General decision (33,-666)
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Keywords: General decision
Total judgments found: 145
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Judgment 4482
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the “social democracy” reform introduced by decision CA/D 2/14.
Judgment keywords
Keywords:
complaint allowed; freedom of association; general decision; plenary judgment;
Considerations 3-5
Extract:
The EPO raises, as a threshold issue, whether the relief sought is within the competence of the Tribunal and the related question of whether the complaint is receivable in all respects. Foundational to this argument is that a member of staff cannot impugn in proceedings in the Tribunal a general decision of the governing organ of an organisation which is regulatory in character unless and until an individual decision which affects the member of staff personally is made based on the general decision.
This issue was recently addressed in several judgments involving the EPO concerning the right to strike, which is an aspect of freedom of association. The following discussion is found in one of those judgments, namely Judgment 4430. There is a long line of Tribunal case law to the effect that a general decision cannot be challenged by a staff member unless and until an individual decision is taken adversely affecting the staff member (see, for example, Judgment 4274, consideration 4). But the Tribunal’s case law contains an exception or limitation. As the Tribunal said in Judgment 3761 at consideration 14: “In general, [an administrative decision of general application] is not subject to challenge until an individual decision adversely affecting the individual involved has been taken. However, there are exceptions where the general decision does not require an implementing decision and immediately and adversely affects individual rights.”
It has long been recognised that staff of international organisations have a right to strike and that generally it is lawful to exercise that right (see, for example, Judgment 2342, consideration 5). This is equally true of the more general right to associate freely (see, for example, Judgments 496, consideration 6, and 3414, consideration 4). As the Tribunal observed in that latter case, all officials of international organisations have a right to associate and an implied contractual term in the appointment of each that the relevant organisation will not infringe that right. Accordingly, the complainant can invoke the Tribunal’s jurisdiction to seek to argue that his rights have been directly affected by the amendments to the Service Regulations effected by the impugned decision.
Reference(s)
ILOAT Judgment(s): 496, 2342, 3414, 3761, 4274, 4430
Keywords:
freedom of association; general decision;
Consideration 6
Extract:
The complainant also seeks to impugn decision CA/D 2/14 on the basis that a number of anterior procedural and allied irregularities attended the adoption of the decision and impact on its lawfulness. These arguments are not available to the complainant. The complainant cannot approbate and reprobate. The invocation of the right to freely associate upon which he wishes to engage the Tribunal’s jurisdiction renders irrelevant the question whether the decision was legally flawed for the other reasons raised by the complainant in this case. Consequently, there is a legal boundary for arguments the complainant may maintain.
Keywords:
general decision; procedural flaw;
Judgment 4458
133rd Session, 2022
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the setting aside of the information circular which, according to her, announced the closure of the UNESCO Commissary.
Judgment keywords
Keywords:
competence of tribunal; complaint dismissed; facilities; general decision; ratione materiae;
Judgment 4435
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who is a former permanent employee of the European Patent Office, challenges the deductions from his remuneration that were made in respect of his absences for strike participation as well as the lawfulness of the general normative decisions on which those deductions were based.
Consideration 4
Extract:
[T]he complainant impugns the two specific decisions to deduct amounts from his salary [...]. Those decisions were individual decisions. Accordingly and consistent with the Tribunal’s existing case law, in challenging those individual decisions the complainant can challenge the general decision upon which the individual decisions are based and, in this particular case, the application of an amended statutory rule allegedly in breach of the complainant’s right to strike (see, for example, Judgment 2089, consideration 2).
Reference(s)
ILOAT Judgment(s): 2089
Keywords:
general decision; individual decision; payslip;
Judgment 4431
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges a decision of the Administrative Council introducing new rules for employees of the European Patent Office concerning the right to strike.
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed; decision quashed; general decision; internal appeal; right to strike; strike;
Consideration 4
Extract:
In concluding that the internal appeal was irreceivable, the Appeals Committee rejected any suggestion that CA/D 5/13 had an immediate and adverse effect on the complainant. However the gist of the complainant’s argument in relation to Article 65(1)(c) was that it had had such an effect and, at least quite clearly implicitly, on his (and his colleagues’) right to strike. The Tribunal, in its Judgment 3761, consideration 14, made clear that a general decision may, in certain circumstances, be impugned if it immediately and adversely affects individual rights. The complainant’s argument involved such a contention. The conclusion of the Appeals Committee that his appeal was manifestly irreceivable failed to consider this question and was thus legally flawed.
Reference(s)
ILOAT Judgment(s): 3761
Keywords:
cause of action; general decision; internal appeal; procedural flaw;
Judgment 4430
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the new rules governing the exercise of the right to strike at the European Patent Office.
Consideration 14
Extract:
[T]he Tribunal case law to the effect that a general decision cannot be challenged by a staff member unless and until an individual decision is taken. But the Tribunal’s case law contains an exception or limitation. As the Tribunal said in Judgment 3761 at consideration 14:
“In general, [an administrative decision of general application] is not subject to challenge until an individual decision adversely affecting the individual involved has been taken. However there are exceptions where the general decision does not require an implementing decision and immediately and adversely affects individual rights.”
Reference(s)
ILOAT Judgment(s): 3761
Keywords:
cause of action; general decision; impugned decision;
Judgment keywords
Keywords:
complaint allowed; decision quashed; general decision; right to strike; strike;
Consideration 11
Extract:
In these proceedings the complainants seek relief that, in substance, involves a declaration that CA/D 5/13 and Circular No. 347 are each unlawful and that each should be set aside. As to the Circular, the Tribunal is satisfied, having regard to its case law and its Statute, that it has jurisdiction to declare the Circular unlawful and set it aside (see, for example, Judgments 2857, 3522 and 3513). The position is not so clear in relation to CA/D 5/13 which, if it were set aside, would likely have the legal effect of setting aside current (at least as at the time the proceedings in the Tribunal were commenced) provisions of the Service Regulations. While the Tribunal can examine the lawfulness of provisions of a general decision (see, for example, Judgments 92, consideration 3, 2244, consideration 8, and 4274, consideration 4), whether it has jurisdiction to set aside a provision of the Service Regulations is a significant legal question on which the Tribunal’s case law is unclear. It should be resolved in an appropriate case by a plenary panel of the Tribunal constituted by seven judges, which is not presently possible.
Reference(s)
ILOAT Judgment(s): 92, 2244, 2857, 3513, 3522, 4274
Keywords:
competence of tribunal; general decision; staff regulations and rules;
Consideration 15
Extract:
In the absence of any implementing decision, the question that then arises is whether, in relation to the complainants, there has been an immediate and adverse effect on individual rights. The Tribunal is satisfied there has been. Circular No. 347 did have an immediate and adverse effect on the complainants’ right to strike. It is immaterial that they did not go on strike in June 2013 or that circumstances had not arisen where one or a number of the provisions of the Circular operated on or applied to conduct of the complainants. The effect was immediate because, at the date of promulgation of the Circular, it legally constrained future exercise of the right to strike or imposed burdens to the same effect. The complaints are receivable.
Keywords:
cause of action; general decision; receivability of the complaint; right to strike; strike;
Judgment 4422
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants are former permanent employees of the European Patent Office who challenge their January 2014 and subsequent payslips showing an increase in their pension contributions.
Consideration 8
Extract:
Regarding the complainants’ subsidiary requests to order that decision CA/D 10/13 be no longer applied and that the EPO be ordered to apply the previous wording of the Pension Scheme Regulations, the effect of the Tribunal’s case law is that, if it is found that general decision CA/D 10/13 and the individual implementing decisions deducting the new pension contribution rate from the complainants’ relevant payslips are unlawful, the Tribunal can set aside the individual decisions and may grant consequential relief (see, for example, Judgment 2793, consideration 13, and the case law cited therein). However, if they are found to be lawful, it is not the Tribunal’s role to order that decision CA/D 10/13 be no longer applied and that the EPO be ordered to apply the previous wording of the Pension Scheme Regulations that governed their pension contribution rate (see Judgment 3538, consideration 5).
Reference(s)
ILOAT Judgment(s): 2793, 3538
Keywords:
general decision; pension; relief claimed;
Consideration 5
Extract:
According to the Tribunal’s case law, a complainant may impugn a decision only if it directly affects her or him, and cannot impugn a general decision unless and until it is applied in a manner prejudicial to her or him, but she or he is not prevented from challenging the lawfulness of the general decision when impugning the implementing decision which has generated her or his cause of action (see, for example, Judgments 3291, consideration 8, and 4119, consideration 4). Accordingly, the complainants are entitled to challenge the individual decisions resulting from the increased pension contributions reflected in their subject payslips, as well as the lawfulness of general decision CA/D 10/13.
Reference(s)
ILOAT Judgment(s): 3291, 4119
Keywords:
cause of action; general decision; payslip;
Judgment 4396
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to reimburse him the notary fees which he incurred for the certification of his signature on the annual declaration required for recipients of an invalidity allowance.
Consideration 8
Extract:
The Tribunal’s case law has it that a staff member who challenges an individual decision may, at the same time and in the same appeal, challenge the related underlying decision and that a staff member may, in challenging a decision that affects her or him directly, plead the unlawfulness of any general measure that affords the basis for it in law. A staff member may therefore impugn an administrative decision only if it directly affects her or him, but is not prevented from challenging the lawfulness of the general decision when impugning the implementing decision which generated their cause of action (see Judgment 3291, under 6 and 8).
Reference(s)
ILOAT Judgment(s): 3291
Keywords:
cause of action; general decision;
Judgment 4277
130th Session, 2020
International Bureau of Weights and Measures
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who has been receiving a retirement pension since 1 December 2017, impugns her “pay slip” for January 2018.
Consideration 3
Extract:
As the Tribunal recalled in Judgment 3736, under 3, “according to the case law, a general decision that requires individual implementation cannot be impugned; it is only the individual implementing decisions which may be challenged” (see Judgments 3628, under 4, and the case law cited therein, 4008, under 3, and 4119, under 4). Accordingly, the lawfulness of the general decision may only be challenged in the context of a challenge to the individual decisions.
Reference(s)
ILOAT Judgment(s): 3628, 3736, 4008, 4119
Keywords:
cause of action; general decision; impugned decision;
Consideration 5
Extract:
The complaint is [...] receivable insofar as it is directed against the pay slip for January 2018, which is an individual decision implementing the general decisions establishing a “pension point”, freezing pensions and setting the value of the point. In support of her claims related to that pay slip, the complainant may therefore plead that the general decisions on which it partly rests are unlawful (see Judgment 3931, under 3).
Reference(s)
ILOAT Judgment(s): 3931
Keywords:
general decision; impugned decision; individual decision;
Judgment 4276
130th Session, 2020
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his performance appraisal under the new merit recognition system established following the 2015 five-yearly review.
Consideration 6
Extract:
The Tribunal’s case law has it that a general decision which requires individual implementation cannot be challenged directly; it is only the individual implementing decisions which may be challenged (see Judgments 3628, under 4, 3736, under 3, 4008, under 3, and 4119, under 4, and the case law cited therein). The lawfulness of the general decision may only be challenged as part of the challenge to the individual decision.
Reference(s)
ILOAT Judgment(s): 3628, 3736, 4008, 4119
Keywords:
cause of action; general decision; impugned decision;
Judgment 4257
129th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2014.
Considerations 7-8
Extract:
Allied to these arguments is an argument of the EPO that the complainant is limited as to the subject matter he can challenge having regard to the fact that Article 110a of the Service Regulations introduced by CA/D 10/14 and Circular No. 366 are general decisions which are not amenable to challenge unless and until a decision is made detrimentally affecting the complainant.
The last-mentioned argument of the EPO is founded on settled case law. The EPO cites Judgment 3291, consideration 8. A more recent illustration is Judgment 4075, consideration 4. However in the present case Article 110a of the Service Regulations introduced by CA/D 10/14 and Circular No. 366 have been applied in an individual decision affecting the complainant, namely the application of the new procedures to the review of his grievances about the terms of the 2014 staff report and the involvement in its preparation of individuals he alleges were not impartial. Accordingly, the complainant can challenge the lawfulness of those general decisions.
Reference(s)
ILOAT Judgment(s): 3291, 4075
Keywords:
cause of action; general decision; performance evaluation;
Judgment 4236
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the results of the comprehensive local salary survey of 2013 for New Delhi, India.
Judgment keywords
Keywords:
complaint dismissed; general decision; receivability of the complaint; salary;
Considerations 3-4
Extract:
Both in their briefs and in the common rejoinder, the complainants refer to several earlier judgments of the Tribunal, namely Judgments 522, 663, 1618 and 2244 in support of the contention that the complaints are receivable. The Director-General relied on Judgment 3427 in his letter of 5 September 2017 and WHO relies in its pleas on Judgments 3736, 3921 and 3931 to argue the complaints are not receivable. Certainly the contemporary case law of the Tribunal supports the argument of WHO. It is sufficient to refer to Judgment 3931. The circumstances considered in that judgment align almost completely with the circumstances in this matter. The Tribunal said:
“3. [...] The result of the impugned decision was that the salaries of staff who had been recruited before 1 November 2014 would be frozen and staff recruited after that date would receive salaries under a new salary scale. All the complainants were recruited before 1 November 2014. An aspect of the Organization’s argument is that the freezing of salaries results in the continued payment of pre-existing salaries with no injurious effect. However, an argument to the same effect in relation to a salary freeze was rejected by the Tribunal in Judgment 3740, consideration 11. It is unnecessary to repeat the analysis that, with one important qualification, is apt to apply in the present case. The qualification is this. In the case leading to Judgment 3740 the complainants lodged internal appeals against ‘the individual administrative decisions to apply to [each complainant] the statutory decision consisting of the revision of the remuneration of the [General Service category] Staff stationed in Rome’ as reflected in their respective February 2013 pay slips. Challenging a pay slip is an orthodox and accepted mechanism whereby an individual staff member can challenge a general decision as and when it is implemented in a way that affects or is likely to affect that individual staff member.
4. In the present case, the complainants’ causes of action are not based on pay slips. They seek to challenge the general decision embodied in the Administrative Order of 1 October 2014 vide Dossier 2-1 New Delhi. They cannot do so. The distinction between challenging a general decision and challenging the implementation of the general decision as applied to an individual staff member is not a barren technical point to frustrate individual staff members from pursuing their rights or protecting their interests. It is a distinction rooted in the nature and extent of the jurisdiction of the Tribunal conferred by the Tribunal’s Statute. The Tribunal must act within the limits established by the Statute. There are many statements in the Tribunal’s case law about the nature of this jurisdiction and its limits. One example of a comparatively recent discussion of those limits and how they arise from the Statute is found in Judgment 3642, consideration 11. As the Tribunal observed in Judgment 3760, consideration 6: ‘[t]he jurisdiction of the Tribunal is, under the Statute construed as a whole, concerned with the vindication or enforcement of individual rights (see, for example, Judgment 3642, under 11).’”
It bears repeating that the need to challenge an individual decision is not a barren technical point to frustrate individual staff members from pursuing their rights or protecting their interests but rather arises from the nature of the Tribunal’s jurisdiction. For example, in the present case, the relief the complainants seek includes setting aside the decision of the Director-General dated 5 September 2017 and rescinding the results of the 2013 salary survey as announced in the email of 7 October 2014. But orders of this type would apply to all staff affected by both the decision of 5 September 2017 and the email of 7 October 2014 irrespective of whether those staff agreed to or supported that outcome.
Reference(s)
ILOAT Judgment(s): 522, 663, 1618, 2244, 3427, 3642, 3736, 3740, 3760, 3921, 3931
Keywords:
cause of action; general decision; receivability of the complaint; salary;
Judgment 4138
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to apply to their salaries the post adjustment multiplier determined by the ICSC on the basis of its 2016 cost-of-living survey for Geneva, with the result that their salaries were reduced.
Consideration 6
Extract:
The legal foundation for the complaints is the individual decision, reflected in a payslip, to reduce the salary of each complainant. In such circumstances the complainant can challenge the general decision on which the individual decision is based (see, for example, Judgment 1798, consideration 6). In the present case there is potentially a succession of several general decisions of the ICSC following a survey conducted in, amongst other places, Geneva in 2016 culminating in the Geneva-based officials in the Professional category and above being paid at a reduced amount. In addition there was the general decision of the administration of WIPO to give effect to these ICSC decisions. The last mentioned decision flowed from WIPO’s membership of and adherence to the United Nations common system.
Reference(s)
ILOAT Judgment(s): 1798
Keywords:
general decision; icsc decision; individual decision; payslip;
Consideration 8
Extract:
Some principles in the case law of the Tribunal should be noted [...]. The first is, as observed in Judgment 1266, consideration 24, that:
“[...] by incorporating the standards of the common system in its own rules the [organization] has assumed responsibility towards its staff for any unlawful elements that those standards may contain or entail. Insofar as such standards are found to be flawed they may not be imposed on the staff and [the organization] must if need be replace them with provisions that comply with the law of the international civil service. That is an essential feature of the principles governing the international legal system the Tribunal is called upon to safeguard.”
Reference(s)
ILOAT Judgment(s): 1266
Keywords:
general decision; receivability of the complaint; un common system;
Consideration 9
Extract:
[A]s noted in Judgment 1160, consideration 11, [...] if the ICSC adopts a methodology, although not binding on an organization merely by virtue of the ICSC’s approval of it, the organization’s decision to apply it is one that it is not free afterwards to disclaim. Moreover, as the Tribunal observed in Judgment 1000, consideration 12:
“Some principles there is ample precedent for will bear restating. One is that when impugning an individual decision that touches him directly the employee of an international organisation may challenge the lawfulness of any general or prior decision, even by someone outside the organisation, that affords the basis for the individual one (cf. Judgments 382 [...], 622 [...] and 825 [...]). The present complainants may accordingly challenge the lawfulness of the general methodology and of the 1987 survey of Vienna, which, taken together, constitute the basis in law of the decisions under challenge.”
Reference(s)
ILOAT Judgment(s): 382, 622, 825, 1000, 1160
Keywords:
general decision; icsc decision; individual decision; methodology;
Consideration 29
Extract:
The Tribunal’s mandate deriving from its Statute is, fundamentally, to resolve individual disputes between an organization and one or a number of members or former members of its staff. Over the life of the Tribunal a matrix of legal principles has been developed and applied by the Tribunal to ensure just and principled outcomes both from the perspective of members of staff and also the perspective of organizations as employers. In its judgments the Tribunal has recognised and accepted the existence of the United Nations common system and respected its objectives. However, the existence of the United Nations common system and a desire to maintain its integrity should not, in itself, compromise the Tribunal’s adjudication of individual disputes in any particular case or series of cases involving the application of its principles. Indeed, in Judgment 2303, consideration 7, the Tribunal acknowledged the argument of the organization that considerable inconvenience arose from an earlier judgment (Judgment 1713) and it was virtually impossible for the organization to depart from the scale recommended by the ICSC. The Tribunal has to recognise that an organization’s legal obligations arising from the operation of the common system could have legal ramifications for an organization that inform or even determine the resolution of any particular dispute. However notwithstanding these matters, the Tribunal must uphold a plea from a staff member or members if it is established that the organization has acted unlawfully.
Reference(s)
ILOAT Judgment(s): 1713, 2303
Keywords:
competence of tribunal; general decision; icsc decision; un common system;
Judgment 4137
128th Session, 2019
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to apply to their salaries the post adjustment multiplier determined by the ICSC on the basis of its 2016 cost-of-living survey for Geneva, with the result that their salaries were reduced.
Consideration 5
Extract:
The legal foundation for the complaints is the individual decision, reflected in a payslip, to reduce the salary of each complainant and likewise affecting each intervener. In such circumstances the complainant can challenge the general decision on which the individual decision is based (see, for example, Judgment 1798, consideration 6). In the present case there is potentially a succession of several general decisions of the ICSC following a survey conducted in, amongst other places, Geneva in 2016 culminating in the Geneva-based officials in the Professional category and above being paid at a reduced amount. In addition there was the general decision of the administration of the ITU to give effect to these ICSC decisions. The last mentioned decision flowed from the ITU’s membership of and adherence to the United Nations common system.
Reference(s)
ILOAT Judgment(s): 1798
Keywords:
general decision; icsc decision; individual decision; payslip;
Consideration 8
Extract:
[A]s noted in Judgment 1160, consideration 11, [...] if the ICSC adopts a methodology, although not binding on an organization merely by virtue of the ICSC’s approval of it, the organization’s decision to apply it is one that it is not free afterwards to disclaim. Moreover, as the Tribunal observed in Judgment 1000, consideration 12:
“Some principles there is ample precedent for will bear restating. One is that when impugning an individual decision that touches him directly the employee of an international organisation may challenge the lawfulness of any general or prior decision, even by someone outside the organisation, that affords the basis for the individual one (cf. Judgments 382 [...], 622 [...] and 825 [...]). The present complainants may accordingly challenge the lawfulness of the general methodology and of the 1987 survey of Vienna, which, taken together, constitute the basis in law of the decisions under challenge.”
Reference(s)
ILOAT Judgment(s): 382, 622, 825, 1000, 1160
Keywords:
general decision; icsc decision; individual decision; methodology;
Consideration 7
Extract:
Some principles in the case law of the Tribunal should be noted [...]. The first is, as observed in Judgment 1266, consideration 24, that:
“[...] by incorporating the standards of the common system in its own rules the [organization] has assumed responsibility towards its staff for any unlawful elements that those standards may contain or entail. Insofar as such standards are found to be flawed they may not be imposed on the staff and [the organization] must if need be replace them with provisions that comply with the law of the international civil service. That is an essential feature of the principles governing the international legal system the Tribunal is called upon to safeguard.”
Reference(s)
ILOAT Judgment(s): 1266
Keywords:
general decision; receivability of the complaint; un common system;
Consideration 23
Extract:
The Tribunal’s mandate deriving from its Statute is, fundamentally, to resolve individual disputes between an organization and one or a number of members or former members of its staff. Over the life of the Tribunal a matrix of legal principles has been developed and applied by the Tribunal to ensure just and principled outcomes both from the perspective of members of staff and also the perspective of organizations as employers. In its judgments the Tribunal has recognised and accepted the existence of the United Nations common system and respected its objectives. However, the existence of the United Nations common system and a desire to maintain its integrity should not, in itself, compromise the Tribunal’s adjudication of individual disputes in any particular case or series of cases involving the application of its principles. Indeed, in Judgment 2303, consideration 7, the Tribunal acknowledged the argument of the organization that considerable inconvenience arose from an earlier judgment (Judgment 1713) and it was virtually impossible for the organization to depart from the scale recommended by the ICSC. The Tribunal has to recognise that an organization’s legal obligations arising from the operation of the common system could have legal ramifications for an organization that inform or even determine the resolution of any particular dispute. However notwithstanding these matters, the Tribunal must uphold a plea from a staff member or members if it is established that the organization has acted unlawfully.
Reference(s)
ILOAT Judgment(s): 1713, 2303
Keywords:
competence of tribunal; general decision; icsc decision; un common system;
Judgment 4136
128th Session, 2019
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to apply to their salaries the post adjustment multiplier determined by the ICSC on the basis of its 2016 cost-of-living survey for Geneva, with the result that their salaries were reduced.
Consideration 5
Extract:
The legal foundation for the complaints is the individual decision, reflected in a payslip, to reduce the salary of each complainant and likewise affecting each intervener. In such circumstances the complainant can challenge the general decision on which the individual decision is based (see, for example, Judgment 1798, consideration 6). In the present case there is potentially a succession of several general decisions of the ICSC following a survey conducted in, amongst other places, Geneva in 2016 culminating in the Geneva-based officials in the Professional category and above being paid at a reduced amount. In addition there was the general decision of the administration of IOM to give effect to these ICSC decisions. The last mentioned decision flowed from IOM’s membership of and adherence to the United Nations common system.
Reference(s)
ILOAT Judgment(s): 1798
Keywords:
general decision; icsc decision; individual decision; payslip;
Consideration 7
Extract:
Some principles in the case law of the Tribunal should be noted immediately. The first is, as observed in Judgment 1266, consideration 24, that:
“[...] by incorporating the standards of the common system in its own rules the [organization] has assumed responsibility towards its staff for any unlawful elements that those standards may contain or entail. Insofar as such standards are found to be flawed they may not be imposed on the staff and [the organization] must if need be replace them with provisions that comply with the law of the international civil service. That is an essential feature of the principles governing the international legal system the Tribunal is called upon to safeguard.”
Reference(s)
ILOAT Judgment(s): 1266
Keywords:
general decision; receivability of the complaint; un common system;
Consideration 23
Extract:
The Tribunal’s mandate deriving from its Statute is, fundamentally, to resolve individual disputes between an organization and one or a number of members or former members of its staff. Over the life of the Tribunal a matrix of legal principles has been developed and applied by the Tribunal to ensure just and principled outcomes both from the perspective of members of staff and also the perspective of organizations as employers. In its judgments the Tribunal has recognised and accepted the existence of the United Nations common system and respected its objectives. However, the existence of the United Nations common system and a desire to maintain its integrity should not, in itself, compromise the Tribunal’s adjudication of individual disputes in any particular case or series of cases involving the application of its principles. Indeed, in Judgment 2303, consideration 7, the Tribunal acknowledged the argument of the organization that considerable inconvenience arose from an earlier judgment (Judgment 1713) and it was virtually impossible for the organization to depart from the scale recommended by the ICSC. The Tribunal has to recognise that an organization’s legal obligations arising from the operation of the common system could have legal ramifications for an organization that inform or even determine the resolution of any particular dispute. However notwithstanding these matters, the Tribunal must uphold a plea from a staff member or members if it is established that the organization has acted unlawfully.
Reference(s)
ILOAT Judgment(s): 1713, 2303
Keywords:
competence of tribunal; general decision; icsc decision; un common system;
Consideration 8
Extract:
[A]s noted in Judgment 1160, consideration 11, [...] if the ICSC adopts a methodology, although not binding on an organization merely by virtue of the ICSC’s approval of it, the organization’s decision to apply it is one that it is not free afterwards to disclaim. Moreover, as the Tribunal observed in Judgment 1000, consideration 12:
“Some principles there is ample precedent for will bear restating. One is that when impugning an individual decision that touches him directly the employee of an international organisation may challenge the lawfulness of any general or prior decision, even by someone outside the organisation, that affords the basis for the individual one (cf. Judgments 382 [...], 622 [...] and 825 [...]). The present complainants may accordingly challenge the lawfulness of the general methodology and of the 1987 survey of Vienna, which, taken together, constitute the basis in law of the decisions under challenge.”
Reference(s)
ILOAT Judgment(s): 382, 622, 825, 1000, 1160
Keywords:
general decision; icsc decision; individual decision; methodology;
Judgment 4135
128th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to apply to their salaries the post adjustment multiplier determined by the ICSC on the basis of its 2016 cost-of-living survey for Geneva, with the result that their salaries were reduced.
Consideration 10
Extract:
Some principles in the case law of the Tribunal should be noted [...]. The first is, as observed in Judgment 1266, consideration 24, that:
“[...] by incorporating the standards of the common system in its own rules the [organization] has assumed responsibility towards its staff for any unlawful elements that those standards may contain or entail. Insofar as such standards are found to be flawed they may not be imposed on the staff and [the organization] must if need be replace them with provisions that comply with the law of the international civil service. That is an essential feature of the principles governing the international legal system the Tribunal is called upon to safeguard.”
Reference(s)
ILOAT Judgment(s): 1266
Keywords:
general decision; receivability of the complaint; un common system;
Consideration 11
Extract:
[A]s noted in Judgment 1160, consideration 11, [...] if the ICSC adopts a methodology, although not binding on an organization merely by virtue of the ICSC’s approval of it, the organization’s decision to apply it is one that it is not free afterwards to disclaim. Moreover, as the Tribunal observed in Judgment 1000, consideration 12:
“Some principles there is ample precedent for will bear restating. One is that when impugning an individual decision that touches him directly the employee of an international organisation may challenge the lawfulness of any general or prior decision, even by someone outside the organisation, that affords the basis for the individual one (cf. Judgments 382 [...], 622 [...] and 825 [...]). The present complainants may accordingly challenge the lawfulness of the general methodology and of the 1987 survey of Vienna, which, taken together, constitute the basis in law of the decisions under challenge.”
Reference(s)
ILOAT Judgment(s): 382, 622, 825, 1000, 1160
Keywords:
general decision; icsc decision; individual decision; methodology;
Consideration 28
Extract:
The Tribunal’s mandate deriving from its Statute is, fundamentally, to resolve individual disputes between an organization and one or a number of members or former members of its staff. Over the life of the Tribunal a matrix of legal principles has been developed and applied by the Tribunal to ensure just and principled outcomes both from the perspective of members of staff and also the perspective of organizations as employers. In its judgments the Tribunal has recognised and accepted the existence of the United Nations common system and respected its objectives. However, the existence of the United Nations common system and a desire to maintain its integrity should not, in itself, compromise the Tribunal’s adjudication of individual disputes in any particular case or series of cases involving the application of its principles. Indeed, in Judgment 2303, consideration 7, the Tribunal acknowledged the argument of the organization that considerable inconvenience arose from an earlier judgment (Judgment 1713) and it was virtually impossible for the organization to depart from the scale recommended by the ICSC. The Tribunal has to recognise that an organization’s legal obligations arising from the operation of the common system could have legal ramifications for an organization that inform or even determine the resolution of any particular dispute. However notwithstanding these matters, the Tribunal must uphold a plea from a staff member or members if it is established that the organization has acted unlawfully.
Reference(s)
ILOAT Judgment(s): 1713, 2303
Keywords:
competence of tribunal; general decision; icsc decision; un common system;
Consideration 8
Extract:
The legal foundation for the complaints is the individual decision, reflected in a payslip, to reduce the salary of each complainant and likewise affecting each intervener. In such circumstances the complainant can challenge the general decision on which the individual decision is based (see, for example, Judgment 1798, consideration 6). In the present case there is potentially a succession of several general decisions of the ICSC following a survey conducted in, amongst other places, Geneva in 2016 culminating in the Geneva-based officials in the Professional category and above being paid at a reduced amount. In addition there was the general decision of the administration of WHO to give effect to these ICSC decisions. The last mentioned decision flowed from WHO’s membership of and adherence to the United Nations common system.
Reference(s)
ILOAT Judgment(s): 1798
Keywords:
general decision; icsc decision; individual decision; payslip;
Judgment 4134
128th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to apply to their salaries the post adjustment multiplier determined by the ICSC on the basis of its 2016 cost-of-living survey for Geneva, with the result that their salaries were reduced.
Consideration 6
Extract:
The legal foundation for the complaints is the individual decision, reflected in a payslip, to reduce the salary of each complainant and likewise affecting each intervener. In such circumstances the complainant can challenge the general decision on which the individual decision is based (see, for example, Judgment 1798, consideration 6). In the present case there is potentially a succession of several general decisions of the ICSC following a survey conducted in, amongst other places, Geneva in 2016 culminating in the Geneva-based officials in the Professional category and above being paid at a reduced amount. In addition there was the general decision of the administration of the ILO to give effect to these ICSC decisions. The last mentioned decision flowed from the ILO’s membership of and adherence to the United Nations common system.
Reference(s)
ILOAT Judgment(s): 1798
Keywords:
general decision; icsc decision; individual decision; payslip;
Consideration 8
Extract:
Some principles in the case law of the Tribunal should be noted [...]. The first is, as observed in Judgment 1266, consideration 24, that:
“[...] by incorporating the standards of the common system in its own rules the [organization] has assumed responsibility towards its staff for any unlawful elements that those standards may contain or entail. Insofar as such standards are found to be flawed they may not be imposed on the staff and [the organization] must if need be replace them with provisions that comply with the law of the international civil service. That is an essential feature of the principles governing the international legal system the Tribunal is called upon to safeguard.”
Reference(s)
ILOAT Judgment(s): 1266
Keywords:
general decision; receivability of the complaint; un common system;
Consideration 9
Extract:
[A]s noted in Judgment 1160, consideration 11, [...] if the ICSC adopts a methodology, although not binding on an organization merely by virtue of the ICSC’s approval of it, the organization’s decision to apply it is one that it is not free afterwards to disclaim. Moreover, as the Tribunal observed in Judgment 1000, consideration 12:
“Some principles there is ample precedent for will bear restating. One is that when impugning an individual decision that touches him directly the employee of an international organisation may challenge the lawfulness of any general or prior decision, even by someone outside the organisation, that affords the basis for the individual one (cf. Judgments 382 [...], 622 [...] and 825 [...]). The present complainants may accordingly challenge the lawfulness of the general methodology and of the 1987 survey of Vienna, which, taken together, constitute the basis in law of the decisions under challenge.”
Reference(s)
ILOAT Judgment(s): 382, 622, 825, 1000, 1160
Keywords:
general decision; icsc decision; individual decision; methodology;
Consideration 29
Extract:
The Tribunal’s mandate deriving from its Statute is, fundamentally, to resolve individual disputes between an organization and one or a number of members or former members of its staff. Over the life of the Tribunal a matrix of legal principles has been developed and applied by the Tribunal to ensure just and principled outcomes both from the perspective of members of staff and also the perspective of organizations as employers. In its judgments the Tribunal has recognised and accepted the existence of the United Nations common system and respected its objectives. However, the existence of the United Nations common system and a desire to maintain its integrity should not, in itself, compromise the Tribunal’s adjudication of individual disputes in any particular case or series of cases involving the application of its principles. Indeed, in Judgment 2303, consideration 7, the Tribunal acknowledged the argument of the organization that considerable inconvenience arose from an earlier judgment (Judgment 1713) and it was virtually impossible for the organization to depart from the scale recommended by the ICSC. The Tribunal has to recognise that an organization’s legal obligations arising from the operation of the common system could have legal ramifications for an organization that inform or even determine the resolution of any particular dispute. However notwithstanding these matters, the Tribunal must uphold a plea from a staff member or members if it is established that the organization has acted unlawfully.
Reference(s)
ILOAT Judgment(s): 1713, 2303
Keywords:
competence of tribunal; general decision; icsc decision; un common system;
Judgment 4119
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision of the President of the Office to amend the wording of a circular in respect of the age limit for the payment of a dependants’ allowance.
Judgment keywords
Keywords:
allowance; complaint dismissed; decision quashed; dependent child; education expenses; general decision;
Consideration 4
Extract:
The Tribunal’s case law consistently holds that a member of staff cannot challenge, by way of a complaint in the Tribunal, a general decision unless and until it is applied to that staff member with adverse legal consequences (see Judgment 4016, consideration 5, and the case law cited therein). That case law is rooted in the provisions of the Tribunal’s Statute. The Tribunal’s jurisdiction is to deal with disputes concerning, relevantly, the alleged non-observance of the Staff Regulations or of the official’s terms of appointment. In a case such as the present there would have been, at least arguably, a non-observance of the Service Regulations at the moment the complainant was not paid the allowance because of the age of his children. That might have been so because, amongst other reasons, the amendment was not lawfully made or the Service Regulations, properly construed, conferred the allowance beyond the time identified in the amended Circular. However before the payment of the allowance ceased, no issue would arise about the non-observance of the Service Regulations. In the result, this complaint is irreceivable and will be dismissed.
Reference(s)
ILOAT Judgment(s): 4016
Keywords:
allowance; cause of action; general decision; individual decision; receivability of the complaint;
Judgment 4075
127th Session, 2019
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the Global Fund’s decision to amend the methodology used for the calculation of the tax equalization payments made to eligible staff members.
Consideration 4
Extract:
The Tribunal has consistently held that “a complainant cannot attack a rule of general application unless and until it is applied in a manner prejudicial to [the complainant]” (see, for example, Judgments 3427, under 31, 4028, under 3, 3628, under 4, and 3291, under 8). It is clear that the decision to amend the calculation of the tax equalization payments is a decision of general application that would necessarily require implementation through an individual decision to have any effect on a staff member. It follows that the decision was not open to challenge by the complainant until the new methodology was applied to calculate the amount of the tax equalization payment due to her for a particular year. This was not the case at the time the complainant submitted her Request for Resolution. Article II, paragraph 5, of the Tribunal’s Statute provides that the Tribunal is competent to hear complaints “alleging non-observance, in substance or in form, of the terms of appointment [...] and of provisions of the Staff Regulations”. As the Administration’s [...] decision was a decision of general application and was not applied to the complainant through an individual decision, the complaint is beyond the scope of the Tribunal’s competence and is irreceivable and will be dismissed.
Reference(s)
ILOAT reference: Article II, paragraph 5, of the Statute
ILOAT Judgment(s): 3291, 3427, 3628, 4028
Keywords:
general decision; individual decision; receivability of the complaint; tax; tax equalization;
Judgment keywords
Keywords:
complaint dismissed; general decision; individual decision; member state; tax; tax equalization;
Judgment 4028
126th Session, 2018
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge Service Order No.14/10 changing the health insurance scheme at the ITU, as well as individual decisions implementing that service order.
Judgment keywords
Keywords:
general decision;
Considerations 3, 5, 6
Extract:
The complainants request the setting aside of Service Order No. 14/10. However, as the Tribunal recalled in Judgment 3736, under 3, “according to the case law, a general decision that requires individual implementation cannot be impugned; it is only the individual implementing decisions which may be challenged (see Judgment 3628, under 4, and the case law cited therein)”. In these circumstances, the claims seeking the setting aside of Service Order No. 14/10 are irreceivable and must be dismissed. [...]
Since the claims seeking the setting aside of Service Order No. 14/10 must be dismissed, as stated in consideration 3 above, the same applies to the claims directed against the Secretary-General’s final decision insofar as it concerns the decisions of 23 July 2014 on the requests for review that were directed solely against the aforementioned service order.
Ms F. has not challenged any individual decision implementing Service Order No. 14/10. Her complaint is therefore irreceivable.
However, Ms D. and Mr D. submitted requests for review of their pay slips reflecting an increase in the deduction for health insurance. Ms D. submitted a further request for review of a calculation of reimbursements of health-related expenses which showed that a deductible had been applied. These decisions are individual decisions implementing Service Order No. 14/10 which, as stated above, are open to appeal.
Reference(s)
ILOAT Judgment(s): 3628, 3736
Keywords:
general decision; individual decision;
Judgment 4016
126th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision not to extend his appointment beyond the mandatory retirement age.
Consideration 5
Extract:
Eurocontrol’s objections to receivability are unfounded. The complainant was directly and immediately adversely affected by the Director General’s decision that did not allow him to remain in service beyond the age of 55, as he had requested. The legal basis of the Director General’s impugned decision that adversely affected the complainant was paragraph 2 of Article 53 of the GCE, which is a provision of general application. “According to th[e] case law, a complainant can impugn a decision only if it directly affects her/him, and cannot impugn a general decision unless and until it is applied in a manner prejudicial to her/him, but she/he is not prevented from challenging the lawfulness of the general decision when impugning the implementing decision which has generated their cause of action.” (See Judgment 3291, under 8, and the case law cited therein.)
Reference(s)
ILOAT Judgment(s): 3291
Keywords:
cause of action; general decision;
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