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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 1217


    74th Session, 1993
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 14

    Extract:

    The complainant objects to CERN's refusal to change his home from that of which he is a citizen to another country. "The original determination of the home station on recruitment and any later change are incontrovertibly at the discretion of CERN, which has to give weight to the various criteria the Staff Regulations set. For the sake of sound management [...] the organization may set guidelines on the matter. So there can be no objection to its consistent policy of determining the staff member's home, barring evidence to the contrary, in his own country and allowing later change to some other country only where some change in circumstances so warrants."

    Keywords:

    amendment to the rules; criteria; decision; discretion; home; home leave; judicial review; nationality; organisation's interest; place of origin; refusal;



  • Judgment 1204


    74th Session, 1993
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 4-5

    Extract:

    The complainants object to a decision denying them so-called "out-of-career" promotions. They submit that the original decisions were taken for an unlawful reason of principle and that the organization later confirmed the decisions on quite different grounds. The organization says it merely exercised the discretion inherent in managerial prerogative and did not alter the original reasons but merely added to them. "Although the competent authority has discretion to grant or refuse the promotion of staff who qualify under the material rules, it must abide by the rules, and whatever decisions it takes will be subject to judicial review [...] so as to determine whether they pass muster the rules have to be known to everyone and an organisation may not go beyond the duly published texts and resort to secret provisions that change the thrust of the ones it intended to treat as binding. Before it takes its discretionary decision, it must compare the merits of all staff who qualify under the rules [...] CERN committed two mistakes of law. One was to apply to the complainants rules that had never been published and that it regarded as binding. The other was to defend its position ex post facto by saying that its reasons for rejecting the complainants' claims were connected with their performance, though there is no evidence of any comparative and analytical assessment of the kind that international officials are entitled to."

    Keywords:

    applicable law; discretion; duty to substantiate decision; equal treatment; judicial review; organisation's duties; patere legem; promotion; publication; refusal;



  • Judgment 1199


    73rd Session, 1992
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    The complainants plead breach of their acquired rights concerning pay. "In this case the changes were made because of shifts in economic trends and tax rules in the United States [...] The competent authorities [...] decided in the exercise of their discretion to keep the link with the civil service of the member State - the United States - that is customarily the 'comparator' in determining pay in the international civil service. Their solution is not intrinsically unlawful."

    Reference(s)

    ILOAT Judgment(s): 832

    Keywords:

    acquired right; amendment to the rules; discretion; domestic law; general principle; noblemaire principle; reckoning; salary; scale;



  • Judgment 1185


    73rd Session, 1992
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 2

    Extract:

    "According to consistent precedent a decision to grant an appointment, even though it is a matter of discretion, may be set aside, and one flaw that will be fatal is that it was taken without authority."

    Keywords:

    case law; decision; decision-maker; discretion; judicial review;



  • Judgment 1184


    73rd Session, 1992
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 2

    Extract:

    Vide Judgment 1185, consideration 2.

    Reference(s)

    ILOAT Judgment(s): 1185

    Keywords:

    decision; decision-maker; discretion; judicial review;



  • Judgment 1183


    73rd Session, 1992
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "The purpose of probation is to find out whether a probationer has the mettle to make a satisfactory career in the organization. The competent authority will determine [...] whether or not to confirm the appointment and must be allowed the utmost measure of discretion in deciding whether someone [...] shows, not just the professional qualifications, but also the personal attributes for the particular post in which he is to be working. Only where the Tribunal finds the most serious or glaring flaw in the exercise of the Director-General's discretion will it interfere."

    Keywords:

    career; discretion; flaw; judicial review; post; probationary period; purpose; qualifications;



  • Judgment 1179


    73rd Session, 1992
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "Transfer is at the discretion of the Director General [...]. The complainant wants the Tribunal to order the organization to consider his application for transfer to a suitable post. That is not the sort of claim the Tribunal is competent to grant, and it is therefore irreceivable."

    Keywords:

    competence of tribunal; discretion; request for transfer;



  • Judgment 1177


    73rd Session, 1992
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4

    Extract:

    "When the Director-General's decision is not based on the results of an examination marked by an independent body, he has a wide degree of discretion in making an appointment and granting promotion. Though he is not bound by any recommendation from an advisory body, his authority does not make referral to such a body pointless. A selection body relieves him of the burden of carrying out an assessment himself. It ensures that all applications for appointment or promotion, whatever their source, shall be examined impartially and on the merits. And its report enables the Tribunal to appraise the background to the impugned decision and determine whether it shows any flaw."

    Keywords:

    advisory body; appointment; competition; discretion; further submissions; impartiality; interlocutory order; judicial review; promotion; promotion board; recommendation; report;



  • Judgment 1175


    73rd Session, 1992
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "As the case law makes plain - for example, judgments 736 [...] and 1161 [...] - a decision not to confirm a probationer's appointment is a matter of discretion for the President. Although the Tribunal may review the lawfulness of dismissal of a probationer, the nature of the decision is such that its power of review is limited. It will set aside the decision only if there was a mistake of fact or law, or a formal or procedural flaw, or if some essential fact was overlooked, or if a clearly mistaken conclusion was drawn from the evidence, or if there was abuse of authority."

    Reference(s)

    ILOAT Judgment(s): 736, 1161

    Keywords:

    abuse of power; case law; contract; discretion; disregard of essential fact; flaw; formal flaw; grounds; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; probationary period; procedural flaw; termination of employment;

    Consideration 5

    Extract:

    "The purpose of probation is to find out whether a probationer has the mettle to make a satisfactory career in the organisation. The competent authority will determine on the evidence before it, and possibly after extension of the probation as in the present case where doubt still lingers, whether to dismiss the official or to confirm the appointment. It must indeed be allowed the widest measure of discretion in determining whether someone it has recruited is suitable."

    Keywords:

    career; discretion; extension of contract; probationary period; qualifications; termination of employment;

    Consideration 6

    Extract:

    "The organisation is free to set quotas for the output of patent examiners. The complainant has failed to offer any evidence to suggest that the quotas the organisation set for him were in any way unreasonable or that, even when he attained them, the evenness of his output was such as the organisation was entitled to expect of him. In the circumstances it is not proven that the decision not to confirm his appointment shows any [...] fatal flaws".

    Keywords:

    discretion; evidence; output; qualifications; reckoning; staff member's duties; unsatisfactory service; work appraisal;



  • Judgment 1161


    72nd Session, 1992
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4

    Extract:

    "As the case law makes plain - for example, Judgments 687 [...] and 736 [...] - a decision not to confirm a probationer's appointment is a matter of discretion for the [executive head] and the Tribunal will not substitute its own judgment for the organisation's in matters that require such exercise of discretion. Although the Tribunal may review the lawfulness of dismissal of a probationer, the nature of the decision is such that its power of review is limited. It will set aside the decision only if there was a mistake of fact or law, or a formal or procedural flaw, or if some essential fact was overlooked, or if a clearly mistaken conclusion was drawn from the evidence, or if there was abuse of authority."

    Reference(s)

    ILOAT Judgment(s): 687, 736

    Keywords:

    abuse of power; case law; discretion; disregard of essential fact; flaw; formal flaw; judicial review; mistake of fact; mistaken conclusion; misuse of authority; probationary period; procedural flaw; termination of employment;

    Consideration 4

    Extract:

    "The purpose of probation is to find out whether a probationer has the mettle to make a satisfactory career in the Organisation. The competent authority will determine on the evidence before it, and possibly after extension of the probation as in the present case where doubt still lingers, whether to dismiss the official or to confirm the appointment. It must indeed be allowed the widest measure of discretion in determining whether someone it has recruited shows the highest level of qualifications required for a post in the particular field in which he is to be working."

    Keywords:

    discretion; extension of contract; probationary period; qualifications; termination of employment;

    Consideration 5

    Extract:

    "The Tribunal is satisfied that in this case the President of the Office made proper exercise of the wide discretion he enjoys under Article 13(2) [of the Service Regulations] to decline, on the grounds of poor performance, to confirm the complainant's appointment."

    Reference(s)

    Organization rules reference: ARTICLE 13(2) OF THE EPO SERVICE REGULATIONS

    Keywords:

    discretion; probationary period; staff regulations and rules; termination of employment; unsatisfactory service;



  • Judgment 1159


    72nd Session, 1992
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 15

    Extract:

    WHO Staff Rule 1050.2.3 "distinguishes between holders of a career-service appointment and temporary staff. Whereas the former 'shall be given priorities', the Director-General enjoys discretion to 'establish priority' among the latter. He was therefore under no obligation to give any particular priority to the holder of a temporary appointment like the complainant."

    Reference(s)

    Organization rules reference: WHO STAFF RULE 1050.2.3

    Keywords:

    career; contract; discretion; fixed-term; organisation's duties; priority;



  • Judgment 1153


    72nd Session, 1992
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    "As the case law makes plain - for example, Judgments 687 [...] and 736 [...] - a decision not to confirm a probationer's appointment is a matter of discretion [...] and the Tribunal will not substitute its own judgment for the organisation's in matters that require such exercise of discretion. [...] Although the Tribunal may review the lawfulness of the dismissal, the nature of the decision is such that its power of review is limited. It will set aside the decision only if there was a mistake of fact or law".

    Reference(s)

    ILOAT Judgment(s): 687, 736

    Keywords:

    case law; discretion; judicial review; probationary period; termination of employment;



  • Judgment 1152


    72nd Session, 1992
    Pan American Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 2

    Extract:

    "As [the Tribunal] has said many times, grading requires close familiarity with the conditions in which the staff member works. [...] The decision is, in other words, a discretionary one. [...] Consistent precedent has it that the Tribunal will not substitute its own assessment or direct that a new one be made unless it is satisfied on the evidence that there is a fatal flaw".

    Keywords:

    discretion; judicial review; limits; post; post classification;



  • Judgment 1151


    72nd Session, 1992
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 3

    Extract:

    "According to consistent precedent, a decision to appoint or promote a staff member, even though it is a matter of discretion, may be set aside, and one flaw that will be fatal is that it was taken without authority."

    Keywords:

    appointment; case law; competence; decision; decision-maker; discretion; judicial review; promotion;



  • Judgment 1148


    72nd Session, 1992
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 19

    Extract:

    The complainant objects to the Sickness Fund's refusal to refund the costs of a product which her doctor prescribed and which she bought in a pharmacy. The Tribunal holds that the fact "that a product has been bought in a pharmacy [is immaterial] since a pharmacy may sell many health items that are not products within the meaning of the rule. Likewise a doctor's prescription is no criterion since according to the rule it is a condition of refund over and above the objective effects of the product."

    Keywords:

    discretion; freedom to choose practitioner; health insurance; medical expenses;

    Consideration 18

    Extract:

    The complainant is challenging [the organisation's] Sickness Fund's refusal to refund the cost of an item classified as "phytotherapy". The Tribunal holds that "under Article 14 the administration may determine whether an item that a fund member wants to have refunded is a 'pharmaceutical product' within the meaning of the rule. [...] That is a matter of medical opinion and among the relevant criteria are the preventive or therapeutic efficacy of the product, scientific inquiry into the effects it has, and any risks involved in using it. So decisions by public health bodies are highly relevant, particularly for an international fund like [the organisation's] that covers more than one country and allows free choice of practitioner."

    Reference(s)

    Organization rules reference: ARTICLE 14 OF RULE 10

    Keywords:

    discretion; domestic law; freedom to choose practitioner; health insurance; insurance benefits; medical expenses;

    Consideration 21

    Extract:

    The complainant objects to the refusal by Eurocontrol's Sickness Fund of her claim to the refund of costs incurred for treatment. The organisation notified this decision to her by an office memorandum and it constituted an individual decision. "The organisation [...] has wide discretion in the matter and may exercise it as it sees fit for the purpose of ensuring the efficiency and financial soundness of its fund. There is more than one legal procedure it may resort to. It may adopt general rules [...] or else it may take individual decisions on particular cases."

    Keywords:

    administrative instruction; discretion; general decision; health insurance; individual decision; medical expenses;

    Consideration 20

    Extract:

    The complainant objects to the Sickness Fund's refusal to refund the costs of a given item. "Eurocontrol has [...] discretion under Article 24, which empowers the fund to refuse refund of the costs of treatment which the medical officer deems to be 'non-functional, superfluous or unnecessary'. As was said in Judgment 1088, [article] 24 covers all sorts of 'treatments', however the term 'pharmaceutical product' in [article] 14 is to be construed."

    Reference(s)

    Organization rules reference: ARTICLES 14 AND 24 OF RULE 10
    ILOAT Judgment(s): 1088

    Keywords:

    definition; discretion; health insurance; insurance; limits; medical consultant; medical expenses; refund; refusal;



  • Judgment 1144


    72nd Session, 1992
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "As was said in Judgment 806 [...], a decision on a staff report, being a discretionary one, may be set aside only on limited grounds such as a procedural or formal flaw, a mistake of fact or of law, the overlooking of some material fact, abuse of authority or the drawing of a mistaken conclusion from the evidence. That judgment goes on to explain that the review will be more limited because at the EPO there is a procedure for conciliation on staff reports and the Service Regulations allow the staff member to appeal to a joint committee made up of people who are closely familiar with the running of the Office."

    Reference(s)

    ILOAT Judgment(s): 806

    Keywords:

    discretion; judicial review; performance report; rebuttal;



  • Judgment 1143


    72nd Session, 1992
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 3

    Extract:

    "Regulation 9.8 confers on the Director General discretion to extend the age limit in individual cases if he considers that to be in the organization's interests. The determination of what the organization's interests are being peculiarly within the Director General's discretion, the Tribunal has a limited power of review and will interfere with his decision only if it was taken without authority or [...]."

    Reference(s)

    Organization rules reference: WIPO STAFF REGULATION 9.8

    Keywords:

    age limit; discretion; exception; extension beyond retirement age; judicial review; organisation's interest; retirement;



  • Judgment 1138


    72nd Session, 1992
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 2-3

    Extract:

    "By virtue of UNESCO Staff Rule 104.6(b) a fixed-term contract may at the Director-General's discretion be extended or converted into an indefinite appointment, but the staff member has neither any right to an extension nor any legitimate expectancy of one. In keeping with precedent [...] the Tribunal will not interfere with the discretionary decision not to extend an appointment unless it was made without authority or in breach of a rule of procedure, or was based on a mistake of fact or of law, or overlooked some essential fact, or amounted to an abuse of authority."

    Reference(s)

    Organization rules reference: UNESCO STAFF RULE 104.6

    Keywords:

    contract; discretion; extension of contract; judicial review; non-renewal of contract; titularization;



  • Judgment 1137


    72nd Session, 1992
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 2

    Extract:

    "Only on the limited grounds often stated in the case law will the Tribunal interfere with discretionary decisions such as one to promote an official. [...] So the Tribunal will, for example, [not] review the records of the candidates a promotion board was considering".

    Keywords:

    discretion; judicial review; promotion;



  • Judgment 1136


    72nd Session, 1992
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    The complainant is objecting to an appraisal report. "According to well-established precedent [...] a reporting officer has wide discretion [...] and [his assessment] will stand unless there is an obvious mistake of fact or failure to show the sort of objectivity that ought to govern reporting."

    Keywords:

    discretion; judicial review; performance report; work appraisal;

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Last updated: 27.09.2022 ^ top