Judgment No. 4707
Decision
The complaints are dismissed.
Summary
The complainants contest the modifications brought to the subsistence allowance.
Judgment keywords
Keywords
acquired right; allowance; complaint dismissed
Consideration 1
Extract:
Three complaints have been filed with the Tribunal commencing proceedings against […] CERN. […] Each retained the same lawyer and both the factual circumstances and the legal issues of each are substantially the same. Accordingly, the complaints are joined so that one judgment can be rendered.
Keywords
joinder
Consideration 2
Extract:
The complainants request that oral proceedings be held. However, the Tribunal considers that the parties have presented sufficiently extensive and detailed submissions and documents to enable the Tribunal to determine their complaints. That application is therefore dismissed.
Keywords
oral proceedings
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
receivability of the complaint; cause of action; competence of tribunal; burden of proof; ratione personae; ratione materiae
Consideration 8
Extract:
The Tribunal’s case law clearly favours the provision of documents to complainants which underpin a decision adversely affecting them (see, for example, Judgment 4412, consideration 14), and asserted confidentiality is ordinarily no barrier to their production. However, in the present case, the difficulty with the argument of the complainant is that in his pleas he does not identify when and in what terms he made the request. In the absence of these details, it is simply not possible to conclude positively that the refusal of CERN to provide him with a copy violated his due process rights. Accordingly, this claim is unfounded and should be rejected.
Reference(s)
ILOAT Judgment(s): 4412
Keywords
disclosure of evidence
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