Judgment No. 4769
Decision
The complaint is dismissed.
Summary
The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation, and his transfer following that reorganisation.
Judgment keywords
Keywords
receivability of the complaint; transfer; reorganisation; complaint dismissed
Consideration 2
Extract:
Eurocontrol contends that the complaint is irreceivable because the complainant did not exhaust the internal means of redress available to him as an official of the Organisation, contrary to the requirements of Article VII, paragraph 1, of the Statute of the Tribunal. However, the Tribunal notes that, under the last sentence of Article 92(2) of the Staff Regulations, an implied decision rejecting the complainant’s internal complaint that could be challenged before the Tribunal arose when four months had passed from the date on which that internal complaint had been lodged, that is on 20 January 2020 (see Judgments 4696, consideration 2, 4695, consideration 2, and 4694, consideration 3). Consequently, by the date on which the complainant filed his complaint with the Tribunal, the internal means of redress available to him had indeed been exhausted. The Organisation’s objection to receivability in this respect must therefore be dismissed.
Reference(s)
ILOAT Judgment(s): 4694, 4695, 4696
Keywords
receivability of the complaint
Consideration 3
Extract:
[T]he complainant raised the point that, after he had filed his complaint with the Tribunal, [...] the Joint Committee for Disputes eventually issued its opinion on his internal complaint. This led to a decision explicitly rejecting that internal complaint, taken on 10 December 2021 [...].
[...] Since the parties had the opportunity to comment fully in their submissions on the decision expressly rejecting the complainant’s internal complaint, the Tribunal considers it appropriate to treat the complaint as if it were directed against that decision (for similar cases, see, in particular, Judgments 4660, consideration 6, 4065, consideration 3, and 2786, consideration 3).
Reference(s)
ILOAT Judgment(s): 2786, 4065, 4660
Keywords
express decision; implied decision; impugned decision
Consideration 5
Extract:
Three of the decisions which the complainant challenges as unlawful and seeks to have set aside are general decisions. [...]
However, the Tribunal finds that the complainant’s claim for these decisions to be set aside is irreceivable. Under the Tribunal’s settled case law, a general decision intended to serve as a basis for individual decisions – as is the case of the memorandum at issue and the two decisions of 20 September 2019 – cannot be impugned, save in exceptional cases, and its lawfulness may only be contested in the context of a challenge to the individual decisions that are taken on its basis (see, for example, Judgments 4734, consideration 4, 4572, consideration 3, 4278, consideration 2, 3736, consideration 3, and 3628, consideration 4).
Reference(s)
ILOAT Judgment(s): 3628, 3736, 4278, 4572, 4734
Keywords
claim; general decision; individual decision
Consideration 6
Extract:
Contrary to the complainant’s submissions in the complaint, these general decisions are not among the exceptions recognised in the Tribunal’s case law according to which general decisions may be challenged when they do not require implementing decisions and immediately and adversely affect individual rights (see in this connection Judgments 4551, consideration 5, and 4550, consideration 4).
Reference(s)
ILOAT Judgment(s): 4550, 4551
Keywords
general decision
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
general decision; individual decision; cause of action; appointment; claim moot
Consideration 8
Extract:
[T]he complainant seeks the setting aside of the decision [...] ordering his transfer [...]. However, since the evidence shows that the complainant never used internal means of redress to challenge that decision, which was, moreover, taken after he had lodged his internal complaint on 20 September 2019, the Tribunal finds that his request to have that decision set aside must be dismissed as irreceivable under Article VII, paragraph 1, of its Statute for failure to exhaust internal remedies.
Keywords
failure to exhaust internal remedies
Consideration 10
Extract:
The Tribunal [...] considers that the complainant’s request for Eurocontrol to be “ordered to comply” with Articles 7 and 30 of the Staff Regulations cannot be granted. It is settled case law that it is not for the Tribunal to issue such general declarations or declarations of law, or declaratory orders (see, for example, Judgments 4637, consideration 6, 4492, consideration 8, and 4246, consideration 11).
Reference(s)
ILOAT Judgment(s): 4246, 4492, 4637
Keywords
injunction
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