Judicial review (538, 540, 542, 544, 547, 548, 549, 550, 551, 553, 555, 557, 558, 862, 559, 561, 563, 565, 569, 571, 572, 927, 841,-666)
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Keywords: Judicial review
Total judgments found: 548
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Judgment 2357
97th Session, 2004
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"It was said in Judgments 1835, 1836 and 1837 that the application of Article 71(2)[regarding the conditions of award of an education allowance] 'is at the discretion of the President of the Office'. It is not strictly accurate to describe a decision as to the application of Article 71(2) as discretionary. The question whether a particular school or university corresponds to a 'child's educational stage' is essentially a question of fact, albeit one that may, in some circumstances, permit of a value judgment. However, because of the nature of that question, a decision under Article 71(2) is subject to limited review on the same grounds as a discretionary decision properly so called. Thus, it will be reviewed only for procedural error, mistake of fact or law, the drawing of a clearly mistaken conclusion or misuse of authority. In particular, this Tribunal will not substitute its view of the facts for that reached by the President."
Reference(s)
Organization rules reference: Article 71(2) of the Service Regulations for Permanent Employees of the EPO
ILOAT Judgment(s): 1835, 1836, 1837
Keywords:
abuse of power; allowance; case law; condition; decision; discretion; education expenses; enforcement; executive head; grounds; interpretation; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; procedural flaw; provision; staff regulations and rules;
Judgment 2316
96th Session, 2004
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"Res judicata operates to bar a subsequent proceeding if the issue submitted for decision in that proceeding has already been the subject of a final and binding decision as to the rights and liabilities of the parties in that regard. It extends to bar proceedings on an issue that must necessarily have been determined in the earlier proceeding even if that precise issue was not then in dispute. In such a case, the question whether res judicata applies will ordinarily be answered by ascertaining whether one or other of the parties seeks to challenge or controvert some aspect of the actual decision reached in the earlier case."
Keywords:
complaint; decision; definition; enforcement; finality of judgment; general principle; intention of parties; judgment of the tribunal; judicial review; organisation's duties; procedure before the tribunal; res judicata; right; same cause of action; same purpose; settlement out of court; staff member's duties; tribunal;
Judgment 2312
96th Session, 2004
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"The [EMBL] Staff Rules and Regulations do not provide an internal appeal mechanism for a person in the complainant's position. The Tribunal has frequently commented on the desirability and utility of internal appeal procedures which not only make the Tribunal's task easier but also substantially reduce its workload by bringing a satisfactory and less expensive resolution to many disputes at an earlier stage. In any case, the Tribunal remains the ultimate arbiter of the rights of international civil servants and it can, and will, exercise its jurisdiction in appropriate cases."
Keywords:
competence of tribunal; iloat; internal appeal; judicial review; last instance; no provision; official; procedure before the tribunal; recommendation; right; settlement out of court; staff regulations and rules; vested competence;
Consideration 3
Extract:
Under the EMBL Staff Rules and Regulations, there is no provision to appeal internally the non-renewal of a contract. "There is [...] no merit to the Laboratory's suggestion that the deliberate exclusion in the Staff Rules and Regulations of an internal appeal mechanism with regard to the non-renewal of a contract operates so as to exclude complaints to the Tribunal. The Tribunal's jurisdiction is not determined by an organisation's Staff Rules but by the terms of the Tribunal's own Statute and the defendant organisation's submission to it. Thus, an organisation cannot unilaterally preclude the right to lodge a complaint. While it is the case that the Tribunal will often defer to discretionary decisions, the fact that a decision is discretionary does not take it outside of the Tribunal's jurisdiction. Although a discretionary decision may warrant significant deference, it is still reviewable."
Keywords:
acceptance; competence of tribunal; complaint; consequence; contract; decision; definition; discretion; effect; iloat; iloat statute; internal appeal; judicial review; no provision; non-renewal of contract; omission; organisation; procedure before the tribunal; provision; right; right of appeal; staff regulations and rules;
Judgment 2296
96th Session, 2004
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
"There can be no doubt of the right of an international organisation to set obligatory rules for the conduct of its staff governing various aspects of their relations with their employer, and that this right includes the right to set reasonable limitation periods during which claims against the employer must be asserted. However, such rules must be published or otherwise made known to all the members of staff concerned in a way which can leave absolutely no doubt as to the nature and reach of the rule, and no doubt that it has been brought to the attention of all those to whom it applies. Even if the [Organization] had succeeded in showing that the tax reimbursement instructions had been given to the staff individually, which it has signally failed to do, it would also have to have shown that all others in like case had been similarly advised. Rules limiting the right to exercise a fundamental condition of employment applicable to all international civil servants are only permissible if they, too, are applicable to all."
Keywords:
enforcement; equal treatment; evidence; judicial review; limits; official; organisation's duties; payment; provision; publication; purport; reasonable time; refund; right; tax; terms of appointment; time limit;
Judgment 2295
96th Session, 2004
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
"[I]t is not the role of the Tribunal to reweigh the evidence before the Joint Appeals Board which, as the primary trier of fact has had the benefit of actually seeing and hearing many of the persons involved, and of assessing the reliability of what they have said. For that reason the Board is entitled to considerable deference. [...] Where a body such as the Board has heard evidence and made findings of fact based on its appreciation thereof, the Tribunal will only interfere in the case of manifest error."
Keywords:
disregard of essential fact; evidence; internal appeals body; judicial review; limits; manifest error; mistake of fact; report; testimony;
Judgment 2272
96th Session, 2004
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
A rule, "approved by the Administrative Council, [cannot] be called into question by the President. It is true that, when deciding to promote or not to promote a permanent employee, the President enjoys discretionary authority, subject to the Tribunal¿s limited power of review. Within the bounds of this limited power of review, however, the Tribunal considers whether decisions referred to it are not flawed by abuse of authority or error of law. In the present case, the complainant argues rightly that by refusing to apply to his case a rule which had been approved by the Administrative Council, despite the fact that he met the necessary requirements, the President committed an error of law and abused his authority."
Keywords:
abuse of power; condition; discretion; enforcement; executive body; executive head; interpretation; judicial review; limits; misuse of authority; promotion; refusal; repeal; written rule;
Judgment 2227
95th Session, 2003
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The complainant was informed by a letter of 22 December 1999 that the administration reserved the right to approve the photocopying and distribution of circulars issued by staff representatives. "The Tribunal recalled, in Judgment 911 [...], that a staff association enjoys broad freedom of speech and the right to take to task the administration of the organisation whose employees it represents, but that like any other freedom such freedom has its bounds. thus any action that impairs the dignity of the international civil service, and likewise gross abuse of freedom of speech, are inadmissible. But the prevention of such abuse cannot give the administration a power of prior censorship over the communication of written information produced by the groups and associations concerned. Herein lies the problem in this case: the Office considers it has a general right to authorise, which it maintains it uses only with moderation, but the limits of such authorisation are by no means clear. The Tribunal cannot set aside a general decision on the grounds that it does not offer the guarantees that are in any case available to staff members on the basis of the general principles of international civil service law, as established and interpreted by the Tribunal and other international administrative tribunals. These principles confine the administration's scope of action to cases where there is gross abuse of the right to freedom of expression or lack of protection of the individual interests of persons affected by remarks that are ill-intentioned, defamatory or which concern their private lives. And it is in the light of these principles that the letter of 22 December 1999 [...] should be interpreted. a refusal to grant an authorisation may be regarded as lawful only if it complies with the above principles."
Reference(s)
ILOAT Judgment(s): 911
Keywords:
acceptance; case law; collective rights; exception; freedom of speech; general decision; general principle; iloat; international civil service principles; interpretation; judicial review; limits; official; organisation; outside activity; publication; refusal; respect for dignity; right; safeguard; staff member's interest; staff representative; staff union; staff union activity; tribunal;
Judgment 2222
95th Session, 2003
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"Referring to the Tribunal's case law, in particular Judgments 70 and 1543, the defendant submits that the Tribunal's competence, ratione materiae, does not extend to disputes regarding the Director-General's discretion to waive diplomatic immunity. It is worth noting that the complainant does not in fact [...] challenge the decision to waive his diplomatic immunity in itself. He rather challenges the circumstances in which that decision was taken, which in his view violated his contractual rights or those arising from the general principles of law which should be observed by international organisations. Since the case law referred to by the defendant does not apply, the Tribunal is of the view that only a consideration of the merits of the case may show whether the complainant's allegations are well founded."
Reference(s)
ILOAT Judgment(s): 70, 1543
Keywords:
breach; case law; competence of tribunal; complainant; condition; decision; discretion; executive head; general principle; iloat; judgment of the tribunal; judicial review; organisation; organisation's duties; privileges and immunities; rebuttal; receivability of the complaint; right; terms of appointment; waiver of immunity;
Judgment 2221
95th Session, 2003
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 9-10
Extract:
"It is well settled that a promotion decision is a discretionary decision which can only be challenged on limited grounds. Moreover, it is settled that mere satisfaction of necessary criteria does not ordinarily confer a right to promotion. [...] It follows that the [competent authorities] were entitled to have regard, in determining whether to backdate the complainant's promotion, to all matters pertaining to his work performance, [including] his staff reports, even though the [applicable] guidelines made no reference to such reports."
Keywords:
administrative instruction; applicable law; case law; competence; consequence; criteria; decision; discretion; elements; exception; grounds; judicial review; limits; organisation; performance report; promotion; qualifications; right;
Judgment 2198
94th Session, 2003
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 16
Extract:
The complainant worked, from 1993 to 2000, under a series of short-term contracts of varying durations. "[A]ppointments extended by the organization to prospective employees and accepted by the latter freely, are policy matters over which the Tribunal will not interfere."
Keywords:
acceptance; contract; discretion; duration of appointment; intention of parties; judicial review; offer; short-term; successive contracts;
Judgment 2190
94th Session, 2003
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"The organization has a discretion to assess, in the context of its relations with a Member State, which are beyond the jurisdiction of the Tribunal, whether it is appropriate to lift the immunity from legal process of its employees (see in this respect Judgments 933 and 1543)."
Reference(s)
ILOAT Judgment(s): 933, 1543
Keywords:
competence of tribunal; discretion; judicial review; member state; organisation; privileges and immunities; tribunal; waiver of immunity;
Judgment 2173
94th Session, 2003
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The complainant wants to be promoted to the "exceptional advancement grade" of his career path. "Although the complainant's competence and standard of work were acknowledged and his appraisal reports were consistently good, those responsible in his division and sector did not see fit to propose him for exceptional advancement, which is granted to very few. Such promotion being discretionary, the organization may refuse it without incurring censure unless the refusal was based on mistakes of fact or of law [...] or on an abuse of authority [...] or unless essential facts were overlooked or blatantly wrong conclusions drawn from the evidence."
Keywords:
discretion; judicial review; performance report; promotion; satisfactory service;
Judgment 2163
93rd Session, 2002
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 1
Extract:
"An appointment by an international organisation is a discretionary decision. Being subject to only limited review, it may be set aside only if it was taken without authority or in breach of a rule of form or of procedure, or if it was based on a mistake of fact or of law, or if some material fact was overlooked, or if there was abuse of authority, or if a clearly wrong conclusion was drawn from the evidence. The Tribunal will, in cases like the present, exercise its power of review with special caution, its function being not to judge the candidates on merit but to allow the organisation full responsibility for its choice. [...] Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have his application considered in good faith and in keeping with the basic rules of fair and open competition. That is a right that every applicant must enjoy, whatever his hopes of success may be (see Judgments 1077 [...], 1497 [...] and 1549 [...])."
Reference(s)
ILOAT Judgment(s): 1077, 1497, 1549
Keywords:
abuse of power; appointment; candidate; case law; competition; decision; decision-maker; discretion; disregard of essential fact; equal treatment; flaw; formal flaw; good faith; international civil service principles; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; organisation's duties; procedural flaw; right;
Judgment 2151
93rd Session, 2002
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"The Tribunal will not undertake a job classification exercise, which lies solely within the authority of the defendant. However, the succession of errors made in this case, as acknowledged both by the Classification Review Committee and the [Organisation] itself, leaves room for serious doubts concerning the objectivity of the rationale for the classifications that are being challenged. [...] The Tribunal finds that the complainants must not suffer any injury from the Organisation's impossibility to reconstitute the elements on which the classification was made. [The Tribunal] has to assess the effects of the errors committed and of the [Organisation]'s inability to indicate precisely the methods followed by the consultant in his recommendation to maintain the complainants' posts at [the same] grade."
Keywords:
complainant; consequence; flaw; grade; injury; judicial review; limits; mistake of fact; negligence; post; post classification; post held by the complainant;
Judgment 2139
93rd Session, 2002
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The right of international officials to resort to all internal and jurisdictional remedies available to them without detriment to their career is an essential guarantee to which the Tribunal attaches the greatest importance."
Keywords:
career; consequence; iloat; internal appeal; judicial review; official; right; right of appeal; safeguard;
Judgment 2125
93rd Session, 2002
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 5-6
Extract:
The complainant's request to have his contract extended beyond retirement age was not allowed. "On the merits, the Agency is undoubtedly right in pointing out that the Director General has discretion in the matter, over which the Tribunal has only a limited power of review. This discretion enables the Agency to depart from the rule governing the normal age of retirement. [...] Although the Director General can determine the interest of the Agency, his decisions must be based on clear and coherent reasons. In this case, the reason given - that the request for an extension contained no indication as to whether any of the criteria [on the basis of which he may authorise such an extension] had been satisfied - is not valid, and the reason based on 'rejuvenation' of the staff is too general to constitute a sufficient justification for the refusal of the complainant's request." The Tribunal considers that "this reason is not in itself reprehensible, but it could be used to justify a systematic refusal to depart from the rule governing the normal age of retirement. [By setting out the criteria] the [Agency] established for itself a number of rules which it must apply."
Keywords:
age limit; contract; criteria; decision; definition; discretion; exception; executive head; extension beyond retirement age; grounds; iloat; judicial review; official; organisation; organisation's duties; organisation's interest; patere legem; refusal; request by a party; retirement; written rule;
Judgment 2114
92nd Session, 2002
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
"When the measure takes the form of a reprimand, the Tribunal will exercise a limited power of review. It will not interfere 'unless the measure was taken without authority, or violates a rule of form or procedure, or is based on an error of fact or of law, or if essential facts have not been taken into consideration, or if it is tainted with abuse of authority, or if a clearly mistaken conclusion has been drawn from the facts'. (see Judgment 274, [...], under 2.)"
Reference(s)
ILOAT Judgment(s): 274
Keywords:
abuse of power; censure; conduct; decision-maker; disciplinary measure; disregard of essential fact; duty of discretion; formal flaw; freedom of speech; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; procedural flaw;
Judgment 2092
92nd Session, 2002
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"One of the tests which the Tribunal has developed over the years to determine whether or not a post has truly been abolished is to ask whether or not the 'abolition' has resulted in a reduction of the number of staff in the affected department. (See, for example, Judgment 139 [...].) If it has not, the presumption is that all that has taken place is a redistribution of functions among existing posts [...] and not the abolition of one or more posts".
Reference(s)
ILOAT Judgment(s): 139
Keywords:
abolition of post; case law; consequence; criteria; definition; iloat; judicial review; post; reorganisation; staff reduction;
Judgment 2091
92nd Session, 2002
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 10 and 12
Extract:
The complainant had an accident while on duty. He signed a settlement agreement with the organisation and the CERN Pension Fund in order to solve the issue of the payment of an incapacity pension by the pension fund. "The ESO submits the complaint is not receivable as it does not allege non-observance of the terms of the complainant's appointment or of the [organisation]'s rules and regulations [...]. The Tribunal considers that since the settlement between the complainant, the [organisation] and the CERN Pension Fund arises out of the complainant's rights under his contract of employment as well as the Staff Rules and Regulations, it has jurisdiction to consider the effect of the trilateral agreement."
Keywords:
breach; cern pension fund; competence of tribunal; complainant; complaint; consequence; contract; definition; effect; iloat; incapacity; judicial review; organisation; payment; pension; professional accident; provision; receivability of the complaint; right; service-incurred; staff regulations and rules;
Judgment 2063
91st Session, 2001
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"The Tribunal is fully competent to consider whether the Office is right in maintaining that [the insurance broker] Van Breda correctly exercised its authority in rejecting the request to meet the cost of transferring the complainant to a convalescent home."
Keywords:
competence of tribunal; discretion; health insurance; judicial review; refund; refusal; request by a party;
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