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Precedence of rules (229,-666)
You searched for:
Keywords: Precedence of rules
Total judgments found: 23
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Judgment 4316
130th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the introduction of fixed “bridging days” to balance the number of public holidays at the different places of employment.
Consideration 13
Extract:
The reasoning in Judgment 699 was that the contested circular could not contradict Article 55 of the Service Regulations according to the hierarchical principle that a lower source of law (Circular No. 121) cannot prevail over a higher source (Article 55 of the Service Regulations).
Keywords:
precedence of rules;
Judgment 4018
126th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision no longer to pay him an expatriation allowance.
Considerations 7-8
Extract:
[A]n international organisation cannot lawfully conclude an employment contract containing a clause that is contrary to its existing staff rules and regulations. The organisation must abide by the provisions it has itself laid down and they therefore take precedence over the clauses of contracts concluded between it and its officials (see, for example, Judgments 1634, under 19, or 2097, under 10).
It follows that a clause which [...] contravenes the staff rules and regulations is unlawful and therefore cannot apply, even if the contracting parties clearly intended it to do so. Were that not the case, an organisation could evade compliance with its staff regulations on a case-by-case basis, which would seriously undermine the legal framework to which they belong and, in particular, would breach the principle of the equal treatment of officials. [...]
It is useful to compare this dispute with that which gave rise to Judgment 3483, in which an official’s employment contract made provision for the granting of a benefit which was not mandatory under the Staff Regulations and which the organisation concerned did not intend to pay. Although, in the latter case, the Tribunal found that the disputed contractual clause had to be applied, it did so after expressly noting in consideration 8 of that judgment that the clause had not been unlawfully included in the complainant’s contract, since a provision of the organisation’s rules permitted the granting of the allowance in question to staff members in the position of the official in question. In this case, on the other hand, there was no provision permitting Eurocontrol to grant the complainant an expatriation allowance.
Reference(s)
ILOAT Judgment(s): 1634, 2097, 3483
Keywords:
contract; precedence of rules; staff regulations and rules;
Judgment 3339
118th Session, 2014
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Employed on a part-time basis, the complainant seeks the payment of the additional hours he had been exceptionally required to work.
Consideration 3
Extract:
"[T]he principle of lex specialis derogat generali [...] cannot be applied to laws which [...] are not at the same level of hierarchy."
Keywords:
general principle; precedence of rules;
Judgment 3322
117th Session, 2014
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director-General’s decision not to grant her personal promotion.
Considerations 6-8
Extract:
[T]he complainant raises what is plainly a well-founded objection to the lawfulness of this circular.
Barring the application of a provision of the Staff Regulations by means of a mere circular constitutes a gross breach of the hierarchy of rules governing the officials of the Organization, and the Director of the Human Resources Development Department clearly had no authority to adopt a measure with such a purpose.
The ILO submits that in Judgments 2833, 3032 and 3077 the Tribunal already “accepted the lawfulness of the amendment of a provision of the Staff Regulations by a circular”. This astonishing contention is, however, based on a radical misinterpretation of the case law thus cited. In these judgments, the Tribunal had occasion to rule on the application of the provisions of Circular No. 652, Series 6, of 12 January 2005, which exempted internal candidates for posts to be filled by competition from the assessment referred to in Annex I to the Staff Regulations. The Tribunal considered that it was reasonable to construe the provisions of that annex as permitting a departure from the Assessment Centre’s evaluation procedure as, by definition, these candidates’ suitability for a post in the International Labour Office is already known. It cannot be inferred from this conclusion that the Tribunal accepts that a circular may lawfully disregard a provision of the Staff Regulations, let alone amend it, or suspend its application.
The ILO endeavours to argue that Article 6.8.2, paragraph 4, itself permits – or, as it states in its submissions, permitted “at the time when this provision was in force” – exceptions to the rule making personal promotion subject to the completion of a posting in the field. In this connection, it emphasises that, as is clearer from the English version of the paragraph in question, this condition is not meant to apply systematically in every case.
Making an “exception” to a rule cannot, however, consist in simply suspending its application, even for a theoretically temporary period, as Circular No. 625 did.
Reference(s)
ILOAT Judgment(s): 2833, 3032, 3077
Keywords:
precedence of rules;
Judgment 2959
110th Session, 2011
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"[T]he existence of an established practice of directly appointing the Chief of Cabinet is not relevant, as a practice which is in violation of a rule cannot have the effect of modifying the rule itself, and the fact that employees may be aware of such a practice does not prevent them from exercising their right to impugn a decision based on that practice whenever it affects them."
Keywords:
breach; practice; precedence of rules; provision; right of appeal; written rule;
Judgment 2760
105th Session, 2008
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The complainant, a Canadian national, married a person of the same sex, as she is permitted to do under the law in force in Canada. She immediately informed the Agency of her new marital status and applied for the dependency benefits to which staff members with a spouse are eligible, but her application was rejected. The defendant points out that, for the purpose of applying its Staff Regulations and Staff Rules, it has a definition of the term "spouse" which refers only to the partners of a union between persons of opposite sex, since the Guide to Dependency Benefits, which was drawn up for the staff, indicates that the term "'[s]pouse' for all purposes of the Staff Regulations and Staff Rules is defined to mean the husband or wife". "But this mere information document, which was prepared by the Administration and has no normative value, clearly cannot prescribe the adoption of a restrictive definition which does not appear in the applicable texts themselves.
Furthermore, while the Tribunal notes that the same definition was also given in a Notice to the Staff of 11 July 2005, that document likewise could not narrow the scope of the concept of 'spouse' to which the Staff Regulations and Staff Rules refer. Although the secretariat of an organisation may always circulate a Notice to the Staff to clarify certain provisions of its staff regulations and rules, such a notice cannot impose on staff any restrictive conditions other than those stipulated in the provisions themselves."
Reference(s)
Organization rules reference: Guide to Dependency Benefits
Keywords:
administrative instruction; applicable law; binding character; condition; definition; dependant; domestic law; enforcement; family allowance; information note; limits; marital status; organisation; precedence of rules; provision; publication; purpose; refusal; request by a party; same-sex marriage; staff regulations and rules; written rule;
Judgment 2556
101st Session, 2006
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
The Organisation adopted a new method of calculating replacement days granted to inspectors returning from a Chemical Weapons Destruction Facilities inspection because of the inconsistency between the practice with regard to replacement days and the terms of Administrative Directive AD/PER/12. The complainant contested that new method. Because the earlier practice had become in its view "well established", the Appeals Council recommended that the appeal be upheld, the previous practice reinstated and the replacement days that should have been granted in accordance with that practice reimbursed. The Tribunal considers that "[a]s the practice of granting a replacement day for each Saturday, Sunday or official OPCW holiday falling during an inspection period is inconsistent with the terms of AD/PER/12, that practice cannot be elevated to the status of law so as to entitle the complainant to additional replacement days, as was seemingly thought by the Appeals Council."
Reference(s)
Organization rules reference: OPCW Administrative Directive AD/PER/12
Keywords:
administrative instruction; advisory opinion; compensatory measure; difference; internal appeal; internal appeals body; organisation's duties; practice; precedence of rules; provision; public holiday; reckoning; recommendation; refund; right; written rule;
Judgment 2120
93rd Session, 2002
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
The complainant assumes that the provisions of a notice issued by the Organisation's secretariat, being subordinate legislation, are incompatible with the corresponding provisions of the primary legislation, namely the Staff Rules. The Tribunal considers that the notice "does not merely implement or clarify the Staff Rule; it purports to extend its reach substantially. It cannot stand."
Keywords:
administrative instruction; condition; definition; difference; enforcement; limits; organisation; precedence of rules; provision; publication; purport; purpose; staff regulations and rules;
Judgment 1983
89th Session, 2000
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"As to the absence of one month's notice, [the organization] rightly points out that the obligation arising from the provisions of the Staff Regulations applies to dismissal and not to non-renewal of a fixed-term appointment. Nonetheless, the case law says that an organisation must always give the reasons for a decision not to renew an appointment and those reasons must be notified to the staff member within a reasonable time."
Keywords:
duty to substantiate decision; non-renewal of contract; notice; organisation's duties; precedence of rules; separation from service; staff member's interest; staff regulations and rules;
Judgment 1634
83rd Session, 1997
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 19
Extract:
"The Laboratory contends that the terms of the contract prevail over the Staff Rules and Regulations on the grounds that the latter are not 'given a superior rank over the provisions in the individual contract'. The Tribunal rejects the contention. Not only was the Director-General bound to abide by the Staff Rules and Regulations but the contract itself recognised that it was subject to the Staff Rules and Regulations."
Keywords:
contract; organisation's duties; precedence of rules; staff regulations and rules;
Judgment 1631
83rd Session, 1997
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
In construing Rule 1050.6 and Manual paragraph II.9.260 the Tribunal will apply the principle that Judgment 470 declared under 3(d):
"The relationship between Organization and staff is governed by the Staff Regulations, the Staff Rules and the Manual. The Regulations are supplemented by the Rules, which are elaborated on in the Manual. There is therefore a hierarchy under which the Rules may not derogate from the Regulations, nor the Manual from the Rules."
Reference(s)
ILOAT Judgment(s): 470
Keywords:
precedence of rules;
Judgment 1616
82nd Session, 1997
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The provisions of the combined [Staff] Rules apply to international and local staff alike, and so any provision that applies to one category of staff and not to the other offends against those rules and is unlawful. Here the Director General had no authority to treat as a mere option the consultation of the Joint Board on Appeals from local staff: the combined [Staff] Rules apply to all staff and so does the duty those rules lay down. The rule under which the Director General exercised discretion was an unlawful one and he thereby committed a mistake of law."
Keywords:
advisory body; consultation; discretion; executive head; local status; non-local status; precedence of rules; staff regulations and rules;
Judgment 1096
70th Session, 1991
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"A complaint is receivable under Article VII(3) where the administration fails to take any decision upon the claim within sixty days of the date of notification of it. Once an organisation has accepted the Tribunal's Statute it may not derogate from Article VII(3) by dint of internal rules of its own. The only difference Eurocontrol's own Staff Regulations may make is that it is estopped from objecting to receivability when, in reliance on its own time limit, a staff member has filed a complaint that would be receivable under its Staff Regulations but out of time under Article VII." (See also Judgment 1095.)
Reference(s)
ILOAT reference: ARTICLE VII(3) OF THE STATUTE
ILOAT Judgment(s): 1095
Keywords:
complaint; consequence; difference; failure to answer claim; good faith; iloat statute; precedence of rules; receivability of the complaint; staff regulations and rules; time bar; time limit;
Judgment 1095
70th Session, 1991
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 19
Extract:
"A complaint is receivable under Article VII(3) where the administration fails to take any decision upon the claim within sixty days of the date of notification of it. Once an organisation has accepted the Tribunal's Statute it may not derogate from Article VII(3) by dint of internal rules of its own. The only difference Eurocontrol's own Staff Regulations may make is that it is estopped from objecting to receivability when, in reliance on its own time limit, a staff member has filed a complaint that would be receivable under its Staff Regulations but out of time under Article VII."
Reference(s)
ILOAT reference: ARTICLE VII(3) OF THE STATUTE
Keywords:
complaint; consequence; difference; failure to answer claim; good faith; iloat statute; precedence of rules; receivability of the complaint; staff regulations and rules; time bar; time limit;
Judgment 1020
69th Session, 1990
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
Where two provisions are on a par in law, "the material rule is that the particular qualifies the general."
Keywords:
applicable law; precedence of rules; provision; staff regulations and rules;
Judgment 1019
69th Session, 1990
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
Vide Judgment 1020, consideration 9.
Reference(s)
ILOAT Judgment(s): 1020
Keywords:
applicable law; precedence of rules; provision; staff regulations and rules;
Judgment 554
50th Session, 1983
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations
Extract:
The Tribunal stated in Judgment No. 486 that "the question for its decision was whether it was within its competence to enforce a rule of policy or practice. The Tribunal found that there was such a rule, but that since it conflicted with a staff rule, it did not create an obligation which the Tribunal was competent to enforce. [...] It is manifest from the judgment that the rule of policy or practice, by whatever evidence its existence was proved, was in this case unenforceable."
Reference(s)
ILOAT Judgment(s): 486
Keywords:
applicable law; application for review; difference; evidence; practice; precedence of rules; provision; staff regulations and rules;
Judgment 532
49th Session, 1982
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
Insofar as a provision of the Service Regulations purports to provide that failing a decision by the President on an internal appeal within two months, a complaint may be duly filed with the Tribunal, "the provision must be treated as invalid because this is a matter of procedure which only the Tribunal's own Statute and Rules of court can settle."
Keywords:
competence of tribunal; difference; iloat statute; precedence of rules; procedure before the tribunal; provision; staff regulations and rules; time limit;
Consideration 1
Extract:
The declaration of recognition mentioned in Article II, paragraph 5, of the Statute of the Tribunal "recognises not only the Tribunal's competence but also the applicability of its Rules of court. An organisation which makes such a declaration accepts the provisions of the Statute and the Rules of court, and any provisions in its own rule book on the receivability of complaints filed with the Tribunal are of no effect, whether they comply with the Tribunal's rules or not."
Reference(s)
ILOAT reference: ARTICLE II, PARAGRAPH 5, OF THE STATUTE
Keywords:
consequence; declaration of recognition; difference; enforcement; iloat statute; precedence of rules; procedure before the tribunal; receivability of the complaint; staff regulations and rules; time limit;
Judgment 486
48th Session, 1982
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
A statement by the Director of a practice which he intends to follow can under certain conditions establish a contractual obligation arising out of the relationship created by the appointment. Such statements often relate to the way in which the Director intends to administer a staff rule and thus clarify and amplify it. "But just as a staff rule must not conflict with the staff regulation under which it is made, so a statement of practice must not conflict with the rule which it is elaborating."
Keywords:
binding character; enforcement; executive head; practice; precedence of rules; provision; staff regulations and rules;
Judgment 470
47th Session, 1982
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3(D)
Extract:
"The relationship between organization and staff is governed by the Staff Regulations, the Staff Rules and the Manual. The Regulations are supplemented by the Rules, which are elaborated on in the Manual. There is therefore a hierarchy under which the Rules may not derogate from the Regulations, nor the Manual from the Rules." A provision in the Manual which restricts the scope of a Staff Rule which neither expressly nor by implication provides for such exclusion "is at odds with the principle of the hierarchy of rules and must therefore be treated as void."
Reference(s)
Organization rules reference: ARTICLE 1050.4 OF THE PAHO STAFF RULES
Keywords:
precedence of rules; provision; staff regulations and rules;
Summary
Extract:
The complainant's contract expired and his post was simultaneously abolished. The organization applied the provision on the termination of temporary contracts. The Tribunal maintains that the provision on abolition of posts is applicable to temporary officials; a provision which deprives certain officials of benefiting from this provision is without effect because it does not respect the hierarchical ranking of rules.
Reference(s)
Organization rules reference: ARTICLE 1050.4 OF THE PAHO STAFF RULES
Keywords:
abolition of post; applicable law; contract; fixed-term; non-renewal of contract; precedence of rules;
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