Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 599
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Judgment 2562
101st Session, 2006
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
"The Tribunal's case law has determined that the head of an international organisation has the 'executive authority to assign staff to different posts' (Judgment 534), and 'is empowered to change the duties assigned to his subordinates' (Judgment 265)."
Reference(s)
ILOAT Judgment(s): 265, 534
Keywords:
amendment to the rules; assignment; case law; discretion; executive head; iloat; official; organisation; post; supervisor;
Judgment 2558
101st Session, 2006
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5(b)
Extract:
The complainant accuses the Appeals Committee of having breached her defence rights by refusing to call on the Office to produce the documents she requested. "Ideally, the Appeals Committee would have given reasons for rejecting the complainant's offer of additional evidence in the form of the testimonies of seven witnesses and 15 documents that the Office was being asked to produce, or would at least have made it clear in its opinion that the evidence already produced was sufficient to lead it to an objective assessment of the relevant facts. The complainant, however, offers no convincing explanation that all these items of evidence are really relevant. The Tribunal cannot therefore consider the rejection of the proffered evidence as constituting abuse of the broad discretion that internal appeals bodies must enjoy in this area."
Keywords:
abuse of power; breach; complainant; disclosure of evidence; discretion; evidence; grounds; internal appeals body; misuse of authority; offer; oral proceedings; organisation; refusal; report; request by a party; right to reply; testimony;
Judgment 2525
100th Session, 2006
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The defendant sent the President of the Tribunal a letter requesting permission to confine its reply to the issue of the complaint's receivability. "For the sake of the good administration of justice [...] the President, who is authorised to direct proceedings (see Judgment 809), decided exceptionally to grant the Organization's request to confine its reply to the issue of receivability."
Reference(s)
ILOAT Judgment(s): 809
Keywords:
discretion; exception; president of the tribunal; reply confined to receivability;
Judgment 2514
100th Session, 2006
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"The Tribunal has consistently held that it is for the competent body and, in the last resort, the executive head of the relevant organisation to grade staff members following an exercise involving the making of value judgements as to the nature and extent of the duties and responsibilities of the post. Accordingly, the Tribunal will only substitute its own assessment or direct a new assessment if it is shown, for example, that the competent body acted on some wrong principle or overlooked some material fact or reached a clearly wrong conclusion (see Judgments 594, 1067, 1152, 1281 and 1495)."
Reference(s)
ILOAT Judgment(s): 594, 1067, 1152, 1281, 1495
Keywords:
case law; discretion; disregard of essential fact; executive head; grade; judicial review; limits; mistake of fact; mistaken conclusion; post classification; post description;
Judgment 2513
100th Session, 2006
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
The Deputy Director General submitted a memorandum requesting one-year extensions of contract for the complainant and six other officials who had reached the statutory age of retirement. The Director General dealt with all seven requests. Three were granted. In the complainant's case, the request for extension was simply turned down without any reason being given. The Tribunal recalls its case-law according to which a provision such as Staff Regulation 4.05 gives the Director General a wide measure of discretion and the Tribunal will not interfere in the exercise of that discretion except in extremely limited circumstances. The Tribunal recently confirmed as much in Judgment 2377, which also concerns the IAEA retirement policy. That case is not authority, however, for the proposition that the power to extend appointments beyond normal retirement age can be exercised arbitrarily. In the present case, "[i]t is impossible to conclude other than that the decision in the complainant's case was made for some undisclosed or purely arbitrary reason. Therefore, it cannot stand."
Reference(s)
Organization rules reference: IAEA Staff Regulation 4.05
ILOAT Judgment(s): 2377
Keywords:
age limit; bias; case law; decision; discretion; duty to substantiate decision; equal treatment; exception; grounds; judicial review; limits; organisation's duties; retirement; staff regulations and rules;
Judgment 2510
100th Session, 2006
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
"An international organisation necessarily has power to restructure some or all of its departments or units, including by the abolition of posts, the creation of new posts and the redeployment of staff (see Judgments 269 and 1614). As was pointed out in Judgment 1131, the Tribunal may not supplant an organisation's view with respect to these matters, and decisions on them are discretionary and subject to limited review."
Reference(s)
ILOAT Judgment(s): 269, 1131, 1614
Keywords:
abolition of post; creation of post; decision; discretion; judicial review; limits; post; reassignment; reorganisation;
Judgment 2490
100th Session, 2006
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"[T]he executive head of an organisation has discretionary authority not only to promote someone from one grade to another but also to say what place he shall hold in his new grade (see Judgment 313, under 3)."
Reference(s)
ILOAT Judgment(s): 313
Keywords:
discretion; executive head; grade; official; organisation; promotion;
Judgment 2393
98th Session, 2005
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
"The general principles allow that a discretionary decision with respect to an appointment may be set aside if applicants have not received equal treatment."
Keywords:
appointment; breach; candidate; condition; discretion; equal treatment; general principle; right;
Consideration 13
Extract:
The general principles also allow that a mistake as to a candidate’s qualifications or experience may constitute a mistake of fact or result in some material fact being overlooked. It is this consideration that is invoked by the complainant’s contentions that he had greater experience and skills than the successful candidate, and that the interview panel and the FAO were mistaken as to his management skills. However, and as held in Judgment 1827, the selection of candidates necessarily “requires a high degree of judgment” with which the Tribunal will interfere only if a serious defect is demonstrated. And as was also held in that judgment, a defect of that kind is not established merely by asserting that one is better qualified than the selected candidate.
Keywords:
appointment; competition; discretion; judicial review; mistake of fact; mistake of law; selection procedure;
Judgment 2377
98th Session, 2005
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
The complainant contests the decision not to extend his fixed-term appointment beyond the statutory retirement age. Provisional Staff Regulation 4.05 "makes it clear that the decision whether or not to grant an extension to any particular staff member is peculiarly a matter for the exercise of the Director General's discretion. The Tribunal will only interfere with such exercise on very limited grounds, none of which has been established by the complainant. The fact that such extensions may have been granted to a number of other staff members is simply irrelevant in the circumstances. No one has a right to be retained beyond the applicable normal retirement age, which in the complainant's case was 60."
Reference(s)
Organization rules reference: AIEA Provisional Staff Regulation 4.05
Keywords:
age limit; burden of proof; competence of tribunal; contract; difference; discretion; equal treatment; executive head; extension beyond retirement age; grounds; lack of evidence; limits; refusal; retirement; right; staff regulations and rules;
Judgment 2373
97th Session, 2004
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"The decision to redefine the functions of a post is the prerogative of the Director-General, on the recommendation of the relevant manager, and it is equally within the power of the management to determine the qualifications required for a particular post."
Keywords:
decision; definition; discretion; executive head; post; post description; qualifications; recommendation;
Judgment 2371
97th Session, 2004
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
One of the complainant's subordinates submitted a grievance for moral harassment against him. The Ombudsperson circulated her report thereby disclosing the accusations against the complainant to persons who were not entitled to be informed of them. "The Tribunal acknowledges the efforts made by the Office, as is its duty, to protect the reputation of a staff member (see, for example, Judgment 1619). But it notes that the defendant was under no obligation to seek the complainant's agreement as to the form and the terms of the communication to be sent to the recipients of the Ombudsperson's report and to those who subsequently indicated publicly that they had had knowledge of the report's conclusions. The Tribunal will not issue any injunction in this respect, but will leave it to the defendant to inform the recipients of the Ombudsperson's report, through whatever channels it deems appropriate, that it was regrettable that the report, which should have remained confidential and which concerns persons who were entitled to the protection of that confidentiality, should have been unlawfully circulated, which was all the more serious for the fact that some of its content was defamatory."
Reference(s)
ILOAT Judgment(s): 1619
Keywords:
advisory body; claim; communication to third party; confidential evidence; discretion; harassment; internal appeals body; official; organisation; organisation's duties; report; right; supervisor;
Judgment 2365
97th Session, 2004
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4(a)
Extract:
"The suspension of the complainant was an interim, precautionary measure, which was to last as long as the disciplinary procedure. It was ordered without hearing the complainant's views on the matter beforehand, but the latter's right to be heard was safeguarded since he later had an opportunity to exercise it before the impugned decision was taken. In any case, a decision to suspend need not necessarily be followed by a substantive decision to impose a disciplinary sanction (see Judgment 1927, under 5). Nevertheless, since it imposes a constraint on the staff member, suspension must be legally founded, justified by the requirements of the organisation and in accordance with the principle of proportionality. A measure of suspension will not be ordered except in cases of serious misconduct. Such a decision lies at the discretion of the Director-General. It is subject therefore to only limited review by the Tribunal, that is to say, if it was taken without authority or in breach of a rule of form or of procedure, or was based on an error of fact or of law, or overlooked some essential fact, or was tainted with abuse of authority, or if a clearly mistaken conclusion was drawn from the evidence (see, for instance, Judgment 2262, under 2)."
Reference(s)
ILOAT Judgment(s): 1927, 2262
Keywords:
abuse of power; breach; condition; decision; decision-maker; disciplinary measure; disciplinary procedure; discretion; disregard of essential fact; executive head; formal flaw; formal requirements; judicial review; limits; measure of distraint; mistake of fact; mistaken conclusion; misuse of authority; official; organisation's duties; period; procedural flaw; proportionality; provisional measures; right to reply; suspensive action;
Judgment 2357
97th Session, 2004
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"It was said in Judgments 1835, 1836 and 1837 that the application of Article 71(2)[regarding the conditions of award of an education allowance] 'is at the discretion of the President of the Office'. It is not strictly accurate to describe a decision as to the application of Article 71(2) as discretionary. The question whether a particular school or university corresponds to a 'child's educational stage' is essentially a question of fact, albeit one that may, in some circumstances, permit of a value judgment. However, because of the nature of that question, a decision under Article 71(2) is subject to limited review on the same grounds as a discretionary decision properly so called. Thus, it will be reviewed only for procedural error, mistake of fact or law, the drawing of a clearly mistaken conclusion or misuse of authority. In particular, this Tribunal will not substitute its view of the facts for that reached by the President."
Reference(s)
Organization rules reference: Article 71(2) of the Service Regulations for Permanent Employees of the EPO
ILOAT Judgment(s): 1835, 1836, 1837
Keywords:
abuse of power; allowance; case law; condition; decision; discretion; education expenses; enforcement; executive head; grounds; interpretation; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; procedural flaw; provision; staff regulations and rules;
Judgment 2350
97th Session, 2004
European Free Trade Association
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 17-18
Extract:
The complainant submits that the behaviour of the Administration towards her amounted to harassment since she got only a one-step salary increase, rather than the two proposed by her supervisor, and only a two-year extension of contract rather than the customary three years. The Tribunal considers that such decisions "were decisions which the Secretary-General was entitled to reach in the exercise of his discretion. That being so, such decisions can only be viewed as part of a campaign of harassment if the other events upon which the complainant relies give rise to an inference that these were taken because of hostility, ill will or other improper motive. The complainant has failed to prove harassment."
Keywords:
burden of proof; cumulative decisions; decision; discretion; duration of appointment; executive head; extension of contract; grounds; harassment; increment; lack of evidence; recommendation; supervisor; working relations;
Judgment 2315
96th Session, 2004
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 25
Extract:
The Commission adopted a directive stipulating that staff members appointed to the Professional and higher categories and internationally recruited staff should not, except in certain limited exceptions, remain in service for more than seven years. "A change in the nature of the discretion to be exercised in determining whether to grant future rights by the extension or renewal of a contract cannot be said to effect a change in an existing legal interest, much less in an existing legal right or existing legal status. Accordingly, the seven year policy embodied in [the] directive [...] is not retroactive even if the seven year period is computed from a time prior to the proclamation of that policy."
Keywords:
amendment to the rules; appointment; career; consequence; contract; date; decision; discretion; exception; extension of contract; general principle; limits; non-local status; official; organisation; period; professional category; publication; reckoning; right; staff member's interest; status of complainant; terms of appointment; written rule;
Judgment 2312
96th Session, 2004
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
Under the EMBL Staff Rules and Regulations, there is no provision to appeal internally the non-renewal of a contract. "There is [...] no merit to the Laboratory's suggestion that the deliberate exclusion in the Staff Rules and Regulations of an internal appeal mechanism with regard to the non-renewal of a contract operates so as to exclude complaints to the Tribunal. The Tribunal's jurisdiction is not determined by an organisation's Staff Rules but by the terms of the Tribunal's own Statute and the defendant organisation's submission to it. Thus, an organisation cannot unilaterally preclude the right to lodge a complaint. While it is the case that the Tribunal will often defer to discretionary decisions, the fact that a decision is discretionary does not take it outside of the Tribunal's jurisdiction. Although a discretionary decision may warrant significant deference, it is still reviewable."
Keywords:
acceptance; competence of tribunal; complaint; consequence; contract; decision; definition; discretion; effect; iloat; iloat statute; internal appeal; judicial review; no provision; non-renewal of contract; omission; organisation; procedure before the tribunal; provision; right; right of appeal; staff regulations and rules;
Judgment 2308
96th Session, 2004
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 15-18
Extract:
"The complainant seeks compensation in lost salary and benefits for the years during which she has been remunerated on the basis of short-term employment while performing work of indefinite duration equivalent to that of a fixed-term staff member. In other words, she claims a retroactive fixed-term status. There is no basis on which the complainant can claim to be treated retroactively as if she had a fixed-term contract. She was recruited as a short-term staff member without having to go through a competition process; she accepted several contract renewals. It was within the discretionary authority of the Director-General to decide during all those years whether to renew each short-term contract or offer her a fixed-term contract [...]. She accepted and signed all the short-term contracts. [...] If it is sought to have the Tribunal treat those short-term contracts as being null, it must be shown that they have violated some fundamental and overriding principle of law or that her apparent consent thereto was vitiated (see Judgment 2097, under 11). This, the complainant has failed to do."
Reference(s)
ILOAT Judgment(s): 2097
Keywords:
acceptance; appointment; burden of proof; contract; discretion; duration of appointment; fixed-term; injury; lack of consent; law of contract; offer; short-term; status of complainant;
Judgment 2272
96th Session, 2004
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
A rule, "approved by the Administrative Council, [cannot] be called into question by the President. It is true that, when deciding to promote or not to promote a permanent employee, the President enjoys discretionary authority, subject to the Tribunal¿s limited power of review. Within the bounds of this limited power of review, however, the Tribunal considers whether decisions referred to it are not flawed by abuse of authority or error of law. In the present case, the complainant argues rightly that by refusing to apply to his case a rule which had been approved by the Administrative Council, despite the fact that he met the necessary requirements, the President committed an error of law and abused his authority."
Keywords:
abuse of power; condition; discretion; enforcement; executive body; executive head; interpretation; judicial review; limits; misuse of authority; promotion; refusal; repeal; written rule;
Judgment 2244
95th Session, 2003
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
"The Tribunal notes that the competent bodies of the Organisation may repeal or modify rules they have established, subject to compliance with the principle that similar acts require similar rules, as pointed out in Judgment 1896, but that those bodies' discretionary powers are limited by the general principles of international civil service law, including the principle of equality, whereby officials in the same circumstances should be treated in the same way."
Reference(s)
ILOAT Judgment(s): 1896
Keywords:
amendment to the rules; discretion; equal treatment; general principle; organisation's duties; procedure before the tribunal; provision; repeal; staff regulations and rules;
Judgment 2232
95th Session, 2003
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 16
Extract:
The complainant, who had been the Organisation's Director-General, impugns the decision to terminate his appointment. "In accordance with the established case law of all international administrative tribunals, the Tribunal reaffirms that the independence of international civil servants is an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organisations. In the case of heads of organisations, that independence is protected, inter alia, by the fact that they are appointed for a limited term of office. To concede that the authority in which the power of appointment is vested - in this case the Conference of the States parties of the Organisation - may terminate that appointment in its unfettered discretion, would constitute an unacceptable violation of the principles on which international organisations' activities are founded [...], by rendering officials vulnerable to pressures and to political change. The possibility that a measure of the kind taken against the complainant may, exceptionally, be justified in cases of grave misconduct cannot be excluded, but such a measure, being punitive in nature, could only be taken in full compliance with the principle of due process, following a procedure enabling the individual concerned to defend his or her case effectively before an independent and impartial body."
Keywords:
adversarial proceedings; appointment; breach; case law; condition; discretion; exception; executive body; executive head; fixed-term; general principle; hidden disciplinary measure; iloat; independence; internal appeals body; limits; member state; official; organisation; right to reply; safeguard; serious misconduct; termination of employment; tribunal;
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