Judgment 3783
123rd Session, 2017
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of her application for payment of an expatriation allowance.
Judgment keywords
Keywords:
complaint dismissed; non-resident allowance;
Judgment 2865
108th Session, 2010
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4(b)
Extract:
Article 72 of the Service Regulations for Permanent Employees of the European Patent Office, the EPO's secretariat, concerns the expatriation allowance. Article 72(1) reads as follows:
"An expatriation allowance shall be payable to permanent employees who, at the time they take up their duties or are transferred:
a) hold the nationality of a country other than the country in which they will be serving, and
b) were not permanently resident in the latter country for at least three years, no account being taken of previous service in the administration of the country conferring the said nationality or with international organisations."
"The country in which the permanent employee is permanently resident, within the meaning of Article 72(1)(b) of the Service Regulations, is that in which he or she is effectively living, that is to say the country with which he or she maintains the closest objective and factual links. The closeness of these links must be such that it may reasonably be presumed that the person concerned is resident in the country in question and intends to remain there. A permanent employee interrupts his or her permanent residence in a country when he or she effectively leaves that country with the intention - which must be objectively and reasonably credible in the light of all the circumstances - to settle for some length of time in another country (see Judgment 2653, under 3)."
Reference(s)
Organization rules reference: Article 72(1) of the Service Regulations for Permanent Employees of the European Patent Office
ILOAT Judgment(s): 2653
Keywords:
amendment to the rules; appointment; condition; definition; duty station; intention of parties; member state; nationality; non-resident allowance; official; organisation; payment; period; residence; staff regulations and rules; transfer;
Judgment 2597
102nd Session, 2007
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"The expatriation allowance [...] is intended to compensate for certain disadvantages suffered by persons who are obliged, because of their work, to leave their country of origin and settle abroad. The disadvantages are indeed greater for them than for those who do not have the nationality of the country of their duty station either, but who have been living in that country for quite a long time before taking up their duties. Equal treatment demands that the provisions establishing the right of international civil servants to receive an expatriation allowance take fair and reasonable account of these different situations. The length of time for which foreign permanent employees have lived in the country where they will be serving, before they take up their duties, therefore forms an essential criterion for determining whether they may receive this allowance. It has been held that the period of three years' residence required by Article 72(1)b) of the Service Regulations is not unreasonable (see Judgment 1864, under 6)."
Reference(s)
Organization rules reference: Article 72(1)b) of the Service Regulations
ILOAT Judgment(s): 1864
Keywords:
allowance; compensatory measure; criteria; duty station; equal treatment; nationality; non-resident allowance; purpose; residence; time limit;
Judgment 2214
95th Session, 2003
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3(B) and (C)
Extract:
The complainant asked for the payment of the expatriation allowance provided for in Article 72 of the EPO's Service Regulations. The Tribunal gave "a definition of permanent or continuous residence". While this requires actual long-term presence in the country concerned, it does not necessarily exclude another residence. In judgment 1099 the Tribunal held that in order to establish whether the complainant met the condition of 'continuous residence' in the country of his duty station for at least three years prior to being recruited by the Office, it was necessary to determine whether there were "objective and factual links with that country". It added that: "what matters is that the complainant had to live, and did live [in that country]". It was not important to know whether the complainant had paid taxes there or whether, at the same time, he kept a home address at his former place of residence (see Judgment 1099, under 8). The status of the residence is not relevant either (see Judgment 1150). It is clear from the case law when residence must be deemed to have been interrupted, within the meaning of Article 72 of the Service Regulations. It is not sufficient for the person concerned to have stopped living in a particular country; he must in addition have intended to leave the country for some length of time."
Reference(s)
Organization rules reference: ARTICLE 72 OF THE SERVICE REGULATIONS FOR PERMANENT EMPLOYEES OF THE EUROPEAN PATENT OFFICE
ILOAT Judgment(s): 1099, 1150
Keywords:
appointment; assignment; case law; condition; definition; duty station; iloat; judgment of the tribunal; non-resident allowance; period; place of origin; provision; request by a party; residence; staff member's duties; staff regulations and rules; tax;
Judgment 1886
87th Session, 1999
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The complainant accepted an offer for a permanent contract which provided that the contract would be governed by the Staff Rules and Regulations valid as of 1 January 1997 (which would reduce his expatriation allowance). "By confining himself to the phrase 'without prejudice of my acquired rights', the complainant showed that he had no reason in principle to refuse the offer made to him, but that he merely wished to maintain his right to continue receiving the expatriation allowance at the former rate [...]. [I]n view of the above, and the fact that the [organisation] neither modified, nor proposed to modify its offer, despite the complainant's reservation, it has to be deduced that the employment relationship between the complainant and the [organisation] is based on a contract concluded after 1 January 1997. It is therefore a priori governed by the Staff Rules and Regulations which were in force at that date [...]."
Keywords:
acquired right; amendment to the rules; contract; date; effective date; intention of parties; non-resident allowance; offer; permanent appointment; rate; staff regulations and rules;
Consideration 9(3)
Extract:
"The outright abolition of the expatriation allowance would violate an acquired right, although there is no acquired right to the amount and the conditions of payment of the allowance. Indeed, the staff member should expect amendments to be prompted by changes in circumstances if, for example, the cost of living rises or falls, or the organisation reforms its structure, or even finds itself in financial difficulty. [S]ince it consists of a progressive reduction of the expatriation allowance, and not its outright abolition, resulting from general budgetary restrictions, the Tribunal finds that the impugned decision does not violate the right of the complainant to the maintenance of his acquired rights."
Reference(s)
ILOAT Judgment(s): 366, 371
Keywords:
acquired right; non-resident allowance;
Judgment 1864
87th Session, 1999
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 2, 5 and 6
Extract:
"Article 72(1) [of the Service Regulations] rules that employees who are nationals of a country other than the one they work in have no right to an expatriation allowance if, when taking up their duties, they had already been permanently resident there for more than three years. [W]hile the system could certainly be improved, it is in line with legal requirements that the applicable rules should precisely define the notion of 'expatriation', and fix a length of residence in the country prior to employment beyond which an employee may not be considered as expatriate. [N]aturally, the length of residence to be taken into account in order to make the distinction may be challenged, but in this matter the tribunal recognises the organisation's discretion, provided that the exercise of such power has no adverse consequences. in this case, a period of three years' residence beyond which the complainants may not be considered as 'expatriates' would appear reasonable."
Reference(s)
Organization rules reference: ARTICLE 72 (1) OF THE EPO SERVICE REGULATIONS
ILOAT Judgment(s): 754
Keywords:
date; duty station; nationality; non-resident allowance; residence; staff regulations and rules;
Judgment 1150
72nd Session, 1992
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"In interpreting the term 'continuously resident' in Judgment 1099 [...] the Tribunal held that the condition turned on the existence of objective and factual links with the country and that the test was one of simple residence. The purpose of the rule is to grant an allowance to the official who has no affinity with the country of his duty station. To make that clear, Article 72(3) [of the Service Regulations of the EPO] further provides that the allowance may be paid to the staff member who, even though he is a national of the country in which he is serving, has been continuously resident for at least ten years in another country."
Reference(s)
Organization rules reference: ARTICLES 72(1) and 72(3) OF THE EPO SERVICE REGULATIONS
ILOAT Judgment(s): 1099
Keywords:
case law; duty station; non-resident allowance; residence; staff regulations and rules;
Judgment 1099
71st Session, 1991
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The complainant claims the expatriation allowance provided under Article 72 of the EPO Service Regulations for officials who, at the time of their appointment, have not been continuously resident in their duty station for the preceding three years. As he does not meet that requirement, he wants the time he spent in the Federal Republic of Germany to be discounted and he relies on the German wording of the provision, which refers to the official's being "permanently established" rather than "resident" at the duty station as in the English and French versions. The English and French versions being quite explicit, the German version must be interpreted in a way that reconciles all three. (Vide Judgment 926.)
Reference(s)
Organization rules reference: ARTICLE 72 OF THE EPO SERVICE REGULATIONS
ILOAT Judgment(s): 926
Keywords:
condition; criteria; interpretation; language of rule; nationality; non-resident allowance; residence; staff regulations and rules;
Consideration 8
Extract:
"As the Tribunal observed in Judgment 926, the [expatriation] allowance is intended to meet the case of an official who has no affinity with the country of his duty station. Whether the condition of 'continuous residence' [in Article 72(1) of the Service Regulations] is met depends on the existence of objective and factual links with that country: the test is one of simple residence."
Reference(s)
Organization rules reference: ARTICLE 72(1) OF THE EPO SERVICE REGULATIONS
ILOAT Judgment(s): 926
Keywords:
condition; criteria; duty station; non-resident allowance; residence;
Consideration 9
Extract:
In respect of expatriation allowance "the rules and practices of other international organisations are not binding on the EPO and the Tribunal's rulings turns solely on its interpretation of the Organisation's own texts."
Keywords:
applicable law; non-resident allowance; rule of another organisation;
Judgment 978
66th Session, 1989
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 20
Extract:
"None of the interveners is barred by any lapse of time from claiming entitlement to the non-resident's allowance and to the other benefits. [...] Acquiescence is not a valid plea open to the organization and a woman staff member may at any time object to discriminatory treatment."
Keywords:
allowance; continuing breach; equal treatment; intervention; non-resident allowance; receivability of the complaint; sex discrimination; time bar;
Summary
Extract:
UNESCO Staff Rule 031.14 (B) (III) formerly provided that "the non-resident's allowance shall not be paid, or shall cease to be paid, to a staff member [...] whose husband is a national of the country of the duty station" inasmuch as the word "husband" prevents the rule from applying to staff members whose wives are in the same situation, the provision is discriminatory and the impugned decision, which was based on the discriminatory provision, must therefore be quashed.
Reference(s)
Organization rules reference: FORMER UNESCO STAFF RULE 103.14(B)(III)
Keywords:
amendment to the rules; equal treatment; flaw; local status; marital status; non-local status; non-resident allowance; provision; sex discrimination; staff regulations and rules;
Consideration 12
Extract:
"Since the rule was unlawful it could never become lawful by lapse of time or by acquiescence and a claim could therefore never be barred. Even though a claim to actual payment of the non-resident's allowance cannot succeed in these proceedings because of the complainant's failure to follow the proper internal procedure, the question of her entitlement to the allowance must be considered because of its bearing on the matter of the recurrent benefits."
Keywords:
allowance; continuing breach; flaw; non-resident allowance; provision; receivability of the complaint; right; time bar;
Judgment 927
65th Session, 1988
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
Before the complainant's divorce during a period of trial separation, the organization discontinued payment of her family allowance and lowered the rate of her non-resident allowance. The Tribunal holds that "the temporary separation of the spouses prior to the decree of divorce, though authorised by a court order, was neither a 'legal' separation nor a 'similar legal situation' within the meaning of R IV 1.13 [of the Staff Rules and Regulations]. The trial separation is a preliminary to divorce required by law. It is limited in time and revocable. It has no effect on the marital status of the spouses, who may use it as they will. It is not in the same category as legal separation, which is a permanent solution." Since the organization made a mistake of law, the Director-General's decision must be set aside.
Reference(s)
Organization rules reference: ARTICLE R IV 1.13 OF CERN STAFF RULES
Keywords:
allowance; consequence; domestic law; family allowance; flaw; interpretation; marital status; non-resident allowance;
Judgment 926
65th Session, 1988
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"The purpose of the [expatriation] allowance is [...] to meet the case where the employee has no affinity with the country of his duty station. Although the employee who is a citizen will ordinarily have such affinity, 72[3] [of the Service Regulations] recognises that residence abroad for at least ten years before appointment will break it. But it is only reasonable to require that the residence abroad be continuous because any interruption of it will restore the affinity."
Reference(s)
Organization rules reference: ARTICLE 72 OF THE EPO SERVICE REGULATIONS
Keywords:
condition; duty station; enforcement; non-resident allowance; residence; staff regulations and rules;
Consideration 6
Extract:
"It is plain from the text [of Article 72 of the Service Regulations] that the allowance is to be refused to an employee who is a citizen of the country where he is stationed unless at the time of appointment he has been continuously resident in another country for at least ten years. That is indeed the purport of the English and French texts, which are clear: the terms 'résident' and 'résidaient' do not necessarily connote permanent or established residence. The English and French versions being explicit, the German is to be interpreted in a way that reconciles all three; and in its English and French versions 72[3] requires that a citizen of the Federal Republic serving at Munich shall be paid the allowance only if at the time of appointment he has been 'continuously resident for at least 10 years' outside the Federal Republic."
Reference(s)
Organization rules reference: ARTICLE 72 OF THE EPO SERVICE REGULATIONS
Keywords:
difference; duty station; interpretation; language of rule; nationality; non-resident allowance; residence;
Judgment 854
63rd Session, 1987
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The complainant, a national of the Federal Republic of Germany, was initially appointed to The Hague, where he received an expatriation allowance; he was then transferred to Berlin where he no longer received the allowance. The complainant contends that he is still entitled to the allowance under Article 72[3] of the EPO Service Regulations since, even though a national of the country in which he is serving, he had been continuously resident in another State for at least 10 years at the time of appointment. The complainant takes the expression 'at the time of their appointment' to mean at the date of transfer. The interpretation is without merit. The complaint is dismissed.
Reference(s)
Organization rules reference: ARTICLE 72.3 OF THE EPO STAFF REGULATIONS
ILOAT Judgment(s): 786
Keywords:
interpretation; nationality; non-resident allowance; place of origin; provision; residence; right; staff regulations and rules;
Judgment 766
59th Session, 1986
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 1
Extract:
The complainant "claims to remain entitled to expatriate benefits, which are payable only to a staff member who is serving outside the country and area of his recognised place of residence."
Keywords:
condition; duty station; non-resident allowance; residence;
Judgment 371
42nd Session, 1979
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
Expatriation, education and leave expense allowances are matters of importance to someone joining the staff of an international organisation. "The question therefore arises whether the outright abolition of such allowances would in principle violate an acquired right. There is, however, no acquired right to the amount and the conditions of payment of such allowances. Indeed the staff member should expect amendments to be prompted by changes in circumstances if, for example, the cost of living rises or falls, or the organisation reforms its structure, or even finds itself in financial difficulty.
Keywords:
acquired right; allowance; amendment to the rules; amount; discontinuance; education expenses; home leave; non-resident allowance; payment; reckoning;
Judgment 368
42nd Session, 1979
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
Vide Judgment 371, consideration 8.
Reference(s)
ILOAT Judgment(s): 371
Keywords:
acquired right; allowance; amendment to the rules; amount; discontinuance; education expenses; home leave; non-resident allowance; payment; reckoning;
Judgment 366
41st Session, 1978
International Patent Institute
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"[E]xpatriation, education and leave expense allowances are matters of importance to someone who joins the staff of an organisation. The question therefore arises whether the outright abolition of such allowances would not violate an acquired right. There is, however, no acquired right to the amount and the conditions of payment of such allowances. Indeed the staff member should expect amendments to be prompted by changes in circumstances if, for example, the cost of living rises or falls, or the organisation reforms its structure, or even finds itself in financial difficulty."
Keywords:
acquired right; allowance; amendment to the rules; amount; discontinuance; education expenses; home leave; non-resident allowance; payment; refund;
Judgment 365
41st Session, 1978
International Patent Institute
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
Vide Judgment 366, consideration 11.
Reference(s)
ILOAT Judgment(s): 366
Keywords:
acquired right; allowance; amendment to the rules; amount; discontinuance; education expenses; home leave; non-resident allowance; payment; refund;
Judgment 51
8th Session, 1960
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"This is an additional remuneration the object of which is to compensate for the disadvantages arising out of expatriation, in order to permit the recruitment and retention of staff who, by virtue of the qualifications required cannot be recruited locally. Remuneration under this head is subject to variation and is not of a personal nature".
Keywords:
definition; non-resident allowance; purpose;
Consideration 5
Extract:
"Salary and non-resident's allowance cannot be assimilated in every respect. Salary is the remuneration received by an official for his work, that is to say in direct consideration of the service he has rendered. On the other hand [...] the non-resident's allowance has a different object. In consequence a salary increase cannot be set off against a reduction of the allowance."
Keywords:
allowance; compensatory measure; flaw; increase; non-resident allowance; reduction of salary; salary;
Consideration 5
Extract:
The Staff Regulations make provision for amendments to be made to them without prejudice to acquired rights. While the amount of the non-resident's allowance is not a matter of acquired rights, "the entitlement to the allowance actually paid [...] at the former rate constituted an acquired right within the meaning of [the material] Staff Regulation [...] which, under the most restrictive interpretation, has the same scope as the principle of the prohibition of retroactivity." A back-dated reduction of the amount of the allowance is unlawful.
Keywords:
acquired right; amendment to the rules; amount; non-resident allowance; non-retroactivity; provision; reduction of salary; staff regulations and rules;
