Judgment No. 4737
Decision
The complaint is dismissed, as is the counterclaim for costs.
Summary
The complainant, who was the Secretary-General of the Energy Charter Secretariat, challenges the decision not to launch the procedure for his reappointment as Secretary-General.
Judgment keywords
Keywords
appointment; executive head; official; administrative decision; complaint dismissed; plenary judgment
Consideration 2
Extract:
The organisation contends that the Tribunal is not competent to hear this complaint for two reasons. The first which should be addressed is the argument that the complainant was not an “official” of the organisation for the purposes of Article II of the Tribunal’s Statute. The organisation relies in part on the terms on which it recognised the jurisdiction of the Tribunal as contemplated by Article II, paragraph 5, of the Statute. The terms of recognition can be a relevant consideration in determining the scope of the Tribunal’s jurisdiction (see Judgment 2232, consideration 8).
Reference(s)
ILOAT Judgment(s): 2232
Keywords
competence of tribunal; executive head; official
Consideration 4
Extract:
A clear indicator of the status of the Secretary-General as an official, is that he or she is part of the Secretariat performing duties described in [Article 35(1) of the Energy Charter Treaty] (and elsewhere in the Treaty), namely providing the Charter Conference with all necessary assistance for the performance of its duties and entering “administrative and contractual arrangements”.
The organisation relies on other normative legal documents to argue the complainant is not an official. But the relevant legal question is not whether the Secretary-General is an official for the purposes of those rules, but whether he is for the purposes of the Tribunal’s Statute. The Tribunal is satisfied he is.
Keywords
competence of tribunal; executive head; official
Consideration 5
Extract:
[T]he organisation [contends] that the decision not to launch the reappointment procedure, which was made by the Conference, was a bare political decision that is not open to judicial review. But the Tribunal notes that the decision was not entirely political but indirectly raised the question of the application of the conditions in the rules for appointment of the Secretary-General and had a direct legal adverse effect on the complainant, an international civil servant. The observations of the Tribunal in Judgment 2232, consideration 10, are apt to apply:
‘a decision terminating the appointment of an international civil servant prior to the expiry of his/her term of office is an administrative decision, even if it is based on political considerations. The fact that it emanates from the Organisation's highest decision-making body cannot exempt it from the necessary review applying to all individual decisions which are alleged to be in breach of the terms of an appointment or contract, or of statutory provisions’.
Reference(s)
ILOAT Judgment(s): 2232
Keywords
competence of tribunal; appointment; executive head; administrative decision
Consideration 11
Extract:
The limitation on reapplication [to the position of Secretary-General] was to operate in the future and, in terms, was to operate on the “serving” Secretary-General. Thus, it was, in terms, to apply in the future to anyone with that status. While the complainant acquired that status (by way of reappointment) on the same day the amendment took legal effect, the amendment creating the limitation on reapplying could and would, on its face, apply at the expiration of the term of the complainant’s reappointment. It is the combined effect of the historical fact that the complainant had been reappointed once to the position in 2016, effective 1 January 2017, together with his status as Secretary-General after the amendment came into effect, that engaged the amendment.
Moreover, the purpose of the amendment is clear. It was to eliminate the possibility that a serving Secretary-General could, by repeated reappointments flowing from repeated reapplications, remain in the position for a very lengthy period of time. Its purpose was to ensure finite periods of occupation of the position rather than open-ended periods.
Keywords
appointment; executive head; retroactivity
Consideration 13
Extract:
It is true that the terms on which [the complainant] was initially appointed expressly, in his letter of appointment, recognised his right to have protected any acquired right. But the relevant question is whether a right to repeatedly reapply for the position was an acquired right which could not be altered. The Tribunal’s case law recognises that international civil servants’ conditions of employment existing at the time of recruitment are not immutable and need not, of necessity, be applied to them throughout their careers (see, for example, Judgment 4465, considerations 5 to 8). The Tribunal is not satisfied that an unconstrained right to reapply for the position of Secretary-General meets the criteria of an acquired right identified in, for example, Judgment 4195, consideration 7.
Reference(s)
ILOAT Judgment(s): 4195, 4465
Keywords
acquired right; appointment; executive head
Considerations 15-17
Extract:
In its brief, seemingly prepared by lawyers, the organisation said in the fifth paragraph of the introduction (and concerning the receivability of the complaint):
“Finally, the Organisation considers the case to be of wider importance in that hearing the Complainant’s case could set an undesirable precedent for the executive heads of other international organisations that might want to challenge the political considerations governing their re-appointments before the Tribunal. Such a precedent might prompt some international organisations to reconsider the jurisdiction conferred to the Tribunal with regard to employees that depend on its jurisdiction for the protection of their rights.”
[…]
Observations recently made by the Tribunal in Judgment 4079 are equally apt to apply to the above submission. The Tribunal said at consideration 17:
“This is a subtle threat to the Tribunal but a threat nonetheless. As an independent judicial body, the Tribunal is constituted by judges who must act without fear or favour. Such a threat must be ignored. Also, the threat if acted upon would subvert the operation of the rule of law at an international level. That is because dissatisfaction with a judgment lawfully rendered by a judicial body should never ground the rejection of the jurisdiction of that body. This is unacceptable behaviour by an international organization. The disdain the organization shows for the orderly resolution of justiciable disputes subverts the very institutions established to resolve them and the framework within which they operate.”
The submission quoted above should never have been made.
Reference(s)
ILOAT Judgment(s): 4079
Keywords
threat
|
