Discretion (547, 548, 549, 550, 551,-666)
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Keywords: Discretion
Total judgments found: 609
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Judgment 699
57th Session, 1985
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
Article 59 of the EPO Service Regulations provides that the President shall lay down the list of applicable public holidays up to a maximum of ten days. On 8 November 1983 the President issued a list of 14 public holidays, the four additional working days lost to be made up by extending working hours for a time by half-an-hour. The Tribunal holds that while the President may ignore the ten-day limit he may not put the number of hours in the working week at more than 40 except when they are remunerated or made necessary by abnormal circumstances. In the instant case such circumstances do not exist.
Reference(s)
Organization rules reference: ARTICLE 59 OF THE EPO SERVICE REGULATIONS
Keywords:
compensatory measure; discretion; increase; judicial review; leave; overtime; public holiday; working hours;
Judgment 687
57th Session, 1985
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"Although the Tribunal may review the lawfulness of the dismissal, the nature of the decision is such that its power of review, where it finds no formal or procedural flaw, is limited. It will set the decision aside only if there was a mistake of law [...]. In a case of dismissal of a probationer the administration should be allowed the widest measure of authority, and the decision will be quashed only if the mistake or the illegality is especially serious or glaring."
Keywords:
discretion; judicial review; probationary period; termination of employment;
Judgment 675
56th Session, 1985
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
Having served the organization since 1969, the complainant was seconded for two years to the UNDP in 1980. In 1982 the organization decided not to extend the appointment or the secondment. The Tribunal holds that the organization committed an error of law by assuming that a fixed-term appointment expires automatically on the specified expiration date, and an abuse of power for having terminated the complainant without stating its reasons. The award of damages reflects the especially grave moral injury sustained by the complainant.
Keywords:
abuse of power; contract; discretion; duty to substantiate decision; fixed-term; flaw; legitimate expectation; misuse of authority; moral injury; non-renewal of contract; secondment;
Judgment 665
56th Session, 1985
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 1
Extract:
"Renewal of an appointment is a discretionary decision. Although the rule provides for automatic expiry in the absence of offer and acceptance of an extension of contract, the decision is still subject to review by the Tribunal, which will set it aside if there was a formal or procedural flaw, or a mistake of fact or of law, or if essential facts were overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence."
Keywords:
contract; discretion; fixed-term; judicial review; non-renewal of contract;
Judgment 664
56th Session, 1985
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
The material rule "exempts the case of force majeure. The [organisation] submits that [...] the complainant may not allege [force majeure] in the circumstances and that, even if it were established, the President would have discretion in the matter which he exercised correctly. The last part of the argument is mistaken: if there was force majeure the President was bound to accept the consequences in law."
Keywords:
discretion; force majeure; judicial review;
Judgment 648
55th Session, 1985
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
It is proper for an organization to wish to have full information on candidates in order to secure staff of sound technical competence and high moral integrity. "Whether the candidate qualifies is a matter which the executive head must be left to determine at his discretion, and the Tribunal will not review the exercise of such discretion."
Keywords:
appointment; condition; discretion; fitness for international civil service; judicial review; qualifications;
Judgment 631
54th Session, 1984
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 29
Extract:
"The Director-General took the impugned decision in the exercise of his discretion. This means that the Tribunal will not interfere with it merely because they think it to be wrong. They must be satisfied, to put it briefly, that it was not only wrong but wrongly motivated or based on an error of law or a complete misapprehension of the facts. Moreover, where [...] the interests of the organization form the sole criterion for the decision, the Tribunal will be reluctant to interfere since the Director-General must normally be regarded as the best judge of what those interests are."
Keywords:
assignment; discretion; judicial review; organisation's interest; transfer;
Judgment 623
53rd Session, 1984
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations
Extract:
"A contract like the complainant's automatically ends on expiry and the contractual relationship terminates forthwith. Such a contract does not as a rule confer any right to renewal, and renewal is a matter of discretion".
Keywords:
contract; discretion; fixed-term; non-renewal of contract;
Judgment 619
53rd Session, 1984
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
None of the three candidates met all the requirements. The organization cancelled the competition and delayed making an appointment for the vacant position. The provision on which the complainant relies "is not supposed to require [the organization] to choose someone, even if he has the best qualifications, who is still not qualified for the job and it was no breach of [the material rule] not to appoint any of them."
Keywords:
candidate; competition; competition cancelled; discretion; qualifications;
Judgment 608
52nd Session, 1984
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
There is a regulation which provides for the Director-General to determine the frequency of salary adjustments on the basis of variation in the rate of inflation. The Director-General chose not to exercise his discretion. "He must have proceeded upon the erroneous assumption that he was under no obligation to make any adjustment at all and so could do what he liked about the frequency." The Tribunal quashes the decision, which rests on an error of law and remits the case to the Director-General for a "new decision based on the correct interpretation" of the regulation.
Keywords:
adjustment; cost-of-living increase; discretion; enforcement; interpretation; organisation's duties; provision; salary; staff regulations and rules;
Judgment 607
52nd Session, 1984
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
On the matter of renewal, the Director-General has wide discretion, while the Tribunal's power of review is limited. "This relates to questions of substance, but not procedural rules, which are never applicable at discretion. To rule otherwise would increase the risk of dispute. To avoid being time-barred staff members would make a practice of filing claims, although very often the cumbersomeness of administration is wholly to blame for the tardy decision."
Keywords:
contract; discretion; fixed-term; judicial review; limits; non-renewal of contract; procedure before the tribunal;
Judgment 606
52nd Session, 1984
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
Following a recommendation by the Appeals Committee, the Director-General ordered a desk audit on the qualifications for the complainant's duties. The results were submitted to the committee responsible for post classifications, which advised that the post should not be reclassified. Determining the grade of a post is a matter falling within the discretion of the administration. Its conclusions can only be set aside on certain grounds, none of which have been established by the complainant in respect of the impugned decision.
Keywords:
discretion; inquiry; investigation; judicial review; post classification;
Considerations
Extract:
"There are no rigid rules for determining whether a post properly belongs to the professional or the general service categories. It depends upon the presence or absence of factors which only the expert, or at least the knowledgeable knows how to weigh. It is a question to be decided by experience rather than by rule. Those who conduct the desk audit have the necessary experience. The final decision falls within the discretion of the Director-General".
Keywords:
criteria; discretion; general service category; post classification; professional category;
Judgment 600
52nd Session, 1984
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"The question is [...] whether [the complainant] continues to be worth his place in the organisation. If he does, it is prima facie in the interests of the organisation to retain his services; if he does not, it is the Director-General's duty to allow the appointment to terminate. The Director-General must reach an informed and unprejudiced conclusion, but that is all that is required of him."
Keywords:
contract; discretion; fixed-term; limits; non-renewal of contract; organisation's interest; right to reply;
Judgment 599
52nd Session, 1984
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations
Extract:
In this case "the criticisms are carefully and moderately phrased. Whether or not they are justified, it is not suggested that they do not express the honest opinion of the reporting officer." The decision to retain the report's original wording is "within the President's discretion and moreover within an area of his discretion in which the Tribunal does not normally entertain complaints. It is essential to the value of an appraisal report that the reporter should be granted great freedom of expression."
Keywords:
discretion; judicial review; performance report; work appraisal;
Judgment 598
52nd Session, 1984
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
By assimilating military and technical co-operation, the President erred in law. "The error of law does not mean that the Tribunal gives the complainant full satisfaction. Not every form of co-operation service necessarily has to count. Subject to review by the Tribunal, the President is free to exercise his discretion, having regard to the [relevant] guidelines."
Keywords:
cooperation service; discretion; professional experience; reckoning; seniority;
Consideration 1
Extract:
"Where the guidelines properly modify the requirements of the Service Regulations they confer on the President an authority of his own which he exercises in the general interest and as befits the particular circumstances. [...] The wording of the guidelines is such that they cannot be treated as nothing more than standards or goals [...] They set objective and binding criteria for deciding on individual staff cases, and, while not ignoring the President's discretionary authority, the Tribunal will review the application of the rules the Council has laid down."
Keywords:
administrative instruction; amendment to the rules; binding character; competence of tribunal; discretion; enforcement; executive body; executive head; general decision; staff regulations and rules;
Judgment 597
52nd Session, 1984
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
Vide Judgment 598, consideration 6.
Reference(s)
ILOAT Judgment(s): 598
Keywords:
cooperation service; discretion; professional experience; reckoning; seniority;
Consideration 1
Extract:
Vide Judgment 598, consideration 1.
Reference(s)
ILOAT Judgment(s): 598
Keywords:
administrative instruction; amendment to the rules; binding character; competence of tribunal; discretion; enforcement; executive body; executive head; general decision; staff regulations and rules;
Summary
Extract:
The Tribunal holds that the criticisms in the report on the complainant suffer from no errors which could justify changing them. Reporters enjoy considerable freedom of expression, and that freedom was not in this case overstepped.
Keywords:
discretion; performance report;
Judgment 594
51st Session, 1983
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"The extent of the duties and the nature of the responsibilities attached to a post are questions of fact. These facts were the subject of investigation and assessment [...] after interviews with the complainant and after consultation with the regional administration and the technical staff at headquarters. The Tribunal will not substitute its own assessment or direct that a new assessment be made unless it is shown that the [organisation] acted on some wrong principle."
Keywords:
discretion; inquiry; investigation; judicial review; post classification;
Judgment 592
51st Session, 1983
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"An organisation may not get rid of a [fixed-term] staff member as it pleases, and without stating reasons, when the period of his appointment expires. It must take care that its decision suffers from none of the defects which entitle the Tribunal to set it aside."
Keywords:
contract; discretion; duty to substantiate decision; fixed-term; non-renewal of contract;
Consideration 4
Extract:
"The case law is that whether or not to extend an appointment is a matter of discretion. The Tribunal may exercise only a limited power of review over such a decision".
Keywords:
contract; discretion; fixed-term; judicial review; non-renewal of contract;
Judgment 591
51st Session, 1983
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"The classification of a post depends upon an assessment of the type of work performed and the level of responsibility. It is an assessment which can only be made by persons whose training and experience equip them for the task of evaluating and grading posts. The Tribunal, therefore, will not substitute its own assessment or direct that a new assessment be made unless it is shown that the organization acted in the matter on a wrong principle."
Keywords:
discretion; judicial review; limits; post classification;
Judgment 585
51st Session, 1983
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"A decision against a change in grading is a discretionary one, and according to its case law the Tribunal will quash such a decision only if [...]".
Keywords:
discretion; judicial review; post classification;
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