Acquired right (182,-666)
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Keywords: Acquired right
Total judgments found: 119
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Judgment 4073
127th Session, 2019
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the reduction of the rate of the expatriate premium paid to her.
Judgment keywords
Keywords:
acquired right; allowance; complaint dismissed;
Judgment 4028
126th Session, 2018
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge Service Order No.14/10 changing the health insurance scheme at the ITU, as well as individual decisions implementing that service order.
Consideration 13
Extract:
As the Tribunal found in Judgment 3909, under 12, international organisations’ staff members are not entitled to have all the conditions of employment or retirement laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career and retirement. Most of those conditions can be altered during or after an employment relationship as a result of amendments to those provisions (see also Judgment 3876, under 7).
The Tribunal has consistently held that the position is of course different if, having regard to the nature and importance of the provision in question, the complainant has an acquired right to its continued application. However, the amendment of a provision governing an official’s situation to her or his detriment constitutes a breach of an acquired right only when such an amendment adversely affects the balance of contractual obligations, or alters fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced her or him to stay on. In order for there to be a breach of an acquired right, the amendment to the applicable text must therefore relate to a fundamental and essential term of employment within the meaning of Judgment 832 (see, for example, Judgments 2089, 2682, 2986, 3135 and 3909 cited above).
In this case, the Tribunal finds that the change to another health insurance scheme does not affect the staff’s actual right to membership of a social security scheme, but concerns solely the terms and conditions for giving effect to this right. [...]
The Tribunal considers that, having regard to these factors, the change to another health insurance scheme which is criticised by the complainants does not adversely affect the balance of contractual obligations or alter a fundamental term of employment in consideration of which they accepted an appointment, or which subsequently induced them to stay on. Hence, it cannot be considered as constituting a breach of an acquired right within the meaning of the case law cited above.
Reference(s)
ILOAT Judgment(s): 2089, 2682, 2986, 3135, 3876, 3909, 3909
Keywords:
acquired right;
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.
Consideration 10
Extract:
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 an acquired right (see Judgment 1334, under 23). The cancellation of an unjustified benefit will not therefore be regarded as a breach of an acquired right (see Judgments 1241, under 24, and 1446, under 13 and 14). 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.
Reference(s)
ILOAT Judgment(s): 61, 832, 986, 1241, 1334, 1446, 2696, 3074
Keywords:
acquired right;
Judgment 3944
125th Session, 2018
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him following disciplinary proceedings.
Consideration 6
Extract:
According to the case law established for example in Judgment 61, clarified in Judgment 832 and confirmed in Judgment 986, the amendment of a provision governing an official’s situation to her or his detriment without his or her consent constitutes a breach of an acquired right only when such an amendment adversely affects the balance of contractual obligations, or alters fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced her or him to stay on. In order to decide whether there may have been a breach of an acquired right, it is therefore necessary to determine whether the altered terms of employment are fundamental and essential within the meaning of Judgment 832 (see, for example, Judgment 3571, under 7). In this case, the Tribunal considers that the abolition of the Joint Advisory Committee does not affect a fundamental and essential term of employment. Moreover, it cannot generally be accepted that the rules on disciplinary action are an integral part of the fundamental and essential terms of employment which induce a person to apply for a post or to remain in the international civil service.
Reference(s)
ILOAT Judgment(s): 832, 986, 3571
Keywords:
acquired right; advisory body; disciplinary procedure; discontinuance;
Judgment 3876
124th Session, 2017
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requests the payment, after his death, of a pension for a surviving spouse to his wife and of an orphan’s pension to two children of whom he claims to be the biological father. He also claims allowances for dependent children.
Judgment keywords
Keywords:
acquired right; complaint dismissed; pension;
Consideration 7
Extract:
Regarding the claim relating to the payment of a surviving spouse’s pension, the Tribunal notes that under Article II 5.08 of the Rules of the CERN Pension Fund, “a marriage to a beneficiary of a retirement pension taking place on or after 1 August 2006 shall not give rise to entitlement to a surviving spouse’s pension”. It follows from this provision that the complainant’s marriage on 24 October 2011 did not confer any entitlement to a surviving spouse’s pension.
The complainant contends that this provision, which was adopted in December 2005, does not apply to him as it would breach his acquired rights. The Tribunal draws attention to the fact that international organisations’ staff members do not have any right to have all the conditions of employment or retirement laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career and retirement. Most of those conditions can be altered during or after an employment relationship as a result of amendments to those provisions.
Of course the position is different if, having regard to the nature and importance of the provision in question, the complainant has an acquired right to its continued application. However, according to the case law established for example in Judgment 61, clarified in Judgment 832 and confirmed in Judgment 986, the amendment of a provision governing an official’s situation to her or his detriment constitutes a breach of an acquired right only when such an amendment adversely affects the balance of contractual obligations, or alters fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced her or him to stay on. In order for there to be a breach of an acquired right, the amendment to the applicable text must therefore relate to a fundamental and essential term of employment within the meaning of Judgment 832 (in this connection see also Judgments 2089, 2682, 2986 or 3135).
The possibility for a spouse whom the official has married after his retirement to benefit from a surviving spouse’s pension cannot be viewed as fulfilling that condition, and it is clear that the amendment in this regard did not adversely affect the balance of contractual relations. Nor did it alter fundamental terms of employment in consideration of which the complainant accepted an appointment with the Organization in 1962, or which subsequently induced him to pursue his career there.
It follows from the foregoing that this claim must be dismissed, without there being any need to rule on the merits of the objection to receivability raised by CERN on this point.
Reference(s)
ILOAT Judgment(s): 61, 832, 986, 2089, 2682, 2986, 3135
Keywords:
acquired right; survivor's benefit;
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.
Consideration 8
Extract:
As the Tribunal has consistently held, an administrative authority, when dealing with a claim, must generally base itself on the provisions in force at the time it takes its decision and not on those in force at the time the claim was submitted. Only where this approach is clearly excluded by the new provisions, or where it would result in a breach of the requirements of the principles of good faith, the non-retroactivity of administrative decisions and the protection of acquired rights, will the above rule not apply (see Judgments 2459, under 9, and 2985, under 15).
Reference(s)
ILOAT Judgment(s): 2459, 2985
Keywords:
acquired right; written rule;
Judgment 3676
122nd Session, 2016
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests a modification in the exchange rate averaging methodology for the calculation of his pension contributions.
Consideration 10
Extract:
[A]bsent the amendments recently made to the methodology, ESO is assuming a disproportionately greater burden of satisfying the requirements under the Fund to pay the total contributions payable in relation to the complainant and other staff. This is a legitimate consideration and militates against a conclusion that the alteration of the methodology used involved an alteration of a fundamental term of employment that would be protected by the principle concerning acquired rights.
Keywords:
acquired right; pension adjustment system;
Considerations 7-8
Extract:
The basic principle is that an amendment to an official’s detriment of a provision governing her or his status constitutes a breach of an acquired right only if it adversely affects the balance of contractual obligations by altering fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced her or him to stay on. In the present case the Tribunal accepts that there was an alteration to a term on which the complainant was employed in the sense that the method of calculating his contribution to the pension fund was altered and, at least at the present moment, increased the contribution and, in that regard, it might be said to be an alteration to his detriment. [...]
In Judgment 832, consideration 14, the Tribunal identified three tests to determine whether the altered term is fundamental and essential. The second test was the reason for the change. Importantly, the Tribunal recognised that ordinarily there would be no acquired right when a rule or a clause depends on variables such as the value of currency. So the mere fact that a pension contribution might change because of fluctuations in exchange rates would not engage the protection of the principle concerning acquired rights.
Reference(s)
ILOAT Judgment(s): 832
Keywords:
acquired right; pension adjustment system;
Judgment 3623
121st Session, 2016
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to assign him to non-active status and to replace his invalidity pension by an invalidity allowance.
Consideration 7
Extract:
The main issue raised in this complaint is whether or not the EPO violated an acquired right of the complainant. The Tribunal finds no such violation. A rule which concerns a long-term issue (such as pensions which last the remainder of the employees’ lifetimes) may be modified throughout the years. The changes in circumstances which may require the rule to be amended must be reasonable and the changes have to balance the interests of the employees and the Organisation. The interest of current and future employees who are not currently affected by the rule but shall be in the future is also to be taken into account by the Organisation. The question of the sustainability of pension schemes must be a primary concern to the Organisation and as such may naturally require adjustments to be made to the norm regulating pension schemes over time. This question has already been examined by the Tribunal in relation to the same Administrative Council’s decision CA/D 30/07.
Keywords:
acquired right;
Judgment 3524
120th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-application to her of a rule concerning automatic promotion.
Consideration 3
Extract:
The Tribunal’s case law, as recalled in Judgment 2682, under 6, establishes that “an acquired right is breached only when [...] an amendment adversely affects the balance of contractual obligations by altering fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced him or her to stay on. In order to determine whether there has been a breach of acquired rights, it is therefore necessary to ascertain whether the altered terms of employment are fundamental and essential within the meaning of Judgment 832”. This case law was confirmed in Judgment 3074 (under 15 and 16).
It is well settled that the particular arrangements for the grant of promotion confer no acquired rights, because on recruitment staff cannot foretell how they will fare in their career. An organisation may always change the rules on promotion for the sake of efficiency and so as to cope with changing circumstances. (See Judgment 1025, under 4.)
Reference(s)
ILOAT Judgment(s): 1025, 2682, 3074
Keywords:
acquired right; promotion;
Judgment keywords
Keywords:
acquired right; complaint dismissed; equal treatment; promotion;
Judgment 3375
118th Session, 2014
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant claims, on the basis of an alleged acquired right, the application of the invalidity pension scheme in force prior to his placement on non-active status on grounds of invalidity.
Judgment keywords
Keywords:
acquired right; complaint dismissed; disability benefit;
Judgment 3373
118th Session, 2014
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal stated that the Organisation, after having outsourced a part of the complainant's duties, breached its duty of care because it failed to ensure that the implementation of the arrangement did not place the complainant in financial difficulties.
Consideration 8
Extract:
"According to the consistent case law of the Tribunal, an international organisation “necessarily has power to restructure some or all of its departments or units, including by the abolition of posts […] and the redeployment of staff” (see Judgment 2510, under 10). The concept of redeployment must be understood as including not only the assignment of staff to different posts, but also requiring them to accept a new or different method of organising continuous service. It follows that a particular model of organising a service, such as the one previously in force in this case, cannot constitute an acquired right."
Reference(s)
ILOAT Judgment(s): 2510
Keywords:
acquired right; redeployment; reorganisation;
Judgment 3358
118th Session, 2014
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who has dual nationality, impugns the cessation of the payment of an education allowance on the ground that he was a national of the country in which he served.
Consideration 6
Extract:
"The decision to cease paying the education allowance would be open to criticism only if it had violated acquired rights or a legitimate expectation the complainant might have had that the previous situation would be maintained."
Keywords:
acquired right; legitimate expectation;
Judgment 3256
116th Session, 2014
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the fact that he was not promoted in 2006 in accordance with the "age-50 rule", which had been abolished as from 1 January 2005.
Judgment keywords
Keywords:
acquired right; complaint dismissed; intervention; promotion;
Judgment 3251
116th Session, 2014
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant's request to be included on the list of eligible candidates for personal promotion was dismissed by the Tribunal.
Consideration 5
Extract:
"The Tribunal is of the opinion that the ILO conducted the 2008 personal promotion exercise in accordance with the applicable rules and procedures. The ILO properly applied the new Office Procedure (No. 125, which took effect from 22 October 2009) to the 2008 personal promotion exercise. [...] Considering that the 2008 promotion exercise was launched after Office Procedure No. 125 took effect, the ILO was correct to follow its provisions for the promotion exercise, and not those of Circular No. 334, Series 6, as the complainant suggests. The complainant did not have any acquired right to the 2008 promotion exercise, promotions being considered “an optional and exceptional discretionary measure which is subject to only limited review by the Tribunal” (see Judgments 2668, under 11, 1500, under 4, 1109, under 4, and 1973, under 5)."
Reference(s)
Organization rules reference: Office Procedure No. 125; Circular No. 334, Series 6
ILOAT Judgment(s): 1109, 1500, 1973, 2668
Keywords:
acquired right; condition; discretion; interpretation; judicial review; organisation's duties; personal promotion; provision; staff regulations and rules; written rule;
Judgment 3214
115th Session, 2013
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant unsuccessfully impugns the decision not to extend his appointment beyond retirement age.
Consideration 14
Extract:
"According to the Tribunal’s case law, an administrative authority, when dealing with a claim, must generally base itself on the provisions in force at the time it takes its decision, and not on those in force at the time the claim was submitted. Only where this approach is clearly excluded by the new provisions, or where it would result in a breach of the requirements of good faith, the non-retroactivity of administrative decisions and the protection of acquired rights, will the above rule not apply (see Judgments 2459, under 9, 2986, under 32, or 3034, under 33)."
Reference(s)
ILOAT Judgment(s): 2459, 2986, 3034
Keywords:
acquired right; applicable law; breach; date; decision; exception; general principle; good faith; non-retroactivity; patere legem; request by a party;
Judgment 3135
113th Session, 2012
Technical Centre for Agricultural and Rural Cooperation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 20 to 24
Extract:
[A] period of notice constitutes, by its very nature, a substantive and sensitive aspect of the terms of employment
However, according to the Tribunal’s case law as established inter alia in Judgment 61, clarified in Judgment 832 and confirmed in Judgment 986, the amendment to an official’s detriment of a provision governing his/her status constitutes a breach of an acquired right only if it adversely affects the balance of contractual obligations by altering fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced him/her to stay on. In order for there to be a breach of an acquired right, the amendment to the applicable text must therefore relate to a fundamental and essential term of employment within the meaning of Judgment 832 (in this connection, see also Judgments 2089, 2682, 2696 and 2986).
While one might be inclined to accept that the actual existence of a period of notice or even, possibly, the basic principles underpinning the manner in which it is determined, are indeed fundamental and essential, the Tribunal finds that this is not true of the number of months of service which may be taken into consideration when determining the length of this period or the amount of the compensation paid in lieu of notice, which constitutes no more than a method of calculating this benefit, especially as, in this case, the amendment of the term of employment in question, that is the setting of a nine-month maximum, is of only relative importance. It must, moreover, be pointed out that in what is in some respects the similar situation of amendments to the rules governing officials’ benefits, the Tribunal consistently holds that, while the outright abolition of an allowance could constitute a breach of an acquired right, this is not true of the actual amount of the allowance or the method of reckoning it (see, in particular, Judgments 666, under 5, 1886, under 9, paragraph 3, or 2972, under 8). The same principles, mutatis mutandis, must form the basis of the present judgment.
In fact, the application to the present case of the three criteria identified by the Tribunal in Judgment 832 as a means of determining whether a breach of acquired rights has occurred, namely the nature of the altered term of appointment, the reason for the change and the consequence of recognising or not recognising an acquired right, confirms that no breach of acquired rights is to be found here.
The nature of the altered term of employment stemmed from a clause of the complainant’s employment contract, which might normally be an indication that a right has been acquired. But here this clause only reflected the existing provisions of Article 35 of the 1992 Staff Regulations to which, as stated earlier, it expressly referred, with the result that it actually stemmed from these provisions themselves. Unlike individual decisions or the specific terms of an official’s contract, the provisions of staff regulations or staff rules rarely give rise to acquired rights.
Reference(s)
ILOAT Judgment(s): 666, 832, 986, 1886, 2089, 2682, 2696, 2972, 2986
Keywords:
acquired right; notice;
Judgment 3074
112th Session, 2012
World Meteorological Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 15-16
Extract:
"[I]nternational organisations' staff members do not have a right to have all the conditions of employment laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career.
[M]ost of those conditions [can] be altered during [their] employment as a result of amendments to those provisions. Of course the position is different if, having regard to the nature and importance of the provision in question, the complainant has an acquired right to its continued application. However, according to the case law established in Judgment 61, clarified in Judgment 832 and confirmed in Judgment 986, the amendment of a provision governing an official's situation to his or her detriment constitutes a breach of an acquired right only when such an amendment adversely affects the balance of contractual obligations, or alters fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced him or her to stay on. In order for there to be a breach of an acquired right, the amendment to the applicable text must therefore relate to a fundamental and essential term of employment within the meaning of Judgment 832 (in this connection see also Judgments 2089, 2682, 2696 or 2986). The conditions for the payment of removal expenses, in particular a limit on the volume of household goods which may be shipped at the Organization's expense, plainly do not have this character [...]."
Reference(s)
ILOAT Judgment(s): 61, 832, 986, 2089, 2682, 2696, 2986
Keywords:
acquired right; amendment to the rules; applicable law; appointment; breach; career; condition; contract; date; exception; limits; official; personal effects; provision; removal expenses; right; staff regulations and rules; terms of appointment;
Judgment 3034
111th Session, 2011
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 33
Extract:
As the Tribunal stated in Judgment 2459, under 9, an administrative authority, when dealing with a claim, must generally base itself on the provisions in force at the time it takes its decision and not on those in force at the time the claim was submitted. Only where this approach is clearly excluded by the new provisions, or where it would result in a breach of the requirements of the principles of good faith, the non-retroactivity of administrative decisions and the protection of acquired rights, will the above rule not apply.
Reference(s)
ILOAT Judgment(s): 2459
Keywords:
acquired right; good faith; non-retroactivity; staff regulations and rules;
Judgment 2986
110th Session, 2011
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 26
Extract:
"While the terms of a contract and some decisions will in principle give rise to acquired rights, this is not necessarily true of [the] provisions [of the Staff Regulations and Rules]."
Keywords:
acquired right; consequence; contract; decision; difference; effect; general principle; provision; staff regulations and rules;
Judgment 2985
110th Session, 2011
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
"As the Tribunal stated in Judgment 2459, under 9, an administrative authority, when dealing with a claim, must generally base itself on the provisions in force at the time it takes its decision and not on those in force at the time the claim was submitted. Only where this approach is clearly excluded by the new provisions, or where it would result in a breach of the requirements of the principles of good faith, the non-retroactivity of administrative decisions and the protection of acquired rights, will the above rule not apply."
Reference(s)
ILOAT Judgment(s): 2459
Keywords:
acquired right; applicable law; breach; date; decision; exception; general principle; good faith; non-retroactivity; organisation's duties; provision; request by a party;
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