Provisional decision (40,-666)

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Keywords: Provisional decision
Total judgments found: 12

• Judgment 4635

  
  135th Session, 2023
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant impugns the decision to reject his internal appeal in which he requested that an expert in occupational diseases be consulted.

  Consideration 5

  Extract:

  [T]he Tribunal observes that the decision contested by the complainant was not an act adversely affecting him and therefore could not be challenged. Accordingly, the complaint is irreceivable.
  [T]he refusal to grant the complainant’s request for an expert to be consulted had neither the aim nor the effect of ending the procedure he had initiated with a view to obtaining recognition that his invalidity was caused by an occupational disease. The refusal only meant that the request in question would be submitted to the Medical Committee for consideration, instead of being regarded as having to be granted automatically, as the complainant contended. Apart from the fact that it in no way prejudiced the eventual outcome of the request, this decision was merely a step in the process of reaching a final decision on the question of whether the invalidity was to be recognised as service incurred.
  However, under the Tribunal’s settled case law, when a decision is thus taken in the procedure leading to a final administrative decision, it must be regarded merely as a preparatory step and is not therefore challengeable in itself, although it may be challenged in the context of an appeal directed against that final decision (see, for example, Judgments 3433, consideration 9, and 2366, consideration 16, or, specifically in respect of decisions taken, as in this case, in proceedings of a medical nature, Judgments 3893, consideration 8, or 3712, consideration 3).
  Lastly, while it must be noted that from the start of the dispute the EPO has never argued that the complainant’s claims are irreceivable, that does not prevent such a finding in the present judgment. It is well-established case law that, because they involve the application of mandatory provisions, issues of receivability can be raised by the Tribunal of its own motion (see, in particular, Judgments 3648, consideration 5, 3139, consideration 3, 2567, consideration 6, or 2097, consideration 24) and, while plainly it will not do so unless the submissions make such irreceivability clear, that is the situation here.

  Reference(s)

  ILOAT Judgment(s): 2097, 2366, 2567, 3139, 3433, 3648, 3712, 3893
  

  Keywords:

  competence of tribunal; expert inquiry; medical board; provisional decision; receivability of the complaint; step in the procedure;
  

  
  
  

• Judgment 3171

  
  114th Session, 2013
  World Trade Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant successfully challenges a performance evaluation report, alleging that it was in reality retaliation against her.

  Consideration 13

  Extract:

  An opinion issued by an advisory appeal body, which is merely a preparatory step in the process of reaching the final decision on the appeal filed with that body, does not in itself constitute a decision causing injury which may be impugned before the Tribunal. While the complainant may and in fact does plead that the Board’s report is invalid in support of her challenge to the impugned decision, her claim to have this report set aside must therefore be dismissed as irreceivable (see, for example, Judgment 1104, under 3).

  Reference(s)

  ILOAT Judgment(s): 1104
  

  Keywords:

  absence of final decision; provisional decision;
  

  
  
  

• Judgment 3021

  
  111th Session, 2011
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 5

  Extract:

  Suspension of Commissary privileges.
  "[T]he nature of a privilege is such that it may be suspended or withdrawn as an interim measure to prevent abuse even if there is no specific provision to that effect in the relevant rules."

  Keywords:

  no provision; privileges and immunities; provisional decision; staff regulations and rules; withdrawal of decision;
  

  
  
  

• Judgment 2963

  
  110th Session, 2011
  International Telecommunication Union
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 9

  Extract:

  "The rule against retrospectivity permits of two exceptions, namely where the decision involves no detriment to the staff member concerned and where the decision replaces an earlier provisional decision (see Judgment 1130, under 2)."

  Reference(s)

  ILOAT Judgment(s): 1130
  

  Keywords:

  decision; exception; injury; non-retroactivity; provisional decision; staff member's interest;
  

  
  
  

• Judgment 2698

  
  104th Session, 2008
  World Intellectual Property Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 11

  Extract:

  "[T]he measure of suspension constitutes [...] an interim measure which in no way prejudges the decision on the merits regarding a possible disciplinary measure, but which is designed to safeguard the interests of the Organization pending the outcome of an investigation to ascertain whether the accusations have any substance or not."

  Keywords:

  definition; disciplinary measure; inquiry; investigation; organisation's interest; provisional decision; purpose; suspensive action;
  

  
  
  

• Judgment 2366

  
  97th Session, 2004
  United Nations Educational, Scientific and Cultural Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 16

  Extract:

  "Ordinarily, the process of decision making involves a series of steps or findings which lead to a final decision. Those steps or findings do not constitute a decision, much less a final decision. They may be attacked as part of a challenge to the final decision but they, themselves, cannot be the subject of a complaint to the Tribunal. Occasionally however, what appears to be a single and final decision may embody more than one decision. That will be the case if separate and distinct issues have to be decided. So, too, a decision which does not resolve an entire dispute may nonetheless constitute a final decision if it is a decision on a separate and distinct issue. The present is such a case."

  Keywords:

  absence of final decision; complaint; condition; decision; definition; difference; general principle; iloat; procedure before the tribunal; provisional decision; receivability of the complaint; settlement out of court;
  

  
  
  

• Judgment 1791

  
  86th Session, 1999
  European Organization for Nuclear Research
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Considerations 15-16

  Extract:

  "The complainants contend that [...] the impugned decision was in breach of [...] their right to a steady level of pay. [...] [T]hey maintain that [...] the Organization acted in breach of the general principle of the international civil service known as Noblemaire. The Tribunal is satisfied that there was no breach here of any principle of the international civil service. [...] [T]he measure the complainants are objecting to was exceptional and limited in time. As for their right to a steady level of pay, that measure neither changed the pay scales nor had any impact whatever on terms of employment in the long term. The conclusion is that there was no breach of acquired rights."

  Keywords:

  acquired right; amendment to the rules; breach; exception; international civil service principles; noblemaire principle; official; provisional decision; reduction of salary; right; salary; scale; terms of appointment;
  

  Considerations 13-14

  Extract:

  "The complainants plead breach of their acquired rights [...]. [T]hey argue that those terms are inviolate, particularly the clauses on pay. [...] The financial crisis [facing the Organization] at the material time did amount to exceptional circumstances that warranted the slight reduction in pay that [the Organization] applied, for only one year anyway and in consideration for extra time off."

  Keywords:

  acquired right; amendment to the rules; budgetary reasons; compensatory leave; contract; exception; proportionality; provisional decision; reduction of salary; salary; terms of appointment;
  

  
  
  

• Judgment 1130

  
  71st Session, 1991
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 2

  Extract:

  "The rule against retroactivity, though a general principle of law, is not absolute. One qualification is, as indeed the complainants acknowledge, that the retroactive decision will be admissible in law where the effect of it is favourable to the staff member it applies to. Another qualification is that the rule will not hold where the retroactive decision supersedes an earlier one which, at the time at which it was taken, was merely provisional and so was to hold good only until replaced by a final decision."

  Keywords:

  exception; general principle; non-retroactivity; provisional decision;
  

  Consideration 3

  Extract:

  The Organisation granted the complainants incremental steps on a provisional basis while awaiting for new salary scales to come into force. The Tribunal holds that "there was nothing unlawful about replacing them several months later with retroactive decisions granting them lower steps."

  Keywords:

  amendment to the rules; increment; provisional decision; reduction of salary; salary; scale; step; withdrawal of decision;
  

  
  
  

• Judgment 1104

  
  71st Session, 1991
  European Organization for Nuclear Research
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 3

  Extract:

  The complainant having refused to undergo examination by a medical expert to determine whether he was fit for shift work, the organization ordered him to undergo examination or incur the risk of disciplinary sanction. The appeals body took the same view and the Director-General endorsed its recommendation. That is the decision under challenge. CERN submits that the complaint shows no cause of action because the impugned decision does not directly affect the complainant. Though merely preparatory decisions are not ordinarily actionable, the Tribunal treats this case as an exception: the complainant has been issued a warning which in itself causes him injury.

  Keywords:

  cause of action; injury; provisional decision; receivability of the complaint;
  

  
  
  

• Judgment 1100

  
  71st Session, 1991
  European Organisation for the Safety of Air Navigation
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Summary

  Extract:

  The complainant challenged the reckoning of her pension in the internal appeal. Having obtained satisfaction after she filed her complaint she withdrew her main claims but presses her claim to moral damages and costs. The Tribunal considers her complaint premature because it challenges a decision which was stated to be provisional, and the withdrawal of her main claim makes her claim to damages void. Nor is she entitled to costs.

  Keywords:

  absence of final decision; case pending; cause of action; no cause of action; provisional decision; receivability of the complaint; settlement out of court;
  

  
  
  

• Judgment 762

  
  59th Session, 1986
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Consideration 3

  Extract:

  "According to Article VII(3) of the Statute a staff member may appeal to the Tribunal where the administration fails to take a decision upon his claim within sixty days. [...] However, the Principal Director of personnel informed the complainants [...] of the preliminary rejection of their internal appeal and of the referral of their case to the Appeals Committee. That was an express decision which precluded an implied one and hence the application of [Article] VII(3)".

  Reference(s)

  ILOAT reference: ARTICLE VII(3) OF THE STATUTE
  
  

  Keywords:

  express decision; implied decision; internal remedies exhausted; provisional decision; receivability of the complaint; time limit;
  

  
  
  

• Judgment 689

  
  57th Session, 1985
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Summary

  Extract:

  The complainant had been informed in November that his internal appeal had been provisionally rejected and referred to the Appeals Committee. The internal appeal reached the Appeals Committee in January. The Appeals Committee had not had time to render a decision by February, at which time the complaint was lodged. The complainant came before the Tribunal without having exhausted the internal means of redress. The complaint is dismissed.

  Keywords:

  absence of final decision; internal appeal; internal remedies exhausted; provisional decision; receivability of the complaint;