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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 1984


    89th Session, 2000
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    The Tribunal recalls that, according to a long line of precedent, shared by other international administrative tribunals, the decision-making authority has discretion in determining the severity of a sanction to be applied to a staff member whose misconduct has been established. But that discretion must be exercised in observance of the rule of law, particularly the principle of proportionality. If a sanction is obviously disproportionate to the charges, the Tribunal will set it aside (see for example Judgment 1447 [...], delivered on 6 July 1995). In the present case, the complainant's dismissal is not obviously disproportionate to the attempted fraud with which he is charged and which is a serious breach of the duty of honesty incumbent on international civil servants. Consequently, the complainant's plea of disproportionality between the charges and the sanction fails.

    Reference(s)

    ILOAT Judgment(s): 1447

    Keywords:

    disciplinary measure; discretion; proportionality; termination of employment;



  • Judgment 1973


    89th Session, 2000
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "The Tribunal has always held that personal promotion constitutes advancement on merit to reward someone for services of a quality higher than that ordinarily expected of the holder of the post. The granting of personal promotion is a discretionary decision which, as firm precedent has it, is subject to only limited review and will stand unless it shows a fatal flaw. In a case such as the present one, in which the general rules regarding personal promotions have been adopted and communicated to the staff, the appointing authority is bound by these rules and the Tribunal will consider any violation of them to be a fatal flaw."

    Keywords:

    breach; case law; discretion; executive head; flaw; judicial review; limits; patere legem; personal promotion; promotion;



  • Judgment 1972


    89th Session, 2000
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 3-4

    Extract:

    The complainant, a director of a department, was made aware of two e-mails which were written in highly indecorous terms and, although private, commented on the running of the department. The Staff Union Committee protested against what it considered to be an invasion of privacy. The complainant did not respect the order to use discretion issued by the Director of Personnel. The Director-General, considering the complainant incapable in his function as Director of a department to maintain a stable and productive working environment, transferred him to a post of special advisor. "As the Tribunal held in Judgment 1018 [...], it is the duty of the head of any international organisation to take whatever measures can reduce tensions among his staff, and a transfer in the interests of the service may be an appropriate way of settling a conflictual situation. [...] However, since it cannot be regarded as disciplinary, the measure must, as the case law prescribes, heed the staff member's dignity and good name and not cause him undue suffering. Clearly, in this case the complainant was bound to view the measure as downgrading him. However, the fact that the organization was at pains to find him an assignment in keeping with his competence if not his wishes, to maintain his grade and to exercise the utmost discretion in dealing with the matter, shows that everything was done to protect his dignity as a senior official."

    Reference(s)

    ILOAT Judgment(s): 1018

    Keywords:

    conduct; discretion; downgrading; executive head; hidden disciplinary measure; organisation's interest; respect for dignity; transfer; working relations;



  • Judgment 1969


    89th Session, 2000
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "The Tribunal will quash [...] a decision [of a discretionary nature] only if it was taken without authority, or if it was tainted with a procedural or formal flaw or based on a mistake of fact or of law, or if essential facts were overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence."

    Keywords:

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



  • Judgment 1968


    89th Session, 2000
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 17-18

    Extract:

    "In the present case, the President sought, but failed to obtain, the Promotion Board's approval for his proposal to promote Mr C. While the President clearly has a residual discretion not to make promotions which the Board recommends, he may only make promotions in accordance with the Board's recommendations. Since the Board declined to recommend Mr C. for promotion, his promotion was irregular. [...] Furthermore, as the appointing authority, it was clearly inappropriate for the President, having urged the Promotion Board to treat Mr C. as a special case, to then disregard the Board's refusal to recommend the promotion. The decision cannot stand."

    Keywords:

    advisory opinion; discretion; exception; executive head; flaw; promotion; promotion board; refusal;



  • Judgment 1963


    89th Session, 2000
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "The complainant [...] wants the President to be ordered to intervene so that the Administrative Council amends the Service Regulations. However, firm precedent has it that the Tribunal may not order such action [...] only in the event that the Office were under an obligation to change its rules in order to ensure respect for the fundamental conditions of service of staff members would the latter, faced with the silence or inaction of the administration, be entitled to challenge the unlawfulness of their situation. In the present case, however, it is fully within the competence of the President and the Administrative Council to amend or not the impugned provisions of the Service Regulations. [...] The complainant cannot plead any breach of his fundamental rights or guarantees as a result of the maintenance of rules which [...] are not unlawful."

    Reference(s)

    ILOAT Judgment(s): 1456, 1591

    Keywords:

    amendment to the rules; case law; claim; competence of tribunal; discretion; staff regulations and rules;



  • Judgment 1912


    88th Session, 2000
    European Molecular Biology Laboratory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 19

    Extract:

    "International civil servants do not have an acquired right [...] to an automatic indexing of their salaries. [...] The establishing of regulations for the periodic adjustment of salary is within the discretion of the organisations provided that these regulations do not violate the principles of international civil service law and their application does not bring about an erosion of salary that could be regarded as substantially jeopardising the contractual balance between those organisations and their staff members."

    Reference(s)

    ILOAT Judgment(s): 1118

    Keywords:

    acquired right; adjustment; cost-of-living increase; discretion; international civil service principles; salary; staff regulations and rules; terms of appointment;



  • Judgment 1855


    87th Session, 1999
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 2 and 5

    Extract:

    The complainant appeals against the Executive Head's decision to dismiss his appeal against the refusal of the organisation to grant him special leave to attend a two-day training course. "It is common ground that the decision as to whether or not to grant a staff member special leave to attend training courses is discretionary. [T]he obligations under Article 29 of the Service Regulations to facilitate training may involve different considerations when one looks at the desirability of the staff member's taking such training, and when one has regard to the effect of the staff member's absence on the functioning of the service. In the present case, the refusal of special leave was justified by the growing backlog of [work]."

    Reference(s)

    Organization rules reference: ARTICLE 29 OF THE EPO SERVICE REGULATIONS

    Keywords:

    criteria; decision; discretion; enforcement; organisation's interest; special leave; staff regulations and rules; training;



  • Judgment 1827


    86th Session, 1999
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "The selection of candidates for promotion is necessarily based on merit and requires a high degree of judgment on the part of those involved in the selection process. Those who would have the Tribunal interfere must demonstrate a serious defect in it; it is not enough simply to assert that one is better qualified than the selected candidate."

    Keywords:

    burden of proof; candidate; competition; criteria; discretion; judicial review; limits; procedural flaw; promotion; qualifications; satisfactory service; selection board; work appraisal;



  • Judgment 1821


    86th Session, 1999
    European Southern Observatory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "The principles governing the limits on the discretion of international organisations to set adjustments in staff pay [...] may be concisely stated as follows: (a) An international organisation is free to choose a methodology, system or standard of reference for determining salary adjustments for its staff provided that it meets all other principles of international civil service law [...]. (b) The chosen methodology must ensure that the results are 'stable, foreseeable and clearly understood' [...]. (c) Where the methodology refers to an external standard but grants discretion to the governing body to depart from that standard, the organisation has a duty to state proper reasons for such departure [...]. (d) While the necessity of saving money may be one valid factor to be considered in adjusting salaries provided the method adopted is objective, stable and foreseeable [...], the mere desire to save money at the staff's expense is not by itself a valid reason for departing from an established standard of reference [...]." (See cited case law.)

    Keywords:

    adjustment; budgetary reasons; case law; condition; coordinated organisations; cost-of-living increase; criteria; discretion; duty to inform; duty to substantiate decision; exception; executive body; good faith; grounds; international civil service principles; limits; organisation's duties; patere legem; rule of another organisation; salary; scale;

    Consideration 15

    Extract:

    "All comments and statements by member states were made within the context of the proper decision-making organs of the [organisation's] structure. To the extent that the complainants are attempting to show that member states tried to influence the decision through the committees or the governing body to which they belonged, it was perfectly proper for them to do so. An international organisation would not exist without its member states and the proper means for them to exert influence over an organisation they create is precisely that of debate, discussion and persuasion within the committees and governing body of the organisation itself."

    Keywords:

    decision; discretion; executive body; independence; legislative body; member state;



  • Judgment 1814


    86th Session, 1999
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    "Though the Director General does have discretion [as to who may be considered as a dependent child], the staff member must be made aware of any criteria he is applying." (See Judgment 1204.)

    Reference(s)

    ILOAT Judgment(s): 1204

    Keywords:

    criteria; dependant; dependent child; discretion; duty to inform; executive head; family allowance; limits; organisation's duties; parent;



  • Judgment 1798


    86th Session, 1999
    European Molecular Biology Laboratory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "A strong line of precedent has it that payslips are individual decisions which may be challenged before the Tribunal. [...] Even though the council has reserved its right to alter pay for July 1996 later, and retroactively, the impugned decisions do show a cause of action."

    Keywords:

    amendment to the rules; case law; cause of action; discretion; executive body; individual decision; payslip; tribunal;



  • Judgment 1791


    86th Session, 1999
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 9-10

    Extract:

    "In support of their plea of abuse of authority the complainants accuse [the Organization] of scorning [...] the independence of the international civil service by giving in to a single government that was itself defying the principle [...]. There is not a shred of evidence to suggest that [the Organization] was yielding to [the] insistence [of one State]. The impugned decision was taken because of a resolution by the Council, the sovereign body that decides things scientific, technical and administrative [...]."

    Keywords:

    abuse of power; breach; discretion; executive body; general principle; independence; international civil service principles; member state; misuse of authority; official;



  • Judgment 1789


    86th Session, 1999
    European Southern Observatory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    "[The Organisation] rejected [the complainant's application] on the grounds that he was overqualified [for the job put up for competition]. Such grounds are wrong in law. Yet they are the only ones on which the [organisation] rejected the complainant, purporting to act under R II 1.03 [of the Staff Regulations]. It thereby denied the complainant his right to apply and to have his application properly considered. There was breach of equal treatment."

    Reference(s)

    Organization rules reference: ARTICLE R II 1.03 OF THE STAFF REGULATIONS

    Keywords:

    breach; candidate; competition; criteria; discretion; equal treatment; flaw; grounds; procedure before the tribunal; right; staff regulations and rules;



  • Judgment 1787


    86th Session, 1999
    International Organization for Migration
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 10-11

    Extract:

    "The qualifications expected may be just 'desirable', not requirements binding in law. But the appointing authority is not free on that account [...] to disregard the fact that some do qualify and to plump for the very one who does not, even one who in other respects has the right experience and skills. [...] Here the Organization picked someone wanting in listed qualifications which, though said to be only 'desirable', were in fact essential. It thereby fell short of the standards of objectiveness and openness that must govern appointment to a senior post in an international organisation. The process of selection cannot stand [...]" (See Judgment 1595, under 10.)

    Reference(s)

    ILOAT Judgment(s): 1595

    Keywords:

    appointment; candidate; competition; competition cancelled; condition; criteria; discretion; flaw; post; post description; procedure before the tribunal; professional experience; qualifications; vacancy notice;

    Consideration 5

    Extract:

    "When a decision is adverse to a staff member the competent administrative authority does have to reveal the reasons for it. But when the result of a competition is announced and, more broadly, when a choice is made between candidates the reasons for the choice need not be notified at the same time as the decision."

    Keywords:

    candidate; competition; decision; discretion; duty to substantiate decision; grounds; procedure before the tribunal; time limit;



  • Judgment 1784


    86th Session, 1999
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 15

    Extract:

    "Under Manual paragraph I.2.510 the Organization is empowered to require that the original bills be attached to the form that the staff member must fill up to claim the education grant. It does not have to accept evidence of the sort the complainant is offering. It will evaluate any alternative proof he may produce in the absence of the bills. Original documents must have gone astray before, and it is often possible to reconstitute them. It is up to the Organization to decide - subject to review by the Tribunal - whether the proof offered is satisfactory."

    Reference(s)

    Organization rules reference: PARAGRAPH I.2.510 OF WHO MANUAL

    Keywords:

    admissibility of evidence; allowance; application for execution; appraisal of evidence; burden of proof; complainant; disclosure of evidence; discretion; education expenses; evidence; judicial review; lack of evidence;



  • Judgment 1779


    85th Session, 1998
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 11

    Extract:

    "The Tribunal will review the [restructuring] process insofar as it may involve personal prejudice, abuse of authority or similar defects. But it is not for the Tribunal to decide what a normal procedure' for restructuring might be."

    Keywords:

    abuse of power; bias; discretion; flaw; judicial review; limits; misuse of authority; reorganisation;



  • Judgment 1771


    85th Session, 1998
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 2(c)

    Extract:

    "The complainant applies for an expert enquiry to determine whether she is fit for the duties of the post. Firm precedent has it that an executive head must be allowed discretion to determine what services the Organisation needs and whether someone is able to provide them, and that the Tribunal may exercise only a limited power of review over decisions on such matters. To allow the complainant's application for expert inquiry would be to assume that the Tribunal might replace the Director General's assessment of her with its own and would be alien to the notion of limited review [...]."

    Keywords:

    case law; competition; discretion; executive head; expert inquiry; judicial review; qualifications; refusal;



  • Judgment 1733


    84th Session, 1998
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 14

    Extract:

    The authorities of the complainant's home country, who were asked to give an opinion about giving him a promotion, declined their support for him but gave no reasons. If the country "had given a reason the Director General would have had to consider whether it was sound or not and whether refusing him the appointment was in the Agency's best interests. since it offered none, he had no basis on which to exercise his discretion. The complainant was fully qualified for promotion; his abilities were well known to the Agency and appreciated. The paramount consideration mentioned in Article VII.d [of the IAEA Staff Regulations] was heeded, namely seeking staff of the highest standards of efficiency, technical competence and integrity. The reason stated by the Agency for refusing him the appointment which he would otherwise have been granted is therefore untenable and acting from that reason amounted to a mistake in law."

    Reference(s)

    Organization rules reference: ARTICLE VII.D OF THE IAEA STAFF REGULATIONS

    Keywords:

    discretion; independence; member state; organisation's duties; organisation's interest; promotion; qualifications; staff regulations and rules;



  • Judgment 1732


    84th Session, 1998
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    The administration has both the right and the duty to organise itself and to supervise the expenditure of its funds and the movements of its staff in ways which it conceives to be in the best interests of the Organization as a whole. No staff member, even a senior one such as the complainant, has the right to refuse to comply with administrative requirements which are generally applicable throughout the Organization."

    Keywords:

    discretion; organisation's duties; organisation's interest; staff member's duties;

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Last updated: 27.09.2022 ^ top