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Discretion (547, 548, 549, 550, 551,-666)

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Keywords: Discretion
Total judgments found: 575

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  • Judgment 2194


    94th Session, 2003
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6(a)

    Extract:

    "The right to equal treatment requires that situations which are the same or similar be governed by the same rules and that dissimilar situations be governed by rules that take account of the dissimilarity. The authority, which is required to give equal treatment to dissimilar situations, has a broad discretion in adopting rules that take into account that dissimilarity (see Judgment 1990, under 7)."

    Reference(s)

    ILOAT Judgment(s): 1990

    Keywords:

    definition; difference; discretion; equal treatment; right; written rule;



  • Judgment 2193


    94th Session, 2003
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 12

    Extract:

    The complainant, who had entered into a civil solidarity contract (pacte civil de solidarité, hereinafter 'pacs') with his male partner, informed the administration that his partner was entirely dependent on him. The organisation replied that, under the rules currently applicable within the United Nations system, the pacs was not recognised as a formal marriage that could create an entitlement to any benefits or allowances for a dependent spouse. "The complainant submits that, since the Director-General is entitled to modify or create exceptions to the application of the Staff Rules, he could and ought to have made an exception in the present case or amended the disputed text in order to protect the rights of homosexuals. [...] However, irrespective of the validity of the arguments put forward in urging the Director-General to take individual choices into account in the context of a culture of tolerance compatible with changing moral beliefs, the Director-General cannot be compelled to resort to what is merely an option open to him under certain clearly defined circumstances, since exercising that option is entirely a matter of discretion."

    Keywords:

    amendment to the rules; contract; dependant; discretion; domestic law; equal treatment; exception; executive head; family allowance; marital status; same-sex marriage; sex discrimination; staff regulations and rules;



  • Judgment 2191


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

    Consideration 3

    Extract:

    "Organisations must carefully take into account the interests and dignity of staff members when effecting" a transfer to which the staff member concerned is opposed.

    Keywords:

    discretion; organisation's duties; respect for dignity; staff member's interest; transfer;



  • Judgment 2190


    94th Session, 2003
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 3

    Extract:

    "The organization has a discretion to assess, in the context of its relations with a Member State, which are beyond the jurisdiction of the Tribunal, whether it is appropriate to lift the immunity from legal process of its employees (see in this respect Judgments 933 and 1543)."

    Reference(s)

    ILOAT Judgment(s): 933, 1543

    Keywords:

    competence of tribunal; discretion; judicial review; member state; organisation; privileges and immunities; tribunal; waiver of immunity;



  • Judgment 2183


    94th Session, 2003
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 19

    Extract:

    "The principle of the confidentiality of private messages stored in a professional e-mail account must be observed [...] In the event that access to an e-mail account becomes necessary for reasons of urgency or because of the prolonged absence of the account holder, it must be possible for organisations to open the account using appropriate technical safeguards. That state of necessity, justifying access to data which may be confidential, must be assessed with the utmost care."

    Keywords:

    discretion; force majeure; general principle; leave; official; organisation; organisation's duties; safeguard;



  • Judgment 2173


    94th Session, 2003
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    The complainant wants to be promoted to the "exceptional advancement grade" of his career path. "Although the complainant's competence and standard of work were acknowledged and his appraisal reports were consistently good, those responsible in his division and sector did not see fit to propose him for exceptional advancement, which is granted to very few. Such promotion being discretionary, the organization may refuse it without incurring censure unless the refusal was based on mistakes of fact or of law [...] or on an abuse of authority [...] or unless essential facts were overlooked or blatantly wrong conclusions drawn from the evidence."

    Keywords:

    discretion; judicial review; performance report; promotion; satisfactory service;



  • Judgment 2163


    93rd Session, 2002
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 1

    Extract:

    "An appointment by an international organisation is a discretionary decision. Being subject to only limited review, it may be set aside only if it was taken without authority or in breach of a rule of form or of procedure, or if it was based on a mistake of fact or of law, or if some material fact was overlooked, or if there was abuse of authority, or if a clearly wrong conclusion was drawn from the evidence. The Tribunal will, in cases like the present, exercise its power of review with special caution, its function being not to judge the candidates on merit but to allow the organisation full responsibility for its choice. [...] Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have his application considered in good faith and in keeping with the basic rules of fair and open competition. That is a right that every applicant must enjoy, whatever his hopes of success may be (see Judgments 1077 [...], 1497 [...] and 1549 [...])."

    Reference(s)

    ILOAT Judgment(s): 1077, 1497, 1549

    Keywords:

    abuse of power; appointment; candidate; case law; competition; decision; decision-maker; discretion; disregard of essential fact; equal treatment; flaw; formal flaw; good faith; international civil service principles; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; organisation's duties; procedural flaw; right;



  • Judgment 2138


    93rd Session, 2002
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 12

    Extract:

    The complainant requests that he be considered for a long- term contract. He "can take no comfort from the case of another staff member in a somewhat similar situation who was given a long-term contract [...] The awarding of such contracts is exceptional and wholly discretionary and the fact that a contract is granted to one staff member creates no rights for any other staff member."

    Keywords:

    acceptance; complainant; contract; discretion; duration of appointment; equal treatment; exception; executive head; official; request by a party; right;



  • Judgment 2129


    93rd Session, 2002
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 13

    Extract:

    "The complainants [state] that, according to the Tribunal's case law (see Judgment 1821, for example), adjustments to international civil servants' salaries must satisfy objective criteria of stability, foreseeability and transparency. The Tribunal considers that this line of precedent - concerning the determination of staff salaries, which is necessarily governed by very strict rules - is not entirely applicable to the determination of allowances granted for a specific purpose, such as that of covering expenses incurred by staff members on travel status. Even if it claims to be acting in the exercise of its discretion, and although the legal framework surrounding its action remains vague or non-existent, the administration must base its decisions on objective considerations and avoid breaching any of the guarantees protecting the independence of international civil servants."

    Reference(s)

    ILOAT Judgment(s): 1821

    Keywords:

    adjustment; allowance; analogy; breach; case law; compensatory allowance; compensatory measure; criteria; decision; discretion; duty to substantiate decision; grounds; independence; no provision; official; official travel; organisation's duties; purpose; safeguard; salary; travel expenses; written rule;



  • Judgment 2125


    93rd Session, 2002
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 5-6

    Extract:

    The complainant's request to have his contract extended beyond retirement age was not allowed. "On the merits, the Agency is undoubtedly right in pointing out that the Director General has discretion in the matter, over which the Tribunal has only a limited power of review. This discretion enables the Agency to depart from the rule governing the normal age of retirement. [...] Although the Director General can determine the interest of the Agency, his decisions must be based on clear and coherent reasons. In this case, the reason given - that the request for an extension contained no indication as to whether any of the criteria [on the basis of which he may authorise such an extension] had been satisfied - is not valid, and the reason based on 'rejuvenation' of the staff is too general to constitute a sufficient justification for the refusal of the complainant's request." The Tribunal considers that "this reason is not in itself reprehensible, but it could be used to justify a systematic refusal to depart from the rule governing the normal age of retirement. [By setting out the criteria] the [Agency] established for itself a number of rules which it must apply."

    Keywords:

    age limit; contract; criteria; decision; definition; discretion; exception; executive head; extension beyond retirement age; grounds; iloat; judicial review; official; organisation; organisation's duties; organisation's interest; patere legem; refusal; request by a party; retirement; written rule;



  • Judgment 2107


    92nd Session, 2002
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 10

    Extract:

    "The complainant's claim that he should be considered as a fixed-term staff member cannot be sustained. The complainant was recruited as a short-term staff member, without having to go through a competition process; he accepted several contract renewals. It was within the discretionary authority of the Director-General to decide during the years that the complainant was with the organization whether to renew each short-term contract or offer him a fixed-term contract. There is no basis on which the complainant can claim to be treated retroactively as if he had a fixed-term contract. He was at all times a short-term staff member."

    Keywords:

    acceptance; appointment; claim; competition; complainant; contract; decision; discretion; executive head; fixed-term; non-retroactivity; official; participation; refusal; short-term; status of complainant; terms of appointment;



  • Judgment 2095


    92nd Session, 2002
    Surveillance Authority of the European Free Trade Association
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 13

    Extract:

    "The determination of salary scales is discretionary [and] must be exercised within a framework of rules drawn from both the relevant statutory provisions and the general principles of clarity, stability and foreseeability defined in the case law (see, for example, Judgment 1821)."

    Reference(s)

    ILOAT Judgment(s): 1821

    Keywords:

    case law; definition; discretion; general principle; iloat; limits; organisation; salary; scale; staff regulations and rules; written rule;



  • Judgment 2083


    92nd Session, 2002
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 8-9

    Extract:

    The complainant suffered from retinal detachments and a detachment of the vitreous. The organization recognised her eye condition as service incurred. In "September 1998 [...] the [organization] decide[d] to stop reimbursing the bills [she submitted] on [the] grounds [...] that curing her retinal detachments was no longer the object of the treatment. However, it did not show that the service-incurred injuries were not a "direct and principal" cause of the treatment [... ] The Tribunal takes the view that although, as the organization says, the decision to stop reimbursing the bills was at the discretion of the Director-General, it could not be taken without an independent expert medical opinion obtained through a process which provides all the safeguards of transparency and impartiality." The case is therefore sent back to the organization.

    Keywords:

    consequence; decision; discretion; due process; executive head; expert inquiry; grounds; illness; independence; lack of evidence; medical expenses; medical opinion; organisation; organisation's duties; procedure before the tribunal; professional accident; refund; refusal; safeguard; service-incurred;



  • Judgment 2081


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

    Consideration 8

    Extract:

    "Consistent precedent has it that an organisation is ordinarily free to determine the pay of its staff, provided that it respects certain requirements arising from general principles of international civil service law [...] Furthermore, if the organisation has a rule granting certain rights to staff members in relation to their level of salary, it may not depart from that rule in individual decisions without amending it in accordance with the prescribed procedure."

    Keywords:

    amendment to the rules; amount; case law; condition; discretion; formal requirements; general principle; individual decision; international civil service principles; official; organisation; organisation's duties; provision; right; salary; staff regulations and rules;



  • Judgment 2080


    92nd Session, 2002
    Organisation for the Prohibition of Chemical Weapons
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 14-15

    Extract:

    "The Director-General, in exercise of his discretionary authority and taking into account the overall interests of the organisation, decided that the [complainant's] post [...] should be redefined and that [his] contract should not be renewed. The Tribunal accepts that the organisation was entitled to adapt to changes and to modify the job description for the given post in view of the organisation's future needs."

    Keywords:

    amendment to the rules; contract; decision; discretion; executive head; non-renewal of contract; organisation; organisation's interest; post description; post held by the complainant; reorganisation; right;



  • Judgment 2074


    91st Session, 2001
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 11

    Extract:

    The complainant applied for a post but was not selected. "The complainant claims the right of preference which is accorded, when candidates are equally competent, to internal applicants [...] In view of its objective, which is to secure the best possible employees for an organisation, equality of competence applies to all the abilities required of an employee, both professional and personal. The Secretary-General did not overstep his discretionary authority by concluding that the overall aptitude of the candidates was not equal. The plea must therefore fail."

    Keywords:

    candidate; competition; condition; discretion; executive head; internal candidate; no cause of action; organisation's interest; purpose; qualifications; refusal; right;



  • Judgment 2063


    91st Session, 2001
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    "The Tribunal is fully competent to consider whether the Office is right in maintaining that [the insurance broker] Van Breda correctly exercised its authority in rejecting the request to meet the cost of transferring the complainant to a convalescent home."

    Keywords:

    competence of tribunal; discretion; health insurance; judicial review; refund; refusal; request by a party;

    Consideration 8

    Extract:

    "The authority of the insurance brokers goes beyond a simple right to make an administrative check of the claims it receives [...]. [Insurers] have the right to check whether, under the insurance contract, they are liable for the costs of the care dispensed. But they must so exercise that authority as to provide the insured with a guarantee that their claims to coverage are examined with all due care."

    Keywords:

    condition; contract; discretion; duty of care; health insurance; insurance; medical expenses; refund; request by a party; safeguard;



  • Judgment 2052


    91st Session, 2001
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "The decision not to give permission to spend sick leave elsewhere than at the staff member's place of residence is clearly discretionary in nature. It is well-established by the case law of the Tribunal that a discretionary decision is subject to limited review."

    Keywords:

    decision; discretion; duty station; judicial review; limits; residence; sick leave;



  • Judgment 2040


    90th Session, 2001
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "As the Tribunal has held in many judgments, a decision by an international organisation to make an appointment is a discretionary one and as such is subject to only limited review. It may be quashed only if it was taken without authority, or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence. Moreover, the Tribunal will exercise its power of review with special caution in such cases and will not replace the organisation's assessment of the candidates with its own (see Judgment 1497 [...])."

    Reference(s)

    ILOAT Judgment(s): 1497

    Keywords:

    abuse of power; appointment; candidate; competition; decision; decision-maker; discretion; disregard of essential fact; flaw; formal flaw; judicial review; mistake of fact; mistaken conclusion; misuse of authority; procedural flaw;



  • Judgment 2004


    90th Session, 2001
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 14

    Extract:

    Out of six candidates, only the complainant was interviewed by video conference. "While the Tribunal is not to be understood as saying that a video conference is not a perfectly acceptable method of conducting interviews, care must always be taken to ensure that no candidate is given a potentially unfair advantage by that process. Flying one person across the ocean to be interviewed while leaving a competitor from the same area at home is open to the interpretation of unequal treatment."

    Keywords:

    bias; competition; discretion; equal treatment; flaw; limits; procedural flaw; remand;

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Last updated: 27.09.2022 ^ top