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Express decision (32,-666)
You searched for:
Keywords: Express decision
Total judgments found: 31
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Judgment 4847
138th Session, 2024
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the rejection of her appeal against an implied decision not to compensate her for alleged constructive dismissal.
Considerations 5-7
Extract:
Given the centrality of Judgment 532 to the approach of the Appeals Board, it is desirable to discuss what the Tribunal decided. The relevant facts in that matter may be briefly stated. The genesis of the complainant’s grievance was deductions from his salary for periods when he was on strike, which he said had been wrongly deducted. The complainant appealed against the alleged wrongful deduction on 20 June 1981. The appeal was not decided within two months, namely by 20 August 1981, as required by the Service Regulations for permanent employees of the European Patent Office, and the complainant challenged in the Tribunal the implied rejection of his claims in a complaint filed on 17 November 1981. Earlier, on 30 October 1981, the President of the Office wrote to the complainant saying that as his claims were refused, the matter would be passed on to the Appeals Committee.
In Judgment 532, the Tribunal took the view that the letter of 30 October 1981 had two legal consequences. One was that it was a decision within the meaning of Article VII, paragraph 3, of the Tribunal’s statute. Accordingly, and secondly, there was an express decision on his claim. In those circumstances, the Tribunal said that from 30 October 1981, “the complainant could no longer properly challenge any implied decision”, Article VII, paragraph 3, did not apply and under Article VII, paragraph 1, the complaint was irreceivable because internal means of redress had not been exhausted. The Tribunal accepted that until the President sent his letter of 30 October 1981 the “complainant could have filed a complaint by virtue of Article VII (3)” but said “[i]n any event, since an express decision was taken on 30 October, there has been no question since then of challenging any implied decision”.
[I]t is a persuasive authority and there is an underlying legitimate rationale for requiring a complainant to challenge only an express decision, if made after an implied decision and before the challenge was initiated. It is true that the Tribunal eschews undue formality in relation to process (see Judgments 3845, consideration 4, 3759, consideration 6, and 3592, consideration 3). But by facilitating a challenge to an implied decision in the face of an express decision made before the challenge was initiated, the Tribunal would potentially create a licence for a complainant to challenge the relevant decision (on the assumption that both the implied and express decision deal with the same subject matter) without necessarily having to confront the reasons likely to have been given in the express decision and require the internal appeal body to consider and evaluate those reasons. As the Appeal Board clearly seems to suggest, this would be antithetical to the interests of the internal justice system.
Reference(s)
ILOAT Judgment(s): 532, 3592, 3759, 3845
Keywords:
express decision; implied decision; internal appeal; receivability of the complaint;
Judgment 4824
138th Session, 2024
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to close the case on his allegations of harassment and unequal treatment by the former Registrar of the ICC.
Considerations 5-7
Extract:
The ICC submits that the complaint is irreceivable because it was not filed within 90 days following the notification of the impugned decision, as required by Article VII, paragraph 2, of the Tribunal’s Statute […]. The case law further states that such time limits must be strictly adhered to. […] However, as the Tribunal recalled in consideration 2 of Judgment 4059, for example, the case law also recognizes that there are exceptions to the requirement of strict adherence to the applicable time limits in very limited circumstances. The circumstances identified in the case law are: where the complainant has been prevented by vis major from learning of the impugned decision in good time or where the organization, by misleading the complainant or concealing some paper from him or her so as to do him or her harm, has deprived that person of the possibility of exercising his or her right of appeal, in breach of the principle of good faith; and where some new and unforeseeable fact of decisive importance has occurred since the decision was taken, or where the staff member concerned by that decision is relying on facts or evidence of decisive importance of which he or she was not and could not have been aware before the decision was taken.
The complainant submits that the strict time limit should not be adhered to in this case because by the time he was notified of the impugned decision, he had already filed his third complaint, so the case was already pending before the Tribunal; that he could not submit a new complaint on the same matter before the Tribunal had ruled on his third complaint; and that once it had delivered Judgment 4271 on his third complaint, he filed his fourth complaint within the following 90-day period, which brings his case within the exceptional circumstances.
The foregoing submissions are rejected. The complainant was notified of the Registrar’s express final decision on his harassment complaint on 23 July 2019, and Article VII, paragraph 2, of the Tribunal’s Statute required him to file his complaint with the Tribunal within ninety days following that notification, that is, by 21 October 2019. He filed this complaint more than six months beyond the expiry of the ninety-day time limit. It is clear that the reasons he advances in the foregoing submissions do not fall within any of the “very limited circumstances” recalled above, in which the requirement of strict adherence to the time limit can be waived. […] In this regard, the fact that the complainant had already filed his third complaint impugning what he considered to be an implied decision to reject his harassment claim is irrelevant, given that the third complaint was clearly irreceivable for the reasons explained in Judgment 4271.
Reference(s)
ILOAT Judgment(s): 4059, 4271
Keywords:
express decision; late filing; receivability of the complaint; time limit;
Judgment 4820
138th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss his moral harassment complaints, and claims compensation for the injury which he considers he has suffered.
Considerations 6-7
Extract:
Insofar as the complaint is directed against the decision of the Director General to dismiss the complainant’s first complaint for moral harassment against Mr P.H. as unfounded, the Tribunal notes the following:
(a) Where the Administration takes any action to deal with a claim, by forwarding it to the competent internal appeal body for example, this step in itself constitutes a “decision upon the claim” within the meaning of Article VII, paragraph 3, of the Statute of the Tribunal, which forestalls an implied rejection that could be referred to the Tribunal (see, for example, Judgments 3715, consideration 4, 3428, consideration 18, and 3146, consideration 12).
(b) Under Article 92(2) of the Staff Regulations, the complainant should have filed a complaint before the Tribunal within 90 days from the expiry of the four-month time limit for the Administration to respond to his internal complaint, even if the matter had been referred to the Joint Committee for Disputes. The present complaint should therefore, in principle, be declared irreceivable as time-barred under Article VII, paragraph 2, of the Statute of the Tribunal, combined with Article 92(2) of the Staff Regulations.
(c) However, in this case, the Tribunal considers that the complainant was misled by the Organisation when it indicated to him that, since his internal complaint had been referred to the Joint Committee for Disputes, he had, in accordance with the Tribunal’s case law on the application of Article VII, paragraph 3, of its Statute, to await the final decision of the Director General before being able to file a complaint with the Tribunal. By so doing, the Organisation overlooked the fact that, pursuant to Article 92(2) of the Staff Regulations, failure by the Director General to respond to an internal complaint within four months from the date on which it was lodged shall be deemed to constitute an implied decision rejecting it, which may be impugned before the Tribunal. There is no need to declare the complaint irreceivable as time-barred, insofar as it is directed against an implied decision to reject from the Director General. To rule otherwise would amount to unduly depriving the complainant of his right to refer the matter to the Tribunal solely due to the conduct of the Organisation.
(d) The Tribunal observes that, while the complainant’s failure to comply with the 90-day time limit to file a complaint with the Tribunal is recognized above as admissible due to the fact that he was wrongly informed by the Organisation that he had to await an express decision, the complainant did not wait for this decision to be issued before filing his complaint. The complaint should therefore, in principle, be declared irreceivable for failure to exhaust internal means of redress, as required by Article VII, paragraph 1, of the Statute of the Tribunal. However, in this case, taking into account the period of one year and seven months that had elapsed between 5 June 2020, when the complainant filed his internal complaint, and 7 February 2022, when he filed his complaint with the Tribunal, and the fact that his counsel had followed up, to no avail, with the Director General, the Tribunal considers that the complainant was faced with a paralysis of the internal appeal procedure that would allow him to proceed directly to it. Under the Tribunal’s case law, a complainant is entitled to file a complaint directly with the Tribunal against the initial decision which she or he intends to challenge where the competent bodies are not able to determine the internal appeal within a reasonable time having regard to the circumstances, provided that she or he has done her or his utmost, to no avail, to accelerate the internal procedure and where the circumstances show that the appeal body was not able to reach a final decision within a reasonable time (see, for example, Judgments 4660, consideration 2, 4271, consideration 5, 4268, considerations 10 and 11, 4200, consideration 3, 3558, consideration 9, 2039, consideration 4, or 1486, consideration 11).
(e) In addition, the Tribunal notes that a final decision was ultimately taken by the Director General on 12 May 2022, as was the opinion of the Joint Committee for Disputes relating thereto, and that that decision was issued in the course of proceedings. Since the Tribunal has the complete dossier in its possession and the parties have had the opportunity to comment fully in their written submissions on the express decision to reject the complainant’s internal complaint of 5 June 2020, and thus on the decision to reject the first harassment complaint inasmuch as it was directed against Mr P.H., it considers that, in accordance with its case law, it is appropriate to treat the internal complaint as being directed against the latter decision of 12 May 2022 (see in particular, for similar cases, Judgments 4769, consideration 3, 4768, consideration 3, 4660, consideration 6, 4065, consideration 3, and 2786, consideration 3).
The present complaint is, accordingly, receivable insofar as it challenges the lawfulness of the Director General’s decision of 12 May 2022 to reject, as unfounded, the first moral harassment complaint directed against Mr P.H. It will therefore be examined from this standpoint by the Tribunal.
Reference(s)
ILOAT Judgment(s): 1486, 2039, 2786, 3146, 3428, 3558, 3715, 4065, 4200, 4268, 4271, 4660
Keywords:
absence of final decision; administrative delay; case law; delay; direct appeal to tribunal; exception; express decision; iloat statute; implied decision; impugned decision; internal appeal; internal remedies exhausted; judicial review; reasonable time; receivability of the complaint; staff member's duties; time limit;
Judgment 4769
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation, and his transfer following that reorganisation.
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;
Judgment 4768
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation and his transfer following that reorganisation.
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 the Director General taking the decision [...] explicitly rejecting that internal complaint [...].
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 that, in accordance with its case law, it is 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;
Judgment 4261
129th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the withdrawal of a decision to assign her additional duties on a temporary basis.
Consideration 3
Extract:
Consistent with the Tribunal’s case law, the express decision in relation to this particular grievance can be treated as the impugned decision (see, for example, Judgment 3356, considerations 15 and 16).
Reference(s)
ILOAT Judgment(s): 3356
Keywords:
express decision;
Judgment 4082
127th Session, 2019
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the salary he receives at his new grade.
Consideration 2
Extract:
This complaint, which was originally directed against an implied decision to dismiss the complainant’s internal complaint, must now be regarded as impugning the express decision of 27 April 2016, taken in the course of the proceedings, by which the Director General informed the complainant of his decision to dismiss his internal complaint of 28 January 2015 (for a similar case, see, for example, Judgment 3667, consideration 1).
Reference(s)
ILOAT Judgment(s): 3667
Keywords:
direct appeal to tribunal; express decision; implied decision; impugned decision;
Judgment 4081
127th Session, 2019
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision of the Director General not to allow him to carry out an assignment outside the Organisation.
Consideration 3
Extract:
This complaint, which was originally directed against an implied decision to dismiss the complainant’s internal complaint, must now be regarded as impugning the express decision of 29 July 2015, taken in the course of the proceedings, by which the Director General informed the complainant of his decision to reject the internal complaint against the aforementioned decision of 4 August 2014 (for a similar case, see, for example, Judgment 3667, consideration 1).
Reference(s)
ILOAT Judgment(s): 3667
Keywords:
direct appeal to tribunal; express decision; implied decision; impugned decision;
Judgment 4046
126th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of his claim for an invalidity allowance.
Considerations 4-5
Extract:
The Tribunal’s jurisdiction concerns, relevantly, the non-observance of provisions of the Staff Regulations. In the present case, the complainant would have been entitled to the payment of an invalidity allowance in the event that the Medical Committee determined he suffered from invalidity. The legal right or benefit arising under the Service Regulations was the payment of that allowance. In circumstances where payment of the allowance should have been made but was not, there has been a non-observance of the Service Regulations challengeable before the Tribunal. Plainly enough, as part of that challenge, the anterior determination of the Medical Committee can be challenged because it is foundational to the decision of the President to refuse to pay the allowance. But that does not render the determination of the Medical Committee a final decision for the purposes of the Tribunal’s Statute. Indeed, in principle, it would be open to the President to reject the opinion of the Medical Committee if she or he discerned some reviewable error on the part of the Medical Committee. The Medical Committee’s determination is a decision that constitutes a step towards the making of the final administrative decision amenable to challenge in the Tribunal (see Judgment 3433, consideration 9).
In some circumstances, the Tribunal has treated a challenge to what has been identified in the complaint as a decision but, in fact, was an anterior step to the challengeable final administrative decision, as a challenge to the final administrative decision itself. An example is found in Judgment 2715. In that case the Tribunal sought to identify what was intended by the complainant and treated the complaint as a manifestation of an intention to challenge the final administrative decision. This course is not open to the Tribunal in the present case. That is because the EPO in the reply explicitly and clearly raises the issue of the receivability of a complaint challenging a “decision” of the Medical Committee. Notwithstanding, the complainant explicitly and clearly adheres in the rejoinder to the position that this was what was being challenged, namely the “decision” of the Medical Committee. In these circumstances, there is no proper basis for imputing to the complainant an intention to challenge the decision of the President of 11 June 2012.
Reference(s)
ILOAT Judgment(s): 2715, 3433
Keywords:
express decision; final decision; impugned decision; step in the procedure;
Judgment 4016
126th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision not to extend his appointment beyond the mandatory retirement age.
Consideration 3
Extract:
The complaint, though initially directed against an implied rejection of an internal complaint, should now be viewed as challenging the express decision taken during the present proceedings, on 13 December 2016 (see, in particular, Judgment 3667, under 1).
Reference(s)
ILOAT Judgment(s): 3667
Keywords:
direct appeal to tribunal; express decision; implied decision; impugned decision;
Judgment 3695
122nd Session, 2016
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the EPO’s rejection of his two internal appeals against the Ombudsman’s failure to follow the formal procedure in respect of his harassment complaint and against the President’s decision to reject that harassment complaint.
Consideration 8
Extract:
It is open to the Tribunal to treat the express decision as replacing the implied decision (see for example Judgment 3184, consideration 3), on the basis that the belated express decision is the decision the Tribunal should consider (see Judgment 3161, considerations 1 and 2). However, if the express decision is only provided by the defendant organization in its surrejoinder (as happened in this case) then the Tribunal needs to ensure that the complainant has an opportunity to comment on that decision in appropriate cases to ensure that the complainant is afforded procedural fairness.
Reference(s)
ILOAT Judgment(s): 3161, 3184
Keywords:
express decision; final decision; surrejoinder;
Judgment 3407
119th Session, 2015
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully challenges the implied decision to reject his claim against the new calculation of his pension rights.
Consideration 12
Extract:
[A]s the complainant took care in his rejoinder to impugn, “if appropriate”, the aforementioned express decision [...] which had been taken in the meantime, the complaint must be deemed to be directed against that decision (see, for a similar precedent, Judgment 3356, under 15 and 16).
Reference(s)
ILOAT Judgment(s): 3356
Keywords:
express decision; impugned decision;
Judgment 3301
116th Session, 2014
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant through five irreceivable complaints requested information concerning facts that occurred before his retirement for disability.
Judgment keywords
Reference(s)
ILOAT reference: Article 7, paragraph 2, of the Rules
Organization rules reference: Articles 107, par. 2, and 109, par. 3, of the Service Regulations
Keywords:
complaint dismissed; decision; express decision; implied decision; internal appeal; internal remedies exhausted;
Judgment 2740
105th Session, 2008
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"The letter of 29 August 2006 must be deemed to constitute an explicit decision to refuse to rule on the request submitted by the complainant [...]. Such a decision may be brought before the Tribunal only after the means of redress open to the complainant have been exhausted (Article VII, paragraph 1, of the Tribunal's Statute)." The complainant did not exhaust all internal means of redress. "Consequently, the complaint would, in the normal course of events, be irreceivable. [...] In the present case, however, such an approach would result in a grave miscarriage of justice. Indeed, in view of the content of the letter of 29 August 2006, by which UNESCO notified the complainant of its refusal to take a decision, the complainant had good grounds to consider that any internal appeal would have proved a hollow and meaningless formality. [...] The complainant was therefore entitled to have direct recourse to the Tribunal, after rightly concluding that the letter of 29 August 2006 contained an implicit waiver of the requirement that she first exhaust internal means of redress. It follows that the complaint cannot be declared irreceivable under Article VII, paragraph 1, of the Tribunal's Statute."
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
Keywords:
condition; decision; direct appeal to tribunal; express decision; iloat statute; implied decision; internal appeal; internal remedies exhausted; receivability of the complaint; refusal; request by a party;
Judgment 2629
103rd Session, 2007
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"Ordinarily, there is no decision with respect to matters falling outside normal entitlements until a specific claim is made and either expressly or impliedly accepted or rejected (see Judgment 2538). [...] However, it is well settled that a decision does not require any particular formality and may be constituted by any communication that is reasonably capable of being understood to constitute a decision on the matter (see Judgments 532 and 2573)."
Reference(s)
ILOAT Judgment(s): 532, 2538, 2573
Keywords:
condition; decision; definition; express decision; formal requirements; implied decision; refusal; request by a party; right;
Judgment 2316
96th Session, 2004
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
The complainant wants to be granted her salary increment to step X retroactively. The ITU asserts that the complaint is inadmissible because in Judgment 2170 the Tribunal stated that those pleas were dismissed. "Judgment 2170 was concerned with the complainant's entitlement to her step VIII salary increment, her pleas regarding entitlement to salary increment for step [...] X being dismissed on the basis that they were not and could not be the subject of her first complaint. That being so, there was no final and binding decision on her present claim either expressly or as a necessary step to the decision that she was then entitled to a step VIII increment. Accordingly, the complaint is not barred by res judicata."
Reference(s)
ILOAT Judgment(s): 2170
Keywords:
absence of final decision; claim; complaint; condition; decision; express decision; general principle; grounds; iloat; increase; increment; judgment of the tribunal; receivability of the complaint; refusal; request by a party; res judicata; right;
Judgment 2082
92nd Session, 2002
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
"It is trite law to state that time limits cannot be presumed but must be either expressly stated or so clearly implied from the context as to leave no room for doubt."
Keywords:
definition; express decision; implied decision; time limit; written rule;
Judgment 2066
91st Session, 2001
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"When an organisation hints that it will reconsider a decision affecting a staff member, it cannot reasonably expect the latter to challenge that decision. Nor may the staff member lodge an appeal against it unless the administration expressly states that the appeal procedure will take its course despite attempts to settle the case. In such instances, the rule that confirmation of an earlier decision sets off no new time limit for appeal does not apply."
Keywords:
case law; confirmatory decision; decision; enforcement; exception; express decision; good faith; internal appeal; receivability of the complaint; staff member's duties; start of time limit; time bar; time limit;
Judgment 1362
77th Session, 1994
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"The constant thrust of the three earlier judgments was to secure from the organization [...] discharge of its obligation to communicate to [the complainant] a proper decision. He might then impugn that decision if it was not to his liking, and the Tribunal might if need be review the reasons for it, which is something it has not yet been able to do. The complainant is entitled to such decision as a matter of course, without having to ask for it and without delay. That obligation WIPO has stubbornly ignored, it is in breach of the rule of law in the international civil service, and that is not to be brooked."
Keywords:
application for execution; continuing breach; execution of judgment; express decision; international civil service principles; judgment of the tribunal; judicial review; organisation's duties; right of appeal;
Judgment 1328
76th Session, 1994
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 19
Extract:
"As for [WIPO's] failure to take the 'new decision' ordered in point 2 [of the operative part of the judgment whose application is sought], it is in breach of good faith in forcing the complainant to the point of appealing against a refusal he has to infer from its own silence. Under point 2 it is required to give him an express and properly substantiated decision on the matter of reinstatement".
Keywords:
application for execution; duty to substantiate decision; express decision; good faith; implied decision; organisation's duties; reinstatement;
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