissing
the
internal
complaint
which
she
had
submitted
to
the
Director General in order to challenge her non-inclusion in the list of
staff members who received a grade promotion in 2013.
2.
The Tribunal has consistently held that ...
- ...
Conditions
of
Employment
and
Rule
of
Application
No. 20, according to which the "appraisal reports on the servants", "the
marks awarded" and "reports made by their superiors" are to be taken
into
account,
that
the
promotion
proposals
drawn
up by
servants'
superiors constitute a decisive factor when determining how they fare
Judgment No. 4019
5
in the annual promotion exercise. Indeed, Eurocontrol confirms this in
its
submissions,
as it
emphasises in
its
reply,
for
example, that
the
"promotion procedure essentially depends on the promotion proposals
of the superiors", and that the "Promotion Board examines the files of
staff members who are eligible for promotion [...] on the basis of the
marks awarded and reports made by superiors".
6.
In
the present case,
the
evidence
in the file
shows
that
on
11 ...
- ...
in
question
was
due
to an
administrative
error for
which
the complainant bears no responsibility whatsoever. As this situation
deprived
the
complainant
of
the
support
which
the
proposal
would
normally have received from her supervisors had it been forwarded in
good time, the procedure followed with regard to her promotion in the
disputed promotion exercise was clearly flawed.
7.
Although
Eurocontrol insists that
the
proposal
of
the
complainant's
immediate
supervisor
was
in
fact
forwarded
to
the
Promotion Board, and that the Board itself can directly examine the
merits of any staff member, so that it could have recommended the
Judgment No. 4019
6
complainant for promotion even though the proposal had not received
her
supervisors'
support
during
the
above-mentioned
preliminary ...
- ... Aside from the Promotion Board's theoretical power
to examine the merits of each servant itself, it is therefore hard to see
how,
in
practice,
the
promotion
proposal
of
the
complainant's
immediate supervisor could have had any chance of success given that
it could not be supported by her second-level supervisor at the meetings
preceding to the Board's deliberations.
8.
In
response
to
its
request
that
Eurocontrol
forward
the
Promotion Board's report on the disputed promotion exercise in order
that it might examine it in camera, the Tribunal was informed that the
Board had not drawn up any such reports since 2010. This practice,
which is unusual to say the least, makes it impossible for the Tribunal
to ascertain whether the complainant's merits were in fact examined
by the Board, as the defendant organisation alleges. However, even if
this had
been
the
case, ...
- ... redressed. In view of all the circumstances of the case, the Tribunal
considers that it is appropriate to award the complainant compensation
under this head in the amount of 10,000 euros.
Judgment No. 4019
8
13.
As the complainant succeeds for the most part, she is entitled
to the 5,000 euros which she requested in costs.
DECISION
For the above reasons,
1.
The impugned decision of 1 October 2014 is set aside.
2.
Eurocontrol
shall
pay
the
complainant
5,000 euros
in
material
damages due to the lost opportunity for promotion.
3.
The
Organisation
shall
pay
the
complainant
moral
damages
in
the amount of 10,000 euros.
4.
It shall also pay her 5,000 euros in costs.
5.
All other claims are dismissed.
In witness of this judgment, adopted on 24 April 2018, Mr Patrick
Frydman, Vice-President of the Tribunal, Ms Fatoumata ...
- Judgment 4018
126th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision no longer to pay him an expatriation allowance.
- ... Eurocontrol
126th Session Judgment No. 4018
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr B. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 9 July
2014 and corrected on 25 August, Eurocontrol's reply of 5 December
2014,
the
complainant's
rejoinder
of
19 March
2015,
Eurocontrol's
surrejoinder of 19 June, the complainant's additional submissions of
20 October
2015 ...
- ... internationale du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
D.
v.
Eurocontrol
126th Session Judgment No. 4018
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr B. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 9 July
2014 and corrected on 25 August, Eurocontrol's reply of 5 December
2014,
the
complainant's
rejoinder
of
19 March
2015,
Eurocontrol's
surrejoinder of 19 June, the complainant's additional submissions of
20 October
2015
and
Eurocontrol's
final
comments
thereon
of
5 February 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
D.
v.
Eurocontrol
126th Session Judgment No. 4018
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr B. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 9 July
2014 and corrected on 25 August, Eurocontrol's reply of 5 December
2014,
the
complainant's
rejoinder
of
19 March
2015,
Eurocontrol's
surrejoinder of 19 June, the complainant's additional submissions of
20 October
2015
and
Eurocontrol's
final
comments
thereon
of
5 February 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither ...
- ... translation,
the French text alone
being authoritative.
D.
v.
Eurocontrol
126th Session Judgment No. 4018
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr B. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 9 July
2014 and corrected on 25 August, Eurocontrol's reply of 5 December
2014,
the
complainant's
rejoinder
of
19 March
2015,
Eurocontrol's
surrejoinder of 19 June, the complainant's additional submissions of
20 October
2015
and
Eurocontrol's
final
comments
thereon
of
5 February 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges ...
- ... Judgment No. 4018
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr B. D. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 9 July
2014 and corrected on 25 August, Eurocontrol's reply of 5 December
2014,
the
complainant's
rejoinder
of
19 March
2015,
Eurocontrol's
surrejoinder of 19 June, the complainant's additional submissions of
20 October
2015
and
Eurocontrol's
final
comments
thereon
of
5 February 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision no longer to pay him an
expatriation allowance.
The complainant, a Belgian national, joined Eurocontrol ...
- ...
final
comments
thereon
of
5 February 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision no longer to pay him an
expatriation allowance.
The complainant, a Belgian national, joined Eurocontrol on 1 October
2008 under
an
appointment for
an
undetermined
period and
was
assigned to the Maastricht Upper Area Control Centre (the Netherlands).
Before being employed by Eurocontrol, he had worked at the Centre
for about ten years for companies providing information technology
services, which had placed him at the Organisation's disposal. His letter
Judgment No. 4018
2
of appointment, which he signed on 17 September 2008, ...
- ... hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the decision no longer to pay him an
expatriation allowance.
The complainant, a Belgian national, joined Eurocontrol on 1 October
2008 under
an
appointment for
an
undetermined
period and
was
assigned to the Maastricht Upper Area Control Centre (the Netherlands).
Before being employed by Eurocontrol, he had worked at the Centre
for about ten years for companies providing information technology
services, which had placed him at the Organisation's disposal. His letter
Judgment No. 4018
2
of appointment, which he signed on 17 September 2008, specified that
he would receive an expatriation allowance.
At the material time, Article 4 of Rule of Application No. 7 of the
Staff Regulations governing officials of the Eurocontrol Agency, which
applied ...
- ... being employed by Eurocontrol, he had worked at the Centre
for about ten years for companies providing information technology
services, which had placed him at the Organisation's disposal. His letter
Judgment No. 4018
2
of appointment, which he signed on 17 September 2008, specified that
he would receive an expatriation allowance.
At the material time, Article 4 of Rule of Application No. 7 of the
Staff Regulations governing officials of the Eurocontrol Agency, which
applied by analogy to officials covered by the General Conditions of
Employment Governing Servants at the Eurocontrol Maastricht Centre,
read in pertinent part as follows:
"1. An
expatriation
allowance
shall
be
paid
equal
to
16%
of
the
total
amount of the basic salary plus household allowance and dependent
child allowance paid to the official:
a) to officials:
- who are not and have never been nationals of ...
- ... which had placed him at the Organisation's disposal. His letter
Judgment No. 4018
2
of appointment, which he signed on 17 September 2008, specified that
he would receive an expatriation allowance.
At the material time, Article 4 of Rule of Application No. 7 of the
Staff Regulations governing officials of the Eurocontrol Agency, which
applied by analogy to officials covered by the General Conditions of
Employment Governing Servants at the Eurocontrol Maastricht Centre,
read in pertinent part as follows:
"1. An
expatriation
allowance
shall
be
paid
equal
to
16%
of
the
total
amount of the basic salary plus household allowance and dependent
child allowance paid to the official:
a) to officials:
- who are not and have never been nationals of the State in whose
territory the place where they are employed is situated, and
- who,
during
the
five
years
ending ...
- ... he supplied "some email exchanges" on the
subject
and
explained
that
the
negotiations
had
been
"mainly"
oral.
On 8 July the complainant rejected a settlement proposal made to him
on 27 June. The next day he filed his complaint impugning the implied
decision to reject his internal complaint of 11 March.
The
complainant
asks
the
Tribunal
to
set
aside
the
decision
of
30 January 2014 and to order Eurocontrol to pay him an expatriation
allowance until his retirement, as well as the allowances related thereto,
and to refund, with interest at 8 per cent per annum, the sums wrongly
withheld since 1 March 2014. Subsidiarily, he asks the Tribunal to order
Eurocontrol "to compensate for the injury suffered by increasing his
net monthly salary by an equivalent amount" as from 1 March 2014.
In addition he claims 3,000 euros in damages and 3,000 euros in costs.
In
its
reply, ...
- ... impugning the implied
decision to reject his internal complaint of 11 March.
The
complainant
asks
the
Tribunal
to
set
aside
the
decision
of
30 January 2014 and to order Eurocontrol to pay him an expatriation
allowance until his retirement, as well as the allowances related thereto,
and to refund, with interest at 8 per cent per annum, the sums wrongly
withheld since 1 March 2014. Subsidiarily, he asks the Tribunal to order
Eurocontrol "to compensate for the injury suffered by increasing his
net monthly salary by an equivalent amount" as from 1 March 2014.
In addition he claims 3,000 euros in damages and 3,000 euros in costs.
In
its
reply,
Eurocontrol submits that
the
complaint
should
be
dismissed as unfounded. It informs the Tribunal that the Joint Committee
for Disputes, to which the internal complaint of 11 March 2014 was
referred, met on 29 September 2014 and delivered a ...
- ... him an expatriation
allowance until his retirement, as well as the allowances related thereto,
and to refund, with interest at 8 per cent per annum, the sums wrongly
withheld since 1 March 2014. Subsidiarily, he asks the Tribunal to order
Eurocontrol "to compensate for the injury suffered by increasing his
net monthly salary by an equivalent amount" as from 1 March 2014.
In addition he claims 3,000 euros in damages and 3,000 euros in costs.
In
its
reply,
Eurocontrol submits that
the
complaint
should
be
dismissed as unfounded. It informs the Tribunal that the Joint Committee
for Disputes, to which the internal complaint of 11 March 2014 was
referred, met on 29 September 2014 and delivered a divided opinion.
Two of its members recommended the dismissal of the internal complaint
as
unfounded
on
the
grounds
that,
under
the
General
Conditions
of
Employment
and
Rule
of
Application ...
- ... of its members recommended the dismissal of the internal complaint
as
unfounded
on
the
grounds
that,
under
the
General
Conditions
of
Employment
and
Rule
of
Application
No. 7,
the
complainant
was
not entitled
to
the
expatriation
allowance.
The
two
other
members
recommended
that
the
internal
complaint
be
allowed,
as
they
considered that Eurocontrol had breached the principle of fairness and
the principle of the protection of legitimate expectations. In their view,
it had been established that negotiations had taken place between the
Administration
and
the
complainant
regarding the
payment
of
the
allowance in question, which therefore formed an essential condition of
his
recruitment.
They also
considered
that,
since
the
complainant's
letter of appointment was "definitive", ...
- ... had
become an acquired right.
In his rejoinder, the complainant informs the Tribunal that by a
memorandum of 28 January 2015 his internal complaint was rejected
on
the
grounds
that
he
did
not
satisfy
the
requirements
of
Rule
of
Judgment No. 4018
4
Application No. 7 for receiving the expatriation allowance. However,
he was notified that although the allowance had been paid to him in
error, Eurocontrol would waive the recovery of the sums he had wrongly
received between October 2008 and February 2014. In this rejoinder
and his additional submissions the complainant presses his claims and
also asks the Tribunal to set aside the decision of 28 January 2015 and
to find that, should the various sums which Eurocontrol may be ordered
to pay him be subject to taxation, he would be entitled to a refund of the
tax paid from Eurocontrol. Lastly, he increases his claim for damages ...
- ...
Application No. 7 for receiving the expatriation allowance. However,
he was notified that although the allowance had been paid to him in
error, Eurocontrol would waive the recovery of the sums he had wrongly
received between October 2008 and February 2014. In this rejoinder
and his additional submissions the complainant presses his claims and
also asks the Tribunal to set aside the decision of 28 January 2015 and
to find that, should the various sums which Eurocontrol may be ordered
to pay him be subject to taxation, he would be entitled to a refund of the
tax paid from Eurocontrol. Lastly, he increases his claim for damages
to 5,000 euros.
In its surrejoinder and in its final comments, Eurocontrol maintains
its position.
CONSIDERATIONS
1.
The complainant challenges the decision of 30 January 2014
to end the payment, as of 1 March, of the expatriation allowance which
he had received until then. His complaint, which was ...
- ... had been paid to him in
error, Eurocontrol would waive the recovery of the sums he had wrongly
received between October 2008 and February 2014. In this rejoinder
and his additional submissions the complainant presses his claims and
also asks the Tribunal to set aside the decision of 28 January 2015 and
to find that, should the various sums which Eurocontrol may be ordered
to pay him be subject to taxation, he would be entitled to a refund of the
tax paid from Eurocontrol. Lastly, he increases his claim for damages
to 5,000 euros.
In its surrejoinder and in its final comments, Eurocontrol maintains
its position.
CONSIDERATIONS
1.
The complainant challenges the decision of 30 January 2014
to end the payment, as of 1 March, of the expatriation allowance which
he had received until then. His complaint, which was initially directed
against an implied rejection of the internal complaint which he had filed
against this measure, ...
- ... October 2008 and February 2014. In this rejoinder
and his additional submissions the complainant presses his claims and
also asks the Tribunal to set aside the decision of 28 January 2015 and
to find that, should the various sums which Eurocontrol may be ordered
to pay him be subject to taxation, he would be entitled to a refund of the
tax paid from Eurocontrol. Lastly, he increases his claim for damages
to 5,000 euros.
In its surrejoinder and in its final comments, Eurocontrol maintains
its position.
CONSIDERATIONS
1.
The complainant challenges the decision of 30 January 2014
to end the payment, as of 1 March, of the expatriation allowance which
he had received until then. His complaint, which was initially directed
against an implied rejection of the internal complaint which he had filed
against this measure, must now be regarded as impugning the express
decision adopted on 28 January 2015, in the course of proceedings,
by which ...
- ...
to
the
two
categories
of
official
concerned is of course warranted by the fact that assignment to a foreign
country generally entails more difficulties when the official concerned has
no previous connections with that country than when he has previously
lived or worked there (see, in this connection, Judgment 2893, under 13
and 14).
3.
In
the
instant
case,
in
its above-mentioned
decision
of
30 January 2014 Eurocontrol substituted the payment of the expatriation
allowance,
which
the
complainant
had
been
receiving
since
his
recruitment in
2008,
with
that
of
the
foreign
residence
allowance,
thereby reducing the main components of his salary by 12 per cent of
their
basic
level.
According
to
the
undisputed
figures
given
by
the
complainant in his written submissions, this measure, which also entailed ...
- ...
thereby reducing the main components of his salary by 12 per cent of
their
basic
level.
According
to
the
undisputed
figures
given
by
the
complainant in his written submissions, this measure, which also entailed
a
corresponding reduction in
the
amount
of certain other
benefits,
resulted in a monthly loss of income of approximately 1,330 euros.
4.
There is no doubt that, when he was recruited by Eurocontrol,
the
complainant did not fulfil
the
conditions
for
entitlement to
an
expatriation allowance.
Indeed,
he
had
previously
been
working
for
several
years
for
companies
providing information
technology
services which,
under
the contracts that they concluded with Eurocontrol, placed him at the
Organisation's disposal to provide assistance to the Engineering Division
of
the
Maastricht
Centre ...
- ... in a monthly loss of income of approximately 1,330 euros.
4.
There is no doubt that, when he was recruited by Eurocontrol,
the
complainant did not fulfil
the
conditions
for
entitlement to
an
expatriation allowance.
Indeed,
he
had
previously
been
working
for
several
years
for
companies
providing information
technology
services which,
under
the contracts that they concluded with Eurocontrol, placed him at the
Organisation's disposal to provide assistance to the Engineering Division
of
the
Maastricht
Centre in carrying
out
and
following
up projects.
Thus, he had habitually carried on his occupation in the Netherlands
during the five-year reference period mentioned in Article 4(1) of Rule
of Application No. 7.
Judgment No. 4018
6
Moreover, the Tribunal notes that the complainant does not contend
that he ...
- ... set
forth in that provision.
5.
However, despite the factual circumstances described above,
the complainant's letter of appointment, signed on 17 September 2008,
specified that he would receive the expatriation allowance. Indeed, this
letter of appointment expressly mentioned the payment of the allowance
and, although it stated that this benefit was granted "on the conditions
laid down in the General Conditions of Employment Governing Servants
at the Eurocontrol Maastricht Centre and the Rules of Application", this
wording could not be construed, in the instant case, as meaning that the
receipt of this allowance was subject to the fulfilment of certain criteria
but,
on
the
contrary,
it
attested
that
the
complainant
did
meet
the
eligibility conditions.
6.
It
is
plain
from
the
evidence
in
the
file
that
the
clause
providing
for
the ...
- ...
it
attested
that
the
complainant
did
meet
the
eligibility conditions.
6.
It
is
plain
from
the
evidence
in
the
file
that
the
clause
providing
for
the
granting
of
the
expatriation
allowance
to
the
complainant was deliberately included in the letter of appointment by
the signatory parties and was not the result of a mere administrative
error, as Eurocontrol now tries to argue.
The
complainant
has
produced
an
exchange
of
emails
with
the
Head
of
the
Engineering
Division
which
unambiguously
prove
that
his recruitment
was
preceded by
negotiations
precisely
concerning
the granting
of
the
expatriation
allowance
and
that
the
Eurocontrol
Administration had agreed to grant him this benefit in order that his
remuneration ...
- ... signatory parties and was not the result of a mere administrative
error, as Eurocontrol now tries to argue.
The
complainant
has
produced
an
exchange
of
emails
with
the
Head
of
the
Engineering
Division
which
unambiguously
prove
that
his recruitment
was
preceded by
negotiations
precisely
concerning
the granting
of
the
expatriation
allowance
and
that
the
Eurocontrol
Administration had agreed to grant him this benefit in order that his
remuneration
would remain
similar
to that
which
he
had
previously
received in the private sector.
The defendant organisation's submission that this undertaking on
behalf
of
Eurocontrol
is
not
valid
because
it
was
not
given
by
the
Director General himself is manifestly misconceived. Apart from the
fact that the executive head ...
- ...
his recruitment
was
preceded by
negotiations
precisely
concerning
the granting
of
the
expatriation
allowance
and
that
the
Eurocontrol
Administration had agreed to grant him this benefit in order that his
remuneration
would remain
similar
to that
which
he
had
previously
received in the private sector.
The defendant organisation's submission that this undertaking on
behalf
of
Eurocontrol
is
not
valid
because
it
was
not
given
by
the
Director General himself is manifestly misconceived. Apart from the
fact that the executive head of international organisation is obviously
not the only authority empowered to represent it in a negotiation of this
kind,
the
issue
that
arises
here
is
not
whether
this
undertaking
was
legally valid, but whether it was actually given, which would explain ...
- ... is obviously
not the only authority empowered to represent it in a negotiation of this
kind,
the
issue
that
arises
here
is
not
whether
this
undertaking
was
legally valid, but whether it was actually given, which would explain
Judgment No. 4018
7
why the clause in question was inserted in the complainant's contract;
and, as already stated, the above-mentioned emails show that it was.
Similarly, Eurocontrol's argument that the complainant's letter of
appointment did not explicitly refer to an agreement between the parties
on this subject "notwithstanding the rules and regulations" does not
mean that no such informal agreement existed, since it is hardly likely
that an organisation would wish to draw attention in a contract to the
unlawful nature of one of the clauses thereof.
In
view
of
the
foregoing,
the
Tribunal
will
not
accept
the
Organisation's ...
- ...
the
Tribunal
will
not
accept
the
Organisation's submission that the clause providing for the benefit in
question was inserted into the complainant's contract solely as a result of
an accidental error in applying Article 4(1) of Rule of Application No. 7.
In this connection, the Organisation explains that the Administration of
the Maastricht Centre wrongly believed that the complainant's services
while he was placed at the disposal of Eurocontrol by private companies
prior to his recruitment should be regarded as services for an international
organisation
within the
meaning
of Article
4(1), and
that they
were
therefore not to be taken into account when determining whether he was
entitled to receive the expatriation allowance. In view of the evidence
on file, the Tribunal is of the opinion that, at best, the purpose of this
somewhat surprising alleged misunderstanding was to contrive a reason ...
- ... is of the opinion that, at best, the purpose of this
somewhat surprising alleged misunderstanding was to contrive a reason
for
granting
the
complainant
a
benefit
which
the
Organisation
had
purposefully decided to give him, in breach of the applicable text, in
order
to
be
able
to
offer
him
a
level
of
remuneration
which
would
persuade him to accept his appointment.
7.
However, as Eurocontrol subsequently realised, an international
organisation cannot lawfully conclude an employment contract containing
a clause that is contrary to its existing staff rules and regulations. The
organisation must abide by the provisions it has itself laid down and
they therefore take precedence over the clauses of contracts concluded
between it and its officials (see, for example, Judgments 1634, under 19,
or 2097, under 10).
Judgment No. 4018
8
It follows ...
- ... clause had to be applied, it did so after expressly
noting in consideration 8 of that judgment that the clause had not been
unlawfully included in the complainant's contract, since a provision of
the organisation's
rules permitted
the
granting
of
the
allowance
in
question to staff members in the position of the official in question.
In this
case,
on
the
other
hand,
there
was
no
provision
permitting
Eurocontrol to grant the complainant an expatriation allowance.
9.
It may be concluded from the above that the Organisation was
not only entitled, but bound to end the payment of the disputed allowance
to the complainant.
None of the complainant's pleas will therefore lead the Tribunal to
call into question the merits of that decision.
10.
In particular, the complainant is wrong in thinking that he may
rely on an acquired right to the payment of the allowance for which ...
- ... the payment of the allowance for which
provision is made in his letter of appointment.
Judgment No. 4018
9
It
is
true
that
in
this
case,
as
the
evidence
clearly
shows,
the
decision to
stop the
payment
of the allowance,
which represented a
substantial part of the complainant's remuneration, altered a fundamental
term of employment in consideration of which he had decided to enter
Eurocontrol's
service. In that
respect,
this
measure
could
well
be
regarded
as
breaching an
acquired
right
within
the
meaning
of
the
Tribunal's case law established in Judgments 61, 832 and 986 (see, for
example, Judgments 2696, under 5, or 3074, under 16).
However,
it
is
an established
principle
that
only
a
benefit
that
has some
basis
in
law
may
be
protected
as ...
- ... Since, as stated
above, the complainant received the expatriation allowance as a result
of an unlawful contractual clause, he cannot validly invoke an acquired
right to justify the continued payment of the allowance.
11.
The complainant also submits that the decision of 30 January
2014 was taken in breach of his right to be heard, since he was not
afforded a prior opportunity to comment on this measure. This plea is
factually incorrect. An email produced by Eurocontrol shows that the
complainant
was
informed
in
October
2013
that
the
Organisation
intended to cease paying the disputed allowance and that he therefore
had the possibility to express his views on this subject, which he in
fact did.
12.
Neither does the complainant have any grounds for submitting
that
this
decision
is
unlawful
in
that
it
took
effect retroactively on
1 March 2014 whereas he was not notified ...
- ... from the foregoing that there is no reason for the
Tribunal to set aside the impugned decision or that of 30 January 2014.
Judgment No. 4018
10
14.
Nevertheless, by deliberately including in the complainant's
letter
of
appointment,
albeit
at
his
request,
a
clause
stipulating
that
he would
receive
the
expatriation
allowance,
although
he
could
not
lawfully claim it, Eurocontrol indisputably acted wrongly. Moreover,
the
subsequent decision
to
withdraw this
benefit, which
had been
unlawfully granted to the complainant, who wrongly thought he was
entitled to it and who had no doubt viewed it as an essential condition
when he had decided to accept his appointment, caused him serious
injury stemming primarily from that wrongful act.
The
complainant
therefore
has
reason
to
claim,
as
he
does
subsidiarily ...
- ...
15.
Contrary
to
the
complainant's
submissions,
these
damages
should not be equal to the full amount of the expatriation allowance
which he would have received until his retirement. Indeed, they must
be
assessed
taking
into
account,
amongst
other
things, the
unlawful
nature of the financial benefit in question - of which the complainant
was plainly aware - and the fact that his continued employment with
Eurocontrol until retirement age is uncertain.
In view of all the circumstances of the case, and bearing in mind in
particular the Organisation's decision not to order the recovery of the
payments received in error by the complainant for more than five years
before they were stopped, the Tribunal considers that he will receive
fair redress for the injury suffered by being awarded 80,000 euros in
compensation under all heads, without interest.
16.
As he succeeds in part, the ...
- ... by being awarded 80,000 euros in
compensation under all heads, without interest.
16.
As he succeeds in part, the complainant is entitled to be paid
the 3,000 euros which he requests in costs.
17.
The
complainant
asks
the Tribunal to rule that,
should
the
various sums awarded to him by this judgment be subject to national
taxation,
he
would
be
entitled
to
a
refund
of
the
tax
paid
from
Eurocontrol. However, in the absence of a present cause of action in
Judgment No. 4018
11
this
respect, this claim
must
be
dismissed
as
irreceivable
(see,
for
example, Judgments 3255, under 15, or 3424, under 15).
DECISION
For the above reasons,
1.
Eurocontrol shall pay the complainant compensation in the amount
of 80,000 euros.
2.
It shall also pay him 3,000 euros in costs.
3.
All other claims ...
- ... by this judgment be subject to national
taxation,
he
would
be
entitled
to
a
refund
of
the
tax
paid
from
Eurocontrol. However, in the absence of a present cause of action in
Judgment No. 4018
11
this
respect, this claim
must
be
dismissed
as
irreceivable
(see,
for
example, Judgments 3255, under 15, or 3424, under 15).
DECISION
For the above reasons,
1.
Eurocontrol shall pay the complainant compensation in the amount
of 80,000 euros.
2.
It shall also pay him 3,000 euros in costs.
3.
All other claims are dismissed.
In witness of this judgment, adopted on 1 May 2018, Mr Patrick
Frydman,
Vice-President of
the
Tribunal, Ms
Dolores
M.
Hansen,
Judge, and Mr Yves Kreins, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Delivered in public in Geneva on 26 June 2018.
(Signed)
P
ATRICK ...
- Judgment 4017
126th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decisions not to promote them during the 2014 promotion exercise.
- ... Eurocontrol
126th Session Judgment No. 4017
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaints filed by Ms N. D.-E. (her sixth) and
Ms F. G. (her fifth) against the European Organisation for the Safety of
Air Navigation (Eurocontrol) on 30 April 2015, Eurocontrol's replies
of 28 August, the complainants' rejoinders of 16 December 2015 and
Eurocontrol's surrejoinders of 6 April 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the ...
- ... International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
D.-E. (No. 6) and G. (No. 5)
v.
Eurocontrol
126th Session Judgment No. 4017
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaints filed by Ms N. D.-E. (her sixth) and
Ms F. G. (her fifth) against the European Organisation for the Safety of
Air Navigation (Eurocontrol) on 30 April 2015, Eurocontrol's replies
of 28 August, the complainants' rejoinders of 16 December 2015 and
Eurocontrol's surrejoinders of 6 April 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which none of the parties has applied;
Considering that the facts of the case may be summed up as follows:
The
complainants
challenge the
decisions ...
- ...
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
D.-E. (No. 6) and G. (No. 5)
v.
Eurocontrol
126th Session Judgment No. 4017
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaints filed by Ms N. D.-E. (her sixth) and
Ms F. G. (her fifth) against the European Organisation for the Safety of
Air Navigation (Eurocontrol) on 30 April 2015, Eurocontrol's replies
of 28 August, the complainants' rejoinders of 16 December 2015 and
Eurocontrol's surrejoinders of 6 April 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which none of the parties has applied;
Considering that the facts of the case may be summed up as follows:
The
complainants
challenge the
decisions
not
to
promote ...
- ... French text alone
being authoritative.
D.-E. (No. 6) and G. (No. 5)
v.
Eurocontrol
126th Session Judgment No. 4017
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaints filed by Ms N. D.-E. (her sixth) and
Ms F. G. (her fifth) against the European Organisation for the Safety of
Air Navigation (Eurocontrol) on 30 April 2015, Eurocontrol's replies
of 28 August, the complainants' rejoinders of 16 December 2015 and
Eurocontrol's surrejoinders of 6 April 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which none of the parties has applied;
Considering that the facts of the case may be summed up as follows:
The
complainants
challenge the
decisions
not
to
promote
them
during the 2014 promotion exercise.
On 1 July 2008 a wide-ranging administrative ...
- ... Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which none of the parties has applied;
Considering that the facts of the case may be summed up as follows:
The
complainants
challenge the
decisions
not
to
promote
them
during the 2014 promotion exercise.
On 1 July 2008 a wide-ranging administrative reform entered into
force at Eurocontrol, details of which are to be found in Judgment 3189.
At that juncture, non-operational staff categories B and C were replaced,
for a two-year transitional period, by categories B* and C*. On 1 July
2010, at the end of this transitional period, these two categories were
merged in the Assistant group (AST), which comprises 11 grades (AST1
to AST11) arranged in various grade brackets. At the material time, the
complainants, officials who had previously been in C category, were ...
- ...
Office Notice No. 5/14 was published on 10 April 2014. In essence
it announced that a procedure for grade promotion would be organised
for 2014 and, for that purpose, the list of staff eligible for promotion
would comprise those officials and servants who in 2014 had at least
two years' seniority in their grade and were not yet in the last grade of
their
respective
career
brackets
as
defined
in
their
job
descriptions.
The list of Eurocontrol staff eligible for promotion was published on
17 April 2014. As the complainants' names were not on it, they each
lodged an internal complaint in June. They requested the cancellation
of this list and the holding of a promotion exercise in which their merits
would undergo comparative examination.
The
Joint
Committee
for
Disputes,
to
which
several
internal
complaints had been referred, including those of the complainants, issued
its opinion ...
- ...
of
legitimate
expectations"
and the
"right
to
a
career",
whereas the other two recommended that they should be dismissed on
the grounds that the complainants had reached the last grade in their
grade bracket and were thus not eligible for promotion under Rule of
Application
No. 4 concerning
the
procedure
for
grade
promotion
provided for in Article 45 of the Staff Regulations governing officials
of
the
Eurocontrol
Agency.
The
Committee
also
unanimously
recommended
that
the
Director
General
should
clarify
the
complainants' situation in light of Article 9 in Part 2 of Annex XIII to
the
Staff
Regulations,
which
provides
that
officials
in
service in
category C before 1 July 2008 "may be promoted or appointed up to
grade AST7", since the complainants alleged that this provision had
been breached. The complainants ...
- ... internal complaints.
The
complainants each filed
a
complaint
with
the
Tribunal
on
30 April 2015. They ask it to set aside the impugned decisions, the list of
staff eligible for promotion in the 2014 exercise and all the subsequent
Judgment No. 4017
3
decisions adopted in the course of that exercise, including the list of
staff who were promoted. They also each request the payment of moral
damages and costs.
Eurocontrol
asks
the
Tribunal
to
join
the
two
complaints.
With
regard to their receivability, it contends that the complainants have not
exhausted internal means of redress in respect of their claim seeking the
cancellation of all subsequent decisions adopted in the 2014 promotion
exercise, including the list of officials who were promoted, and that this
claim is tantamount to asking the Tribunal to order it to promote them.
It also holds that the ...
- ...
and redundant", given that the Tribunal has already ruled on the issue
of
promotion
beyond
a
given
grade
bracket
in
the AST category in
Judgments 3404 and 3495. Lastly, it submits that all the other claims
are unfounded.
CONSIDERATIONS
1.
The complainants challenge their non-inclusion on the list of
staff eligible for promotion in 2014, which was published in April 2014
in the wake of Office Notice No. 5/14.
2.
Eurocontrol requests
the
joinder
of
the
two
complaints.
The complainants have no objections. The two case files show that the
complaints
basically
seek
the
same
redress
and
rest
on
the
same
submissions. They may therefore be joined to form
the subject of a
single judgment.
3.
In
support
of
their
complaints
the
complainants allege
a
failure to respect their right to career advancement, ...
- ...
reform
carried
out
in
2008,
namely
to
end
the
practice
of
automatic
promotion while not ruling out the possibility of making exceptions in order
to enable particularly well-qualified officials to move up to the next grade
in another bracket within their function group [...].
Judgment No. 4017
5
7. In the structure introduced by the administrative reform
which
entered into force at Eurocontrol on 1 July 2008, officials are classed in
hierarchical grade brackets, each of which corresponds to a clearly defined
category of functions. In the same way that an official who has reached the
pinnacle of her or his career can no longer hope for promotion, a Eurocontrol
official who has reached the top of her or his grade bracket does not, in
principle, have any possibility of moving into a higher grade.
8. The
exception
to
this
rule
allowed
by
Article ...
- ... grade
in another bracket within their function group [...].
Judgment No. 4017
5
7. In the structure introduced by the administrative reform
which
entered into force at Eurocontrol on 1 July 2008, officials are classed in
hierarchical grade brackets, each of which corresponds to a clearly defined
category of functions. In the same way that an official who has reached the
pinnacle of her or his career can no longer hope for promotion, a Eurocontrol
official who has reached the top of her or his grade bracket does not, in
principle, have any possibility of moving into a higher grade.
8. The
exception
to
this
rule
allowed
by
Article
45
of
the
Staff
Regulations is a matter for the discretion of the Director General, which he
must exercise within the limits established by the Rules of Application of
the Staff Regulations (see Judgment 3666, [under 6]). [...]"
The Tribunal ...
- ...
unfounded,
as
by
reason
of
Office
Notice
No. 05/14 the complainants could not lawfully be included on the list of
Judgment No. 4017
6
officials eligible for promotion in 2014 (see Judgments 3495, under 18,
and 3404, under 18).
8.
It
follows
from
the
foregoing
that
the
complaints
must
be
dismissed, without there being any need to rule on the various objections
raised by Eurocontrol.
DECISION
For the above reasons,
The complaints are dismissed.
In witness of this judgment, adopted on 24 April 2018, Mr Patrick
Frydman, Vice-President of the Tribunal, Ms Fatoumata Diakité, Judge,
and
Mr
Yves
Kreins,
Judge,
sign
below,
as
do
I,
Dražen
Petrovic,
Registrar.
Delivered in public in Geneva on 26 June 2018.
(Signed)
P
ATRICK
F
RYDMAN
F
ATOUMATA
D
IAKITÉ
Y
VES
K
REINS
D
RAŽEN ...
- Judgment 4016
126th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision not to extend his appointment beyond the mandatory retirement age.
- ... Eurocontrol
126th Session Judgment No. 4016
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
fifth
complaint
filed
by
Mr I. A. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 29 March 2016, Eurocontrol's reply of 16 September, corrected on
22 September, the complainant's rejoinder of 2 November 2016 and
Eurocontrol's surrejoinder of 6 February 2017;
Considering Articles II, paragraph 5, and VII ...
- ... Eurocontrol)
on 29 March 2016, Eurocontrol's reply of 16 September, corrected on
22 September, the complainant's rejoinder of 2 November 2016 and
Eurocontrol's surrejoinder of 6 February 2017;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant impugns ...
- ... internationale du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
A. (No. 5)
v.
Eurocontrol
126th Session Judgment No. 4016
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
fifth
complaint
filed
by
Mr I. A. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 29 March 2016, Eurocontrol's reply of 16 September, corrected on
22 September, the complainant's rejoinder of 2 November 2016 and
Eurocontrol's surrejoinder of 6 February 2017;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant impugns the decision not to extend his ...
- ... administratif Administrative Tribunal
A. (No. 5)
v.
Eurocontrol
126th Session Judgment No. 4016
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
fifth
complaint
filed
by
Mr I. A. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 29 March 2016, Eurocontrol's reply of 16 September, corrected on
22 September, the complainant's rejoinder of 2 November 2016 and
Eurocontrol's surrejoinder of 6 February 2017;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant impugns the decision not to extend his appointment
beyond the mandatory retirement age.
The
complainant
joined
Eurocontrol
in
January ...
- ... 2016 and
Eurocontrol's surrejoinder of 6 February 2017;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant impugns the decision not to extend his appointment
beyond the mandatory retirement age.
The
complainant
joined
Eurocontrol
in
January
1998
as
an
air
traffic controller at the Maastricht Upper Area Control Centre and held
an appointment for an unlimited period. On 24 June 2015 he asked the
Director
General
of
Eurocontrol
to
allow
him
to
remain
in
service
beyond the age of 55, which he would reach in May 2016. At that time,
paragraph 1 of Article 53 of the General Conditions of Employment
(GCE) Governing Servants at the Eurocontrol ...
- ... neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant impugns the decision not to extend his appointment
beyond the mandatory retirement age.
The
complainant
joined
Eurocontrol
in
January
1998
as
an
air
traffic controller at the Maastricht Upper Area Control Centre and held
an appointment for an unlimited period. On 24 June 2015 he asked the
Director
General
of
Eurocontrol
to
allow
him
to
remain
in
service
beyond the age of 55, which he would reach in May 2016. At that time,
paragraph 1 of Article 53 of the General Conditions of Employment
(GCE) Governing Servants at the Eurocontrol Maastricht Centre stated
the general rule that servants other than those mentioned in paragraphs 2
and 3 of that Article would be retired automatically on the last day of
Judgment No. 4016
2
the month in which ...
- ...
in
January
1998
as
an
air
traffic controller at the Maastricht Upper Area Control Centre and held
an appointment for an unlimited period. On 24 June 2015 he asked the
Director
General
of
Eurocontrol
to
allow
him
to
remain
in
service
beyond the age of 55, which he would reach in May 2016. At that time,
paragraph 1 of Article 53 of the General Conditions of Employment
(GCE) Governing Servants at the Eurocontrol Maastricht Centre stated
the general rule that servants other than those mentioned in paragraphs 2
and 3 of that Article would be retired automatically on the last day of
Judgment No. 4016
2
the month in which they reached the age of 65. Paragraph 2 of Article 53
relevantly
provided
that
air
traffic
controllers
recruited
after
2 May
1990 - which was the complainant's case - would be retired on the last
day of the month ...
- ...
that
air
traffic
controllers
recruited
after
2 May
1990 - which was the complainant's case - would be retired on the last
day of the month in which they reached the age of 55.
On
24 September
2015
the
Director
of
the
Maastricht
Centre
replied that, as the staffing situation in the complainant's sector did not
justify an extension of his service, he would be retiring on 31 May 2016.
The Director also stated that Eurocontrol was reviewing its administrative
rules and that any modifications of the rules could have an impact on
the complainant's request.
On
23 October
the
complainant
wrote
to
the
Director
General
reiterating his request. He claimed that the foreseen administrative reform
- which, according to him, was expected to take effect on 1 January
2016 - would allow air traffic controllers to continue working beyond
the age of 55. On 7 December 2015 the ...
- ... its
judgment, he asks the Tribunal to declare that paragraph 2 of Article 53
of the GCE, and all the decisions related to his request of extension, are
null and void and that the provisions of paragraph 1 of Article 53 apply
to him. He also asks the Tribunal to order his reinstatement, as well as
the payment of material damages and arrears of salary and other benefits.
In any event, he claims moral damages and costs.
Judgment No. 4016
3
Eurocontrol submits that the complaint is irreceivable because there
was no act adversely affecting the complainant's interests. It asserts that
the
complainant's
claim
for
the
Tribunal
to
declare
paragraph 2
of
Article 53
of
the
GCE
null
and
void
is
irreceivable
since
"the
act
complained of is of a general and abstract character". It adds that this
claim is in any case time-barred as the complainant failed to ...
- ... affecting the complainant's interests. It asserts that
the
complainant's
claim
for
the
Tribunal
to
declare
paragraph 2
of
Article 53
of
the
GCE
null
and
void
is
irreceivable
since
"the
act
complained of is of a general and abstract character". It adds that this
claim is in any case time-barred as the complainant failed to appeal this
"general
measure"
in
time. Subsidiarily,
Eurocontrol argues that the
complaint is devoid of merit.
In his rejoinder, the complainant maintains his claims.
Eurocontrol repeats its arguments in its surrejoinder. It states that
the complainant was informed on 13 December 2016 that his internal
complaint
had
been
dismissed
as
unfounded,
the
Director
General
having decided to follow the recommendation of the Joint Committee
for Disputes, which had issued its opinion on 5 October 2016.
CONSIDERATIONS ...
- ...
to
declare
paragraph 2
of
Article 53
of
the
GCE
null
and
void
is
irreceivable
since
"the
act
complained of is of a general and abstract character". It adds that this
claim is in any case time-barred as the complainant failed to appeal this
"general
measure"
in
time. Subsidiarily,
Eurocontrol argues that the
complaint is devoid of merit.
In his rejoinder, the complainant maintains his claims.
Eurocontrol repeats its arguments in its surrejoinder. It states that
the complainant was informed on 13 December 2016 that his internal
complaint
had
been
dismissed
as
unfounded,
the
Director
General
having decided to follow the recommendation of the Joint Committee
for Disputes, which had issued its opinion on 5 October 2016.
CONSIDERATIONS
1.
The
complainant
impugns
the implied
decision
to
dismiss
his internal complaint ...
- ... for Disputes
recommended
dismissing
the
complainant's
internal
complaint
as
unfounded, which the Director General did by a letter of 13 December
2016.
The complaint, though initially directed against an implied rejection
of
an
internal
complaint, should now be viewed
as
challenging
the
express decision taken during the present proceedings, on 13 December
2016 (see, in particular, Judgment 3667, under 1).
4.
Eurocontrol claims that the complaint is irreceivable because
there was no act adversely affecting the complainant's interests. It also
submits
that
the
complainant's claim
for
the
Tribunal
to
declare
paragraph 2 of Article 53 of the GCE null and void is irreceivable since
"the
act
complained
of
is
of
a
general
and
abstract
character".
The
defendant adds that this claim is time-barred as the complainant failed
to ...
- ... was no act adversely affecting the complainant's interests. It also
submits
that
the
complainant's claim
for
the
Tribunal
to
declare
paragraph 2 of Article 53 of the GCE null and void is irreceivable since
"the
act
complained
of
is
of
a
general
and
abstract
character".
The
defendant adds that this claim is time-barred as the complainant failed
to appeal this "general measure" in time.
5.
Eurocontrol's objections to receivability are unfounded. The
complainant was directly and immediately adversely affected by the
Director General's decision that did not allow him to remain in service
beyond the age of 55, as he had requested. The legal basis of the Director
General's impugned decision that adversely affected the complainant
was paragraph 2 of Article 53 of the GCE, which is a provision of general
application. "According to th[e] case law, a complainant can impugn a
decision ...
- ... and the contested provision is not unreasonable or unjustified, and
therefore is not discriminatory. It must be taken into account that: (a) the
ordinary activity of air traffic controllers is particularly stressful and
mentally demanding, they are also subject to difficult working conditions
and to shift work; (b) the Maastricht Upper Area Control Centre operates
in a complex air space with a high traffic; and (c) possibly, in addition,
a low retirement age enables Eurocontrol to recruit air traffic controllers
more readily over time. The question of non-discrimination and that of
a proper evaluation of the specific nature of the work in question, and
therefore
of
its
exigencies,
are
linked.
In
this
evaluation,
which
is
scientifically based, Eurocontrol's evaluations should be accepted unless
they
are shown
to
be unreliable having
regard to
current
scientific
knowledge. In the present ...
- ... Maastricht Upper Area Control Centre operates
in a complex air space with a high traffic; and (c) possibly, in addition,
a low retirement age enables Eurocontrol to recruit air traffic controllers
more readily over time. The question of non-discrimination and that of
a proper evaluation of the specific nature of the work in question, and
therefore
of
its
exigencies,
are
linked.
In
this
evaluation,
which
is
scientifically based, Eurocontrol's evaluations should be accepted unless
they
are shown
to
be unreliable having
regard to
current
scientific
knowledge. In the present case, for the reasons considered above, the
evaluations on which the provision in question is based fall within the
range of acceptability.
8.
The complainant asserts that the administrative reform which
amended Article 53 of the GCE and came into force on 1 July 2016
(shortly after the complainant retired) ...
- Judgment 3926
125th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who was recruited on 15 May 2000 as a student air traffic controller, challenges the application of provisions adopted after his recruitment.
- ... Eurocontrol
125th Session Judgment No. 3926
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by
Mr J. O. C. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 14 May 2014, Eurocontrol's reply of 5 September, the complainant's
rejoinder
of
21 November,
corrected
on
4 December
2014,
and
Eurocontrol's surrejoinder of 6 March 2015;
Considering the applications ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
O. C.
v.
Eurocontrol
125th Session Judgment No. 3926
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by
Mr J. O. C. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 14 May 2014, Eurocontrol's reply of 5 September, the complainant's
rejoinder
of
21 November,
corrected
on
4 December
2014,
and
Eurocontrol's surrejoinder of 6 March 2015;
Considering the applications to intervene filed on 6 October 2014 by:
- Names removed
and the letter of 21 November 2014 in which Eurocontrol stated that it
had no objection to these applications;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal; ...
- ... du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
O. C.
v.
Eurocontrol
125th Session Judgment No. 3926
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by
Mr J. O. C. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 14 May 2014, Eurocontrol's reply of 5 September, the complainant's
rejoinder
of
21 November,
corrected
on
4 December
2014,
and
Eurocontrol's surrejoinder of 6 March 2015;
Considering the applications to intervene filed on 6 October 2014 by:
- Names removed
and the letter of 21 November 2014 in which Eurocontrol stated that it
had no objection to these applications;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined ...
- ... alone
being authoritative.
O. C.
v.
Eurocontrol
125th Session Judgment No. 3926
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by
Mr J. O. C. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 14 May 2014, Eurocontrol's reply of 5 September, the complainant's
rejoinder
of
21 November,
corrected
on
4 December
2014,
and
Eurocontrol's surrejoinder of 6 March 2015;
Considering the applications to intervene filed on 6 October 2014 by:
- Names removed
and the letter of 21 November 2014 in which Eurocontrol stated that it
had no objection to these applications;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case ...
- ...
the
complaint
filed
by
Mr J. O. C. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 14 May 2014, Eurocontrol's reply of 5 September, the complainant's
rejoinder
of
21 November,
corrected
on
4 December
2014,
and
Eurocontrol's surrejoinder of 6 March 2015;
Considering the applications to intervene filed on 6 October 2014 by:
- Names removed
and the letter of 21 November 2014 in which Eurocontrol stated that it
had no objection to these applications;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant, who was recruited on 15 May 2000 as a student
air traffic controller, challenges the application of provisions adopted
after his ...
- ... Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant, who was recruited on 15 May 2000 as a student
air traffic controller, challenges the application of provisions adopted
after his recruitment.
At that time, the student controllers whom Eurocontrol recruited each
year underwent training that normally lasted up to three years before
being appointed as Agency servants and ultimately becoming established.
Judgment No. 3926
2
By Office Notice No. 12/02 of 30 April 2002, a new employment policy
was adopted and incorporated into the General Conditions of Employment
Governing Servants at the Eurocontrol Maastricht Centre. One of the
main changes introduced by this policy, which entered into force ...
- ... of provisions adopted
after his recruitment.
At that time, the student controllers whom Eurocontrol recruited each
year underwent training that normally lasted up to three years before
being appointed as Agency servants and ultimately becoming established.
Judgment No. 3926
2
By Office Notice No. 12/02 of 30 April 2002, a new employment policy
was adopted and incorporated into the General Conditions of Employment
Governing Servants at the Eurocontrol Maastricht Centre. One of the
main changes introduced by this policy, which entered into force on
1 May
2002,
related
to
the
rules
governing
termination
of
service.
Article 41 of the General Conditions of Employment - which provided
for generous entitlements in the event of early termination of service -
was replaced by Article 5 of Annex X, which was less generous and
applied to staff members appointed for an undetermined period after ...
- ... On 18 December 2013 he lodged an internal complaint
in which he requested a reconsideration of the matter and confirmation
that Article 41 applied to him.
Although he was informed on 4 February 2014 that his internal
complaint would be considered by the competent service, the complainant
filed a complaint with the Tribunal on 14 May 2014, challenging the
implied decision to reject his internal complaint. He asks the Tribunal
to set aside that decision and to order Eurocontrol to recognise that the
version of Article 41 that was in force at the time of his recruitment
applies to him, and also to pay him 3,000 euros in costs.
In
its
reply,
Eurocontrol
requests
that
the
Tribunal
dismiss
the
complaint
as
irreceivable
on
the
grounds
that
it
is
time-barred
and,
subsidiarily, as unfounded.
In
his
rejoinder
the
complainant
advises
the
Tribunal
that ...
- ... 2014 that his internal
complaint would be considered by the competent service, the complainant
filed a complaint with the Tribunal on 14 May 2014, challenging the
implied decision to reject his internal complaint. He asks the Tribunal
to set aside that decision and to order Eurocontrol to recognise that the
version of Article 41 that was in force at the time of his recruitment
applies to him, and also to pay him 3,000 euros in costs.
In
its
reply,
Eurocontrol
requests
that
the
Tribunal
dismiss
the
complaint
as
irreceivable
on
the
grounds
that
it
is
time-barred
and,
subsidiarily, as unfounded.
In
his
rejoinder
the
complainant
advises
the
Tribunal
that
on
5 August 2014 the Joint Committee for Disputes, which met to consider
his internal complaint and that of 33 other servants, delivered a divided
opinion. Endorsing the opinion of ...
- ... that of 33 other servants, delivered a divided
opinion. Endorsing the opinion of two members of that Committee, the
Director
General
dismissed
those
internal
complaints
on
2 October
2014 as irreceivable because they were time-barred and, subsidiarily,
Judgment No. 3926
3
as unfounded. The complainant reiterates his claims and additionally
asks the Tribunal to award him 3,000 euros in damages.
In its surrejoinder Eurocontrol maintains its position and adds that
the complaint is irreceivable for lack of a cause of action.
CONSIDERATIONS
1.
The complainant requests the Tribunal to set aside the implied
decision rejecting his internal complaint of 18 December 2013 and to
order Eurocontrol to recognise that Article 41 of the General Conditions
of Employment applies to him.
2.
Eurocontrol
asks
the
Tribunal
to
dismiss
the
complaint
as
irreceivable ...
- ...
Judgment No. 3926
3
as unfounded. The complainant reiterates his claims and additionally
asks the Tribunal to award him 3,000 euros in damages.
In its surrejoinder Eurocontrol maintains its position and adds that
the complaint is irreceivable for lack of a cause of action.
CONSIDERATIONS
1.
The complainant requests the Tribunal to set aside the implied
decision rejecting his internal complaint of 18 December 2013 and to
order Eurocontrol to recognise that Article 41 of the General Conditions
of Employment applies to him.
2.
Eurocontrol
asks
the
Tribunal
to
dismiss
the
complaint
as
irreceivable on the grounds that it is time-barred or that the complainant
lacks a cause of action. It considers that he should have challenged,
within three months from the date of its notification, the decision of
23 August 2002 appointing him as an Agency servant for an undetermined
period ...
- ...
asks the Tribunal to award him 3,000 euros in damages.
In its surrejoinder Eurocontrol maintains its position and adds that
the complaint is irreceivable for lack of a cause of action.
CONSIDERATIONS
1.
The complainant requests the Tribunal to set aside the implied
decision rejecting his internal complaint of 18 December 2013 and to
order Eurocontrol to recognise that Article 41 of the General Conditions
of Employment applies to him.
2.
Eurocontrol
asks
the
Tribunal
to
dismiss
the
complaint
as
irreceivable on the grounds that it is time-barred or that the complainant
lacks a cause of action. It considers that he should have challenged,
within three months from the date of its notification, the decision of
23 August 2002 appointing him as an Agency servant for an undetermined
period
and
specifying
that
his
appointment
was
governed
by
the
provisions of ...
- ... the General Conditions of Employment. It
adds that the time limit of three months, which has already expired,
cannot be reopened by the submission to the Director General on 1 July
2013 of a request pursuant to Article 91(1) of the General Conditions
of Employment seeking "confirm[ation]" that Article 41 applied to his
appointment and the Director-General's reply of 9 October 2013 stating
that it did not. That reply simply confirmed the decision of 23 August
2002. Eurocontrol submits that the complainant has no cause of action,
as there is no real risk of his interests being adversely affected since it
has not put in place measures implementing Article 41 or initiated any
procedure concerning that article at the Eurocontrol Maastricht Centre.
In the complainant's view, since he was unaware when he was appointed
on 23 August 2002 of the different conditions of employment granted
to some of his colleagues, his cause of action arose when he discovered ...
- ...
of Employment seeking "confirm[ation]" that Article 41 applied to his
appointment and the Director-General's reply of 9 October 2013 stating
that it did not. That reply simply confirmed the decision of 23 August
2002. Eurocontrol submits that the complainant has no cause of action,
as there is no real risk of his interests being adversely affected since it
has not put in place measures implementing Article 41 or initiated any
procedure concerning that article at the Eurocontrol Maastricht Centre.
In the complainant's view, since he was unaware when he was appointed
on 23 August 2002 of the different conditions of employment granted
to some of his colleagues, his cause of action arose when he discovered
the unequal treatment in his respect. He submits that the sole purpose
of the decision of 23 August 2002 was to appoint him as an Agency
servant,
whereas
the
reply
of
9 October
2013
aimed
to
deny
his
Judgment ...
- Judgment 3925
125th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of his application for payment of language training fees.
- ... Eurocontrol
125th Session Judgment No. 3925
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
third
complaint
filed
by
Mr M. F. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
13 May 2014, Eurocontrol's reply of 5 September, the complainant's
rejoinder
of
14 November
2014
and
Eurocontrol's
surrejoinder
of
23 February 2015;
Considering Article II, paragraph 5, of the Statute ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
F. (No. 3)
v.
Eurocontrol
125th Session Judgment No. 3925
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
third
complaint
filed
by
Mr M. F. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
13 May 2014, Eurocontrol's reply of 5 September, the complainant's
rejoinder
of
14 November
2014
and
Eurocontrol's
surrejoinder
of
23 February 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The
complainant
challenges ...
- ... International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
F. (No. 3)
v.
Eurocontrol
125th Session Judgment No. 3925
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
third
complaint
filed
by
Mr M. F. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
13 May 2014, Eurocontrol's reply of 5 September, the complainant's
rejoinder
of
14 November
2014
and
Eurocontrol's
surrejoinder
of
23 February 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The
complainant
challenges
the rejection of
his ...
- ... French text alone
being authoritative.
F. (No. 3)
v.
Eurocontrol
125th Session Judgment No. 3925
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
third
complaint
filed
by
Mr M. F. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
13 May 2014, Eurocontrol's reply of 5 September, the complainant's
rejoinder
of
14 November
2014
and
Eurocontrol's
surrejoinder
of
23 February 2015;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The
complainant
challenges
the rejection of
his
application
for
payment of language training fees.
On
5 September
2013
the
complainant, ...
- ... and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The
complainant
challenges
the rejection of
his
application
for
payment of language training fees.
On
5 September
2013
the
complainant,
who
had enrolled
in a
university distance training programme to study French and German,
submitted an official application for Eurocontrol to cover the fees. That
application was refused by his line manager, who, on 8 October 2013,
advised him of the reasons for his decision, namely that the official
working language in his unit was English and that his training would
necessitate leave that he could not commit to granting throughout the
four-year course in view of operational requirements.
Judgment No. 3925
2
On 17 December 2013 the complainant lodged an internal complaint
against ...
- ... - and, lastly, special leave of up to four days per year to
allow him to sit the examinations required by the training programme.
As the complainant did not receive a reply within the 60-day period
mentioned in Article VII, paragraph 3, of the Statute of the Tribunal, on
13 May 2014 he filed a complaint with the Tribunal to contest what he
considered to be an implied decision to reject his internal complaint. He
asks the Tribunal to set aside that decision and to order Eurocontrol to
pay him the sum of 1,250 euros for each of the four years of training, to
grant him special leave of up to 10 days per year and the reimbursement
of examination fees and, lastly, to award him 5,000 euros in compensation
for the moral injury he considers he has suffered, as well as 5,000 euros
in costs.
Eurocontrol asks the Tribunal to dismiss the complaint as unfounded.
On 5 August 2014, while these proceedings were under way, the
Joint
Committee
for
Disputes ...
- ... contest what he
considered to be an implied decision to reject his internal complaint. He
asks the Tribunal to set aside that decision and to order Eurocontrol to
pay him the sum of 1,250 euros for each of the four years of training, to
grant him special leave of up to 10 days per year and the reimbursement
of examination fees and, lastly, to award him 5,000 euros in compensation
for the moral injury he considers he has suffered, as well as 5,000 euros
in costs.
Eurocontrol asks the Tribunal to dismiss the complaint as unfounded.
On 5 August 2014, while these proceedings were under way, the
Joint
Committee
for
Disputes
met
to
consider
the
complainant's
internal complaint and delivered a divided opinion, with one member
recommending that it be dismissed. On 1 October 2014 the Director
General took an express decision rejecting the internal complaint.
In his rejoinder, the complainant reiterates his claims and additionally ...
- ...
Committee
for
Disputes
met
to
consider
the
complainant's
internal complaint and delivered a divided opinion, with one member
recommending that it be dismissed. On 1 October 2014 the Director
General took an express decision rejecting the internal complaint.
In his rejoinder, the complainant reiterates his claims and additionally
asks the Tribunal to declare the decision of 1 October 2014 unlawful.
In
its
surrejoinder,
Eurocontrol
requests
that
this
new
claim
be
dismissed.
CONSIDERATIONS
1.
The complainant challenges what he considers to be an implied
decision
of
the
Director
General
rejecting
his
internal
complaint
in
which he principally requested defrayal of his language training fees.
He also contends that the express decision to reject his internal complaint,
taken on 1 October 2014 by the Director General, is unlawful.
Judgment ...
- ...
is
a
natural
part
of the
professional
experience (continuous
training) and aims to improve performance in a variety of areas (see, in
particular, Judgment 3052, under 6). Therefore, as a matter of principle,
every
official is
entitled
to
professional
training, subject
to
the
restrictions imposed by the staff rules or regulations of the organisation
employing her or him.
5.
In the Tribunal's view, Eurocontrol made an error of law by
taking account solely of the complainant's duties at the time when he
submitted his application for defrayal of training fees when it assessed
the benefit of the language training to the functioning of the unit.
6.
The Tribunal further considers that the second reason given
by Eurocontrol would not on its own have justified the refusal of the
complainant's application, since that would imply that, because of the
workload of the unit concerned, ...
- ...
to
the
restrictions imposed by the staff rules or regulations of the organisation
employing her or him.
5.
In the Tribunal's view, Eurocontrol made an error of law by
taking account solely of the complainant's duties at the time when he
submitted his application for defrayal of training fees when it assessed
the benefit of the language training to the functioning of the unit.
6.
The Tribunal further considers that the second reason given
by Eurocontrol would not on its own have justified the refusal of the
complainant's application, since that would imply that, because of the
workload of the unit concerned, no professional training whatsoever
could be funded for officials working in that unit.
7.
It ensues from the foregoing that the decision of 8 October
2013
explaining
the
reasons
for
the
refusal
to
pay
for
the
language
training, and
the
decision of
1 October ...
- ... of
1 October
2014 by which
the
Director
General confirmed that refusal, must be set aside.
Judgment No. 3925
4
8.
The unlawful nature of those decisions caused the complainant
material and moral injury entitling him to redress.
9.
The complainant also complains of the slow handling of his
internal complaint. The Tribunal observes that whereas Article 92(2) of
the Staff Regulations governing officials of the Eurocontrol Agency
specifies a time limit of four months for the Director General to notify
the
person
concerned of
his
reasoned
decision,
in
this
case
such
a
decision was taken only after nine months. Although that length of time
is
not
unreasonable
in
absolute
terms,
it nevertheless constitutes
a
breach by Eurocontrol of its own rules, which caused the complainant
moral injury that likewise warrants redress.
10.
In ...
- ... Tribunal observes that whereas Article 92(2) of
the Staff Regulations governing officials of the Eurocontrol Agency
specifies a time limit of four months for the Director General to notify
the
person
concerned of
his
reasoned
decision,
in
this
case
such
a
decision was taken only after nine months. Although that length of time
is
not
unreasonable
in
absolute
terms,
it nevertheless constitutes
a
breach by Eurocontrol of its own rules, which caused the complainant
moral injury that likewise warrants redress.
10.
In these circumstances, the Tribunal considers that the various
injuries suffered by the complainant will be fairly redressed by awarding
him compensation in the amount of 10,000 euros under all heads.
11.
As he succeeds for the most part, the complainant is entitled
to costs, which the Tribunal sets at 5,000 euros.
DECISION
For the above reasons,
1.
The ...
- ... considers that the various
injuries suffered by the complainant will be fairly redressed by awarding
him compensation in the amount of 10,000 euros under all heads.
11.
As he succeeds for the most part, the complainant is entitled
to costs, which the Tribunal sets at 5,000 euros.
DECISION
For the above reasons,
1.
The
decision
of
1 October
2014
and
the earlier decision
of
8 October 2013 are set aside.
2.
Eurocontrol
shall
pay
the
complainant
compensation
under
all
heads in the amount of 10,000 euros.
3.
It shall also pay him 5,000 euros in costs.
4.
All other claims are dismissed.
Judgment No. 3925
5
In
witness
of
this
judgment,
adopted
on 17
November
2017,
Mr Patrick
Frydman,
Vice-President of
the Tribunal, Ms
Fatoumata
Diakité, Judge, and Mr Yves Kreins, Judge, sign ...
- Judgment 3889
124th Session, 2017
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what she considers to be an implied rejection of her internal complaint challenging the “negative consequences” of an amendment to a Rule of Application concerning the terms and conditions governing leave.
- ... Eurocontrol
124th Session Judgment No. 3889
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms I. S. against the European
Organisation
for
the
Safety
of
Air
Navigation
(Eurocontrol)
on
23 February 2017;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal and Article 7 of its Rules;
Having examined the written submissions;
CONSIDERATIONS
1.
Relying
on
Article ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
S.
v.
Eurocontrol
124th Session Judgment No. 3889
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms I. S. against the European
Organisation
for
the
Safety
of
Air
Navigation
(Eurocontrol)
on
23 February 2017;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal and Article 7 of its Rules;
Having examined the written submissions;
CONSIDERATIONS
1.
Relying
on
Article VII,
paragraph 3,
of
the
Statute
of
the
Tribunal, the complainant impugns what she considers to be an implied
rejection
of
her
internal
complaint
filed
on
28 September
2016
challenging, ...
- Judgment 3829
124th Session, 2017
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges Eurocontrol’s refusal to convert her limited-term appointment into an appointment for an undetermined period and the non-renewal of her contract.
- ... Eurocontrol
124th Session Judgment No. 3829
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms A. R. against the European
Organisation
for
the
Safety
of
Air
Navigation
(Eurocontrol)
on
17 March
2014,
Eurocontrol's
reply
of
20 June,
the
complainant's
rejoinder of 27 August, Eurocontrol's surrejoinder of 28 November 2014,
the complainant's further submissions of 20 March 2015 and Eurocontrol's ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
R.
v.
Eurocontrol
124th Session Judgment No. 3829
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms A. R. against the European
Organisation
for
the
Safety
of
Air
Navigation
(Eurocontrol)
on
17 March
2014,
Eurocontrol's
reply
of
20 June,
the
complainant's
rejoinder of 27 August, Eurocontrol's surrejoinder of 28 November 2014,
the complainant's further submissions of 20 March 2015 and Eurocontrol's
final comments of 29 April 2015;
Considering the applications to intervene filed by Ms K. A., Ms G.
G., Mr I. R. and Ms S. W. on 3 June 2014 and the letter of 11 July 2014
in
which
Eurocontrol
stated
that
it ...
- ... International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
R.
v.
Eurocontrol
124th Session Judgment No. 3829
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms A. R. against the European
Organisation
for
the
Safety
of
Air
Navigation
(Eurocontrol)
on
17 March
2014,
Eurocontrol's
reply
of
20 June,
the
complainant's
rejoinder of 27 August, Eurocontrol's surrejoinder of 28 November 2014,
the complainant's further submissions of 20 March 2015 and Eurocontrol's
final comments of 29 April 2015;
Considering the applications to intervene filed by Ms K. A., Ms G.
G., Mr I. R. and Ms S. W. on 3 June 2014 and the letter of 11 July 2014
in
which
Eurocontrol
stated
that
it
had
no
objection
to
those ...
- ... translation,
the French text alone
being authoritative.
R.
v.
Eurocontrol
124th Session Judgment No. 3829
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms A. R. against the European
Organisation
for
the
Safety
of
Air
Navigation
(Eurocontrol)
on
17 March
2014,
Eurocontrol's
reply
of
20 June,
the
complainant's
rejoinder of 27 August, Eurocontrol's surrejoinder of 28 November 2014,
the complainant's further submissions of 20 March 2015 and Eurocontrol's
final comments of 29 April 2015;
Considering the applications to intervene filed by Ms K. A., Ms G.
G., Mr I. R. and Ms S. W. on 3 June 2014 and the letter of 11 July 2014
in
which
Eurocontrol
stated
that
it
had
no
objection
to
those
applications;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal; ...
- ...
124th Session Judgment No. 3829
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms A. R. against the European
Organisation
for
the
Safety
of
Air
Navigation
(Eurocontrol)
on
17 March
2014,
Eurocontrol's
reply
of
20 June,
the
complainant's
rejoinder of 27 August, Eurocontrol's surrejoinder of 28 November 2014,
the complainant's further submissions of 20 March 2015 and Eurocontrol's
final comments of 29 April 2015;
Considering the applications to intervene filed by Ms K. A., Ms G.
G., Mr I. R. and Ms S. W. on 3 June 2014 and the letter of 11 July 2014
in
which
Eurocontrol
stated
that
it
had
no
objection
to
those
applications;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither ...
- ...
Navigation
(Eurocontrol)
on
17 March
2014,
Eurocontrol's
reply
of
20 June,
the
complainant's
rejoinder of 27 August, Eurocontrol's surrejoinder of 28 November 2014,
the complainant's further submissions of 20 March 2015 and Eurocontrol's
final comments of 29 April 2015;
Considering the applications to intervene filed by Ms K. A., Ms G.
G., Mr I. R. and Ms S. W. on 3 June 2014 and the letter of 11 July 2014
in
which
Eurocontrol
stated
that
it
had
no
objection
to
those
applications;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges Eurocontrol's refusal to convert her
limited-term
appointment
into
an
appointment ...
- ... and Ms S. W. on 3 June 2014 and the letter of 11 July 2014
in
which
Eurocontrol
stated
that
it
had
no
objection
to
those
applications;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges Eurocontrol's refusal to convert her
limited-term
appointment
into
an
appointment
for
an
undetermined
period and the non-renewal of her contract.
At the material time, Article 9, paragraph 2, of Annex X to the
General Conditions of Employment Governing Servants at the Eurocontrol
Maastricht Centre provided that when a post was of a lasting nature,
Judgment No. 3829
2
"the [limited-term] appointment may be converted into an appointment ...
- ... and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges Eurocontrol's refusal to convert her
limited-term
appointment
into
an
appointment
for
an
undetermined
period and the non-renewal of her contract.
At the material time, Article 9, paragraph 2, of Annex X to the
General Conditions of Employment Governing Servants at the Eurocontrol
Maastricht Centre provided that when a post was of a lasting nature,
Judgment No. 3829
2
"the [limited-term] appointment may be converted into an appointment
for an undetermined period", subject to satisfactory performance.
The complainant was recruited in 2008 on a limited-term appointment
which was renewed twice and she was assigned to the Maastricht Upper
Area Control Centre as a Junior Simulator Pilot. On 23 April 2012 her
appointment was ...
- ...
the
meantime,
the
complainant
had
been
informed
by
a
memorandum dated 19 August 2013 that her appointment would expire
on 30 April 2014 and would not be extended beyond that date.
In her complaint filed with the Tribunal on 17 March 2014 the
complainant
impugns
the
implicit
decision
to
dismiss
her
internal
"complaint" of 17 October 2013. She asks the Tribunal to set aside that
decision and to order Eurocontrol to convert her limited-term appointment
into an appointment for an undetermined period. She also asks it to
find that the decision of 19 August 2013 is null and void. She seeks
reinstatement in her former post, at the same grade and step, and the
payment of her salary and "lost benefits" for the period between 1 May
2014
and
the effective
date
of
her
reinstatement.
Lastly,
she claims
5,000 euros in damages and 4,000 euros in costs.
In
its ...
- ... appointment
into an appointment for an undetermined period. She also asks it to
find that the decision of 19 August 2013 is null and void. She seeks
reinstatement in her former post, at the same grade and step, and the
payment of her salary and "lost benefits" for the period between 1 May
2014
and
the effective
date
of
her
reinstatement.
Lastly,
she claims
5,000 euros in damages and 4,000 euros in costs.
In
its
reply,
Eurocontrol
submits
that
the
complaint
should
be
dismissed as irreceivable and, subsidiarily, as unfounded. It informs the
Tribunal that on 20 December 2013 the Joint Committee for Disputes,
to which the "complaint" of 7 June 2013 had been referred, issued a
divided opinion. Three of its members recommended that the complaint
should be dismissed as irreceivable on the grounds that it was time
Judgment No. 3829
3
barred
and,
subsidiarily, ...
- ...
should
be
dismissed as irreceivable and, subsidiarily, as unfounded. It informs the
Tribunal that on 20 December 2013 the Joint Committee for Disputes,
to which the "complaint" of 7 June 2013 had been referred, issued a
divided opinion. Three of its members recommended that the complaint
should be dismissed as irreceivable on the grounds that it was time
Judgment No. 3829
3
barred
and,
subsidiarily, as unfounded.
Eurocontrol
adds
that
the
complainant was informed by a memorandum of 11 March 2014 that
her "complaint" had been dismissed, as recommended by those three
members of the Committee.
In her rejoinder, the complainant reiterates her claims and explains
that she is requesting the payment of 5,000 euros in compensation for
not being given an appointment for an undetermined period. Since she
considers that Eurocontrol's defence is "audacious and vexatious", she
also requests ...
- ...
and,
subsidiarily, as unfounded.
Eurocontrol
adds
that
the
complainant was informed by a memorandum of 11 March 2014 that
her "complaint" had been dismissed, as recommended by those three
members of the Committee.
In her rejoinder, the complainant reiterates her claims and explains
that she is requesting the payment of 5,000 euros in compensation for
not being given an appointment for an undetermined period. Since she
considers that Eurocontrol's defence is "audacious and vexatious", she
also requests 5,000 euros in damages under that head.
In its surrejoinder, Eurocontrol maintains its position and asks to
have
this
case
joined
with
another
case
raising
the
same
pleas
and
arguments.
In her further submissions, the complainant reiterates her claims
and advances new ones.
In
its
final
comments,
Eurocontrol
submits
that
the
claims
presented ...
- ... 11 March 2014 that
her "complaint" had been dismissed, as recommended by those three
members of the Committee.
In her rejoinder, the complainant reiterates her claims and explains
that she is requesting the payment of 5,000 euros in compensation for
not being given an appointment for an undetermined period. Since she
considers that Eurocontrol's defence is "audacious and vexatious", she
also requests 5,000 euros in damages under that head.
In its surrejoinder, Eurocontrol maintains its position and asks to
have
this
case
joined
with
another
case
raising
the
same
pleas
and
arguments.
In her further submissions, the complainant reiterates her claims
and advances new ones.
In
its
final
comments,
Eurocontrol
submits
that
the
claims
presented for the first time in the further submissions are irreceivable.
CONSIDERATIONS
1.
The Organization requests the joinder ...
- ... period. Since she
considers that Eurocontrol's defence is "audacious and vexatious", she
also requests 5,000 euros in damages under that head.
In its surrejoinder, Eurocontrol maintains its position and asks to
have
this
case
joined
with
another
case
raising
the
same
pleas
and
arguments.
In her further submissions, the complainant reiterates her claims
and advances new ones.
In
its
final
comments,
Eurocontrol
submits
that
the
claims
presented for the first time in the further submissions are irreceivable.
CONSIDERATIONS
1.
The Organization requests the joinder of this complaint with
another case forming the subject of Judgment 3828, also delivered this day.
However, for the reasons stated in that judgment, the Tribunal will not
accede to this request.
2.
The complaint, which was initially directed against an implied
rejection,
must
be ...
- ...
must
not
only
follow
the
prescribed
internal
procedure
for
appeal,
but
must
follow
it
properly
and
in
particular observe any time limit that may be set for the purpose of that
procedure (see, in
particular, Judgments 1469,
under 16,
and 3296,
under 10).
5.
Article 91, paragraphs 1 and 2, of Title VII "Appeals" of the
General Conditions of Employment Governing Servants at the Eurocontrol
Maastricht Centre read in parte qua as follows:
1. Any person to whom these provisions apply may submit to the Director
General a request that he takes a decision relating to him. The Director
General shall notify the person concerned of his reasoned decision within
four months from the date on which the request was made. If at the end
of that period no reply to the request has been received, this shall be
deemed to constitute an implied decision rejecting it, against ...
- ... of the decision to the person concerned,
but in no case later than the date on which the latter received such
notification, if the measure affects a specified person [...]."
Judgment No. 3829
6
6.
In her letter of 7 June 2013, the complainant challenged the
decision of 23 April 2012 informing her that her appointment had been
renewed for two years. She requested the conversion of that appointment.
In its memorandum of 4 July 2013, Eurocontrol did not, however,
specifically refer to this request for conversion. Although in her letter the
complainant mentioned article 91, paragraph 1, of the General Conditions
of
Employment,
the
Organisation clearly considered
this
letter
as
a
whole to constitute a complaint against the decision of 23 April 2012,
within the meaning of paragraph 2 of that article.
According to the Tribunal's case law, for a letter addressed to an
organisation
to ...
- ... the complainant clearly expressed her intention to challenge
her status as defined in the decision of 23 April 2012, which adversely
affected her and which formed the subject of that complaint, the letter
of 7 June 2013 must be regarded as an appeal within the meaning of
the Tribunal's
case
law
and
as
a
complaint
within
the
meaning
of
Article 91,
paragraph 2,
of
the
General
Conditions
of
Employment.
Eurocontrol was therefore right to treat it as such.
Moreover,
on
receiving
the
above-mentioned
memorandum,
the
complainant did not dispute this description.
7.
However,
under
Article 91,
paragraph 2,
of
the
General
Conditions of Employment, that complaint should have been lodged
within
three
months
of
the
date
of
notification
of
the
decision
of
23 April 2012. As the Tribunal has repeatedly ...
- ... 2012
until more than a year after being notified of it, the internal complaint
of 7 June 2013 was rightly declared time-barred, as a result of which
the complaint filed with the Tribunal, insofar as it concerns the request
for conversion of her appointment, is also irreceivable because internal
means of redress have not been exhausted, as required by Article VII,
paragraph 1, of the Statute of the Tribunal.
8.
In her rejoinder, the complainant submits that Eurocontrol's
defence
is
"audacious
and
vexatious". On this basis,
she
asks
that
the Organisation
be
ordered
to
pay
her
damages
in
the
amount
of
5,000 euros ex aequo et bono. The Tribunal is, however, of the view
that the Organisation's pleadings do not exceed the boundaries of the
freedom of expression that the parties must be accorded during legal
proceedings. The complainant's request must therefore be dismissed. ...
- Judgment 3828
124th Session, 2017
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges Eurocontrol’s refusal to convert her limited-term appointment into an appointment for an undetermined period, the reduction of the basis for calculating her contributions to the Eurocontrol Pension Scheme and the non-renewal of her contract.
- ... Eurocontrol
124th Session Judgment No. 3828
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms S. R. against the European
Organisation
for
the
Safety
of
Air
Navigation (Eurocontrol)
on
17 March
2014, Eurocontrol's
reply
of 4 July,
the
complainant's
rejoinder of 12 September, Eurocontrol's surrejoinder of 19 December
2014,
the
complainant's
further
submissions
of
20 March ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
R.
v.
Eurocontrol
124th Session Judgment No. 3828
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms S. R. against the European
Organisation
for
the
Safety
of
Air
Navigation (Eurocontrol)
on
17 March
2014, Eurocontrol's
reply
of 4 July,
the
complainant's
rejoinder of 12 September, Eurocontrol's surrejoinder of 19 December
2014,
the
complainant's
further
submissions
of
20 March
2015
and
Eurocontrol's final comments of 29 April 2015;
Considering the application to intervene filed by Mr T. H. on 4 June
2014 and the letter of 11 July 2014 in which Eurocontrol stated that it
had no objection to that application; ...
- ... Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
R.
v.
Eurocontrol
124th Session Judgment No. 3828
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms S. R. against the European
Organisation
for
the
Safety
of
Air
Navigation (Eurocontrol)
on
17 March
2014, Eurocontrol's
reply
of 4 July,
the
complainant's
rejoinder of 12 September, Eurocontrol's surrejoinder of 19 December
2014,
the
complainant's
further
submissions
of
20 March
2015
and
Eurocontrol's final comments of 29 April 2015;
Considering the application to intervene filed by Mr T. H. on 4 June
2014 and the letter of 11 July 2014 in which Eurocontrol stated that it
had no objection to that application;
Considering Articles II, paragraph ...
- ... translation,
the French text alone
being authoritative.
R.
v.
Eurocontrol
124th Session Judgment No. 3828
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms S. R. against the European
Organisation
for
the
Safety
of
Air
Navigation (Eurocontrol)
on
17 March
2014, Eurocontrol's
reply
of 4 July,
the
complainant's
rejoinder of 12 September, Eurocontrol's surrejoinder of 19 December
2014,
the
complainant's
further
submissions
of
20 March
2015
and
Eurocontrol's final comments of 29 April 2015;
Considering the application to intervene filed by Mr T. H. on 4 June
2014 and the letter of 11 July 2014 in which Eurocontrol stated that it
had no objection to that application;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions ...
- ... No. 3828
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms S. R. against the European
Organisation
for
the
Safety
of
Air
Navigation (Eurocontrol)
on
17 March
2014, Eurocontrol's
reply
of 4 July,
the
complainant's
rejoinder of 12 September, Eurocontrol's surrejoinder of 19 December
2014,
the
complainant's
further
submissions
of
20 March
2015
and
Eurocontrol's final comments of 29 April 2015;
Considering the application to intervene filed by Mr T. H. on 4 June
2014 and the letter of 11 July 2014 in which Eurocontrol stated that it
had no objection to that application;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as ...
- ...
Safety
of
Air
Navigation (Eurocontrol)
on
17 March
2014, Eurocontrol's
reply
of 4 July,
the
complainant's
rejoinder of 12 September, Eurocontrol's surrejoinder of 19 December
2014,
the
complainant's
further
submissions
of
20 March
2015
and
Eurocontrol's final comments of 29 April 2015;
Considering the application to intervene filed by Mr T. H. on 4 June
2014 and the letter of 11 July 2014 in which Eurocontrol stated that it
had no objection to that application;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges Eurocontrol's refusal to convert her
limited-term
appointment
into
an
appointment
for
an
undetermined ...
- ... the application to intervene filed by Mr T. H. on 4 June
2014 and the letter of 11 July 2014 in which Eurocontrol stated that it
had no objection to that application;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges Eurocontrol's refusal to convert her
limited-term
appointment
into
an
appointment
for
an
undetermined
period, the reduction of the basis for calculating her contributions to the
Eurocontrol Pension Scheme and the non-renewal of her contract.
At the material time, Article 9, paragraph 2, of Annex X to the
General Conditions of Employment Governing Servants at the Eurocontrol
Maastricht Centre provided that when a post was of a lasting nature,
Judgment ...
- ... 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges Eurocontrol's refusal to convert her
limited-term
appointment
into
an
appointment
for
an
undetermined
period, the reduction of the basis for calculating her contributions to the
Eurocontrol Pension Scheme and the non-renewal of her contract.
At the material time, Article 9, paragraph 2, of Annex X to the
General Conditions of Employment Governing Servants at the Eurocontrol
Maastricht Centre provided that when a post was of a lasting nature,
Judgment No. 3828
2
"the [limited-term] appointment may be converted into an appointment
for an undetermined period", subject to satisfactory performance.
The complainant entered the service of ...
- ... the facts of the case may be summed up as follows:
The complainant challenges Eurocontrol's refusal to convert her
limited-term
appointment
into
an
appointment
for
an
undetermined
period, the reduction of the basis for calculating her contributions to the
Eurocontrol Pension Scheme and the non-renewal of her contract.
At the material time, Article 9, paragraph 2, of Annex X to the
General Conditions of Employment Governing Servants at the Eurocontrol
Maastricht Centre provided that when a post was of a lasting nature,
Judgment No. 3828
2
"the [limited-term] appointment may be converted into an appointment
for an undetermined period", subject to satisfactory performance.
The complainant entered the service of Eurocontrol on 1 October
2008 and was assigned to the Maastricht Upper Area Control Centre as
a Junior Simulator Pilot on a one-year, limited-term appointment which
was subsequently renewed ...
- ... Scheme and the non-renewal of her contract.
At the material time, Article 9, paragraph 2, of Annex X to the
General Conditions of Employment Governing Servants at the Eurocontrol
Maastricht Centre provided that when a post was of a lasting nature,
Judgment No. 3828
2
"the [limited-term] appointment may be converted into an appointment
for an undetermined period", subject to satisfactory performance.
The complainant entered the service of Eurocontrol on 1 October
2008 and was assigned to the Maastricht Upper Area Control Centre as
a Junior Simulator Pilot on a one-year, limited-term appointment which
was subsequently renewed three times. Although she held a part-time
position (60 per cent), she chose to contribute to the Eurocontrol Pension
Scheme as though she were performing her duties on a full-time basis.
Her pension contributions were therefore calculated by reference to the
basic salary of a servant performing ...
- ...
"the [limited-term] appointment may be converted into an appointment
for an undetermined period", subject to satisfactory performance.
The complainant entered the service of Eurocontrol on 1 October
2008 and was assigned to the Maastricht Upper Area Control Centre as
a Junior Simulator Pilot on a one-year, limited-term appointment which
was subsequently renewed three times. Although she held a part-time
position (60 per cent), she chose to contribute to the Eurocontrol Pension
Scheme as though she were performing her duties on a full-time basis.
Her pension contributions were therefore calculated by reference to the
basic salary of a servant performing those duties at 100 per cent.
By
Office
Notice
No. 08/09
of
19 February
2009,
Eurocontrol
informed its staff that several amendments to the Staff Regulations and
Staff Rules would be made as of 1 March 2009, in particular to Article 3
of
Annex IIa to
the ...
- ... on a one-year, limited-term appointment which
was subsequently renewed three times. Although she held a part-time
position (60 per cent), she chose to contribute to the Eurocontrol Pension
Scheme as though she were performing her duties on a full-time basis.
Her pension contributions were therefore calculated by reference to the
basic salary of a servant performing those duties at 100 per cent.
By
Office
Notice
No. 08/09
of
19 February
2009,
Eurocontrol
informed its staff that several amendments to the Staff Regulations and
Staff Rules would be made as of 1 March 2009, in particular to Article 3
of
Annex IIa to
the
General
Conditions
of
Employment
concerning
part-time work. Pursuant to that article, the complainant's contributions
to the Pension Scheme were henceforth to be calculated by reference to
her basic salary. In other words, her contributions would be reduced to
reflect the fact that ...
- ...
had
been
informed
by
a
memorandum dated 19 August 2013 that her appointment would expire
on 30 April 2014 and would not be extended beyond that date.
Judgment No. 3828
3
In her complaint filed with the Tribunal on 17 March 2014 the
complainant
impugns
the
implicit
decision
to
dismiss
her
internal
"complaint" of 21 October 2013. She asks the Tribunal to set aside that
decision, to order Eurocontrol to convert her limited-term appointment
into an appointment for an undetermined period and to authorize her to
continue to
contribute
to
the
Pension
Scheme
as
though
she
were
working full time until the date of her actual retirement. She also asks it
to find that the decision of 19 August 2013 is null and void. She therefore
requests her reinstatement in her former post, at the same grade and
step, and the payment of her salary and "lost ...
- ...
she
were
working full time until the date of her actual retirement. She also asks it
to find that the decision of 19 August 2013 is null and void. She therefore
requests her reinstatement in her former post, at the same grade and
step, and the payment of her salary and "lost benefits" for the period
between 1 May 2014 and the effective date of her reinstatement. Lastly,
she claims 5,000 euros in damages and 4,000 euros in costs.
In
its
reply,
Eurocontrol
submits
that
the
complaint
should
be
dismissed as irreceivable and, subsidiarily, as unfounded. It informs the
Tribunal that, on 20 December 2013, the Joint Committee for Disputes,
to which the "complaint" of 7 June 2013 had been referred, issued a
divided opinion. Three of its members recommended that the complaint
should be dismissed as irreceivable on the grounds that it was time
barred
and,
subsidiarily, as unfounded.
Eurocontrol
adds ...
- ...
submits
that
the
complaint
should
be
dismissed as irreceivable and, subsidiarily, as unfounded. It informs the
Tribunal that, on 20 December 2013, the Joint Committee for Disputes,
to which the "complaint" of 7 June 2013 had been referred, issued a
divided opinion. Three of its members recommended that the complaint
should be dismissed as irreceivable on the grounds that it was time
barred
and,
subsidiarily, as unfounded.
Eurocontrol
adds
that
the
complainant was informed by a memorandum of 11 March 2014 that
her "complaint" had been dismissed, as recommended by those three
members of the Committee. It asks to have this case joined with another
case raising the same pleas and arguments.
In her rejoinder, the complainant reiterates her claims and explains
that she is requesting the payment of 5,000 euros in compensation for
not
being
given
an
appointment
for
an undetermined ...
- ... a memorandum of 11 March 2014 that
her "complaint" had been dismissed, as recommended by those three
members of the Committee. It asks to have this case joined with another
case raising the same pleas and arguments.
In her rejoinder, the complainant reiterates her claims and explains
that she is requesting the payment of 5,000 euros in compensation for
not
being
given
an
appointment
for
an undetermined
period.
Since
she considers that Eurocontrol's defence argument is "audacious and
vexatious", she also requests 5,000 euros in damages under that head.
Lastly, she objects to Eurocontrol's request for joinder since the pleas
and arguments raised are not the same in both cases.
In its surrejoinder, Eurocontrol maintains its arguments.
In her further submissions, the complainant reiterates her claims
and advances new ones.
In its final comments, Eurocontrol maintains its position.
Judgment No. 3828
4 ...
- ... this case joined with another
case raising the same pleas and arguments.
In her rejoinder, the complainant reiterates her claims and explains
that she is requesting the payment of 5,000 euros in compensation for
not
being
given
an
appointment
for
an undetermined
period.
Since
she considers that Eurocontrol's defence argument is "audacious and
vexatious", she also requests 5,000 euros in damages under that head.
Lastly, she objects to Eurocontrol's request for joinder since the pleas
and arguments raised are not the same in both cases.
In its surrejoinder, Eurocontrol maintains its arguments.
In her further submissions, the complainant reiterates her claims
and advances new ones.
In its final comments, Eurocontrol maintains its position.
Judgment No. 3828
4
CONSIDERATIONS
1.
The Organisation requests the joinder of this complaint with
another case forming the subject of Judgment ...
- ... and explains
that she is requesting the payment of 5,000 euros in compensation for
not
being
given
an
appointment
for
an undetermined
period.
Since
she considers that Eurocontrol's defence argument is "audacious and
vexatious", she also requests 5,000 euros in damages under that head.
Lastly, she objects to Eurocontrol's request for joinder since the pleas
and arguments raised are not the same in both cases.
In its surrejoinder, Eurocontrol maintains its arguments.
In her further submissions, the complainant reiterates her claims
and advances new ones.
In its final comments, Eurocontrol maintains its position.
Judgment No. 3828
4
CONSIDERATIONS
1.
The Organisation requests the joinder of this complaint with
another case forming the subject of Judgment 3829, also delivered this
day. However, the Tribunal will not accede to this request since the
complainant has objected ...
- ...
period.
Since
she considers that Eurocontrol's defence argument is "audacious and
vexatious", she also requests 5,000 euros in damages under that head.
Lastly, she objects to Eurocontrol's request for joinder since the pleas
and arguments raised are not the same in both cases.
In its surrejoinder, Eurocontrol maintains its arguments.
In her further submissions, the complainant reiterates her claims
and advances new ones.
In its final comments, Eurocontrol maintains its position.
Judgment No. 3828
4
CONSIDERATIONS
1.
The Organisation requests the joinder of this complaint with
another case forming the subject of Judgment 3829, also delivered this
day. However, the Tribunal will not accede to this request since the
complainant has objected to this joinder for valid reasons.
2.
The complaint, which was initially directed against an implied
rejection,
must
be regarded
as ...
- ... must not
only
follow
the
prescribed
internal
procedure
for
appeal,
but
must
follow it properly and in particular observe any time limit that may be
set for the purpose of that procedure (see in particular Judgments 1469,
under 16, and 3296, under 10).
Judgment No. 3828
6
5.
Article 91, paragraphs 1 and 2, of Title VII "Appeals" of the
General Conditions of Employment Governing Servants at the Eurocontrol
Maastricht Centre read in parte qua as follows:
"1. Any person to whom these provisions apply may submit to the Director
General a request that he takes a decision relating to him. The Director
General shall notify the person concerned of his reasoned decision within
four months from the date on which the request was made. If at the end
of that period no reply to the request has been received, this shall be
deemed to constitute an implied decision rejecting it, against ...
- ... complainant challenged the
decision of 5 April 2012 informing her that her appointment had been
renewed for two years and that her contributions to the Pension Scheme
would be reduced to take account of the fact that she worked 60 per cent
and not 100 per cent of working time. She requested the conversion of
her appointment and said that she wished to continue to contribute to
the Pension Scheme as though she were working full time.
In its memorandum of 4 July 2013, Eurocontrol did not, however,
specifically refer to these requests. Although in her letter the complainant
mentioned
article 91,
paragraph 1,
of
the
General
Conditions
of
Employment, the Organisation clearly considered this letter as a whole
to constitute a complaint against the decision of 5 April 2012, within
the meaning of paragraph 2 of that article.
According to the Tribunal's case law, for a letter addressed to an
organisation
to
constitute ...
- ... (see Judgment 3068,
under 16, and the case law cited therein).
Since the complainant clearly expressed her intention to challenge
her status as defined in the decision of 5 April 2012, which adversely
affected her and which formed the subject of that complaint, the letter
of 7 June 2013 must be regarded as an appeal within the meaning of the
Tribunal's case law and as a complaint within the meaning of Article 91,
paragraph 2, of the General Conditions of Employment. Eurocontrol
was therefore right to treat it as such.
Moreover,
on
receiving
the
above-mentioned
memorandum,
the
complainant did not dispute this description.
7.
However,
under
Article 91,
paragraph 2,
of
the
General
Conditions of Employment, that complaint should have been lodged
within three months of the date of notification of the decision of 5 April
2012. As the Tribunal has repeatedly stated, time limits are an objective ...
- ... 7 June 2013 was rightly declared time-barred, as a result of which the
complaint filed with the Tribunal, insofar as it concerns the requests
regarding
the
conversion
of
her
appointment and
her
contributions
to the Pension Scheme, is also irreceivable because internal means of
redress have not been exhausted, as required by Article VII, paragraph 1,
of the Statute of the Tribunal.
8.
In her rejoinder, the complainant submits that Eurocontrol's
defence is "audacious and vexatious". On this basis, she asks that the
Organisation be ordered to pay her damages in the amount of 5,000 euros
ex aequo
et bono.
The
Tribunal
is,
however,
of
the
view
that
the
Organisation's pleadings do not exceed the boundaries of the freedom
of expression that the parties must be accorded during legal proceedings.
The complainant's request must therefore be dismissed.
9.
It
follows ...
- Judgment 3827
124th Session, 2017
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal to grant her the lump sum paid to servants whose application to resign is accepted.
- ... Eurocontrol
124th Session Judgment No. 3827
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by Ms J. G. S. P. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
2 June
2014,
Eurocontrol's
reply
of 26 September
2014, the
complainant's rejoinder
of
7 January
2015
and
Eurocontrol's
surrejoinder of 9 April 2015;
Considering Articles II, paragraph 5, and ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
P.
v.
Eurocontrol
124th Session Judgment No. 3827
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by Ms J. G. S. P. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
2 June
2014,
Eurocontrol's
reply
of 26 September
2014, the
complainant's rejoinder
of
7 January
2015
and
Eurocontrol's
surrejoinder of 9 April 2015;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant ...
- ... Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
P.
v.
Eurocontrol
124th Session Judgment No. 3827
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by Ms J. G. S. P. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
2 June
2014,
Eurocontrol's
reply
of 26 September
2014, the
complainant's rejoinder
of
7 January
2015
and
Eurocontrol's
surrejoinder of 9 April 2015;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the refusal to grant ...
- ... French text alone
being authoritative.
P.
v.
Eurocontrol
124th Session Judgment No. 3827
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering
the
complaint
filed
by Ms J. G. S. P. against
the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
2 June
2014,
Eurocontrol's
reply
of 26 September
2014, the
complainant's rejoinder
of
7 January
2015
and
Eurocontrol's
surrejoinder of 9 April 2015;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the refusal to grant her the lump sum
paid to servants whose application to resign is accepted.
Under
Annex XIX
to
the General
Conditions ...
- ... of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the refusal to grant her the lump sum
paid to servants whose application to resign is accepted.
Under
Annex XIX
to
the General
Conditions
of
Employment
Governing
Servants
at
the
Eurocontrol
Maastricht
Centre (in the
Netherlands), a lump sum is paid to servants whose application to resign
is accepted. The criteria for granting the lump sum, which is subject to
the internal tax, are set out in Office Notice No. 34/13. In accordance
with paragraph 4 of the sole article of the Annex, the amount to be paid
could be eighteen times the last monthly basic salary if the servant's
resignation took effect by 1 January 2014 at the latest.
Judgment ...
- ... that none of the criteria set out in Office Notice No. 34/13
was met, and he therefore advised the complainant that her complaint
was dismissed as unfounded. That is the impugned decision.
The complainant requests the setting aside of the "Director General's
decision" and the payment with interest of a lump sum which should
amount to eighteen times her last basic monthly salary and be subject
to internal tax.
Judgment No. 3827
3
Eurocontrol
submits
that
the
complaint
should
be
dismissed
as
irreceivable, particularly because the claim for payment of a lump sum
equivalent to eighteen times the complainant's salary and subject to
internal
tax
did
not
form
the
subject
of
the
internal
complaint
of
16 September 2013. Subsidiarily, it asks the Tribunal to dismiss the
complaint as unfounded.
In her rejoinder, the complainant requests the setting ...
- ... to
internal
tax
did
not
form
the
subject
of
the
internal
complaint
of
16 September 2013. Subsidiarily, it asks the Tribunal to dismiss the
complaint as unfounded.
In her rejoinder, the complainant requests the setting aside of the
decision of 11 March 2014 and reiterates her request for the payment,
with interest, of the lump sum. If this were to be subject to taxation in
the Netherlands, she asks the Tribunal to order Eurocontrol to pay the
tax in question. She also claims moral damages and costs.
In
its
surrejoinder,
Eurocontrol
maintains
that
the
complaint
is
irreceivable and asks the Tribunal to dismiss all the claims as groundless.
CONSIDERATIONS
1.
Annex XIX
to
the
General
Conditions
of
Employment
Governing Servants at the Eurocontrol Maastricht Centre, entitled "Special
Provisions of the General Conditions of Employment relating ...
- ...
16 September 2013. Subsidiarily, it asks the Tribunal to dismiss the
complaint as unfounded.
In her rejoinder, the complainant requests the setting aside of the
decision of 11 March 2014 and reiterates her request for the payment,
with interest, of the lump sum. If this were to be subject to taxation in
the Netherlands, she asks the Tribunal to order Eurocontrol to pay the
tax in question. She also claims moral damages and costs.
In
its
surrejoinder,
Eurocontrol
maintains
that
the
complaint
is
irreceivable and asks the Tribunal to dismiss all the claims as groundless.
CONSIDERATIONS
1.
Annex XIX
to
the
General
Conditions
of
Employment
Governing Servants at the Eurocontrol Maastricht Centre, entitled "Special
Provisions of the General Conditions of Employment relating to the
payment of a lump sum in the event of resignation", entered into force
on 1 January 2013. It comprises ...
- ... If this were to be subject to taxation in
the Netherlands, she asks the Tribunal to order Eurocontrol to pay the
tax in question. She also claims moral damages and costs.
In
its
surrejoinder,
Eurocontrol
maintains
that
the
complaint
is
irreceivable and asks the Tribunal to dismiss all the claims as groundless.
CONSIDERATIONS
1.
Annex XIX
to
the
General
Conditions
of
Employment
Governing Servants at the Eurocontrol Maastricht Centre, entitled "Special
Provisions of the General Conditions of Employment relating to the
payment of a lump sum in the event of resignation", entered into force
on 1 January 2013. It comprises a sole article which reads in parte qua
as follows:
"1. Without prejudice to any other benefits to which the servant may be
entitled as a consequence of resigning in accordance with Article 49 of
these General Conditions of Employment, a lump-sum payment shall
be ...
- ... with an employee
who had retired.
6.
The Organisation emphasises that the decision of 24 August
2013 not to grant the lump sum was taken because, at that time, the
workload of the Recruitment Unit, which was understaffed, was still
heavy and was even due to increase. It endeavours to show that this
workload could not be absorbed by other services and that it would have
been necessary to replace the complainant if her resignation had been
accepted. Eurocontrol concludes from this that neither the first nor the
second criterion was satisfied.
The
complainant
submits
that
her
activities
could
have
been
distributed
among
other
services,
in
accordance
with
the
second
criterion listed in Office Notice No. 34/13. According to her, this was
actually done without any difficulty after her retirement on 31 January
2014.
It
may
be
inferred
from
her
line ...
- ... that, contrary to the Director General's statement, her post
could have been left vacant for at least two years, which is the first
Judgment No. 3827
6
criterion
for
granting
the
lump
sum.
She asserts that
she
was
not
replaced after her retirement, because no vacancy notice relating to her
post has ever been published.
7.
It must be recalled that the Tribunal is not competent to rule on
the merits of Eurocontrol's choices in respect of its staff management,
for they form part of the general employment policy that an organisation is
free to pursue in accordance with its general interests (see Judgment 3225,
under 6).
In the instant case, in the decision of 24 August 2013 the Director
General considered that the complainant's post could not be left vacant
for at least two years, since it was necessary in order to cope with the
Recruitment Unit's workload and the tasks in question ...
- ... two years, since it was necessary in order to cope with the
Recruitment Unit's workload and the tasks in question could not be not
be redistributed without overburdening the servants who would have been
called
upon
to
assume
them
in
addition to their
usual functions - a
situation which would have resulted in delays jeopardising the smooth
operation of the service.
In light of the evidence and the objective justifications furnished
by Eurocontrol, the Tribunal considers that, in so deciding, the Director
General did not abuse the broad discretion he necessarily enjoys in such
matters.
8.
In her rejoinder the complainant alleges a breach of the principle
of non-retroactivity. She takes the Organisation to task for basing its
decision on a long-term manpower plan, dated 1 August 2013, which was
not in force when she tendered her resignation on 29 July 2013, in an
attempt to show that her post could not be ...
- ...
the
above
rule
not
apply (see Judgments 2459,
under 9, and 2985, under 15). In the instant case, however, the decision
on the complainant's request, which made no reference to the above
mentioned plan, was actually taken on 24 August 2013, in other words
after the plan had entered into force.
Moreover, it is self-evident that the long-term manpower plan of
1 August
2013
was a response
to
needs
which
already
existed at
Eurocontrol when the complainant submitted her request, just a few
days before the plan entered into force.
9.
The complainant also alleges a breach of the principle of equal
treatment.
She
contends
that
the
resignation
of
one
of
her
former
colleagues, Ms A., to whom some of her duties were assigned after her
retirement, was accepted with effect on 1 January 2015 and that Ms A.
obtained the lump sum which she herself claims. Eurocontrol ...
- ... when the complainant submitted her request, just a few
days before the plan entered into force.
9.
The complainant also alleges a breach of the principle of equal
treatment.
She
contends
that
the
resignation
of
one
of
her
former
colleagues, Ms A., to whom some of her duties were assigned after her
retirement, was accepted with effect on 1 January 2015 and that Ms A.
obtained the lump sum which she herself claims. Eurocontrol replies
that the decision to accept Ms A.'s resignation was taken in September
2014 in light of the staffing level of another unit in the Directorate of
Resources to which she had been transferred.
This plea must be dismissed, since it has not been established that
the two persons were in a factually identical position (see Judgment 3420,
under 18).
10.
Lastly, the complainant concurs with the opinion of the Joint
Committee for Disputes that the Organisation ...
- ... of another judgment delivered
this day. It is, however, plain from the submissions in the file that the
instant case and the case with which it is compared were completely
unrelated
and
that
the
two
outcomes
were
therefore
in
no
way
contradictory.
11.
In light of the foregoing, the complaint must be dismissed in
its entirety without there being any need to examine the merits of the
objections to receivability raised by Eurocontrol.
Judgment No. 3827
8
DECISION
For the above reasons,
The complaint is dismissed.
In witness of this judgment, adopted on 27 April 2017, Mr Claude
Rouiller, President of the Tribunal, Mr Patrick Frydman, Judge, and
Ms Fatoumata Diakité, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Delivered in public in Geneva on 28 June 2017.
(Signed)
C
LAUDE
R
OUILLER
P
ATRICK
F
RYDMAN
F
ATOUMATA
D
IAKITÉ
D
RAŽEN ...
- Judgment 3816
124th Session, 2017
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant has filed an application for review of Judgment 3571.
- ... Eurocontrol
(Application for review)
124th Session Judgment No. 3816
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the application for review of Judgment 3571 filed by
Mr Q. L. on 26 April 2016;
Considering Article II, paragraph 5, of the Statute of the Tribunal
and Article 7 of its Rules;
Having examined the written submissions;
CONSIDERATIONS
1.
In his first complaint, the complainant requested inter alia the
conversion
of
his
limited-term ...
- Judgment 3730
123rd Session, 2017
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contends that Eurocontrol withdrew his title and duties as Head of Section.
- ... Eurocontrol
123rd Session Judgment No. 3730
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr L. P. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 6 May
2014, Eurocontrol's reply of 5 September, the complainant's rejoinder
of 14 November 2014, Eurocontrol's surrejoinder of 23 February 2015,
the
complainant's
further
submissions
of
13 May
2016
and
Eurocontrol's final observations ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
P.
v.
Eurocontrol
123rd Session Judgment No. 3730
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr L. P. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 6 May
2014, Eurocontrol's reply of 5 September, the complainant's rejoinder
of 14 November 2014, Eurocontrol's surrejoinder of 23 February 2015,
the
complainant's
further
submissions
of
13 May
2016
and
Eurocontrol's final observations thereon of 2 September 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
P.
v.
Eurocontrol
123rd Session Judgment No. 3730
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr L. P. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 6 May
2014, Eurocontrol's reply of 5 September, the complainant's rejoinder
of 14 November 2014, Eurocontrol's surrejoinder of 23 February 2015,
the
complainant's
further
submissions
of
13 May
2016
and
Eurocontrol's final observations thereon of 2 September 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering ...
- ... administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
P.
v.
Eurocontrol
123rd Session Judgment No. 3730
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr L. P. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 6 May
2014, Eurocontrol's reply of 5 September, the complainant's rejoinder
of 14 November 2014, Eurocontrol's surrejoinder of 23 February 2015,
the
complainant's
further
submissions
of
13 May
2016
and
Eurocontrol's final observations thereon of 2 September 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant contends ...
- ...
v.
Eurocontrol
123rd Session Judgment No. 3730
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr L. P. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 6 May
2014, Eurocontrol's reply of 5 September, the complainant's rejoinder
of 14 November 2014, Eurocontrol's surrejoinder of 23 February 2015,
the
complainant's
further
submissions
of
13 May
2016
and
Eurocontrol's final observations thereon of 2 September 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant contends that Eurocontrol withdrew his title and
duties as Head of Section.
At the material time, the complainant was assigned to the generic ...
- ... of 23 February 2015,
the
complainant's
further
submissions
of
13 May
2016
and
Eurocontrol's final observations thereon of 2 September 2016;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant contends that Eurocontrol withdrew his title and
duties as Head of Section.
At the material time, the complainant was assigned to the generic
post of Advanced Technical Assistant, at grade AST6 in the AST5-AST8
bracket, in the Information and Communication Services (ICS), Directorate
of Resources. By an e-mail dated 27 March 2012, the Head of ICS
announced that the complainant would assume new responsibilities and
"take the lead" of a section of ICS as from 1 May 2012.
Judgment No. ...
- ...
from "significant stress, which [was] affecting [his] health". He therefore
sought reinstatement in his "title and duties" as Head of Section within
ICS or an equivalent service; the re-evaluation of his salary, with effect from
1 April 2012, to bring it into line with that of a Head of Section within
the AD8-AD11 grade bracket; correction of his pay slips; compensation
for moral injury; and reimbursement of all future medical expenses.
Having received no reply from Eurocontrol, the complainant filed
his complaint on 6 May 2014.
The complainant requests that the implied decision to dismiss his
internal complaint be quashed and he reiterates his claims for reinstatement
as Head of Section, re-evaluation of his salary and correction of his pay slips
accordingly. Failing this and "quite subsidiarily", he seeks the payment of a
differential allowance for the period from 1 April 2012 to 9 October 2013
and the correction of his pay slips. In any event, ...
- ... complaint on 6 May 2014.
The complainant requests that the implied decision to dismiss his
internal complaint be quashed and he reiterates his claims for reinstatement
as Head of Section, re-evaluation of his salary and correction of his pay slips
accordingly. Failing this and "quite subsidiarily", he seeks the payment of a
differential allowance for the period from 1 April 2012 to 9 October 2013
and the correction of his pay slips. In any event, he requests that Eurocontrol
be ordered to pay him 25,000 euros in compensation for the moral injury
that he considers that he has suffered and to defray all "medical and
assistance costs" incurred to date or in future as a result of the decision
of 9 October 2013. Lastly, he claims 7,500 euros in costs.
Eurocontrol
submits
that
the
complaint
should
be
dismissed
as
groundless.
CONSIDERATIONS
1.
The complainant's main plea is that the decision of 9 October ...
- ... he seeks the payment of a
differential allowance for the period from 1 April 2012 to 9 October 2013
and the correction of his pay slips. In any event, he requests that Eurocontrol
be ordered to pay him 25,000 euros in compensation for the moral injury
that he considers that he has suffered and to defray all "medical and
assistance costs" incurred to date or in future as a result of the decision
of 9 October 2013. Lastly, he claims 7,500 euros in costs.
Eurocontrol
submits
that
the
complaint
should
be
dismissed
as
groundless.
CONSIDERATIONS
1.
The complainant's main plea is that the decision of 9 October
2013 constitutes an abuse of authority and is unlawful because the officials
who signed it did not have a valid delegation of authority or power of
signature.
The decision in question, the title of which indicates that in principle
it is within the competence of the Director General, bears ...
- ... have a valid delegation of authority or power of
signature.
The decision in question, the title of which indicates that in principle
it is within the competence of the Director General, bears the signature
of the Head of the People Management Division, who states that he is
Judgment No. 3730
4
acting with delegation of authority from the Director General, and the
signature of the Principal Director of Resources.
As an annex to its reply, Eurocontrol has produced a decision of
1 March 2011 by which the Principal Director of Resources, who himself
has a delegated power of signature from the Director General by virtue
of a decision of 1 February 2009, lawfully subdelegated to all the "Heads
of Area, Heads of Unit and Heads of Section" reporting to him the
authority to sign documents within their areas of responsibility. The Head
of the People Management Division thus had the authority to take the
decision of 9 October ...
- ... rather than
personal. It hence continues to operate after the delegator has left office
and until one of his or her successors decides to withdraw it.
The complainant's main plea is hence groundless.
2.
Subsidiarily, the complainant points out that the title of the generic
post to which he was reassigned, "Advanced Supervisor" (in French,
superviseur avancé), does not appear in the French version of Annex I
to the Staff Regulations governing officials of the Eurocontrol Agency,
which lists types of posts. He further submits that the Agency breached
Article 5(7) of the Staff Regulations by failing to consult the Staff Committee
on the duties and powers attaching to the generic post to which he was
reassigned.
A summary table showing the types of posts in the General Service
is given in Annex I to the Staff Regulations. It is true that in the French
version of the Staff Regulations, this table does not include "superviseur
avancé" ...
- ... April 2012, the Agency
denied his right to be promoted to at least grade AD8. He claims that in
being kept at grade AST7, he was deprived of "fair remuneration", and
that this has placed him in a discriminatory situation by comparison with
officials holding the generic post of Head of Section. He also considers
that the decision of 9 October 2013 is a hidden sanction, constitutes moral
harassment and was taken without authority.
4.
The complainant entered Eurocontrol's employment on 1 August
2008
and
until
1 October
2013
held
the
generic
post
of
Advanced
Technical Assistant in the AST5-AST8 grade bracket in ICS, Directorate
Judgment No. 3730
6
of Resources. However, his appraisal report for 2012, drawn up in May
2013, indicates that his post is that of Head of Section. In the summary
of the report, the complainant's appraiser notes that in 2012 his level of
responsibility ...
- ... long time, which undeniably
constituted a substantial affront to his dignity.
Although the complainant's pleas of discrimination, punishment,
harassment and abuse of authority must be dismissed as clearly unfounded,
it may be accepted that the situation caused him moral injury that must
be redressed.
Judgment No. 3730
7
7.
The complaint must therefore be partly allowed for the reason
stated in the preceding consideration, and Eurocontrol will be ordered
to pay the complainant moral damages in the amount of 15,000 euros.
As the complainant succeeds in part, he is also entitled to an award
of costs, set at 4,000 euros.
8.
All other claims must be dismissed.
DECISION
For the above reasons,
1.
Eurocontrol
shall
pay
the
complainant
15,000 euros
in
moral
damages.
2.
It shall also pay him 4,000 euros in costs.
3.
All other claims are dismissed. ...
- ... redressed.
Judgment No. 3730
7
7.
The complaint must therefore be partly allowed for the reason
stated in the preceding consideration, and Eurocontrol will be ordered
to pay the complainant moral damages in the amount of 15,000 euros.
As the complainant succeeds in part, he is also entitled to an award
of costs, set at 4,000 euros.
8.
All other claims must be dismissed.
DECISION
For the above reasons,
1.
Eurocontrol
shall
pay
the
complainant
15,000 euros
in
moral
damages.
2.
It shall also pay him 4,000 euros in costs.
3.
All other claims are dismissed.
In
witness
of
this
judgment,
adopted
on 7
November
2016,
Mr Claude Rouiller, President of the Tribunal, Mr Patrick Frydman, Judge,
and Ms Fatoumata Diakité, Judge, sign below, as do I, Dražen Petrovic,
Registrar.
Delivered in public in Geneva on 8 February ...
- Judgment 3693
122nd Session, 2016
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the EPO’s implied rejection of his internal appeals against the decision not to grant him the expatriation allowance retroactively and the decision to cease paying him the allowance.
- ... "such other means of
resisting [the decision] as are open to him under the applicable Staff
Regulations".
10.
However, as stated in Judgment 3373, consideration 3, for
example, the complaint must now be regarded as directed against the
explicit final decision on both appeals that was issued on 3 December 2012.
The following was
relevantly
stated in Judgment 3356, considerations 15
and 16:
"15. […]
It follows that, far being out of time as Eurocontrol submits, the
complaint filed with the Tribunal was in fact premature.
16. However, by an express decision of 18 July 2012, the Director
General subsequently dismissed the complainant's internal complaint after
the Joint Committee for Disputes had issued a divided opinion. As the
complainant took care in his rejoinder to impugn this express decision, the
complaint must be deemed to be directed against it."
The parties have proceeded accordingly. In its surrejoinder of ...
- Judgment 3667
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the fact that he was not promoted during the 2013 promotion exercise.
- ... Eurocontrol
122nd Session Judgment No. 3667
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the eighth complaint filed by Mr J. W. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 26 September 2013 and corrected on 30 November 2013,
Eurocontrol's reply of 9 April 2014, the complainant's rejoinder of 15
July and Eurocontrol's surrejoinder of 17 October 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal; ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
W. (No. 8)
v.
Eurocontrol
122nd Session Judgment No. 3667
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the eighth complaint filed by Mr J. W. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 26 September 2013 and corrected on 30 November 2013,
Eurocontrol's reply of 9 April 2014, the complainant's rejoinder of 15
July and Eurocontrol's surrejoinder of 17 October 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the ...
- ... Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
W. (No. 8)
v.
Eurocontrol
122nd Session Judgment No. 3667
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the eighth complaint filed by Mr J. W. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 26 September 2013 and corrected on 30 November 2013,
Eurocontrol's reply of 9 April 2014, the complainant's rejoinder of 15
July and Eurocontrol's surrejoinder of 17 October 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that he was not promoted
during the 2013 promotion exercise.
On ...
- ... translation,
the French text alone
being authoritative.
W. (No. 8)
v.
Eurocontrol
122nd Session Judgment No. 3667
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the eighth complaint filed by Mr J. W. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 26 September 2013 and corrected on 30 November 2013,
Eurocontrol's reply of 9 April 2014, the complainant's rejoinder of 15
July and Eurocontrol's surrejoinder of 17 October 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that he was not promoted
during the 2013 promotion exercise.
On 1 July 2008 a wide-ranging administrative reform entered into
force at Eurocontrol, ...
- ... surrejoinder of 17 October 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges the fact that he was not promoted
during the 2013 promotion exercise.
On 1 July 2008 a wide-ranging administrative reform entered into
force at Eurocontrol, the details of which are to be found in Judgment 3189.
At that juncture, non-operational staff categories B and C were replaced,
for a two-year transitional period, by categories B* and C*. On 1 July
2010, at the end of this transitional period, these two categories were
merged in the Assistant group (AST), which comprises 11 grades (AST1
to AST11) arranged in various grade brackets. At the material time, the
complainant, an official who had previously been in B
category ...
- ... that juncture, non-operational staff categories B and C were replaced,
for a two-year transitional period, by categories B* and C*. On 1 July
2010, at the end of this transitional period, these two categories were
merged in the Assistant group (AST), which comprises 11 grades (AST1
to AST11) arranged in various grade brackets. At the material time, the
complainant, an official who had previously been in B
category and who
was the President of the Union Syndicale Eurocontrol France (USEF)
Judgment No. 3667
2
and a member of both the Central and Local Staff Committees (at
Brétigny-sur-Orge), was classed at grade AST8 in the AST5-AST8
bracket.
Office Notice No. 1/13 was published on 7 February 2013. In essence
it announced that a procedure for grade promotion would be organised
for 2013 and, for that purpose, the list of staff eligible for promotion
would comprise those officials and servants who in 2013 had at least ...
- ... AST8 in the AST5-AST8
bracket.
Office Notice No. 1/13 was published on 7 February 2013. In essence
it announced that a procedure for grade promotion would be organised
for 2013 and, for that purpose, the list of staff eligible for promotion
would comprise those officials and servants who in 2013 had at least
two years' seniority in their grade and were not yet in the last grade of
their respective career brackets as defined in their job descriptions.
The list of Eurocontrol staff eligible for promotion was published on
8 February 2013. As the complainant's name was not on it, he lodged
an internal complaint on 30 April. He requested, amongst other relief,
that the decision to exclude him from the above-mentioned list should
be cancelled and that the possibility of promoting him should be
examined on the basis of his merit alone.
When he filed his complaint with the Tribunal on 26 September
2013, the complainant had not yet received a reply ...
- ... the internal complaint should be allowed in accordance with the
"principle of legitimate expectations" and the "right to a career", whereas
the other two recommended that it should be dismissed on the grounds
that the complainant had reached the last grade in his grade bracket
and was thus not eligible for promotion under Rule of Application No. 4
concerning the procedure for grade promotion provided for in Article 45
of the Staff Regulations governing officials of the Eurocontrol Agency.
The complainant was informed by a memorandum of 17 March
2014 that his internal complaint had been dismissed by the Director
General.
Judgment No. 3667
3
Eurocontrol asks the Tribunal to dismiss all the complainant's
claims as groundless, to join this complaint with two other cases and
to order the complainant to bear costs.
CONSIDERATIONS
1.
The complainant challenges the non-inclusion of his name
on the list of staff ...
- ... the complainant had reached the last grade in his grade bracket
and was thus not eligible for promotion under Rule of Application No. 4
concerning the procedure for grade promotion provided for in Article 45
of the Staff Regulations governing officials of the Eurocontrol Agency.
The complainant was informed by a memorandum of 17 March
2014 that his internal complaint had been dismissed by the Director
General.
Judgment No. 3667
3
Eurocontrol asks the Tribunal to dismiss all the complainant's
claims as groundless, to join this complaint with two other cases and
to order the complainant to bear costs.
CONSIDERATIONS
1.
The complainant challenges the non-inclusion of his name
on the list of staff members eligible for promotion in the 2013 exercise,
which was published on 8 February 2013.
This complaint, which was originally directed against the implied
decision to dismiss his internal complaint, must ...
- ... day. However, as these three cases raise legal issues that are
partly different, the Tribunal will not grant this request (see, in particular
Judgment 3620, under 2).
3.
The complainant first submits that the Office Notice of
7 February 2013 is unlawful, and likewise Rule of Application No. 4
on which it is predicated in order to define the staff members eligible
for promotion during 2013. As it completely excludes the promotion
of officials and servants of Eurocontrol who have reached the highest
grade in their grade bracket, in the complainant's opinion it conflicts
with Article 45 of the Staff Regulations, which permits the Director
General to depart from the exclusion principle established by that same
article.
4.
In Judgments 3404 and 3495 the Tribunal found that, quite apart
from the fact that officials may always participate in a competition or
request the reclassification of their post, the Director General had not
breached ...
- ...
highest grade in the bracket to which his current post belongs. This
principle is consistent with the aims of the administrative reform carried
out in 2008, namely to end the practice of automatic promotion while
not ruling out the possibility of making exceptions in order to enable
particularly well-qualified officials to move up to a higher grade in the
next bracket.
6.
In the structure introduced by the administrative reform which
entered into force at Eurocontrol on 1 July 2008, officials are classed
in hierarchical grade brackets, each of which corresponds to a clearly
defined category of functions. In the same way that an official who
has reached the pinnacle of her or his career can no longer hope for
promotion, a Eurocontrol official who has reached
the top of her or his
grade bracket does not, in principle, have any possibility of moving
into a higher grade.
7.
The possibility of an exception stemming implicitly ...
- ... to enable
particularly well-qualified officials to move up to a higher grade in the
next bracket.
6.
In the structure introduced by the administrative reform which
entered into force at Eurocontrol on 1 July 2008, officials are classed
in hierarchical grade brackets, each of which corresponds to a clearly
defined category of functions. In the same way that an official who
has reached the pinnacle of her or his career can no longer hope for
promotion, a Eurocontrol official who has reached
the top of her or his
grade bracket does not, in principle, have any possibility of moving
into a higher grade.
7.
The possibility of an exception stemming implicitly from
Article 45 of the Staff Regulations should not, of course, be abolished
by a rule of lesser rank than the Staff Regulations. But this is not the
case here, since the defendant organisation accepts that, despite the
apparently categorical wording of the second paragraph ...
- ... trade unions, the Administration abruptly broke
off negotiations aimed at "a more liberal promotion policy" which were
about to reach a successful conclusion and which would have applied
to 2013. However, the Tribunal finds that the complainant's submissions
in this connection do not establish any causal link between the
breakdown of these negotiations and his non-promotion.
This plea is therefore also groundless.
10.
Lastly, the complainant submits that when Eurocontrol excluded
him from the list of staff members eligible for promotion in 2013, it
failed to take account of his particular situation, especially the fact that
his career advancement was completely blocked because 50 per cent
of his working hours were devoted to his duties as President of the
USEF and member of the Central and Local Staff Committees (at
Brétigny-sur-Orge).
Judgment No. 3667
6
There is nothing in the applicable rules to prevent a ...
- ... a part-time job
being reclassified as a full-time job. The complainant's submission is
therefore groundless, since as a part-time worker he is subject to periodic
appraisals and can always request a review of his job description as
provided for in Article 6 of Rule of Application No. 35, concerning job
management.
11.
It follows from the foregoing that the complaint must be
dismissed in its entirety.
12.
There are, however, no grounds for granting Eurocontrol's
counterclaim that the complainant be ordered to bear costs.
DECISION
For the above reasons,
The complaint is dismissed, as is Eurocontrol's counterclaim.
In witness of this judgment, adopted on 3 May 2016, Mr Claude
Rouiller, President of the Tribunal, Mr Giuseppe Barbagallo, Vice-
President, and Mr Patrick Frydman, Judge, sign below, as do I, Dražen
Petrovic, Registrar.
Delivered in public in Geneva on 6 July 2016.
(Signed)
C
LAUDE
R
OUILLER
G
IUSEPPE ...
- ... to periodic
appraisals and can always request a review of his job description as
provided for in Article 6 of Rule of Application No. 35, concerning job
management.
11.
It follows from the foregoing that the complaint must be
dismissed in its entirety.
12.
There are, however, no grounds for granting Eurocontrol's
counterclaim that the complainant be ordered to bear costs.
DECISION
For the above reasons,
The complaint is dismissed, as is Eurocontrol ...
- Judgment 3666
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to promote him in 2012.
- ... Eurocontrol
122nd Session Judgment No. 3666
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the seventh complaint filed by Mr J. W. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 March 2013 and corrected on 22 June, Eurocontrol's reply of
27 September, the complainant's rejoinder of 27 December 2013 and
Eurocontrol's surrejoinder of 4 April 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal; ...
- ... Eurocontrol)
on 9 March 2013 and corrected on 22 June, Eurocontrol's reply of
27 September, the complainant's rejoinder of 27 December 2013 and
Eurocontrol's surrejoinder of 4 April 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant contests ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
W. (No. 7)
v.
Eurocontrol
122nd Session Judgment No. 3666
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the seventh complaint filed by Mr J. W. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 March 2013 and corrected on 22 June, Eurocontrol's reply of
27 September, the complainant's rejoinder of 27 December 2013 and
Eurocontrol's surrejoinder of 4 April 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant contests the decision not to promote him in 2012.
Facts relevant ...
- ... Organization
Tribunal administratif Administrative Tribunal
W. (No. 7)
v.
Eurocontrol
122nd Session Judgment No. 3666
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the seventh complaint filed by Mr J. W. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 March 2013 and corrected on 22 June, Eurocontrol's reply of
27 September, the complainant's rejoinder of 27 December 2013 and
Eurocontrol's surrejoinder of 4 April 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant contests the decision not to promote him in 2012.
Facts relevant to this case may be found in Judgment 2869, delivered
in public on 3 February 2010, concerning ...
- ... to promote him in 2012.
Facts relevant to this case may be found in Judgment 2869, delivered
in public on 3 February 2010, concerning the second complaint filed by
the complainant against the decision not to promote him in 2007, and in
Judgment 3278, delivered in public on 5 February 2014, concerning his
fourth complaint against the classification of his post as from July 2008.
Suffice it to recall that he was granted full-time release from his official
duties with Eurocontrol to enable him to pursue his activities as a staff
union representative and Staff Committee member from 2002 until
October 2007, when he resumed duties as a Security Officer on a part-
Judgment No. 3666
2
time basis. The Tribunal held that Eurocontrol had a duty to implement,
through specific rules, the Memorandum of Understanding Governing
Relations between Eurocontrol and three Representative Trade Unions
of 16 July 2003 (hereinafter "the Memorandum ...
- ... on 5 February 2014, concerning his
fourth complaint against the classification of his post as from July 2008.
Suffice it to recall that he was granted full-time release from his official
duties with Eurocontrol to enable him to pursue his activities as a staff
union representative and Staff Committee member from 2002 until
October 2007, when he resumed duties as a Security Officer on a part-
Judgment No. 3666
2
time basis. The Tribunal held that Eurocontrol had a duty to implement,
through specific rules, the Memorandum of Understanding Governing
Relations between Eurocontrol and three Representative Trade Unions
of 16 July 2003 (hereinafter "the Memorandum of Understanding").
According to the Memorandum of Understanding "[m]embership of a
trade union, participation in trade union activity or the exercise of a trade
union mandate may not be prejudicial, in any form or manner
whatsoever,
to the professional situation ...
- ... to recall that he was granted full-time release from his official
duties with Eurocontrol to enable him to pursue his activities as a staff
union representative and Staff Committee member from 2002 until
October 2007, when he resumed duties as a Security Officer on a part-
Judgment No. 3666
2
time basis. The Tribunal held that Eurocontrol had a duty to implement,
through specific rules, the Memorandum of Understanding Governing
Relations between Eurocontrol and three Representative Trade Unions
of 16 July 2003 (hereinafter "the Memorandum of Understanding").
According to the Memorandum of Understanding "[m]embership of a
trade union, participation in trade union activity or the exercise of a trade
union mandate may not be prejudicial, in any form or manner
whatsoever,
to the professional situation or career advancement of those concerned".
The Tribunal considered that by not adopting implementing rules to
support ...
- ...
of 16 July 2003 (hereinafter "the Memorandum of Understanding").
According to the Memorandum of Understanding "[m]embership of a
trade union, participation in trade union activity or the exercise of a trade
union mandate may not be prejudicial, in any form or manner
whatsoever,
to the professional situation or career advancement of those concerned".
The Tribunal considered that by not adopting implementing rules to
support the Memorandum of Understanding, Eurocontrol had violated
that Memorandum as well as the principle of equality. As a result the
Tribunal quashed the impugned decision of 21 May 2008 rejecting the
complainant's internal complaint against the decision not to promote him
but it "considere[d] it inappropriate to require [Eurocontrol] to reconsider
the complainant's promotion for the 2007 promotion exercise". It awarded
the complainant 6,000 euros in compensation for the wrongful denial of
a valuable opportunity to be ...
- ...
to the professional situation or career advancement of those concerned".
The Tribunal considered that by not adopting implementing rules to
support the Memorandum of Understanding, Eurocontrol had violated
that Memorandum as well as the principle of equality. As a result the
Tribunal quashed the impugned decision of 21 May 2008 rejecting the
complainant's internal complaint against the decision not to promote him
but it "considere[d] it inappropriate to require [Eurocontrol] to reconsider
the complainant's promotion for the 2007 promotion exercise". It awarded
the complainant 6,000 euros in compensation for the wrongful denial of
a valuable opportunity to be promoted in 2007, moral damages in the
amount of 4,000 euros and costs in the amount of 1,000 euros.
On 8 March 2012 the Principal Director of Resources issued
Office
Notice No. 10/12 which provided that pursuant to Article 45 of the Staff
Regulations and Rule of Application No. ...
- ... not yet in the last grade of their
respective grade bracket. The list of eligible staff was notified to all staff
on 21 March 2012; the complainant's name was not on the list. The list of
promoted staff was published in Office Notice No. 14/12 on 15 June
2012;
the complainant's name was not on the list.
On 16 August the complainant wrote to the Director General
challenging the decision not to promote him in 2012 through Office Notice
No. 14/12. He alleged that Eurocontrol had no intention of respecting
Judgment 2869 with regard to the Memorandum of Understanding through
implementing specific rules, and no intention of promoting him. The
internal complaint was referred to the Joint Committee for Disputes
which recommended, in its opinion of 31 October 2012, that it be
dismissed as legally unfounded. It emphasised that there was no
Judgment No. 3666
3
statutory right to promotion and that pursuant to Article 45 of ...
- ...
By a memorandum of 10 December 2012 the complainant was
informed that the Director General had decided to dismiss his internal
complaint as unfounded, taking into account the reasons given by the
Joint Committee for Disputes. That is the decision the complainant
impugns before the Tribunal.
The complainant asks the Tribunal to quash the impugned decision
and to reconsider his promotion in 2012. He also seeks moral and material
damages together with costs.
Eurocontrol asks the Tribunal to dismiss the complaint as time-
barred and unfounded.
CONSIDERATIONS
1.
The background to this complaint can be found in Judgments
2869 and 3278 (stemming from the complainant's second and fourth
complaints respectively). To summarize, in Judgment 2869 the Tribunal
found inter alia that by not adopting implementing rules to support
the Memorandum of Understanding Eurocontrol had violated that
Memorandum as well as the principle of equality; ...
- ... seeks moral and material
damages together with costs.
Eurocontrol asks the Tribunal to dismiss the complaint as time-
barred and unfounded.
CONSIDERATIONS
1.
The background to this complaint can be found in Judgments
2869 and 3278 (stemming from the complainant's second and fourth
complaints respectively). To summarize, in Judgment 2869 the Tribunal
found inter alia that by not adopting implementing rules to support
the Memorandum of Understanding Eurocontrol had violated that
Memorandum as well as the principle of equality; that it was
inappropriate to require Eurocontrol to reconsider the complainant's
promotion for the 2007 promotion exercise; and that the proper course
was to award the complainant compensation for the wrongful denial of a
valuable opportunity to be promoted in 2007 as well as to award him
moral damages and costs. In Judgment 3278 the Tribunal concluded that
the classification of the complainant's post ...
- ... and unfounded.
CONSIDERATIONS
1.
The background to this complaint can be found in Judgments
2869 and 3278 (stemming from the complainant's second and fourth
complaints respectively). To summarize, in Judgment 2869 the Tribunal
found inter alia that by not adopting implementing rules to support
the Memorandum of Understanding Eurocontrol had violated that
Memorandum as well as the principle of equality; that it was
inappropriate to require Eurocontrol to reconsider the complainant's
promotion for the 2007 promotion exercise; and that the proper course
was to award the complainant compensation for the wrongful denial of a
valuable opportunity to be promoted in 2007 as well as to award him
moral damages and costs. In Judgment 3278 the Tribunal concluded that
the classification of the complainant's post in the highest grade of the
Judgment No. 3666
4
career bracket B*5-B*8 and then AST5-AST8 was ...
- ... complainant's post in the highest grade of the
Judgment No. 3666
4
career bracket B*5-B*8 and then AST5-AST8 was lawfully made in
accordance with the relevant provisions and the complaint was therefore
dismissed.
2.
In the present complaint, his seventh, the complainant contests
the decision not to include him in the list of staff eligible for promotion
in the 2012 promotion exercise. He asserts that his ineligibility was
unlawful as Eurocontrol had applied Rule of Application No. 4, which
does not permit promotions outside the grade bracket to which a staff
member is assigned, instead of the superior norm, that is to say Article 45
of the Staff Regulations, which provides that exceptions can be made.
3.
Eurocontrol contests the receivability of the complaint but as
the complaint fails on the merits the Tribunal shall not treat the issue of
receivability.
4.
Article 45 of the Staff Regulations provides: ...
- ... the complainant contests
the decision not to include him in the list of staff eligible for promotion
in the 2012 promotion exercise. He asserts that his ineligibility was
unlawful as Eurocontrol had applied Rule of Application No. 4, which
does not permit promotions outside the grade bracket to which a staff
member is assigned, instead of the superior norm, that is to say Article 45
of the Staff Regulations, which provides that exceptions can be made.
3.
Eurocontrol contests the receivability of the complaint but as
the complaint fails on the merits the Tribunal shall not treat the issue of
receivability.
4.
Article 45 of the Staff Regulations provides:
"Promotion shall be by decision of the Director General subject to availability
of budgetary funds. It shall be effective by appointment of the official to the
next higher grade in the function group to which he belongs. The next higher
grade should, as a rule, be within the ...
- ...
performance
appraisal report for 2011 does not show that his merit would
justify a promotion. Furthermore, the complainant's criticism towards
his 2011 appraisal report cannot be taken into consideration as he did
not impugn the appraisal report in accordance with the relevant rules
and within
the applicable time limits. Therefore the complainant's 2011
appraisal report is immune from challenge.
8.
The complainant also raises the issue that Eurocontrol, by failing
to implement rules supporting the Memorandum of Understanding, made
his promotion impossible and that the JCD's statement on this issue
showed bias in favour of Eurocontrol. In its unanimous opinion, the JCD
stated in paragraph 3 that "the Memorandum of Understanding merely
state[d] in Article 10 of its Annex that union representatives should not
be discriminated against other staff because of their trade union affiliation
or activities. Of course, [Eurocontrol] ...
- ... be taken into consideration as he did
not impugn the appraisal report in accordance with the relevant rules
and within
the applicable time limits. Therefore the complainant's 2011
appraisal report is immune from challenge.
8.
The complainant also raises the issue that Eurocontrol, by failing
to implement rules supporting the Memorandum of Understanding, made
his promotion impossible and that the JCD's statement on this issue
showed bias in favour of Eurocontrol. In its unanimous opinion, the JCD
stated in paragraph 3 that "the Memorandum of Understanding merely
state[d] in Article 10 of its Annex that union representatives should not
be discriminated against other staff because of their trade union affiliation
or activities. Of course, [Eurocontrol] must abide by the principle of
equality of treatment and ensure that the activities carried out by trade
union representatives do not have any prejudicial effect on their career.
They ...
- ... by failing
to implement rules supporting the Memorandum of Understanding, made
his promotion impossible and that the JCD's statement on this issue
showed bias in favour of Eurocontrol. In its unanimous opinion, the JCD
stated in paragraph 3 that "the Memorandum of Understanding merely
state[d] in Article 10 of its Annex that union representatives should not
be discriminated against other staff because of their trade union affiliation
or activities. Of course, [Eurocontrol] must abide by the principle of
equality of treatment and ensure that the activities carried out by trade
union representatives do not have any prejudicial effect on their career.
They should all have a supervisor and their performance be appraised
regularly as requested by the Tribunal [in Judgment 2869], which is the
case for [the complainant] since 2008." The Tribunal considers this
statement to be correct. By assigning the complainant to a post in which
50 per cent ...
- Judgment 3665
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant asks the Tribunal to reconsider the question of his promotion in 2007.
- ... Eurocontrol
122nd Session Judgment No. 3665
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the sixth complaint filed by Mr J. W. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 March 2013 and corrected on 22 June, Eurocontrol's reply of
27 September, the complainant's rejoinder of 27 December 2013 and
Eurocontrol's surrejoinder of 4 April 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal; ...
- ... Eurocontrol)
on 9 March 2013 and corrected on 22 June, Eurocontrol's reply of
27 September, the complainant's rejoinder of 27 December 2013 and
Eurocontrol's surrejoinder of 4 April 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant
asks ...
- ... internationale du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
W. (No. 6)
v.
Eurocontrol
122nd Session Judgment No. 3665
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the sixth complaint filed by Mr J. W. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 March 2013 and corrected on 22 June, Eurocontrol's reply of
27 September, the complainant's rejoinder of 27 December 2013 and
Eurocontrol's surrejoinder of 4 April 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant
asks the Tribunal to reconsider the question of his
promotion ...
- ... Labour Organization
Tribunal administratif Administrative Tribunal
W. (No. 6)
v.
Eurocontrol
122nd Session Judgment No. 3665
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the sixth complaint filed by Mr J. W. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 9 March 2013 and corrected on 22 June, Eurocontrol's reply of
27 September, the complainant's rejoinder of 27 December 2013 and
Eurocontrol's surrejoinder of 4 April 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant
asks the Tribunal to reconsider the question of his
promotion in 2007.
Facts
relevant to this case may be found in Judgment 2869, delivered
in ...
- ... that the facts of the case may be summed up as follows:
The complainant
asks the Tribunal to reconsider the question of his
promotion in 2007.
Facts
relevant to this case may be found in Judgment 2869, delivered
in public on 3 February 2010, concerning the second complaint filed by
the complainant against the decision not to promote him in 2007. Suffice
it to recall that the complainant was granted full-time release from his
official duties with Eurocontrol to enable him to pursue his activities as a
staff union representative and Staff Committee member from 2002 until
October 2007, when he resumed duties as a Security Officer on a part-
time basis. The Tribunal held that Eurocontrol had a duty to implement,
Judgment No. 3665
2
through specific rules, the Memorandum of Understanding Governing
Relations between Eurocontrol and three Representative Trade Unions
of 16 July 2003 (hereinafter "the Memorandum ...
- ...
in public on 3 February 2010, concerning the second complaint filed by
the complainant against the decision not to promote him in 2007. Suffice
it to recall that the complainant was granted full-time release from his
official duties with Eurocontrol to enable him to pursue his activities as a
staff union representative and Staff Committee member from 2002 until
October 2007, when he resumed duties as a Security Officer on a part-
time basis. The Tribunal held that Eurocontrol had a duty to implement,
Judgment No. 3665
2
through specific rules, the Memorandum of Understanding Governing
Relations between Eurocontrol and three Representative Trade Unions
of 16 July 2003 (hereinafter "the Memorandum of Understanding"),
according to which "[m]embership of a trade union, participation in
trade union
activity or the exercise of a trade union mandate may not be
prejudicial, in any form or manner whatsoever, to the professional ...
- ... the complainant was granted full-time release from his
official duties with Eurocontrol to enable him to pursue his activities as a
staff union representative and Staff Committee member from 2002 until
October 2007, when he resumed duties as a Security Officer on a part-
time basis. The Tribunal held that Eurocontrol had a duty to implement,
Judgment No. 3665
2
through specific rules, the Memorandum of Understanding Governing
Relations between Eurocontrol and three Representative Trade Unions
of 16 July 2003 (hereinafter "the Memorandum of Understanding"),
according to which "[m]embership of a trade union, participation in
trade union
activity or the exercise of a trade union mandate may not be
prejudicial, in any form or manner whatsoever, to the professional
situation or career advancement of those concerned". The Tribunal
considered that by not adopting implementing rules to support the
Memorandum, Eurocontrol had ...
- ... Eurocontrol and three Representative Trade Unions
of 16 July 2003 (hereinafter "the Memorandum of Understanding"),
according to which "[m]embership of a trade union, participation in
trade union
activity or the exercise of a trade union mandate may not be
prejudicial, in any form or manner whatsoever, to the professional
situation or career advancement of those concerned". The Tribunal
considered that by not adopting implementing rules to support the
Memorandum, Eurocontrol had violated that Memorandum as well as
the principle of equality. As a result
the Tribunal
quashed the impugned
decision of 21 May 2008 rejecting the complainant's internal complaint
against the decision not to promote him but it "considere[d] it
inappropriate to require [Eurocontrol] to reconsider the complainant's
promotion for the 2007 promotion exercise". It awarded the complainant
6,000 euros in compensation for the wrongful denial of a valuable
opportunity ...
- ... whatsoever, to the professional
situation or career advancement of those concerned". The Tribunal
considered that by not adopting implementing rules to support the
Memorandum, Eurocontrol had violated that Memorandum as well as
the principle of equality. As a result
the Tribunal
quashed the impugned
decision of 21 May 2008 rejecting the complainant's internal complaint
against the decision not to promote him but it "considere[d] it
inappropriate to require [Eurocontrol] to reconsider the complainant's
promotion for the 2007 promotion exercise". It awarded the complainant
6,000 euros in compensation for the wrongful denial of a valuable
opportunity to be promoted in 2007, moral damages in the amount of
4,000 euros and costs in the amount of 1,000 euros.
On 7 March 2012 the complainant wrote to the Director General
asking to be promoted with effect from 1 July 2007, asserting that as
the decision rejecting his internal complaint against ...
- ... be rejected as legally unfounded.
The complainant impugns the decision of 10 December in his sixth
complaint before the Tribunal insofar as it rejects his internal complaint
of 9 August.
The complainant asks the Tribunal to quash the impugned decision,
to reconsider the question of his promotion in 2007 and to award him
moral damages and costs. In his rejoinder he also asks the Tribunal to
treat the complaint as an application for execution of Judgment 2869.
Eurocontrol asks the Tribunal to dismiss the complaint as irreceivable
and unfounded. In its surrejoinder, it emphasises that it executed Judgment
2869 and that, in that
Judgment, the Tribunal did not order Eurocontrol to
enact implementing rules to the Memorandum of Understanding.
CONSIDERATIONS
1.
By letter of 7 March 2012, the complainant asked the Director
General to promote him as from 2007. Referring to Judgment 2869, he
contended that the question of his promotion ...
- ... asks the Tribunal to quash the impugned decision,
to reconsider the question of his promotion in 2007 and to award him
moral damages and costs. In his rejoinder he also asks the Tribunal to
treat the complaint as an application for execution of Judgment 2869.
Eurocontrol asks the Tribunal to dismiss the complaint as irreceivable
and unfounded. In its surrejoinder, it emphasises that it executed Judgment
2869 and that, in that
Judgment, the Tribunal did not order Eurocontrol to
enact implementing rules to the Memorandum of Understanding.
CONSIDERATIONS
1.
By letter of 7 March 2012, the complainant asked the Director
General to promote him as from 2007. Referring to Judgment 2869, he
contended that the question of his promotion in 2007 had been left
undecided. He was informed by memorandum of 9 May 2012 that the
Director General had rejected his request. In his two internal complaints
the complainant challenges his lack of promotion ...
- ... August 2012 as
inadmissible and legally unfounded respectively.
2.
The issue of his promotion in 2007 was the subject of his
second complaint which led to Judgment 2869 in which the Tribunal
held that his promotion should have been considered on the basis of
implementing rules to the Memorandum of Understanding, which would
have addressed the promotion of staff representatives. Having failed
to adopt implementing rules to the Memorandum of Understanding,
Eurocontrol infringed the complainant's rights. However, the Tribunal
neither ordered Eurocontrol to promote the complainant, nor did it order
that the issue of his promotion be reconsidered. It awarded the complainant
compensation for the denial of a valuable opportunity to be promoted
in 2007.
3.
The claims raised in this complaint are res judicata as the
Tribunal has already ruled on the issue of his promotion in 2007 in
Judgment 2869, as indicated above. Considering this, ...
- ... of his promotion in 2007 was the subject of his
second complaint which led to Judgment 2869 in which the Tribunal
held that his promotion should have been considered on the basis of
implementing rules to the Memorandum of Understanding, which would
have addressed the promotion of staff representatives. Having failed
to adopt implementing rules to the Memorandum of Understanding,
Eurocontrol infringed the complainant's rights. However, the Tribunal
neither ordered Eurocontrol to promote the complainant, nor did it order
that the issue of his promotion be reconsidered. It awarded the complainant
compensation for the denial of a valuable opportunity to be promoted
in 2007.
3.
The claims raised in this complaint are res judicata as the
Tribunal has already ruled on the issue of his promotion in 2007 in
Judgment 2869, as indicated above. Considering this, the Tribunal finds
it unnecessary to address any other questions.
With respect ...
- ... to address any other questions.
With respect to res judicata,
the main question raised in this complaint is the complainant's lack of
promotion in 2007. The complainant submits that the question had been
left unanswered by Judgment 2869. The Tribunal
holds that that question
was definitively addressed in that Judgment. Specifically, the complainant
was awarded damages in compensation "for the wrongful denial of a
valuable opportunity to be promoted in 2007". As Eurocontrol has paid
the sum awarded by the Tribunal, the Tribunal considers the question of
the complainant's promotion in 2007 to be fully resolved and executed.
4.
Insofar as the complainant attempts to reopen the issue settled
in Judgment 2869, the Tribunal recalls that the "Tribunal's judgments
are final and […] they may only be reviewed in exceptional circumstances
and solely on the grounds of failure to take account of a particular fact,
a mistaken finding of fact that ...
- ... which the
complainant could not invoke in time in the earlier proceedings (see,
Judgment No. 3665
5
for example, Judgment 3379, under 1). As well, the ground on which
review is sought must be one that would have led to a different result
in the earlier proceedings (see Judgments 1952, under 3, 3000, under 2,
and 3385, under 1)." (See Judgment 3477, under 6.)
In the present complaint, the complainant bases his contention on
the fact that Eurocontrol has not adopted implementing rules to the
Memorandum of Understanding and that, as of July 2010, he was denied
promotion opportunities as he was placed in the last grade of his career
bracket. The Tribunal holds that these facts do not constitute new facts
which would have had any bearing on the Tribunal's decision in Judgment
2869 as they occurred after the decision of 21 May 2008, which was
impugned in the proceedings leading to that Judgment, was taken. In
light of ...
- Judgment 3664
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the fact that she was not promoted during the 2013 promotion exercise.
- ... Eurocontrol
122nd Session Judgment No. 3664
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms E. B. S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 2 October 2013 and corrected on 30 November 2013, Eurocontrol's
reply of 9 April 2014, the complainant's rejoinder of 15 July and
Eurocontrol's surrejoinder of 17 October 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
S.
v.
Eurocontrol
122nd Session Judgment No. 3664
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms E. B. S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 2 October 2013 and corrected on 30 November 2013, Eurocontrol's
reply of 9 April 2014, the complainant's rejoinder of 15 July and
Eurocontrol's surrejoinder of 17 October 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as
follows:
The complainant challenges ...
- ... International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
S.
v.
Eurocontrol
122nd Session Judgment No. 3664
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms E. B. S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 2 October 2013 and corrected on 30 November 2013, Eurocontrol's
reply of 9 April 2014, the complainant's rejoinder of 15 July and
Eurocontrol's surrejoinder of 17 October 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as
follows:
The complainant challenges the fact that she was not promoted during
the 2013 promotion exercise. ...
- ... translation,
the French text alone
being authoritative.
S.
v.
Eurocontrol
122nd Session Judgment No. 3664
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms E. B. S. against the
European Organisation for the Safety of Air Navigation (Eurocontrol)
on 2 October 2013 and corrected on 30 November 2013, Eurocontrol's
reply of 9 April 2014, the complainant's rejoinder of 15 July and
Eurocontrol's surrejoinder of 17 October 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as
follows:
The complainant challenges the fact that she was not promoted during
the 2013 promotion exercise.
On 1 July 2008 a wide-ranging administrative reform entered into
force at Eurocontrol, ...
- ... surrejoinder of 17 October 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as
follows:
The complainant challenges the fact that she was not promoted during
the 2013 promotion exercise.
On 1 July 2008 a wide-ranging administrative reform entered into
force at Eurocontrol, details of which are to be found in Judgment 3189.
At that juncture, non-operational staff categories B and C were replaced,
for a two-year transitional period, by categories B* and C*. On 1 July
2010, at the end of this transitional period, these two categories were
merged in the Assistant group (AST), which comprises 11 grades (AST1
to AST11) arranged in various grade brackets. At the material time,
the complainant, an official who had previously been in C category, was ...
- ... No. 3664
2
Office Notice No. 1/13 was published on 7 February 2013. In
essence it announced that a procedure for grade promotion would be
organised for 2013 and, for that purpose, the list of staff eligible for
promotion would comprise those officials and servants who in 2013 had
at least two years' seniority in their grade and were not yet in the last
grade of their respective career brackets as defined in their job descriptions.
The list of Eurocontrol staff eligible for promotion was published on
8 February 2013. As the complainant's name was not on it, she lodged
an internal complaint on 7 May. She requested, amongst other relief,
that the decision to exclude her from the above-mentioned list should
be cancelled and that the possibility of promoting her should be examined
on the basis of her merit alone.
When she filed her complaint with the Tribunal on 2 October 2013,
the complainant had not yet received a reply ...
- ... internal complaint should be allowed in accordance with the "principle
of legitimate expectations" and the "right to a career", whereas the other
two recommended that it should be dismissed on the grounds that the
complainant had reached the last grade in her grade bracket and was
thus not eligible for promotion under Rule of Application No. 4 concerning
the procedure for grade promotion provided for in Article 45 of the Staff
Regulations governing officials of the Eurocontrol Agency.
The complainant was informed by a memorandum of 17 March 2014
that her internal complaint had been dismissed by the Director General.
In its reply Eurocontrol asks the Tribunal to dismiss all the
complainant's claims as groundless and to join this
complaint with
two
other cases.
Judgment No. 3664
3
In her rejoinder the complainant presses all her claims and asks to
be "considered eligible for promotion as from 2013".
In ...
- ... it should be dismissed on the grounds that the
complainant had reached the last grade in her grade bracket and was
thus not eligible for promotion under Rule of Application No. 4 concerning
the procedure for grade promotion provided for in Article 45 of the Staff
Regulations governing officials of the Eurocontrol Agency.
The complainant was informed by a memorandum of 17 March 2014
that her internal complaint had been dismissed by the Director General.
In its reply Eurocontrol asks the Tribunal to dismiss all the
complainant's claims as groundless and to join this
complaint with
two
other cases.
Judgment No. 3664
3
In her rejoinder the complainant presses all her claims and asks to
be "considered eligible for promotion as from 2013".
In its surrejoinder Eurocontrol maintains its position.
CONSIDERATIONS
1.
The complainant challenges the non-inclusion of her name
on the list of staff members eligible ...
- ... was informed by a memorandum of 17 March 2014
that her internal complaint had been dismissed by the Director General.
In its reply Eurocontrol asks the Tribunal to dismiss all the
complainant's claims as groundless and to join this
complaint with
two
other cases.
Judgment No. 3664
3
In her rejoinder the complainant presses all her claims and asks to
be "considered eligible for promotion as from 2013".
In its surrejoinder Eurocontrol maintains its position.
CONSIDERATIONS
1.
The complainant challenges the non-inclusion of her name
on the list of staff members eligible for promotion in the 2013 exercise,
which was published on 8 February 2013.
This complaint, which was originally directed against the implied
decision
to dismiss her internal complaint, must now be deemed to impugn
the explicit decision of 17 March 2014, taken in the course of the
proceedings, by which the Director General ...
- ... name
on the list of staff members eligible for promotion in the 2013 exercise,
which was published on 8 February 2013.
This complaint, which was originally directed against the implied
decision
to dismiss her internal complaint, must now be deemed to impugn
the explicit decision of 17 March 2014, taken in the course of the
proceedings, by which the Director General confirmed the non-inclusion
of the complainant's name on the above-mentioned list.
2.
Eurocontrol requests the joinder of this complaint with
two other cases forming the subject of Judgments 3666 and 3667, also
delivered this day. However, as these three cases raise legal issues
that are partly different, the Tribunal will not grant this request (see, in
particular, Judgment 3620, under 2).
3.
The complainant first submits that the Office Notice of
7 February 2013 is unlawful,
and likewise Rule of Application No. 4 on
which it is predicated in order to ...
- ... as these three cases raise legal issues
that are partly different, the Tribunal will not grant this request (see, in
particular, Judgment 3620, under 2).
3.
The complainant first submits that the Office Notice of
7 February 2013 is unlawful,
and likewise Rule of Application No. 4 on
which it is predicated in order to define the staff members eligible
for promotion during 2013. As it completely excludes
the promotion of
officials and servants of Eurocontrol who have reached the highest
grade in their grade bracket, in the complainant's opinion it conflicts
with Article 45 of the Staff Regulations, which permits the Director
General to depart from the
exclusion
principle established by that same
article.
4.
In Judgments 3404 and 3495 the Tribunal found that, quite
apart from the fact that officials may always participate in a competition
or request the reclassification of their post, the Director General had ...
- ... the
highest grade in the bracket covering her current post. This principle is
consistent with the aims of the administrative reform carried out in 2008,
namely to end the practice of automatic promotion while not ruling out
the
possibility of making exceptions in order to enable particularly well-
qualified officials to move up to a higher grade in the next bracket.
6.
In the structure introduced by the administrative reform which
entered into force at Eurocontrol on 1 July 2008, officials are classed
in hierarchical grade brackets, each of which corresponds to a clearly
defined category of functions. In the same way that an official who has
reached the pinnacle of her or his career can no longer hope for
promotion, a Eurocontrol official who has reached
the top of her or his
grade bracket
does not, in principle, have any possibility of moving into
a higher grade.
7.
The possibility of an exception stemming implicitly ...
- ... order to enable particularly well-
qualified officials to move up to a higher grade in the next bracket.
6.
In the structure introduced by the administrative reform which
entered into force at Eurocontrol on 1 July 2008, officials are classed
in hierarchical grade brackets, each of which corresponds to a clearly
defined category of functions. In the same way that an official who has
reached the pinnacle of her or his career can no longer hope for
promotion, a Eurocontrol official who has reached
the top of her or his
grade bracket
does not, in principle, have any possibility of moving into
a higher grade.
7.
The possibility of an exception stemming implicitly from
Article 45 of the Staff Regulations should not, of course, be abolished
by a rule of lesser rank than the Staff Regulations. But this is not
the case here, since the defendant organisation accepts that, despite
the apparently categorical wording of the second ...
- ... trade unions, the Administration abruptly broke
off negotiations aimed at "a more liberal promotion policy" which were
about to reach a successful conclusion and which would have applied
to 2013.
However, the Tribunal finds that the complainant's submissions
in this connection do not establish any causal link between the breakdown
of these negotiations and her non-promotion.
This plea is therefore also groundless.
10.
Lastly, the complainant submits that Eurocontrol failed to
take account of her particular situation when it excluded her from
the list of staff members eligible for promotion in 2013. In her view,
the tasks that she was carrying out and her performance justified her
promotion.
Judgment No. 3664
6
The Tribunal considers, however, that the complainant offers no
proof that she was in one of the situations warranting promotion on
special grounds.
11.
The complainant presented a new claim ...
- Judgment 3663
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant alleges that his dignity was impaired in the context of his various transfers.
- ... Eurocontrol
122nd Session Judgment No. 3663
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr J. S. H. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 9 July
2013 and corrected on 16 September 2013, Eurocontrol's reply of
9 January 2014, the complainant's rejoinder of 18 April 2014 and
corrected on 12 May, and Eurocontrol's surrejoinder of 25 July 2014;
Considering Articles II, paragraph 5, and VII of ...
- ... Eurocontrol) on 9 July
2013 and corrected on 16 September 2013, Eurocontrol's reply of
9 January 2014, the complainant's rejoinder of 18 April 2014 and
corrected on 12 May, and Eurocontrol's surrejoinder of 25 July 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows: ...
- ... Eurocontrol's reply of
9 January 2014, the complainant's rejoinder of 18 April 2014 and
corrected on 12 May, and Eurocontrol's surrejoinder of 25 July 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant alleges that his dignity was impaired in the ...
- ...
Tribunal administratif Administrative Tribunal
H.
v.
Eurocontrol
122nd Session Judgment No. 3663
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr J. S. H. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on 9 July
2013 and corrected on 16 September 2013, Eurocontrol's reply of
9 January 2014, the complainant's rejoinder of 18 April 2014 and
corrected on 12 May, and Eurocontrol's surrejoinder of 25 July 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant alleges that his dignity was impaired in the
context of his various transfers.
The complainant joined Eurocontrol in September 1997. Following a
reorganisation ...
- ... 2014 and
corrected on 12 May, and Eurocontrol's surrejoinder of 25 July 2014;
Considering Articles II, paragraph 5, and VII of the Statute of the
Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant alleges that his dignity was impaired in the
context of his various transfers.
The complainant joined Eurocontrol in September 1997. Following a
reorganisation he was transferred in March 2010 and participated in a
training programme to assist with his new duties. In September 2010 he
applied for early termination in accordance with the early termination of
service scheme (ETS), which was open to all staff with an open-ended
contract and aged 55 or over between 1 January 2011 to 31 December 2012.
His request was granted and he separated from service on 1 January 2013.
Judgment ...
- ... be conducted, as foreseen by the Policy on
Protecting the Dignity of Staff.
The Director General replied to both letters on 11 September 2012
finding that the complainant's claim of violation of his dignity was
unfounded. With respect to his request for a decision in accordance with
Judgment No. 3663
3
Article 92 of the Staff Regulations, he had decided that the complainant
would remain assigned to the same Unit. He also stated that Eurocontrol
was not obliged to prepare the complainant for "prospective employment"
he might take up while on ETS, that he had been given reasons for his
various transfers, that he had not been deprived of opportunities, and that
his claim for compensation was therefore rejected. He explained that
Eurocontrol had faced successive reorganisations and all affected staff had
to adapt. He highlighted that a comprehensive re-skilling programme had
been drawn up for him, detailed in his ...
- ... No. 3663
3
Article 92 of the Staff Regulations, he had decided that the complainant
would remain assigned to the same Unit. He also stated that Eurocontrol
was not obliged to prepare the complainant for "prospective employment"
he might take up while on ETS, that he had been given reasons for his
various transfers, that he had not been deprived of opportunities, and that
his claim for compensation was therefore rejected. He explained that
Eurocontrol had faced successive reorganisations and all affected staff had
to adapt. He highlighted that a comprehensive re-skilling programme had
been drawn up for him, detailed in his draft appraisal for 2010 and that, as
he had refused the offer made to him in February 2011 for an important
role, there was no alternative but to place him in the DSR Flexible
Resource Management Unit.
On 10 December 2012 he filed an internal complaint with the
Director General challenging the decision ...
- ... complaint with the
Director General challenging the decision of 11 September, and was
informed by a letter of 18 January 2013 that his internal complaint would
be examined with all due care by the service concerned.
The complainant filed his complaint with the Tribunal on 9 July 2013
against the implied rejection of the internal complaint of 10 December 2012.
The complainant asks the Tribunal to order that he be appointed to
a position at his grade or higher in Eurocontrol Brussels and within his
area of competence, that he remain employed until 65 years old, that
he be given "real justifications" for his transfers in March 2010 and 2011,
and that an investigation be conducted, in accordance with the Policy on
Protecting the Dignity of Staff, with respect to his allegation of affront
to his dignity. He also seeks financial compensation (225,000 euros for
psychological distress; and 311,000 euros for not having been given the
same professional ...
- ... 2010 and 2011,
and that an investigation be conducted, in accordance with the Policy on
Protecting the Dignity of Staff, with respect to his allegation of affront
to his dignity. He also seeks financial compensation (225,000 euros for
psychological distress; and 311,000 euros for not having been given the
same professional opportunities as other officials).
Alternatively, he asks the Tribunal to order that he be appointed to a
position at his grade or higher in Eurocontrol Brussels and within his area
of competence, that he remain in that position for two years before
separating on the basis of the ETS; that he be given "real justifications"
for his transfers in March 2010 and 2011, that an investigation be
conducted, in accordance with the Policy on Protecting the Dignity
of Staff, with respect to his allegation of affront to his dignity. He also
seeks financial compensation (225,000 euros for psychological distress;
Judgment ...
- ... 10 and 2011, that an
investigation be conducted with respect to his allegation of affront to his
dignity in accordance with the Policy on Protecting the Dignity of Staff,
and that he be awarded financial compensation (225,000 euros for
psychological distress; 572,000 euros for not having been given the same
professional opportunities as other officials; 546,000 euros for the
detrimental effect of having been "sidelined" on hi s future employment
opportunities).
Eurocontrol annexed to its reply a letter of 16 July 2013 by which
the Principal Director of Resources, acting with delegation from the
Director General, informed the complainant that he had endorsed the
opinion of the Joint Committee for Disputes that his internal complaint
be rejected as unfounded. Noting the Committee's recommendation that
a reasoned opinion be given with respect to the complainant's allegation
of harassment, he confirmed that the Director General had "summarily
dismissed" ...
- ... allegation
of harassment, he confirmed that the Director General had "summarily
dismissed" the allegation on 11 September 2012, as permitted by the
Policy on Protecting the Dignity of Staff due to the fact that no evidence
that harassment took place was provided, and consequently no further
investigation was warranted. The complainant indicates in his rejoinder
that he was made aware of the letter of 16 July 2013 for the first time
when it was forwarded to him with Eurocontrol's reply before the
Tribunal. He adds that he claims costs.
Eurocontrol asks the Tribunal to dismiss the complaint as irreceivable
and unfounded. It stresses that since the complainant is no longer in active
employment at Eurocontrol he cannot be appointed to a position in
Eurocontrol.
CONSIDERATIONS
1.
The proceedings, which have culminated in the present
complaint, were formally initiated by two correspondences, each dated
Judgment No. 3663
5 ...
- ...
dismissed" the allegation on 11 September 2012, as permitted by the
Policy on Protecting the Dignity of Staff due to the fact that no evidence
that harassment took place was provided, and consequently no further
investigation was warranted. The complainant indicates in his rejoinder
that he was made aware of the letter of 16 July 2013 for the first time
when it was forwarded to him with Eurocontrol's reply before the
Tribunal. He adds that he claims costs.
Eurocontrol asks the Tribunal to dismiss the complaint as irreceivable
and unfounded. It stresses that since the complainant is no longer in active
employment at Eurocontrol he cannot be appointed to a position in
Eurocontrol.
CONSIDERATIONS
1.
The proceedings, which have culminated in the present
complaint, were formally initiated by two correspondences, each dated
Judgment No. 3663
5
17 April 2012, which the complainant addressed to the Director ...
- ... took place was provided, and consequently no further
investigation was warranted. The complainant indicates in his rejoinder
that he was made aware of the letter of 16 July 2013 for the first time
when it was forwarded to him with Eurocontrol's reply before the
Tribunal. He adds that he claims costs.
Eurocontrol asks the Tribunal to dismiss the complaint as irreceivable
and unfounded. It stresses that since the complainant is no longer in active
employment at Eurocontrol he cannot be appointed to a position in
Eurocontrol.
CONSIDERATIONS
1.
The proceedings, which have culminated in the present
complaint, were formally initiated by two correspondences, each dated
Judgment No. 3663
5
17 April 2012, which the complainant addressed to the Director General.
In those correspondences he complained about having been reassigned
in March 2010 and March 2011, and that his performance appraisals
for 2010 and ...
- ...
investigation was warranted. The complainant indicates in his rejoinder
that he was made aware of the letter of 16 July 2013 for the first time
when it was forwarded to him with Eurocontrol's reply before the
Tribunal. He adds that he claims costs.
Eurocontrol asks the Tribunal to dismiss the complaint as irreceivable
and unfounded. It stresses that since the complainant is no longer in active
employment at Eurocontrol he cannot be appointed to a position in
Eurocontrol.
CONSIDERATIONS
1.
The proceedings, which have culminated in the present
complaint, were formally initiated by two correspondences, each dated
Judgment No. 3663
5
17 April 2012, which the complainant addressed to the Director General.
In those correspondences he complained about having been reassigned
in March 2010 and March 2011, and that his performance appraisals
for 2010 and 2011 had not been done; that he had not been given "a ...
- ... most distressing and painful" and
that he had felt discriminated against for a very long time as he had not
been given the same opportunities as other staff members. The latter is
essentially a complaint of harassment.
2.
The complainant contested the 2010 and 2011 reassignments
and requested justification for them. He also requested that he be appointed
to a post commensurate with his qualifications "and corresponding to [his]
recruitment and employment at EUROCONTROL, i.e. to a post and job
in or above [his] grade and within [his] areas of professional competencies
and/or specialities". He also requested that he be permitted to fill the
post for two consecutive years before he would leave the employment
of Eurocontrol under the early termination of service scheme (ETS).
3.
It is observed that the complainant had applied for early
termination in September 2010 under the ETS. This scheme was intended
to reduce the staff complement ...
- ... the 2010 and 2011 reassignments
and requested justification for them. He also requested that he be appointed
to a post commensurate with his qualifications "and corresponding to [his]
recruitment and employment at EUROCONTROL, i.e. to a post and job
in or above [his] grade and within [his] areas of professional competencies
and/or specialities". He also requested that he be permitted to fill the
post for two consecutive years before he would leave the employment
of Eurocontrol under the early termination of service scheme (ETS).
3.
It is observed that the complainant had applied for early
termination in September 2010 under the ETS. This scheme was intended
to reduce the staff complement of Eurocontrol and was open to staff
members who were 55 years old and over during the period 1 January 2011
to 31 December 2012. His request was granted with effect from
1 January 2013 at which time he left the employment of Eurocontrol.
Under the ETS, ...
- ... post and job
in or above [his] grade and within [his] areas of professional competencies
and/or specialities". He also requested that he be permitted to fill the
post for two consecutive years before he would leave the employment
of Eurocontrol under the early termination of service scheme (ETS).
3.
It is observed that the complainant had applied for early
termination in September 2010 under the ETS. This scheme was intended
to reduce the staff complement of Eurocontrol and was open to staff
members who were 55 years old and over during the period 1 January 2011
to 31 December 2012. His request was granted with effect from
1 January 2013 at which time he left the employment of Eurocontrol.
Under the ETS, he then became entitled to a transitional monthly
allowance equal to about 70 per cent of his final basic salary calculated
in accordance with the applicable Staff Regulations.
4.
In one of his correspondences of 17 April 2012, ...
- ...
of Eurocontrol under the early termination of service scheme (ETS).
3.
It is observed that the complainant had applied for early
termination in September 2010 under the ETS. This scheme was intended
to reduce the staff complement of Eurocontrol and was open to staff
members who were 55 years old and over during the period 1 January 2011
to 31 December 2012. His request was granted with effect from
1 January 2013 at which time he left the employment of Eurocontrol.
Under the ETS, he then became entitled to a transitional monthly
allowance equal to about 70 per cent of his final basic salary calculated
in accordance with the applicable Staff Regulations.
4.
In one of his correspondences of 17 April 2012, the complainant
also requested compensation for mental suffering "for the distress and
damage caused to [him] for being totally sidelined
and non-active from
[the] Agency ['s] activities […] and for not having [been] ...
- ...
damage caused to [him] for being totally sidelined
and non-active from
[the] Agency ['s] activities […] and for not having [been] given […]
the same opportunities [for] promotion as other staff". In the other
correspondence, the complainant referred to the foregoing matters and
Judgment No. 3663
6
further stated that he had "also been subjected to a number of other
decisions that ha[d] been to [his] detriment throughout [his] time at
EUROCONTROL". He requested the initiation of an investigation
concerning the infringement of his dignity under the scope of Eurocontrol's
Policy on Protecting the Dignity of Staff.
5.
On 11 September 2012 the Director General rejected
all of the
foregoing claims as unfounded and informed the complainant that while
Eurocontrol was not obliged to prepare him for prospective
employment when he took up ETS, it continued to seek tasks and
activities in which he could be meaningfully ...
- ... having [been] given […]
the same opportunities [for] promotion as other staff". In the other
correspondence, the complainant referred to the foregoing matters and
Judgment No. 3663
6
further stated that he had "also been subjected to a number of other
decisions that ha[d] been to [his] detriment throughout [his] time at
EUROCONTROL". He requested the initiation of an investigation
concerning the infringement of his dignity under the scope of Eurocontrol's
Policy on Protecting the Dignity of Staff.
5.
On 11 September 2012 the Director General rejected
all of the
foregoing claims as unfounded and informed the complainant that while
Eurocontrol was not obliged to prepare him for prospective
employment when he took up ETS, it continued to seek tasks and
activities in which he could be meaningfully engaged and that he was
not entitled to compensation as he had not been deprived of
opportunities by Eurocontrol. ...
- ...
further stated that he had "also been subjected to a number of other
decisions that ha[d] been to [his] detriment throughout [his] time at
EUROCONTROL". He requested the initiation of an investigation
concerning the infringement of his dignity under the scope of Eurocontrol's
Policy on Protecting the Dignity of Staff.
5.
On 11 September 2012 the Director General rejected
all of the
foregoing claims as unfounded and informed the complainant that while
Eurocontrol was not obliged to prepare him for prospective
employment when he took up ETS, it continued to seek tasks and
activities in which he could be meaningfully engaged and that he was
not entitled to compensation as he had not been deprived of
opportunities by Eurocontrol. On 10 December 2012, the complainant
submitted an internal complaint against this decision, which was sent to
the Joint Committee for Disputes (JCD). On 9 July 2013, he filed the
present complaint contesting ...
- ...
Policy on Protecting the Dignity of Staff.
5.
On 11 September 2012 the Director General rejected
all of the
foregoing claims as unfounded and informed the complainant that while
Eurocontrol was not obliged to prepare him for prospective
employment when he took up ETS, it continued to seek tasks and
activities in which he could be meaningfully engaged and that he was
not entitled to compensation as he had not been deprived of
opportunities by Eurocontrol. On 10 December 2012, the complainant
submitted an internal complaint against this decision, which was sent to
the Joint Committee for Disputes (JCD). On 9 July 2013, he filed the
present complaint contesting the decision of 11 September 2012 with
the Tribunal. At that time he had not received a decision on his internal
appeal from the Director General. His complaint therefore purports to
be an appeal against the implied rejection of his internal complaint.
It is however ...
- ... The Director
General did so in a letter dated 16 July 2013, seven days after the
present complaint was filed in the Tribunal. The issue whether these
two documents are admissible in the Tribunal's proceedings will be
considered later in this Judgment.
6.
The relief claimed in the present complaint may conveniently
be summarized as follows:
(1) That the complainant be appointed to a post and a job
commensurate with his recruitment and employment with
Eurocontrol, or, alternatively, that he be appointed to such a
post "in or above [his] grade and within [his] areas of professional
competencies and/or specialities";
Judgment No. 3663
7
(2) That the complainant be fully employed at Eurocontrol until
he is sixty years of age, or, alternatively, be allowed to be in
a post referred to in (1) above for at least two consecutive
years before he left on ETS;
(3) That he be given real justification for his reassignments ...
- ... relief claimed in the present complaint may conveniently
be summarized as follows:
(1) That the complainant be appointed to a post and a job
commensurate with his recruitment and employment with
Eurocontrol, or, alternatively, that he be appointed to such a
post "in or above [his] grade and within [his] areas of professional
competencies and/or specialities";
Judgment No. 3663
7
(2) That the complainant be fully employed at Eurocontrol until
he is sixty years of age, or, alternatively, be allowed to be in
a post referred to in (1) above for at least two consecutive
years before he left on ETS;
(3) That he be given real justification for his reassignments on
1 March 2010 and 1 March 2011;
(4) That, pursuant to the Policy for Protecting the Dignity of Staff
at Eurocontrol, an independent investigation be conducted into
his claim that his dignity was and had been infringed and
abused for a long ...
- ... and/or specialities";
Judgment No. 3663
7
(2) That the complainant be fully employed at Eurocontrol until
he is sixty years of age, or, alternatively, be allowed to be in
a post referred to in (1) above for at least two consecutive
years before he left on ETS;
(3) That he be given real justification for his reassignments on
1 March 2010 and 1 March 2011;
(4) That, pursuant to the Policy for Protecting the Dignity of Staff
at Eurocontrol, an independent investigation be conducted into
his claim that his dignity was and had been infringed and
abused for a long time at Eurocontrol by the Principal Director
of Resources;
(5) That he be awarded compensation for:
(a) "psychological distress, reputational damages, bullying
and pain caused to [him] for having been totally isolated,
sidelined and left professionally non-active in
EUROCONTROL since [1 March 2011]";
(b) not having been given the same professional ...
- ... is sixty years of age, or, alternatively, be allowed to be in
a post referred to in (1) above for at least two consecutive
years before he left on ETS;
(3) That he be given real justification for his reassignments on
1 March 2010 and 1 March 2011;
(4) That, pursuant to the Policy for Protecting the Dignity of Staff
at Eurocontrol, an independent investigation be conducted into
his claim that his dignity was and had been infringed and
abused for a long time at Eurocontrol by the Principal Director
of Resources;
(5) That he be awarded compensation for:
(a) "psychological distress, reputational damages, bullying
and pain caused to [him] for having been totally isolated,
sidelined and left professionally non-active in
EUROCONTROL since [1 March 2011]";
(b) not having been given the same professional opportunities
as other staff members at Eurocontrol "for many years",
including professional development, performance
appraisals ...
- ... to the Policy for Protecting the Dignity of Staff
at Eurocontrol, an independent investigation be conducted into
his claim that his dignity was and had been infringed and
abused for a long time at Eurocontrol by the Principal Director
of Resources;
(5) That he be awarded compensation for:
(a) "psychological distress, reputational damages, bullying
and pain caused to [him] for having been totally isolated,
sidelined and left professionally non-active in
EUROCONTROL since [1 March 2011]";
(b) not having been given the same professional opportunities
as other staff members at Eurocontrol "for many years",
including professional development, performance
appraisals and hence promotion;
(c) or alternatively, compensation for the detrimental effect
upon his future opportunities of employment and earnings
as a result of having been totally isolated, side-lined
and left professionally non-active in Eurocontrol since
1 March 2011. ...
- ... claim that his dignity was and had been infringed and
abused for a long time at Eurocontrol by the Principal Director
of Resources;
(5) That he be awarded compensation for:
(a) "psychological distress, reputational damages, bullying
and pain caused to [him] for having been totally isolated,
sidelined and left professionally non-active in
EUROCONTROL since [1 March 2011]";
(b) not having been given the same professional opportunities
as other staff members at Eurocontrol "for many years",
including professional development, performance
appraisals and hence promotion;
(c) or alternatively, compensation for the detrimental effect
upon his future opportunities of employment and earnings
as a result of having been totally isolated, side-lined
and left professionally non-active in Eurocontrol since
1 March 2011.
7.
Eurocontrol raises receivability as a threshold issue, asserting
that the complainant's claims are either time-barred, ...
- ... non-active in
EUROCONTROL since [1 March 2011]";
(b) not having been given the same professional opportunities
as other staff members at Eurocontrol "for many years",
including professional development, performance
appraisals and hence promotion;
(c) or alternatively, compensation for the detrimental effect
upon his future opportunities of employment and earnings
as a result of having been totally isolated, side-lined
and left professionally non-active in Eurocontrol since
1 March 2011.
7.
Eurocontrol raises receivability as a threshold issue, asserting
that the complainant's claims are either time-barred, or without object,
or that the complainant has not exhausted internal remedies. The basic
consideration for determining receivability was stated as follows in
Judgment 3406, under 12 and 13:
"12. As the Tribunal has repeatedly stated, for example in Judgments 602,
1106, 1466, 2722 and 2821, time limits are an objective ...
- ...
(b) not having been given the same professional opportunities
as other staff members at Eurocontrol "for many years",
including professional development, performance
appraisals and hence promotion;
(c) or alternatively, compensation for the detrimental effect
upon his future opportunities of employment and earnings
as a result of having been totally isolated, side-lined
and left professionally non-active in Eurocontrol since
1 March 2011.
7.
Eurocontrol raises receivability as a threshold issue, asserting
that the complainant's claims are either time-barred, or without object,
or that the complainant has not exhausted internal remedies. The basic
consideration for determining receivability was stated as follows in
Judgment 3406, under 12 and 13:
"12. As the Tribunal has repeatedly stated, for example in Judgments 602,
1106, 1466, 2722 and 2821, time limits are an objective matter of fact and it should
not rule on the ...
- ... complainant's request for ETS was granted
with effect from 1 January 2013, the remedies which he seeks as set out
as items (1) and (2) of consideration 6 of this Judgment will be
dismissed as the claims he makes in that respect were without object
when he filed the present complaint on 9 July 2013. This is because
those claims are incompatible with the option which the complainant
exercised to take the ETS package thereby having voluntarily left the
employment of Eurocontrol. Those claims will accordingly be
dismissed.
12.
The issue that remains for determination is whether the
Tribunal should order an investigation into the complainant's claims that
he suffered infringement of his dignity, psychological distress, damage
Judgment No. 3663
10
to his reputation, denial of the same professional opportunities as were
given to other staff members, and detrimental effects upon his future
opportunities of employment ...
- ...
internal complaint, as well as the decision of 16 July 2013, by which
the Director General accepted its recommendations should not be used
or be referred to in the present proceedings. This, according to the
complainant, is because he was not aware that the JCD had met to
consider his internal complaint and he was therefore not there to present
his case. He states, in the second place, that he had not seen a copy of
the opinion or the letter until he received Eurocontrol's reply in the
present proceedings. In response, Eurocontrol states that the documents
were posted to the complainant by ordinary mail. The complainant
however, insists that, pursuant to Article 26 of the Staff Regulations,
Eurocontrol was required to send them to him by registered post or
should show evidence that he received them by his signature. To support
this argument, the complainant quotes Article 26 of the Staff Regulations
as relevantly stating as follows:
"The ...
- ... 2013, by which
the Director General accepted its recommendations should not be used
or be referred to in the present proceedings. This, according to the
complainant, is because he was not aware that the JCD had met to
consider his internal complaint and he was therefore not there to present
his case. He states, in the second place, that he had not seen a copy of
the opinion or the letter until he received Eurocontrol's reply in the
present proceedings. In response, Eurocontrol states that the documents
were posted to the complainant by ordinary mail. The complainant
however, insists that, pursuant to Article 26 of the Staff Regulations,
Eurocontrol was required to send them to him by registered post or
should show evidence that he received them by his signature. To support
this argument, the complainant quotes Article 26 of the Staff Regulations
as relevantly stating as follows:
"The personal file of an official shall contain:
(a) all documents ...
- ... he was not aware that the JCD had met to
consider his internal complaint and he was therefore not there to present
his case. He states, in the second place, that he had not seen a copy of
the opinion or the letter until he received Eurocontrol's reply in the
present proceedings. In response, Eurocontrol states that the documents
were posted to the complainant by ordinary mail. The complainant
however, insists that, pursuant to Article 26 of the Staff Regulations,
Eurocontrol was required to send them to him by registered post or
should show evidence that he received them by his signature. To support
this argument, the complainant quotes Article 26 of the Staff Regulations
as relevantly stating as follows:
"The personal file of an official shall contain:
(a) all documents concerning his administrative status and all reports
relating to his ability, efficiency and conduct;
(b) any comments by the official on such documents.
Documents shall ...
- ... under 9).
15.
The complainant provides no evidence to support his claims that
he was denied the same professional opportunities that were given to other
staff members and for detrimental effects upon his future employment
opportunities and earning. These claims are therefore unfounded and will
accordingly be dismissed.
16.
As to the complainant's request that the Tribunal should order
an investigation into what is essentially his harassment claim, Eurocontrol's
Policy on Protecting the Dignity of staff requires
victims of harassment in
the workplace to raise their complaints promptly. The Policy came into
effect on 1 July 1998. The complainant raised his harassment claim in one
of his letters of 12 April 2012 to the Director General. In an internal
memorandum dated 11 September 2012, the Director General dismissed
this claim "based on the evidence received" as "ent irely unfounded".
17.
Under Article 4.7 of the ...
- Judgment 3662
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his transfer to another post.
- ... Eurocontrol
122nd Session Judgment No. 3662
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr N. F. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
25 November 2013, Eurocontrol's reply of 14 March 2014, the
complainant's rejoinder of 18 April and Eurocontrol's surrejoinder of
25 July 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
F.
v.
Eurocontrol
122nd Session Judgment No. 3662
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr N. F. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
25 November 2013, Eurocontrol's reply of 14 March 2014, the
complainant's rejoinder of 18 April and Eurocontrol's surrejoinder of
25 July 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges his transfer to another post.
At ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
F.
v.
Eurocontrol
122nd Session Judgment No. 3662
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr N. F. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
25 November 2013, Eurocontrol's reply of 14 March 2014, the
complainant's rejoinder of 18 April and Eurocontrol's surrejoinder of
25 July 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges his transfer to another post.
At the material time, the complainant was ...
- ... Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
F.
v.
Eurocontrol
122nd Session Judgment No. 3662
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Mr N. F. against the European
Organisation for the Safety of Air Navigation (Eurocontrol) on
25 November 2013, Eurocontrol's reply of 14 March 2014, the
complainant's rejoinder of 18 April and Eurocontrol's surrejoinder of
25 July 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant challenges his transfer to another post.
At the material time, the complainant was assigned to the generic
post of Advanced Technician, at grade AST4, in the Information ...
- ... of his possible transfer to the Centre Services
of the above-mentioned division in order to replace an official who
had died. The head of this division officially requested his transfer by a
memorandum of 29 May.
Judgment No. 3662
2
The complainant was informed by a decision of 11 June 2013 that
he had been transferred to the Centre Services as of 1 June 2013, under
Article 7 of the General Conditions of Employment Governing Servants
at the Eurocontrol Maastricht Centre, according to which the Director
General has the authority to transfer a servant, solely in the interest of
the service, to a post in his function group corresponding to his grade.
It was made clear that
the complainant
would retain his generic post,
as
well as his grade and step.
On 12 July 2013 the complainant lodged an internal complaint
requesting a review of this decision. He expressed his surprise at the
fact
that he still had to ...
- ...
in question.
On 25 November 2013 he filed a complaint with the Tribunal in
which he impugned the implied decision
to dismiss this internal complaint
and sought the setting aside of the decision of 11 June 2013, his
reinstatement in the duties he had been performing before 1 June 2013,
compensation in the amount of 3,000 euros and 3,000 euros in costs.
On 1 February 2014 he was
assigned to the Centre Services on a full-time
basis.
In its reply, Eurocontrol submits that the complaint should be
dismissed as groundless. It informs the Tribunal that the Joint Committee
for Disputes delivered its opinion on 20 December 2013. Two of its
members considered that the internal complaint was well founded. In
their view, Eurocontrol should have filled the post which had become
vacant by holding a competition in accordance with Article 30 of
the General Conditions of Employment, and not by transferring the
complainant against his will. ...
- ... performing before 1 June 2013,
compensation in the amount of 3,000 euros and 3,000 euros in costs.
On 1 February 2014 he was
assigned to the Centre Services on a full-time
basis.
In its reply, Eurocontrol submits that the complaint should be
dismissed as groundless. It informs the Tribunal that the Joint Committee
for Disputes delivered its opinion on 20 December 2013. Two of its
members considered that the internal complaint was well founded. In
their view, Eurocontrol should have filled the post which had become
vacant by holding a competition in accordance with Article 30 of
the General Conditions of Employment, and not by transferring the
complainant against his will. The other two members recommended
that the internal complaint should be dismissed on the grounds that the
complainant's transfer was consistent with the aforementioned Article 7.
Eurocontrol adds that on 11 March 2014 the Principal Director of
Resources, acting on the ...
- ... considered that the internal complaint was well founded. In
their view, Eurocontrol should have filled the post which had become
vacant by holding a competition in accordance with Article 30 of
the General Conditions of Employment, and not by transferring the
complainant against his will. The other two members recommended
that the internal complaint should be dismissed on the grounds that the
complainant's transfer was consistent with the aforementioned Article 7.
Eurocontrol adds that on 11 March 2014 the Principal Director of
Resources, acting on the delegated authority of the Director General,
notified the complainant that he had decided to dismiss his internal
complaint as unfounded, in accordance with the recommendation given
by the latter two members of the Committee.
Judgment No. 3662
3
In his rejoinder the complainant presses his claims.
In its surrejoinder Eurocontrol maintains its position.
CONSIDERATIONS ...
- ... the aforementioned Article 7.
Eurocontrol adds that on 11 March 2014 the Principal Director of
Resources, acting on the delegated authority of the Director General,
notified the complainant that he had decided to dismiss his internal
complaint as unfounded, in accordance with the recommendation given
by the latter two members of the Committee.
Judgment No. 3662
3
In his rejoinder the complainant presses his claims.
In its surrejoinder Eurocontrol maintains its position.
CONSIDERATIONS
1.
The complaint, which was initially directed against an implied
decision dismissing the complainant's internal complaint, must be deemed
to impugn the
explicit decision
taken
on 11 March 2014, while proceedings
were under way before the Tribunal, by which the Director General
confirmed the decision of 11 June 2013 transferring the complainant as
of 1 June.
2.
The complainant first submits that insufficient ...
- ... decision
taken
on 11 March 2014, while proceedings
were under way before the Tribunal, by which the Director General
confirmed the decision of 11 June 2013 transferring the complainant as
of 1 June.
2.
The complainant first submits that insufficient reasons were
given for the transfer decision to which he objects, in that it merely
referred to Article 7 of the General Conditions of Employment. He adds
that his transfer was decided unilaterally by Eurocontrol in breach of
his right to be heard. He contends that the fact that this decision provided
no information about the nature of his new job was a breach of the
principle of good faith and that it also breached the rule against
retroactivity, since he was notified of it on 11 June 2013, whereas it had
taken effect on 1 June 2013.
3.
The second paragraph of Article 25 of the General Conditions
of Employment
provides
that any decision relating to a specific individual ...
- ... whereas it had
taken effect on 1 June 2013.
3.
The second paragraph of Article 25 of the General Conditions
of Employment
provides
that any decision relating to a specific individual
which is taken under the Conditions of Employment shall at once be
communicated
in writing to the servant concerned and that any decision
adversely affecting a servant shall state the grounds on which
it is based.
On the other hand, this provision does not require Eurocontrol to indicate
the reasons in the decision itself as notified to the official.
As the Tribunal has consistently held, the reasons for any decision
having an adverse effect, such as a transfer decision, must be stated.
The reasons may be contained in the notice given to the official of
the decision or in some other document. The Tribunal also accepts that
the reasons may be provided in prior proceedings, or orally, or may be
Judgment No. 3662
4
conveyed ...
- ... at first glance,
appear insufficient to inform
the complainant of the grounds for this decision.
5.
This is not the case, however, if one examines the context in
which the transfer occurred.
A meeting was organised on 7 May 2013 between the complainant
and his immediate superiors, and two other meetings of the same kind
were held on 28 May and 10 June before his transfer. During these
meetings, the complainant was informed in detail of the reasons why
Eurocontrol was planning to transfer him to another unit and various
arrangements were suggested to him. The complainant immediately
questioned the need for this measure and asserted that the post to which
he was to be transferred was not at the same level as that which he was
holding, a view which he reiterates in his complaint. At the meeting
on 10 June 2013, in other words the day before that on which he was
notified in writing of the transfer decision, the complainant was informed ...
- ... full knowledge of the facts before the decision of 11 June 2013. That
decision therefore satisfied the requirements of the Tribunal's case law
regarding the need to provide reasons (see Judgments 1817, under 6, 2391,
under 7, or 2850, under 8).
In view of the circumstances surrounding the above-mentioned
facts, there can be no question of any breach of the right to be heard or
of the principle of good faith.
6.
The complainant also objects to the fact that Eurocontrol
effected his transfer under what he regards as the exceptional procedure
set forth in Article 7 of the General Conditions of Employment, whereas
under the "general rule" laid down in Article 30 of these General
Conditions, the post to which he was transferred should have been filled
by means of a competition. He submits that the Organisation thus
breached the principle of tu patere legem quam ipse fecisti.
This plea, which
reflects
the opinion expressed by two ...
- ... for Disputes, is devoid of merit. Indeed, it is clear
from the submissions in the file and from the facts recalled above that
the disputed transfer occurred because of a redistribution of tasks entailing
a partial redeployment of staff. Even if the transfer procedure provided
for in the above-mentioned Article 7 of the General Conditions were to
be regarded as exceptional in nature, as the complainant alleges, it must
be found that, in the circumstances of the case, Eurocontrol was in a
situation permitting it to
resort to a
transfer without competition in order
to avoid an unduly complicated procedure and not to jeopardise the
redeployment that had been decided in the interest of the service (see
Judgment 1757, under 11).
Judgment No. 3662
6
7.
Lastly, the complainant
contends that Eurocontrol undermined
his dignity and
deprived
him of any prospect of career advancement. In
his view, his ...
- ... in nature, as the complainant alleges, it must
be found that, in the circumstances of the case, Eurocontrol was in a
situation permitting it to
resort to a
transfer without competition in order
to avoid an unduly complicated procedure and not to jeopardise the
redeployment that had been decided in the interest of the service (see
Judgment 1757, under 11).
Judgment No. 3662
6
7.
Lastly, the complainant
contends that Eurocontrol undermined
his dignity and
deprived
him of any prospect of career advancement. In
his view, his transfer was really "a demotion" because the new duties
assigned to him were not at the same level as his previous tasks, even
though his grade and remuneration remained unchanged.
8.
It must be first be noted that there is nothing in the file to
indicate that the disputed transfer was a disguised disciplinary measure.
It was decided in pursuance of the above-mentioned ...
- ... affecting an official's
status. In order to respect the official's dignity, it is not enough for the
person concerned to retain her or his grade and remuneration; care must
also be taken to ensure that the new post provides her or him with work
of the same level as that which she or he performed in her or his
previous post and matching her or his qualifications (see, in particular,
Judgment 2856, under 10).
10.
In its submissions before the Tribunal,
Eurocontrol has produced
the job descriptions of the complainant's former post, his new post and
a post of engineer to which he aspired and to which he says he can no
longer accede owing to his transfer.
It is plain from these documents and Eurocontrol's explanations
that in his new post the complainant has
not only
retained the grade and
salary which would have been his if he had kept his previous job, but
his duties are similar to those he performed in his former post. ...
- ... work
of the same level as that which she or he performed in her or his
previous post and matching her or his qualifications (see, in particular,
Judgment 2856, under 10).
10.
In its submissions before the Tribunal,
Eurocontrol has produced
the job descriptions of the complainant's former post, his new post and
a post of engineer to which he aspired and to which he says he can no
longer accede owing to his transfer.
It is plain from these documents and Eurocontrol's explanations
that in his new post the complainant has
not only
retained the grade and
salary which would have been his if he had kept his previous job, but
his duties are similar to those he performed in his former post. These
duties remain those of an Advanced Technician comprising the tasks
of planning, coordination and maintenance which, though sectoral, are
nevertheless important, with the same range of responsibilities.
Judgment No. 3662
7 ...
- Judgment 3661
122nd Session, 2016
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of the transitional allowance paid to her following her admission to the early termination of service scheme.
- ... Eurocontrol
122nd Session Judgment No. 3661
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms M. D.-T. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
16 October 2013, Eurocontrol's reply of 17 January 2014, corrected on
27 January, the complainant's rejoinder of 30 April and Eurocontrol's
surrejoinder of 8 August 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined ...
- ... du Travail
Organisation internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
D.-T.
v.
Eurocontrol
122nd Session Judgment No. 3661
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms M. D.-T. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
16 October 2013, Eurocontrol's reply of 17 January 2014, corrected on
27 January, the complainant's rejoinder of 30 April and Eurocontrol's
surrejoinder of 8 August 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant
challenges
the ...
- ... internationale du Travail International Labour Organization
Tribunal administratif Administrative Tribunal
Registry's translation,
the French text alone
being authoritative.
D.-T.
v.
Eurocontrol
122nd Session Judgment No. 3661
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms M. D.-T. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
16 October 2013, Eurocontrol's reply of 17 January 2014, corrected on
27 January, the complainant's rejoinder of 30 April and Eurocontrol's
surrejoinder of 8 August 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant
challenges
the amount of the transitional allowance ...
- ... translation,
the French text alone
being authoritative.
D.-T.
v.
Eurocontrol
122nd Session Judgment No. 3661
T
HE
A
DMINISTRATIVE
T
RIBUNAL
,
Considering the complaint filed by Ms M. D.-T. against the
European Organisation for the Safety of Air Navigation (Eurocontrol) on
16 October 2013, Eurocontrol's reply of 17 January 2014, corrected on
27 January, the complainant's rejoinder of 30 April and Eurocontrol's
surrejoinder of 8 August 2014;
Considering Article II, paragraph 5, of the Statute of the Tribunal;
Having examined the written submissions and decided not to hold
oral proceedings, for which neither party has applied;
Considering that the facts of the case may be summed up as follows:
The complainant
challenges
the amount of the transitional allowance
paid to her following her admission to the early termination of service
(ETS) scheme.
At the material ...
- ... of the case may be summed up as follows:
The complainant
challenges
the amount of the transitional allowance
paid to her following her admission to the early termination of service
(ETS) scheme.
At the material time, the complainant,
as a member of the operational
staff of the Centre Flow Management Unit (CFMU), received a functional
allowance (hereinafter "the ATFCM allowance") under Article 69b(2)
of the Staff Regulations governing officials of the
Eurocontrol Agency.
By Office Notice No. 22/10 of 22 June 2010, the Director General
informed Eurocontrol staff of the introduction of the ETS scheme and
the entry into force on the same date of Annex XVI to the Staff Rules,
containing temporary provisions relating to the ETS. Under Article 4 of
Judgment No. 3661
2
that annex, an official who was admitted to the ETS scheme
would stop
work, would cease to enjoy rights to remuneration and would instead
be ...
- ... allowance
paid to her following her admission to the early termination of service
(ETS) scheme.
At the material time, the complainant,
as a member of the operational
staff of the Centre Flow Management Unit (CFMU), received a functional
allowance (hereinafter "the ATFCM allowance") under Article 69b(2)
of the Staff Regulations governing officials of the
Eurocontrol Agency.
By Office Notice No. 22/10 of 22 June 2010, the Director General
informed Eurocontrol staff of the introduction of the ETS scheme and
the entry into force on the same date of Annex XVI to the Staff Rules,
containing temporary provisions relating to the ETS. Under Article 4 of
Judgment No. 3661
2
that annex, an official who was admitted to the ETS scheme
would stop
work, would cease to enjoy rights to remuneration and would instead
be paid a transitional allowance which, in accordance with Article 1(1)
of the appendix to the annex, ...
- ... State had objected to this. On 16 July 2013 the Principal
Director of Resources, acting on behalf of the Director General, notified
the complainant that he had decided to follow the recommendation of
the latter two members of the Committee and to dismiss her internal
complaint.
That is the impugned decision.
The complainant asks the Tribunal to set aside the decision of
16 July 2013 and her payslips for July 2012 and the following months.
She also asks that Eurocontrol be ordered, as from 1 July 2012, to
include
the ATFCM in the calculation of her transitional allowance and to pay
her the sum thus due together with interest at 8 per cent per annum. She
also claims 5,000 euros in costs.
Eurocontrol submits that the complaint should be dismissed as
irreceivable since, by signing the internal memorandum of 13 October
2010, the complainant renounced any right of appeal against the decision
not to include the ATFCM allowance in the calculation ...
- ... and to dismiss her internal
complaint.
That is the impugned decision.
The complainant asks the Tribunal to set aside the decision of
16 July 2013 and her payslips for July 2012 and the following months.
She also asks that Eurocontrol be ordered, as from 1 July 2012, to
include
the ATFCM in the calculation of her transitional allowance and to pay
her the sum thus due together with interest at 8 per cent per annum. She
also claims 5,000 euros in costs.
Eurocontrol submits that the complaint should be dismissed as
irreceivable since, by signing the internal memorandum of 13 October
2010, the complainant renounced any right of appeal against the decision
not to include the ATFCM allowance in the calculation of her
transitional
allowance. Subsidiarily, it submits that the complaint is groundless.
CONSIDERATIONS
1.
The complainant, by signing the internal memorandum of
13 October 2010 on 14 October 2010, undertook not to ...
- ... submits that the complaint is groundless.
CONSIDERATIONS
1.
The complainant, by signing the internal memorandum of
13 October 2010 on 14 October 2010, undertook not to bring any appeal
proceedings challenging the fact that
the
ATFCM allowance which she
was receiving under Article 69b(2) of the Staff Regulations would not
be included in the determination of her transitional allowance in the
event that she was admitted to the ETS scheme.
2.
Eurocontrol submits that the complaint is irreceivable since,
by signing the above-mentioned memorandum, the complainant
waived
her right of appeal. The complainant considers that her complaint is
receivable. In particular, she contends that had she not forgone the
inclusion of the ATFCM allowance
in the calculation of her transitional
allowance, she would never have been admitted to the ETS scheme.
Thus she "had no other choice but to sign [this] memo[randum]" and
she was ...
- ... memo[randum]" and
she was therefore "forced" to do so.
Judgment No. 3661
4
3.
In view of the serious disadvantages that the complainant
would have suffered in this case had she renounced the possibility of
admission to the ETS scheme, she cannot be deemed to have freely
consented to sign the aforementioned memorandum of 13 October
2010. She is therefore right in saying that it was under duress that
she gave an undertaking to Eurocontrol to accept the exclusion of the
ATFCM allowance from the calculation of her transitional allowance
and not to impugn this measure before the Tribunal.
The Tribunal will therefore ignore this undertaking, which must
be considered null and void, without there being any need to examine
whether the request that the complainant sign it was lawful, having
regard to the Organisation's duty to abide by the
regulatory
texts which
it has itself laid down, in accordance ...
- ... sums thus paid to the
complainant
shall bear interest at the rate of 5 per cent per annum from
due dates until the date of payment.
9.
The Organisation will have to draw up and send to the
complainant new payslips including the ATFCM allowance.
10.
As the complainant succeeds, she is entitled to costs, which
the Tribunal sets at 3,000 euros.
DECISION
For the above reasons,
1.
The decision of 16 July 2013 is set aside.
2.
Eurocontrol shall pay the complainant, as an addition to her
transitional allowance, the sums and interest
calculated as indicated
in consideration 8, above.
3.
The Organisation shall draw up and send to the complainant new
payslips including the ATFCM allowance.
4.
The Organisation shall pay the complainant costs in the amount of
3,000 euros.
Judgment No. 3661
6
In witness of this judgment, adopted on 29 April 2016, Mr Claude
Rouiller, ...
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