Judgment 1604
82nd Session, 1997
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 16
Extract:
The complainants want the ICSC to correct a mistake it made in reckoning their post adjustment retroactively. The Tribunal holds that "making a decision retroactive would require the calculation of the past pay of all the staff concerned, including those who have since left. The Commission's practice is to have its decisions take effect only in a few months' time so that the Secretariat and the organisations may make the calculations. The Tribunal concludes that it is neither necessary nor even reasonable to require retroactive application of the revised method. [...] All the Commission can do is to keep [the various elements] under review and, when defects do emerge, revise the method so as to make the correction reasonably soon."
Keywords:
decision; effect; icsc decision; non-retroactivity; post adjustment; reckoning; salary; scale;
Judgment 1366
77th Session, 1994
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 11-12
Extract:
The complainant's education allowance gave rise to an overpayment. He alleges breach of the rule against retroactivity. "He is wrong. [...] What is at issue is the recovery of overpayments; and the complainant [...] must have been aware of the patent disproportion between the advances he was receiving and the education expenses he had actually incurred. So he may not properly plead any mistake in interpretation."
Keywords:
amount; education expenses; non-retroactivity; recovery of overpayment; refund; unjust enrichment;
Judgment 1364
77th Session, 1994
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
In his first complaint the complainant is seeking "a retroactive benefit that would be at variance with the terms of his original appointment, to which he consented and which designated Varese as his home. The EPO is therefore right to refuse any change in that determination as to the past."
Keywords:
acceptance; amendment to the rules; appointment; decision; home; home leave; non-retroactivity; refusal; request by a party;
Judgment 1186
73rd Session, 1992
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The complainants object to the abolition of free after-service health insurance cover. They contend that as serving officials they contributed to a health scheme that covered both their own medical expenses and those of former officials. The FAO's answer is that they never contributed to a health scheme that was intended to cover the expenses incurred both by serving and by retired officials. "The complainants are mistaken: as to medical insurance coverage their position before retirement was distinct from their position after it and amendments in the terms of their coverage after they had left had no retroactive effect on their earlier coverage."
Keywords:
amendment to the rules; further submissions; health insurance; illness; insurance; medical expenses; non-retroactivity; separation from service;
Judgment 1130
71st Session, 1991
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"The rule against retroactivity, though a general principle of law, is not absolute. One qualification is, as indeed the complainants acknowledge, that the retroactive decision will be admissible in law where the effect of it is favourable to the staff member it applies to. Another qualification is that the rule will not hold where the retroactive decision supersedes an earlier one which, at the time at which it was taken, was merely provisional and so was to hold good only until replaced by a final decision."
Keywords:
exception; general principle; non-retroactivity; provisional decision;
Judgment 1117
71st Session, 1991
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 18
Extract:
Following a periodic review of the weightings applicable to pay, the complainants were paid arrears on the strength of the revised weightings. They claim interest on those amounts on the grounds that the method for adjusting pay contains a built-in delay. The plea fails. "The system of period adjustment according to criteria applied a posteriori means that any action taken will perforce be retroactive. [...] Adjustment is a continuous process over any given period, and it is reasonable to regard the figures that are taken at the end of that period as properly applying to the whole of it."
Keywords:
adjustment; cost-of-living weighting; interest on damages; non-retroactivity; payment; salary;
Judgment 1086
70th Session, 1991
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
In keeping with the Flemming principle and to make up for the end-of-service allowance paid to employees in Austria's private sector, general service staff at the IAEA, whose headquarters are in Vienna, got a percentage increase in gross salary from 1972 to 1987. As from 1987 the Agency brought in a system comparable to the one in Austrian enterprises. The complainants object to the IAEA's discounting service up to 1972 in reckoning the allowance. The Tribunal holds that by providing for a non-retroactive increase in applicable salary the Agency took a decision which had become final and that by replacing a system in force since 1972 by another was not in breach of any acquired right. No matter which method it followed, the Agency had complied with the Flemming principle.
Keywords:
compensatory measure; flemming principle; increase; non-retroactivity; salary; terminal entitlements; terms of appointment; time bar;
Judgment 1073
70th Session, 1991
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The complainant was denied a dependency entitlement for 1989 because his wife's income did not meet the conditions laid down in Provisional Staff Rule 5.03.2(d) as it read at the material time. Loss of the entitlement brought the complainant's combined family income below the maximum limit. As from 1 January 1990 the Agency's practice was amended so as to limit the loss of such entitlement to the same amount by which the spouse's income runs over the income limit. Inasmuch as the new rule does not prescribe retroactive change, the complainant has no grounds on which to claim it.
Reference(s)
Organization rules reference: IAEA PROVISIONAL STAFF RULE 5.03.2(D)
Keywords:
allowance; amendment to the rules; condition; dependant; non-retroactivity; practice; salary; staff regulations and rules;
Judgment 1053
69th Session, 1990
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7, Summary
Extract:
When the complainants retired in 1988 they chose to take partial lump-sum payment of their pensions in the belief that United States taxes levied on those amounts would be reimbursed in keeping with a practice that remained in force until 1989. But they were denied reimbursement. As the complainants all believed the practice to be applicable when they made their choice, both the principle of non-retroactivity and that of good faith apply.
Keywords:
amendment to the rules; date; good faith; lump-sum; non-retroactivity; pension; pension entitlements; practice; refund; retirement; tax;
Judgment 1020
69th Session, 1990
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"Since the Tribunal may not review the policy decision to move to Lyon the only effect it can give to the doctrine of acquired rights as recognised by Interpol is to determine whether the arrangements for carrying out the move were properly objective. Since the transfer did disrupt the lives of its staff, the organization had a duty to ensure that there was no undue or pointless detriment to their interests. The consequences of the change which the transfer brought in the conditions of their employment are to be gauged against cardinal principles such as equality of treatment, good faith and the rule against retroactivity".
Keywords:
acquired right; amendment to the rules; equal treatment; general principle; good faith; judicial review; non-retroactivity; organisation's duties; terms of appointment; transfer of headquarters;
Consideration 12
Extract:
"The general principle the Tribunal will apply is that, save where there is reversal of an earlier decision - and in this case there was not - an administrative decision may not retroactively impair a right or alter any state of fact."
Keywords:
exception; general principle; non-retroactivity; withdrawal of decision;
Consideration 12
Extract:
The complainant initially accepted the transfer but later changed his mind. He must be deemed never to have consented to leaving his posts. "If there was anything retroactive about the period of notice, that was attributable, not to any decision of Interpol's, but to his own shift of position."
Keywords:
acceptance; complainant; non-retroactivity; refusal; transfer;
Judgment 1019
69th Session, 1990
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
Vide Judgment 1020, consideration 13.
Reference(s)
ILOAT Judgment(s): 1020
Keywords:
acquired right; amendment to the rules; equal treatment; general principle; good faith; judicial review; non-retroactivity; organisation's duties; terms of appointment; transfer of headquarters;
Consideration 10
Extract:
Vide Judgment 1020, consideration 12.
Reference(s)
ILOAT Judgment(s): 1020
Keywords:
exception; general principle; non-retroactivity; withdrawal of decision;
Consideration 10
Extract:
The complainants initially accepted the transfer but later changed their minds. They must be deemed never to have consented to leaving their posts. "If there was anything retroactive about the period of notice, that was attributable, not to any decision of Interpol's, but to their own shift of position."
Keywords:
acceptance; complainant; non-retroactivity; refusal; transfer;
Judgment 1012
68th Session, 1990
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
On 7 July 1987 Eurocontrol's Permanent Commission decided provisionally to reduce pay by 0.7 per cent with effect from 1 July 1986. The Commission's decision was not confirmed until 12 November 1987. The complainants are challenging the pay slips they got for July, August and September 1987 which indicated a reduction in pay backdated to 1 July 1986. The Tribunal holds that the pay slips, which were issued before the commission's decision entered into force, have no basis in law and must be set aside insofar as they cause the complainants injury.
Keywords:
decision; effective date; legislative body; non-retroactivity; reduction of salary; salary;
Judgment 986
67th Session, 1989
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 21-22
Extract:
A decision "will be reviewed in the context of fact and law that obtained when it was taken, else there would be breach of the general rule against retroactivity that is binding on any administrative authority and court of law. That precept does, however, allow of limited qualification [...] A decision taken after the one impugned may, if more favourable, repeal it with retroactive effect".
Keywords:
decision; exception; general principle; non-retroactivity; subsequent fact;
Judgment 963
66th Session, 1989
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"Any authority is bound by the rules it has itself issued until it amends or repeals them. The general principle is that rules govern only what is to happen henceforth, and it is binding on any authority since it affords the basis for relations between the parties in law. furthermore, a rule is enforceable only from the date on which it is brought to the notice of those it applies to."
Keywords:
amendment to the rules; effective date; enforcement; general principle; non-retroactivity; patere legem; staff regulations and rules;
Consideration 5
Extract:
"Since the impugned decisions retroactively reduce the refundable amount of education expenses, they are unlawful and cannot stand."
Keywords:
allowance; amount; education expenses; non-retroactivity; reduction of salary; refund;
Consideration 5
Extract:
The complainants challenge Eurocontrol's decision to reduce the amount of education expenses to be refunded to them insofar as it applied retroactively. Though the Director General's decisions are the only ones the Tribunal may quash and those under challenge did not have retroactive effect, "a staff member may challenge in an individual appeal the lawfulness of any decision of the [Permanent] Commission's that affords the basis in law for a decision by the appointing authority if he believes the latter decision to be at odds - as indeed here the decisions are - with a rule or principle that governs the international civil service."
Keywords:
decision; education expenses; enforcement; executive head; international civil service principles; judicial review; legislative body; non-retroactivity; reduction of salary; refund; salary;
Judgment 960
66th Session, 1989
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The purpose of the present complaint is the same as the purpose of the complaints which lead to Judgment 832. The rationale of that judgment and the ruling hold good. The Tribunal declares that "the ILO acted lawfully in adopting the new scale as from 1 April 1985, its decision was not in breach of any promise and did not have retroactive effect, and although it did cause the complainant financial injury the reasons were objective and the extent of the injury admissible."
Reference(s)
ILOAT Judgment(s): 832
Keywords:
acquired right; amendment to the rules; non-retroactivity; pension; pension entitlements; pensionable remuneration; reduction of salary; scale;
Judgment 792
60th Session, 1986
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The Tribunal refers to the principle laid down in Judgment no. 767: the administration may alter its procedure, "but the change must be properly made known and may not be retroactive." In this case, the change concerns the construction of a provision in the Staff Regulations.
Reference(s)
Organization rules reference: ARTICLE 11.16 OF THE ILO STAFF REGULATIONS
ILOAT Judgment(s): 767
Keywords:
amendment to the rules; condition; duty to inform; interpretation; non-retroactivity; practice; staff regulations and rules;
Judgment 767
59th Session, 1986
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
The organisation submits that "even if it did construe [Article] 11.16 too loosely it could always put an end to the practice. The ILO may indeed change the interpretation provided, it does not thereby infringe any provision of the Staff Regulations. But the change has to be properly made known and may not be retroactive. The only evidence adduced in support of the argument is a circular which went out after the impugned decision and which therefore could have no bearing on its lawfulness."
Reference(s)
Organization rules reference: ARTICLE 11.16 OF THE ILO STAFF REGULATIONS
Keywords:
amendment to the rules; duty to inform; interpretation; non-retroactivity; practice; provision; staff regulations and rules;
Judgment 742
58th Session, 1986
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"According to customary methods of interpretation any action prescribed in a text is deemed to be of immediate effect. There is no presumption of retroactive effect."
Keywords:
date; effective date; international instrument; interpretation; non-retroactivity;
Judgment 741
58th Session, 1986
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
Vide Judgment 742, consideration 8.
Reference(s)
ILOAT Judgment(s): 742
Keywords:
date; effective date; international instrument; interpretation; non-retroactivity;
Judgment 595
51st Session, 1983
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The material date was that on which the complainant received the letter of termination. The period of notice should begin on that date and the termination payment and the disability payment should be calculated and paid accordingly. "Any other conclusion would offend against the rule that a decision must not be retroactive in effect. [...] No organisation may retroactively alter at will the position of its staff. The effect of the WHO's arrangement might be to do away with one of the benefits prescribed" in the material Staff Rules. The decision is set aside; the complainant's administrative position must be reviewed.
Keywords:
date; date of notification; disability benefit; non-retroactivity; notice; payment; terminal entitlements; termination of employment;
Consideration 7
Extract:
"The rule [against retroactivity] does not preclude making the finding of fact at a date prior to that of the decision."
Keywords:
consequence; general principle; non-retroactivity;
