Judgment 2503
100th Session, 2006
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"The evidence on file shows that the complainant was never an official of Eurocontrol, and the only contracts he has produced are temporary contracts signed with a temporary employment agency [which supplied him to the defendant] and governed by French law. According to Article II of its Statute, the Tribunal is competent to hear complaints alleging non-observance of the terms of appointment of officials or such provisions of the Staff Regulations as are applicable to their case. Since the complainant is not an official of Eurocontrol, and cannot produce any employment contract signed with the latter, it follows, as the Agency rightly contends, that the Tribunal does not have jurisdiction over this dispute."
Reference(s)
ILOAT reference: Article II of the Statute
Keywords:
competence of tribunal; complainant; contract; domestic law; iloat statute; locus standi; non official; official; receivability of the complaint; status of complainant; successive contracts;
Judgment 2480
100th Session, 2006
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 2 and 4
Extract:
The complainant takes issue with an ILO circular which concerned matrimonial property rights. It informed foreign nationals, like himself, who were married outside Switzerland with no marriage contract, that Switzerland was treating such persons as subject to the Swiss regime of joint ownership of property acquired after marriage (participation aux acquêts). He holds that by accepting such "instructions" from the Swiss Government, the Organization caused him undue financial hardship and "deep moral suffering". The Tribunal considers that the circular was "simply the transmission by the ILO to its staff members resident in Geneva of information received from the local 'Chambre des notaires'. [...] The publication by an international organisation for its staff members of purely objective information of this sort relating to local private law is manifestly not a matter falling within the Tribunal's field of competence."
Reference(s)
Organization rules reference: ILO Circular No. 451, Series 6
Keywords:
competence of tribunal; domestic law; headquarters official; information note; marital status; material injury; moral injury; nationality; official; organisation; publication; written rule;
Judgment 2450
99th Session, 2005
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"[T]here is no rule or general principle that obliges an international organisation to reimburse its staff for taxes payable outside the host country pursuant to legislation which is not that of the host country."
Keywords:
applicable law; domestic law; general principle; headquarters; organisation; organisation's duties; refund; staff regulations and rules; tax;
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;
Consideration 8
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 dependant 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 Tribunal shares the view that the organization "is not bound by contracts entered into under national laws".
Keywords:
contract; dependant; domestic law; family allowance; marital status; organisation's duties; same-sex marriage; sex discrimination;
Consideration 11
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 dependant 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 Tribunal states that "neither the letter nor the spirit of the relevant texts cited by the parties, nor indeed the case law, enable partners bound by a pacs to be considered as having the status of spouses within the meaning of Staff Rule 103.9."
Reference(s)
Organization rules reference: UNESCO STAFF RULE 103.9
Keywords:
applicable law; case law; contract; dependant; domestic law; family allowance; interpretation; marital status; organisation's duties; same-sex marriage;
Judgment 2178
94th Session, 2003
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
In its judgment on the complainant's first complaint the Tribunal ordered that he be compensated because he had been wrongfully terminated. In his application for review of that judgment "the complainant seeks compensation in respect of the loss of the tax immunities he enjoyed by virtue of the agreement between the [...] authorities [of the host country] and the [organisation]. Since the complainant has not been reinstated in his post, he is no longer entitled to those immunities. Nor is he entitled to compensation for the loss thereof: the tax regime governing the exemptions he may claim is solely a matter for the competent authorities of the host state, and the [organisation] cannot be held liable for direct or indirect taxes owed by the complainant."
Reference(s)
ILOAT Judgment(s): 2090
Keywords:
allowance; application for execution; domestic law; headquarters agreement; judgment of the tribunal; privileges and immunities; reconstruction of career; reinstatement; request by a party; tax;
Judgment 2156
93rd Session, 2002
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"The general principles which govern employment relationships in international organisations and which are also generally recognised in national labour legislation" recognise "that elected representatives of the staff enjoy specific rights and safeguards".
Keywords:
domestic law; general principle; international civil service principles; right; safeguard; staff representative;
Judgment 1984
89th Session, 2000
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The complainant was dismissed for serious misconduct. He argues that the German criminal law would have taken into account mitigating circumstances, something the organisation failed to do. "Although under German criminal law these facts might remove or mitigate the penal nature that could attach to the offence of attempted fraud, when disciplinary sanctions are applied it is immaterial whether or not an act is criminal. Furthermore, the fact that the organisation in the end suffered no financial injury because it did not have to pay out money it did not owe, does not mean that the complainant's misconduct should not have been sanctioned."
Keywords:
disciplinary measure; domestic law; lack of injury; misconduct; mitigating circumstances; separation from service; serious misconduct; termination of employment;
Judgment 1715
84th Session, 1998
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
"In order to be a 'dependent spouse' someone must be not only the dependant but also the 'spouse' of the staff member. As a general rule, and in the absence of a definition of the term, the status of spouse will flow from a marriage publicly performed and certified by an official of the State where the ceremony has taken place, such marriage being then proved by the production of an official certificate. The Tribunal accepts, however, that there may be de facto situations, of which 'traditional' marriages are examples, and which some States recognise as creating the status of 'spouse'. In each such case where there is no definition of 'spouse' it will be up to the staff member to prove not only the existence of the relevant fact but also the precise provisions of local law which give it consequences and the exact nature of those consequences, and he must show that such law is applicable in the context of the Organisation's Staff Regulations and Rules."
Keywords:
burden of proof; definition; dependant; domestic law; evidence; insurance benefits; marital status; staff regulations and rules;
Judgment 1491
80th Session, 1996
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"CERN has but one obligation under R IV 2.02: to refund taxes paid by officials 'on remuneration and benefits received from the organization'. [...] CERN is not to blame for the resulting increase in the rates of taxation of the complainants' total income. All it can do is pay back to French citizens on its staff the amounts they have paid in tax on their international earnings: it exerts control neither over the tax brackets and rates set by French law, nor over the method of reckoning their total income, which is just a feature of the French manner of processing income tax."
Reference(s)
Organization rules reference: CERN STAFF REGULATION R IV 2.02
Keywords:
domestic law; organisation's duties; privileges and immunities; rate; refund; salary; staff regulations and rules; tax;
Consideration 8
Extract:
The rule against discrimination "holds good only where staff who are in like case both in law and in fact have not been treated alike. Under CERN's agreement with France its staff are exempt in that country from direct taxation on their earnings from the organization. But the provision does not apply to French citizens, who do not enjoy exemption from tax on their earnings from CERN and are therefore, by reason of the terms of an agreement that CERN is bound by, not in the same position in law as staff of other nationalities."
Keywords:
domestic law; equal treatment; general principle; nationality; privileges and immunities; tax;
Consideration 8
Extract:
In respect of earnings from other sources than CERN, "the staff who are not French do fare better because only their other income counts for the purpose of reckoning rates of income tax and it therefore falls within lower tax brackets, whereas for the French citizens the whole of their income counts for that purpose. But the difference in treatment is not of the organization's making: it is due solely to the working of French tax law."
Keywords:
domestic law; equal treatment; nationality; rate; refund; tax;
Judgment 1456
79th Session, 1995
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 26
Extract:
"By taking the German administration's figures the organisation endorsed them and subsumed them in its own decision. The figures thus become inseparable from the decision for the purpose of any litigation [...]; the EPO may not properly refer the complainants to the national administration; and that administration may not properly intervene in the organisation's decision."
Keywords:
decision; domestic law; organisation; pension adjustment system; pension entitlements;
Consideration 25
Extract:
"No doubt national institutions that run pension schemes are better able to evaluate entitlements that may have accrued to the employee under one or more national schemes before recruitment [...]". No doubt the national institution has the last word on the figure to be used. But the organisation remains "free by virtue of its administrative and financial autonomy to discard any figure that the institution has worked out on some basis that offends against the prescriptions of the international regulations. It is free, too, to ask the institution to work out a new figure in the event of disagreement."
Keywords:
domestic law; independence; international civil service principles; organisation; pension; pension adjustment system; pension entitlements;
Judgment 1451
79th Session, 1995
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 28
Extract:
"[Certain] conclusions may be drawn from [...] considerations of comparative law. Jurisdiction is conferred where there are significant connections with a particular forum; recourse to a specific system of law is one such connection; there may be more than one forum which has jurisdiction; the connections are to be assessed against the interests of both parties to the litigation and against the public interest as well; and any conflict of jurisdiction must invariably be so resolved as to allow no judicial void where conflicting jurisdictions decline competence."
Keywords:
applicable law; competence; domestic law; general principle; municipal court;
Consideration 30
Extract:
"The reinstatement of the status quo by the quashing of the decision [to amend the rules of the provident fund so as to confer sole jurisdiction on a national tribunal] restores a situation which is quite consistent with the requirement of rational division of jurisdiction in the international context. Each of the jurisdictions that may be competent - the [national] tribunal and this Tribunal - will be able to determine its own competence according to the material rules on conflict. That was what the Tribunal held in Judgment 1258 on a case in which there was similar conflict of jurisdiction: it said under 4 that it was for each court to rule on its own competence."
Reference(s)
ILOAT Judgment(s): 1258
Keywords:
applicable law; case law; competence; competence of tribunal; domestic law; general principle; municipal court;
Consideration 23
Extract:
"The Tribunal concurs fully with what the Union says about the legal process it chose to follow in setting up its provident scheme [under municipal law]. It is true that other such schemes have been set up under international law and that the Tribunal has generally preferred that any dispute it may hear be resolved by the rules of the international civil service. But it has also been at pains to except any case in which there is express renvoi to municipal law in an organisation's rules or in the terms of appointment: for recent examples see Judgments 1311 and 1369, both under 15."
Reference(s)
ILOAT Judgment(s): 1311, 1369
Keywords:
applicable law; case law; contract; domestic law; provident fund; staff regulations and rules;
Judgment 1450
79th Session, 1995
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 23
Extract:
"However municipal law on the grant of fixed-term contracts may vary from country to country, the fact is that in the international civil service such contracts are common and the policy is seen as a proper and even necessary method of administration. So the EPO acted unimpeachably in resorting to fixed-term contracts to get auxiliary work done and so ease the undue rigidity of its staff structure."
Keywords:
contract; domestic law; duration of appointment; fixed-term; international civil service principles; organisation's interest; practice;
Consideration 19
Extract:
"The Tribunal has never ruled out municipal law a priori. Although it is ordinarily and essentially competent in a context of international law, it may well have to heed some provisions of municipal law where, as indeed in this case, there is renvoi to such law in a contract of service or in an organisation's rules. Precedent further has it that there may be reference to municipal law for the sake of comparison and so as to educe certain general principles of law that apply to the international civil service."
Keywords:
applicable law; case law; contract; domestic law; general principle; international civil service principles; staff regulations and rules; tribunal;
Judgment 1389
78th Session, 1995
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 27
Extract:
"The international organisation is under no duty to insure its expert against any adverse effects on him that the national postal department may draw from conclusions about the nature of an accident that has befallen him while on mission for the organisation. So any claim that the expert may make that goes beyond those limits should be made to the national department, which will deal with it according to its own rules. Nor indeed may the Union or the Tribunal intervene in the area of the department's competence."
Keywords:
applicable law; competence of tribunal; domestic law; insurance; organisation's duties; professional accident; project personnel;
Judgment 1369
77th Session, 1994
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
"The Tribunal must enforce the law within the full ambit of the competence its Statute vests in it. For that purpose it will apply any material rule of law, be it international or administrative or labour law or any other body of law. The only sort it will not apply is national law, save where there is express renvoi thereto in the Staff Regulations or contract of employment: see Judgment 1311 [...], under 15."
Reference(s)
ILOAT Judgment(s): 1311
Keywords:
applicable law; case law; competence of tribunal; contract; domestic law; exception; iloat statute; insurance benefits; international civil service principles; international instrument; law of contract; right; staff regulations and rules; written rule;
Judgment 1333
76th Session, 1994
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
The complainants had their pay docked for one day's strike action. The deductions the EPO made covered all elements of pay including allowances. The complainants sacrificed their family allowance from the EPO whereas other officials, who received an analogous allowance from the Dutch government, suffered no similar loss. "Employees whose families do receive the Dutch child allowance are not in the same position in law as those who receive the EPO family allowance, the source of the benefit not being the same. Since the principle of equal treatment applies only where staff members are in the same position in law, there is no breach of it in the present instance."
Keywords:
criteria; deduction; domestic law; elements; equal treatment; family allowance; general principle; right to strike; salary; strike;
Judgment 1317
76th Session, 1994
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 23
Extract:
"Consistent precedent has it that even where an organisation's Staff Regulations say that a fixed-term contract is ipso facto extinguished on expiry non-renewal is to be treated as a distinct and challengeable administrative decision." After referring to Judgments 17 and 1040, the Tribunal observes that "that requirement is an indispensable safeguard of security of employment in the international civil service, which indeed, unlike many national civil services and some regional organisations, commonly grants fixed-term appointments."
Reference(s)
ILOAT Judgment(s): 17, 1040
Keywords:
case law; contract; decision; domestic law; fixed-term; international civil service principles; non-renewal of contract; notice; right of appeal; safeguard; staff regulations and rules;
Judgment 1311
76th Session, 1994
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
"As a rule the conditions of employment of staff are subject exclusively to the ESO's own Staff Regulations and to the general principles of the international civil service: see Judgments 322, under 2; 473, under 2 and 3; and 493, under 5. National laws, and in particular those of the host country, apply only where there is express reference thereto."
Reference(s)
ILOAT Judgment(s): 322, 473, 493
Keywords:
case law; domestic law; insurance benefits; international civil service principles; staff regulations and rules; terms of appointment;
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;
Consideration 8
Extract:
The complainants contend "that the arrangement for adjustment ought to have reflected average economic trends in more than just one country. That is to question the whole basis of the pensions scheme. The United States federal civil service was the 'comparator' for determining the pay and pensions in the United Nations common system. It was therefore only reasonable to take economic trends in the United States alone into account. So it was not just a matter of policy: the ILO's decision was a logical application of the prescribed approach."
Reference(s)
ILOAT Judgment(s): 832
Keywords:
adjustment; coordinated organisations; domestic law; general principle; noblemaire principle; pension; reckoning; salary; scale;
Judgment 1195
73rd Session, 1992
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 4-5
Extract:
The complainant having received undue payment, the Union claimed a refund. The complainant challenges this on the grounds that "because of prescription the debt has become unenforceable. There is indeed a widely recognised principle that lapse of time may extinguish an obligation, but the difficulty here is that the Union's rules set no time limit for such extinctive prescription." However the Tribunal holds that the time between the payment of the material sums and the Union's request for their repayment "was not long enough to warrant declaring the undue payments irrecoverable. Not only is the period of extinctive prescription much longer in most national systems of law, but the complainant pleads no personal difficulty or hardship in making repayment: the Union is not claiming lump-sum reimbursement but is spreading it over eighteen months."
Keywords:
debt; domestic law; reasonable time; recovery of overpayment; refund; time limit;
Judgment 1148
72nd Session, 1992
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
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;
