Cause of action (77,-666)
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Keywords: Cause of action
Total judgments found: 273
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Judgment 4805
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests Circular No. 359 on the European Patent Office closure policy in 2015.
Consideration 3
Extract:
In his pleas before the Tribunal, the complainant makes no attempt to establish even an arguable case that this general decision either negatively impacted on him immediately or this was likely (Judgment 4119, consideration 4). In the absence of any argument which might persuade the Tribunal that this essential foundation of his case was even arguably correct, it is not open to the complainant to immediately develop lengthy arguments about the abolition of the [General Advisory Committee], the composition of the General Consultative Committee […] and whether consultation occurred or was necessary, and additionally challenge the internal appeal process. These last-mentioned matters are without purpose in the absence of any case concerning the lawfulness of the content of the Circular.
Reference(s)
ILOAT Judgment(s): 4119
Keywords:
cause of action; general decision; individual decision; receivability of the complaint;
Judgment 4799
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests, firstly, the decision to reassign him pursuant to the closure of his area of competence in Berlin, and to reallocate some patent files, secondly, the decision to reallocate some patent files in the context of his reassignment and, thirdly, the closure of an area of competence per se.
Judgment keywords
Keywords:
cause of action; complaint dismissed; reassignment; reorganisation;
Consideration 4
Extract:
The Tribunal recalls that in a judgment regarding the issue of alleged interference in the work of the Examining Division, the Tribunal held that decisions with respect to the law and/or procedures applicable to patent applications do not “adversely affect” staff members and, thus, cannot be the subject of an internal appeal. In short, such decisions are not appealable and do not create a cause of action (see Judgment 4417, considerations 7 and 8).
Reference(s)
ILOAT Judgment(s): 4417
Keywords:
administrative decision; cause of action;
Judgment 4798
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the closure of an area of competence in the Berlin sub-office, and her reassignment.
Judgment keywords
Keywords:
cause of action; complaint dismissed; reassignment; reorganisation;
Consideration 3
Extract:
The Tribunal recalls that the complainant’s claims alleging undue interference in her work in the Examining Division have already been adjudicated by the Tribunal, in Judgment 4417. The Tribunal held that decisions with respect to the law and/or procedures applicable to patent applications do not “adversely affect” staff members and, thus, cannot be the subject of an internal appeal (see Judgment 4417, considerations 7 and 8) […].
Reference(s)
ILOAT Judgment(s): 4417
Keywords:
administrative decision; cause of action;
Judgment 4789
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2016.
Consideration 4
Extract:
[T]here is no support in the Service Regulations for permanent employees of the European Patent Office or in the case law for the complainant’s statement, in response to the EPO’s submissions, that the Tribunal has jurisdiction to adjudicate on invoked inconsistencies between the terms of employment derivable from the European Patent Convention and the Service Regulations, including on the suspicions of bias. Quite on the contrary, the Tribunal has already ruled on the issue by asserting that, generally, decisions with respect to the law and/or procedures applicable to patent applications do not affect a staff member’s relationship with the Organisation (see, for example, Judgments 4417, considerations 7 and 8, and 3053, consideration 11).
Reference(s)
ILOAT Judgment(s): 3053, 4417
Keywords:
cause of action;
Judgment 4773
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment of another official by lateral transfer.
Consideration 6
Extract:
The defendant organisation does not raise as an issue the question of whether the complainant has a cause of action concerning the appointment of Ms Y.S. or otherwise put in issue the receivability of the complaint insofar as it directly challenges that appointment. However, it cannot be assumed that one member of staff has an unfettered right to challenge the transfer of another member of staff (see Judgment 2670, consideration 5).
Reference(s)
ILOAT Judgment(s): 2670
Keywords:
appointment without competition; cause of action;
Judgment 4771
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment of another official by lateral transfer.
Consideration 5
Extract:
The defendant organisation does not raise as an issue the question of whether the complainant has a cause of action concerning the appointment of Mr D. or otherwise put in issue the receivability of the complaint insofar as it directly challenges that appointment. However, it cannot be assumed that one member of staff has an unfettered right to challenge the transfer of another member of staff (see Judgment 2670, consideration 5).
Reference(s)
ILOAT Judgment(s): 2670
Keywords:
appointment without competition; cause of action;
Judgment 4769
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation, and his transfer following that reorganisation.
Consideration 7
Extract:
As regards the memorandum [...] which the complainant describes as a general decision, the Tribunal observes that it is in fact a collective decision making various individual appointments against the backdrop of the planned restructuring to ensure that management functioned smoothly during a transition period before recruitment procedures were initiated or final appointment decisions adopted. However, even supposing that the complainant had a cause of action in challenging these appointments, he stated in his internal complaint of 20 September 2019 that he did not seek to cause injury to his colleagues appointed and that he therefore remained at the Organisation’s disposal to discuss possible alternatives to cancelling the decision not to appoint him and to appoint his colleagues. The complainant did not request that one or more recruitment procedures be initiated for these various positions, nor did he later challenge his colleagues’ final individual appointments by the Organisation on 12 November 2019. It follows that his request for the memorandum of 5 July 2019 to be set aside is lacking in substance in any event and is therefore irreceivable as being moot.
Keywords:
appointment; cause of action; claim moot; general decision; individual decision;
Judgment 4735
136th Session, 2023
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former staff member of IOM at its Country Office in Afghanistan, asserts that a position which was readvertised after its temporary abolition should be assigned to him.
Judgment keywords
Keywords:
cause of action; competence of tribunal; complaint dismissed; former official; summary procedure;
Consideration 4
Extract:
The Tribunal notes that, at the time when he filed his complaint, the complainant was a former official of IOM. Although the Tribunal is open to former officials of international organizations recognising its competence, a complaint filed by a former official must, like any other complaint, invoke non-observance, in substance or in form, of the terms of the complainant’s appointment and/or of provisions of the Staff Regulations, as required by Article II, paragraph 5, of the Tribunal’s Statute (see, for example, Judgments 4201, consideration 3, 2333, consideration 8, and 1105, consideration 2). In this case, however, the complainant relies on an alleged “right” to recruitment arising out of his former employment which does not exist in any form whatsoever. Moreover, he does not put forward any arguments deriving from a breach of his former contract (see, for a similar case, Judgment 1941, consideration 6). The Tribunal is therefore not competent, under Article II of its Statute, to hear this complaint.
Reference(s)
ILOAT Judgment(s): 1105, 1941, 2333, 4201
Keywords:
cause of action; former official; selection procedure;
Judgment 4722
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2015.
Judgment keywords
Keywords:
cause of action; complaint dismissed; rating;
Consideration 5
Extract:
In consideration 8 of Judgment 3739, the Tribunal confirmed its case law which states that, for there to be a cause of action, a complainant must demonstrate that the contested administrative action caused injury to her or his health, finances or otherwise or that it is liable to cause injury. The complainant does not demonstrate that the result of the reporting exercise, which he does not contest, has caused any injury to his health, financially or otherwise, or that it is liable to cause him injury. Accordingly, the complaint is irreceivable and will be dismissed [...].
Reference(s)
ILOAT Judgment(s): 3739
Keywords:
cause of action; rating;
Judgment 4717
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2014.
Consideration 3
Extract:
In consideration 8 of Judgment 3739, the Tribunal confirmed its case law which states that, for there to be a cause of action, a complainant must demonstrate that the contested administrative action caused injury to her or his health, finances or otherwise or that it is liable to cause injury. The complainant does not demonstrate that the result of that reporting exercise, which he does not contest, has caused any injury to his health, financially or otherwise, or that it is liable to cause him injury.
Reference(s)
ILOAT Judgment(s): 3739
Keywords:
cause of action; rating;
Judgment 4707
136th Session, 2023
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants contest the modifications brought to the subsistence allowance.
Considerations 6-7
Extract:
CERN does not contest that the complainant has personal standing to maintain his complaint. It accepts that the complainant has standing “before the Tribunal in respect of administrative decisions adversely affecting [his] conditions of association” and it refers to Judgment 1166. However, what it does contest concerns the subject matter of the complaint as it is “not related to the Complainant’s conditions of association deriving from his contract or from” the Staff Rules and Regulations (SRR). Part of CERN’s argument in its reply is that payment of subsistence allowances which are the subject of the ceiling, do not derive from the SRR or an appealable decision of the Director-General of CERN (appealable under Article S VI 1.01 of the SRR), but rather are decided upon by an external entity as the employer of the MPA concerned. The pleas on this topic continue in the rejoinder, surrejoinder, further submissions of the complainant and final comments by CERN. Part of the responsive argument of the complainant is that CERN had not provided any proof that the payments of the subsistence allowance of the complainant had been “decided upon by an external entity”.
The Tribunal’s case law establishes that, generally, a party making an allegation bears the burden of proving it (unless, of course, it is not contested). This approach has relevance in cases where a defendant organization challenges the receivability of a complaint and that challenge is based on a fact or facts bearing upon receivability. Cases have arisen where such challenges have failed because the defendant organization has not proved a fact underpinning the contention that the complaint was not receivable (see, for example, Judgments 3034, consideration 13, and 2494, consideration 4). If a distinction is drawn between the general arrangement whereby CERN made payments on behalf of third parties which is principally a matter of process, and an alteration, particularly a material one, to the amount of any such payment based on a decision of the third party communicated to CERN then proof of that decision may be required to sustain the objection to receivability of the type advanced by CERN. It is not at all obvious, even implicitly, from the material relied upon by CERN that the alteration, by way of reduction, of the subsistence allowance commencing in 2020 payable to the complainant, was ever considered by the complainant’s Home Institution, an American university. The absence of evidence leaves open the possibility that, as a matter of fact, the reduction in the payment of the subsistence allowance to the complainant was a direct result of the implementation of the general decision to place a ceiling of ordinarily 5,163 Swiss francs on subsistence payments which did not involve any decision-making or instructions by or from the complainant’s Home Institution. But it is unnecessary to explore this issue any further as, for reasons which follow, the complaint should be dismissed on its merits.
Reference(s)
ILOAT Judgment(s): 2494, 3034
Keywords:
burden of proof; cause of action; competence of tribunal; ratione materiae; ratione personae; receivability of the complaint;
Judgment 4702
136th Session, 2023
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to appoint Mr K. to a position for which the complainant did not apply.
Consideration 3
Extract:
As found by the Tribunal in another case by the same complainant, “[t]he Tribunal has stated, in consideration 2 of Judgment 3449, that ‘[a]ny employee of an international organisation who is eligible for a post may challenge an appointment to that post, regardless of his or her chances of successful appointment to it (see Judgment 2959, under 3). In order to be entitled to take such action, however, he or she must have applied for the post or, failing that, must have been prevented from doing so through no fault of his or her own.’” (see Judgment 4520, consideration 6). As the complainant, who did not apply for the contested post, provides no evidence that he was prevented from doing so through no fault of his own, he lacks a cause of action. The complaint must therefore be dismissed.
Reference(s)
ILOAT Judgment(s): 2959, 3449, 4520
Keywords:
cause of action; selection procedure;
Judgment 4637
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2014.
Consideration 7
Extract:
With regard to all the complainant’s other claims, the EPO submits that the complaint is irreceivable since the complainant no longer has a cause of action. According to it, while the complainant had, to a limited extent, a cause of action to challenge his 2014 staff report at the time when he filed his complaint, that cause of action lapsed when he retired on the last day of the month in which he reached the age of 65 years, as provided for in Article 54(1)(a) of the Service Regulations. In the EPO’s view, since the complainant is retired and has stopped work permanently, with no chance of being reinstated or resuming his career, he is no longer eligible for any career progression, whether this be through step advancements, bonuses or promotions as provided for in Chapter 2 of Title III of the Service Regulations, which deals with professional development. The EPO therefore considers that he has no cause of action to request that the report in question be set aside.
However, the Tribunal observes that a staff member has, at the very least, a moral interest in challenging a report appraising her or his performance. Thus, contrary to the EPO’s submissions, the fact that the complainant has retired since the report was drawn up does not, in itself, deprive him of a cause of action. The EPO’s objection to receivability must therefore be dismissed.
Keywords:
cause of action; former official; performance report; rating;
Judgment 4632
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the implied rejections of his requests for decision on the disciplinary proceedings initiated against him.
Consideration 5
Extract:
The complainant’s request did not proceed on the premise that there had been a final decision on the disciplinary case brought against him. Rather it was to terminate prematurely (the complainant would say appropriately) the disciplinary proceedings. This was only a step in the process and the complainant has no cause of action to challenge its rejection even if only implicitly. Accordingly, his two complaints are irreceivable and should be dismissed.
Keywords:
cause of action; direct appeal to tribunal; step in the procedure;
Judgment 4619
135th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to place her on a roster.
Consideration 6
Extract:
Under the Tribunal’s settled case law, a decision to refuse to appoint an official of an international organisation to a post is in fact a decision that may be challenged in an internal appeal and ultimately before the Tribunal (see, for example, Judgments 4408, consideration 2, 4293, consideration 9, 4252, consideration 4, and 1204, consideration 6).
It is true that in this case the impugned decision does not, strictly speaking, concern a refusal to appoint an official to a post but a refusal to place her on a roster. The question is therefore whether such a refusal adversely affects a staff member in itself or, in other words, whether the fact of not being placed on such a roster is capable of having a legal effect.
The grounds for the impugned decision explicitly state that placement of a staff member on the roster does not confer an advantage in itself, as it does not create an entitlement to be considered for a particular job since any application is considered against the specific terms of assignment.
However, the Tribunal observes that, in urgent and exceptional circumstances, a manager may select a candidate who fulfils all the criteria for the vacant post directly from the roster. It follows that the fact of refusing placement on a roster is capable of producing legal effects and adversely affecting the person concerned, without there being any need to determine in these proceedings whether such a mechanism is compatible with all the other rules and regulations applicable to Interpol staff members. Accordingly, that refusal is a decision open to internal appeal.
It is clear from the foregoing that the Secretary General’s decision to declare the complainant’s internal appeal inadmissible rests on an obvious error of law.
The Tribunal considers that the Secretary General’s decision raises particular concern given that Staff Rule 13.1.3, which allows him to prevent appeals from being considered by the Joint Appeals Committee, involves the fundamental safeguard provided to staff members of exercising the right of appeal against decisions that affect them and that this rule must therefore be applied extremely cautiously.
Reference(s)
ILOAT Judgment(s): 1204, 4252, 4293, 4408
Keywords:
administrative decision; cause of action; internal appeal; right of appeal; roster;
Consideration 8
Extract:
[T]he Tribunal considers it useful to reiterate that, under their terms of appointment and the applicable staff rules in an international organisation, all staff members who apply to be placed on a roster with a view to future appointment to a vacant post are entitled to have their applications considered in good faith and in keeping with the basic rules of fair and open competition (see, by analogy, Judgment 4524, consideration 8, and the case law cited therein). The Organization is therefore wrong to contend that the complainant’s challenge to the decision not to place her on a roster in compliance with the Organization’s guidelines on creating and maintaining rosters is not based on her terms of appointment or staff rules.
Reference(s)
ILOAT Judgment(s): 4524
Keywords:
cause of action; contract; roster; selection procedure;
Judgment 4618
135th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the outcome of two selection procedures in which she took part.
Judgment keywords
Keywords:
case sent back to organisation; cause of action; competition; complaint allowed; selection procedure;
Consideration 8
Extract:
In view of the Organization’s arguments in its submissions, the Tribunal considers it useful to reiterate that, under the terms of their appointment and the applicable staff rules within an international organisation, all staff members who apply for posts in competitive procedures are entitled to have their applications considered in good faith and in keeping with the basic rules of fair and open competition (see, for example, Judgment 4524, consideration 8, and the case law cited therein). The Organization is therefore wrong to contend that the complainant’s challenge to the outcome of the competitions in question is not based on the terms of her appointment or the staff rules.
Reference(s)
ILOAT Judgment(s): 4524
Keywords:
cause of action; competition; contract;
Judgment 4607
135th Session, 2023
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her allegation that the opening of an investigation against her involved abuse of authority and the decision not to investigate her allegations against the Acting Director of the Internal Oversight Division.
Consideration 5
Extract:
[The complainant] has no enforceable legal interest in the fate of her allegation of misconduct against the Acting Director IOD which can be vindicated by orders of the Tribunal. The subject matter, namely the decision not to open an investigation on the alleged misconduct and abuse of authority by the Acting Director IOD, does not concern non-observance of the terms of her appointment or relevant non-observance of provisions of the Staff Regulations, as provided for in Article II of the Tribunal’s Statute (see Judgment 4145, consideration 5, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4145
Keywords:
cause of action; investigation; request to subject someone to disciplinary proceedings;
Consideration 6
Extract:
[A]ll that happened […] was that an investigation was opened. As [the Organization] points out in its reply, correctly, a decision to open an investigation is not a final decision that can give rise to a cause of action in the Tribunal, citing Judgment 3236, consideration 12.
Reference(s)
ILOAT Judgment(s): 3236
Keywords:
administrative decision; cause of action; opening of an investigation;
Judgment 4602
135th Session, 2023
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to award her material and moral damages as a victim of harassment and abuse of authority by her direct supervisor.
Consideration 6
Extract:
[T]he complainant does not provide evidence that she is acting on delegation of authority from the colleagues concerned, and she does not therefore have legal standing to make these kinds of requests on their behalf (see Judgments 4550, consideration 19, 4104, consideration 3, 2676, consideration 6, and 1979, consideration 4).
Reference(s)
ILOAT Judgment(s): 1979, 2676, 4104, 4550
Keywords:
cause of action; claim for other persons;
Judgment 4580
135th Session, 2023
International Bureau of Weights and Measures
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the increase in their contributions to the Pension and Provident Fund such as it appears on their payslips for January 2021.
Consideration 9
Extract:
[I]t is important to note that, contrary to what the complainants submit, the disputed increases in the contribution rate, which have the effect of reducing their net salary, do not influence the amount of the pension they will ultimately receive and affect them only as serving staff members, not future retirees. As the Tribunal observed when ruling on the complaint filed by a former BIPM staff member also directed against measures resulting from the 2016 reform of the Pension and Provident Fund, decisions concerning deductions from employment income made with a view to the acquisition of pension entitlements have a different purpose than those affecting the amount of a pension (see Judgment 4277, consideration 15). A breach of acquired rights owing to the effect of a new decision can only be determined by reference to the situation resulting from previous decisions with the same purpose (see Judgment 986, consideration 16 in fine). The complainants cannot therefore seek to rely, as they attempt to do, on a breach of the acquired rights they will have as future retirees.
Reference(s)
ILOAT Judgment(s): 986, 4277
Keywords:
acquired right; cause of action; retired official;
Judgment 4575
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaints concern compensation following the refusal to allow the Central Staff Committee to publish two documents on the EPO’s Intranet.
Consideration 7
Extract:
As to the receivability of the complainants’ request for an award of moral damages in the amount of one euro per staff member, the Tribunal notes that its jurisdiction ratione personae, pursuant to Article II of the Statute, is of an individual nature. The Tribunal can only order that the Organisation pay compensation for damages to the complainants (Article II, paragraph 5, of the Statute of the Tribunal), and not to third parties. For this reason, the Tribunal will not follow Judgment 2857, which underpins the complainants’ argument on this topic.
Reference(s)
ILOAT Judgment(s): 2857
Keywords:
cause of action; moral damages; receivability of the complaint; staff representative; third party;
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