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Implied decision (36, 37,-666)

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Keywords: Implied decision
Total judgments found: 74

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  • Judgment 3003


    111th Session, 2011
    International Fund for Agricultural Development
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 32

    Extract:

    "[T]he Tribunal may at any time decide, when it renders a judgment, to defer the execution thereof if it considers such a measure justified (see Judgment 82 [...], under 5). It is therefore for the organisation concerned, if it seeks to have the execution of a judgment deferred in the event that it proves unfavourable to itself, to submit a subsidiary claim for that purpose. If the Tribunal did not order such a deferral in its decision, it must be deemed to have implicitly required the decision to be executed immediately, in conformity with the general rule, and it is therefore scarcely conceivable that an organisation could be allowed to request a stay of execution of the judgment at a later stage."

    Reference(s)

    ILOAT Judgment(s): 82

    Keywords:

    claim; counterclaim; date; execution of judgment; implied decision; judgment of the tribunal; organisation's duties;



  • Judgment 2948


    109th Session, 2010
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "While Article VII, paragraph 3, of the [Tribunal's] Statute permits a complainant to have recourse to the Tribunal '[w]here the Administration fails to take a decision upon any claim of an official within sixty days from the notification of the claim to it', the Tribunal has consistently held that the forwarding of the claim to the advisory appeal body constitutes a 'decision upon [the] claim' within the meaning of these provisions, which is sufficient to forestall an implied rejection (see, for example, Judgments 532, 762, 786 or 2681)."

    Reference(s)

    ILOAT reference: Article VII, paragraph 3, of the Statute
    ILOAT Judgment(s): 532, 762, 786, 2681

    Keywords:

    absence of final decision; case law; date of notification; decision; direct appeal to tribunal; failure to answer claim; iloat statute; implied decision; internal appeal; internal appeals body; refusal; time limit;



  • Judgment 2907


    108th Session, 2010
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 13

    Extract:

    "According to the Tribunal's case law, international organisations may undertake restructuring by reducing or reassigning their staff, even for the sole purpose of making budgetary savings (see, for example, Judgment 2156, under 8). However, each and every individual decision adopted in the context of such restructuring must respect all the pertinent legal rules and in particular the fundamental rights of the staff concerned."

    Reference(s)

    ILOAT Judgment(s): 2156

    Keywords:

    budgetary reasons; case law; consequence; due process; implied decision; official; organisation; organisation's duties; reassignment; reorganisation; right; staff reduction; written rule;



  • Judgment 2901


    108th Session, 2010
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    "As the Tribunal had occasion to explain in Judgment 456, under 2, the purpose of [the] provisions [of Article VII, paragraph 3, of its Statute] is twofold. Their first aim is to enable an official to defend his or her interests by going to the Tribunal when the Administration has failed to take a decision. Their second aim is to prevent a dispute from dragging on indefinitely, which would undermine the necessary stability of the parties' legal relations. It follows from these twin purposes that, if the Administration fails to take a decision on a claim within sixty days, the person submitting it not only can, but must refer the matter to the Tribunal within the following ninety days, i.e. within 150 days of his or her claim being received by the organisation, otherwise his or her complaint will be irreceivable."

    Reference(s)

    ILOAT reference: Article VII, paragraph 3, of the Statute
    ILOAT Judgment(s): 456

    Keywords:

    absence of final decision; direct appeal to tribunal; iloat statute; implied decision; receivability of the complaint; staff member's duties;

    Consideration 10

    Extract:

    "The Tribunal's case law [...] allow[s] a complaint against an implied rejection to be deemed receivable, notwithstanding the expiry of the time limit for filing a complaint, if a particular step taken by an organisation, such as sending a dilatory reply to the complainant, might give that person good reason to infer that his or her claim is still under consideration (see Judgment 941, under 6)."

    Reference(s)

    ILOAT Judgment(s): 941

    Keywords:

    absence of final decision; good faith; implied decision; internal appeal; late appeal; late filing; receivability of the complaint; time bar; time limit;



  • Judgment 2866


    108th Session, 2010
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 4 and 5

    Extract:

    The complainant challenged the Organisation's decision not to grant her the expatriation allowance provided for in Article 72 (1) of the Service Regulations. The Tribunal held that she had failed to adduce cogent evidence that she fulfilled the requirements for the granting of the said allowance.
    "The EPO argues that although it was outside the time contemplated in Article 109(2) of the Service Regulations, a decision on the complainant's appeal was taken by the President and the appeal was forwarded to the Internal Appeals Committee prior to the complaint being filed. Accordingly, there was no longer an implicit rejection of the complainant's appeal and Article VII, paragraph 3, of the Tribunal's Statute does not apply. In its view, as the Tribunal held in Judgment 533, under 5, the complaint is irreceivable on the grounds that the internal means of redress have not been exhausted."
    "The EPO's reliance on Judgment 533 is misplaced. In the present case, by the EPO's own admission the decision was not taken within the time provided in Article 109(2) of the Service Regulations. As the Tribunal stated in Judgment 2562, under 6:
    "The EPO cannot be heard to argue that the complainant has failed to exhaust internal means of redress when the sole reason for his failing to do so was the EPO's own failure to abide by its own Service Regulations and to follow the timelines under Article 109(2). [...]"
    Accordingly, the complaint is receivable."

    Reference(s)

    ILOAT reference: Article VII, paragraph 3, of the Statute
    Organization rules reference: Article 109(2) of the Service Regulations
    ILOAT Judgment(s): 533, 2562

    Keywords:

    administrative delay; direct appeal to tribunal; implied decision; internal appeal; internal appeals body; internal remedies exhausted; reasonable time; receivability of the complaint; time bar; time limit;



  • Judgment 2853


    107th Session, 2009
    International Federation of Red Cross and Red Crescent Societies
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 6-8

    Extract:

    The difference as to the complainant's performance rating was not resolved in internal grievance proceedings and the complainant filed an internal appeal. Having received no response, the complainant sent an e-mail to the Registry of the Tribunal, stating that he wished to file a complaint.
    "It is fundamental that a litigant cannot pursue the same claim before different adjudicative bodies at the same time. Normally, the litigant will be forced to elect the forum in which he or she intends to proceed. That did not happen in the present case. Nonetheless, the complainant pursued his internal appeal to finality and, thus, must be taken to have elected to pursue internal remedies rather than to proceed at that stage before the Tribunal on the basis of an implied rejection of his internal appeal. However, that does not mean that the complaint is irreceivable."
    "[When] the complainant [decided] to pursue internal remedies [...], [his] complaint had already been filed and it was receivable pursuant to Article VII, paragraph 3, of the Statute. Moreover, he then had a cause of action, as his claim was not satisfied until 13 December 2007."
    "Even though the complaint became without object on 13 December 2007, it was receivable when filed and the complainant then had a cause of action. Accordingly, he is entitled, in these circumstances, to the costs associated with its filing, even though not requested in the complaint. However, he is not entitled to costs in respect of subsequent pleadings which were filed after his decision to pursue his internal appeal. There will be an award of costs in the amount of 500 Swiss francs, but the complaint must otherwise be dismissed."

    Keywords:

    absence of final decision; costs; direct appeal to tribunal; duplication of proceedings; implied decision; internal appeal; internal remedies exhausted; receivability of the complaint;



  • Judgment 2780


    106th Session, 2009
    World Customs Organization (Customs Co-operation Council)
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "With regard to the application of Article VII, paragraph 3, of the Statute of the Tribunal, the Tribunal's case law indicates that this provision must be interpreted in the light of Article VII, paragraph 1, which stipulates that a complaint shall not be receivable unless the internal means of redress provided by the applicable Staff Regulations have been exhausted. Hence, where an organisation takes any decision "upon any claim of an official" - in the meaning of Article VII, paragraph 3 - within the sixty-day period thus stipulated, and particularly where it forwards the request to the competent advisory appeal body before the expiry of that period, this step forestalls an implied rejection which could be referred to the Tribunal."

    Reference(s)

    ILOAT reference: Article VII, paragraphs 1 and 3, of the Statute

    Keywords:

    case law; complaint; decision; iloat statute; implied decision; internal appeals body; internal remedies exhausted; receivability of the complaint; staff regulations and rules; time limit;



  • Judgment 2745


    105th Session, 2008
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 13

    Extract:

    "'Constructive dismissal' is a phrase used to signify that an organisation has breached the terms of a staff member's contract in such a way as to indicate that it will no longer be bound by that contract."

    Keywords:

    breach; condition; contract; definition; implied decision; official; organisation; termination of employment;



  • Judgment 2740


    105th Session, 2008
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4

    Extract:

    "The letter of 29 August 2006 must be deemed to constitute an explicit decision to refuse to rule on the request submitted by the complainant [...]. Such a decision may be brought before the Tribunal only after the means of redress open to the complainant have been exhausted (Article VII, paragraph 1, of the Tribunal's Statute)." The complainant did not exhaust all internal means of redress. "Consequently, the complaint would, in the normal course of events, be irreceivable. [...] In the present case, however, such an approach would result in a grave miscarriage of justice. Indeed, in view of the content of the letter of 29 August 2006, by which UNESCO notified the complainant of its refusal to take a decision, the complainant had good grounds to consider that any internal appeal would have proved a hollow and meaningless formality. [...] The complainant was therefore entitled to have direct recourse to the Tribunal, after rightly concluding that the letter of 29 August 2006 contained an implicit waiver of the requirement that she first exhaust internal means of redress. It follows that the complaint cannot be declared irreceivable under Article VII, paragraph 1, of the Tribunal's Statute."

    Reference(s)

    ILOAT reference: Article VII, paragraph 1, of the Statute

    Keywords:

    condition; decision; direct appeal to tribunal; express decision; iloat statute; implied decision; internal appeal; internal remedies exhausted; receivability of the complaint; refusal; request by a party;



  • Judgment 2631


    103rd Session, 2007
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 3

    Extract:

    "Under Article VII(3) of the Statute of the Tribunal, an official may have direct recourse to the Tribunal where the Administration fails to take a decision on any claim “within sixty days from the notification of the claim to it”. Only a person who has done all that is legally possible to secure a final decision within a reasonable time, but to no avail, is entitled to file a complaint against an implicit rejection (see, inter alia, Judgments 1344, under 11, and 1718, under 3).
    Article VII(3) of the Tribunal's Statute must be read in conjunction with Article VII(1), which establishes the obligation to exhaust internal means of redress before filing a complaint with the Tribunal. It follows that a complaint against an implicit decision to reject a claim is not receivable unless the complainant has exhausted all available internal remedies. The Tribunal cannot therefore hear such a complaint unless the implicit rejection may be inferred from the silence of the final authority competent to rule on the dispute between the official and the Administration (see Judgment 185)."

    Reference(s)

    ILOAT reference: Article VII, paragraphs 1 and 3, of the Statute
    ILOAT Judgment(s): 185

    Keywords:

    absence of final decision; complaint; condition; direct appeal to tribunal; failure to answer claim; iloat statute; implied decision; internal remedies exhausted; procedure before the tribunal; receivability of the complaint; refusal; staff member's duties;



  • Judgment 2629


    103rd Session, 2007
    Organisation for the Prohibition of Chemical Weapons
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "Ordinarily, there is no decision with respect to matters falling outside normal entitlements until a specific claim is made and either expressly or impliedly accepted or rejected (see Judgment 2538). [...] However, it is well settled that a decision does not require any particular formality and may be constituted by any communication that is reasonably capable of being understood to constitute a decision on the matter (see Judgments 532 and 2573)."

    Reference(s)

    ILOAT Judgment(s): 532, 2538, 2573

    Keywords:

    condition; decision; definition; express decision; formal requirements; implied decision; refusal; request by a party; right;



  • Judgment 2626


    103rd Session, 2007
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5(c)

    Extract:

    "Generally speaking, serving or retired staff members who turn to an internal appeal body are entitled to have their case heard within a reasonable period of time without having to endure excessive and unjustified delays resulting from the malfunctioning of that body, or from the inadequate resources at its disposal. This duty to take prompt action is reinforced where the dispute is such that it must be resolved rapidly if resolution is to serve any purpose. [...] Contrary to the defendant's view, the complainant therefore had good reason to consider that the lack of a decision within a reasonable time amounted to an implied decision of rejection which he was entitled to challenge before the Tribunal (see Judgments 499 and 791, under 2)."

    Reference(s)

    ILOAT Judgment(s): 499, 791

    Keywords:

    absence of final decision; administrative delay; competence of tribunal; complaint; direct appeal to tribunal; failure to answer claim; implied decision; injury; internal appeal; internal appeals body; official; organisation's duties; reasonable time; retirement; right;



  • Judgment 2584


    102nd Session, 2007
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 13

    Extract:

    The Organization contends that the complainant had until 22 September 2003 to submit his notice of appeal. As it was submitted on 2 October, UNESCO considers that it was filed outside the time limit set down in the Statutes of the Appeals Board. The Tribunal notes that a memorandum of 5 September 2003 informed the complainant that the administration would contact him with a view to reaching an amicable settlement. "If an organisation invites settlement discussions or, even, participates in discussions of that kind, its duty of good faith requires that, unless it expressly states otherwise, it is bound to treat those discussions as extending the time for the taking of any further step. That is because settlement discussions must proceed on the basis that no further step will be necessary. Where, as here, there has been no actual decision but the Organization has invited settlement discussions, the duty of good faith requires it to treat the time for taking a further step as running from the termination of those discussions and not from some earlier date identifiable as the date of an implied negative decision. That is because the invitation necessarily implies that, no matter what the Staff Regulations or Staff Rules provide, no final decision has been or will be taken during the course of discussions."

    Keywords:

    absence of final decision; breach; consequence; date; decision; exception; extension of contract; good faith; implied decision; internal appeal; internal appeals body; new time limit; organisation's duties; participation; procedure before the tribunal; proposal; provision; purpose; settlement out of court; staff regulations and rules; start of time limit; time limit; written rule;



  • Judgment 2351


    97th Session, 2004
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 7(c) and 8(a)

    Extract:

    When he was recruited the complainant provided a copy of a diploma but its authenticity was questioned a few years later. The matter was queried with the educational establishment and the Secretary-General then issued the complainant a written censure. The Tribunal considers that "there was not sufficient proof either that the diploma was not issued to the complainant [...] or that the latter had been informed that, according to the [educational establishment], he was not entitled to receive it. The Secretary-General might have enquired further into the aspects which remained uncertain, but did not do so. The 'likelihood' referred to by the Secretary-General, if it is not incontrovertibly ascertained, cannot make up for the lack of conclusive evidence. Based as it is on an arbitrary appraisal of the facts, the impugned decision as far as it concerns the disciplinary sanction must therefore be set aside. Although it did not give rise to a written decision, the non-renewal of the short-term contract was based on charges levelled against the complainant in the course of the disciplinary procedure. The mere cancellation of the disciplinary sanction must entail that of the decision of non-renewal."

    Keywords:

    bias; consequence; contract; decision; decision quashed; degree; disciplinary measure; disciplinary procedure; executive head; grounds; implied decision; inquiry; investigation; lack of evidence; non-renewal of contract; organisation's duties; right; short-term; terms of appointment; warning;



  • Judgment 2187


    94th Session, 2003
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    The Tribunal cannot endorse the complainant's view: an employee whose name does not appear on a list of promoted staff members is naturally entitled to challenge the implied decision to exclude him or her from that list. To grant employees the possibility of contesting such decisions without limit of time would mean, in effect, that decisions communicated to staff in accordance with Article 31 of the Service Regulations and published in an official document, not only with a view to informing employees of their promotion but also so as to enable those who consider themselves to have been wrongly excluded from the list to exercise their rights, could be challenged indefinitely.
    The appeal filed by the complainant on 16 June 2000, which concerned only the refusal to grant a promotion for 1999, was filed after the three-month deadline stipulated in Article 108(2) of the Service Regulations. The complainant raises arguments which may excuse her delay in appealing to the competent authority, and which the Organisation ought to have taken into account on the grounds of equity; but the Tribunal, though sympathetic to these considerations, does not consider them to provide sufficient grounds for rejecting the plea of irreceivability entered by the Organisation.

    Keywords:

    implied decision; promotion;



  • Judgment 2082


    92nd Session, 2002
    European Molecular Biology Laboratory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 10

    Extract:

    "It is trite law to state that time limits cannot be presumed but must be either expressly stated or so clearly implied from the context as to leave no room for doubt."

    Keywords:

    definition; express decision; implied decision; time limit; written rule;



  • Judgment 1718


    84th Session, 1998
    European Southern Observatory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 3

    Extract:

    Article VII(1) of the Tribunal's Statute, which is about the implied rejection of a claim, serves to allow a complainant who has got no decision on his claim to act as if a final decision had been taken. "If no decision is forthcoming within sixty days of the notification of the claim to the administration, the complainant may, within a further time limit of ninety days, bring a complaint against the implied rejection, which becomes the impugned decision. [...] There is no provision for applying to the Tribunal for an order to the Director general to state a negative final decision."

    Reference(s)

    ILOAT reference: ARTICLE VII(3) OF THE STATUTE

    Keywords:

    complaint; date of notification; iloat statute; implied decision; interpretation; time limit;



  • Judgment 1659


    83rd Session, 1997
    European Free Trade Association
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 10

    Extract:

    EFTA pleads that the complainants "ought to have inferred rejection after sixty days [after lodging their internal appeals]. They then had ninety days under Article VII(2) of the Tribunal's Statute in which to file complaints." It argues that since the complaints were filed "over 150 days after the notification of their appeals to the Board, they were out of time. The plea [...] fails. although there was no report from the Board within the sixty days, the reason was that it had never been set up. Actually it never was. [...] The time limit of ninety days began only [on] the date at which they received the Secretary-General's letters [...] telling them that the Board could not be set up and they were free under Regulation 41(b) to appeal to the Tribunal. The complaints are therefore not out of time."

    Reference(s)

    ILOAT reference: ARTICLE VII (2) OF THE STATUTE
    Organization rules reference: ARTICLE 41(B) OF EFTA STAFF REGULATIONS

    Keywords:

    complaint; direct appeal to tribunal; iloat statute; implied decision; internal appeal; internal appeals body; internal remedies exhausted; receivability of the complaint; start of time limit;



  • Judgment 1656


    83rd Session, 1997
    European Molecular Biology Laboratory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    "The only basis on which [the complainant] invokes the Tribunal's jurisdiction is that the EMBL has failed to take a decision upon her alleged claims [but] she has failed to establish that she did make them and that they related to the matters which form the subject of this complaint. Her complaint is therefore irreceivable."

    Keywords:

    complaint; evidence; implied decision; internal appeal; internal remedies exhausted; lack of evidence; receivability of the complaint; request by a party;



  • Judgment 1633


    83rd Session, 1997
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    "When [the complainant's] unpaid leave expired the Organization took no decision for sixteen months as to whether or not to extend his appointment, which was therefore automatically extended". The consequence of its failure to take a decision at the time is that the automatic extension of his contract was "by whatever period would have been normal." (In this case the normal period would have been five years).

    Keywords:

    consequence; contract; extension of contract; failure to answer claim; implied decision; practice;

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