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Claim moot (674,-666)
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Keywords: Claim moot
Total judgments found: 40
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Judgment 4886
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the deferral of his application for clearance to carry a service weapon.
Considerations 3-6
Extract:
It is settled case law that, “[a]s a matter of law, a claim is moot when there is no longer a live controversy”, bearing in mind that “[w]hether or not there is a live controversy is a matter to be determined by the Tribunal” (see Judgments 4060, consideration 3, 3583, consideration 2, and 2856, consideration 5). This case law cannot be construed to mean that the Tribunal must confine itself to determining whether there is still disagreement between the parties as to the claim in question – which, unless the complainant withdraws the complaint or the claim supporting it, must normally be the case. It is of course for the Tribunal to assess in the specific case, over and above that determination, whether the dispute objectively retains a reason for existence.
In the present case, although the complainant persists in challenging the decision refusing to grant him the clearance to carry a weapon that he had requested in the context of the reform that was initially undertaken, the Tribunal considers that the dispute arising from that decision has in fact been rendered moot by the abandonment of that reform.
In this respect, the Tribunal notes that, even if the process of arming security officers was theoretically only suspended and not stopped, its implementation simply ceased following the Director-General’s decision to that effect and, in view of the evidence on file, has never been resumed since. Moreover, given the age of the clearances issued to some security officers before the process was suspended, it is hardly conceivable that they could still be considered valid should that process be restarted in the future.
In addition, it should be noted that the contested decision of 5 February 2018 was merely a deferral of the complainant’s application for clearance, and not a final rejection of it, as was subsequently confirmed by the Chief of the Security and Safety Section in his email of 11 May 2018, stating that the complainant’s file would not be submitted to the French authorities “as matters stand”.
It follows from these findings that the contested decision had no tangible bearing on the complainant’s situation, since the security officers who were cleared in 2018 were not actually equipped with a firearm. Furthermore, setting aside that decision would not have any practical effect, since it would not allow the complainant to be armed.
Lastly, the circumstance referred to by the complainant in his written submissions that the decision to defer his application for clearance was not formally withdrawn by the Organization is not determinative in this case, since that decision’s lack of effect has had the same practical consequences as a withdrawal and, as stated above, the question here is to determine whether the challenge to that decision objectively retains a reason for existence in this particular case.
Consequently, the Tribunal considers that the complainant’s claim for the setting aside of the deferral of his application for clearance must be regarded as moot.
The dispute may nevertheless have retained a purpose insofar as it concerns the award of moral damages, which the complainant claims on account of the alleged unlawfulness of the impugned decision.
However, the file shows that this is not the case.
Under the Tribunal’s case law, an unlawful decision does not entitle the staff member concerned to moral damages unless that decision has caused her or him more severe injury than that resulting from the unlawfulness itself (see, in particular, Judgments 4156, consideration 5, and 1380, consideration 11).
In the present case, and bearing in mind that the contested decision had no tangible effect, the Tribunal considers that any flaws tainting that decision are not, in any event, such as to have caused the complainant such particular injury.
The position would only be different if the complainant were to establish that the deferral of his application for clearance had been motivated, as he submits, by malicious bias against him that formed part of a pattern of moral harassment and retaliatory measures of which he accuses his supervisors. However, it should be noted that the complainant’s allegations in this regard were the subject of a request for an investigation – which should be considered as a harassment complaint – which he had submitted, by a memorandum dated 16 February 2018, in particular to the Ethics Adviser. The preliminary assessment of the merits of that complaint led to it being closed, in accordance with the recommendation of the Ethics Office, by a decision of the Director-General of 14 November 2018.
Although it is true that the complainant challenged that decision in the internal appeals procedure, the Director-General did not take a final decision on his appeal to the Appeals Board on this matter (nor on the appeals concerning other harassment complaints that he had filed) until 24 June 2022, that is after he had filed the present complaint. This complaint is thus irreceivable insofar as it seeks to criticise that decision to close his harassment complaint, because the complainant failed to comply with the requirement to exhaust internal means of redress set out in Article VII, paragraph 1, of the Statute of the Tribunal. Moreover, in these circumstances, it cannot be found, in the examination of the present case, that the malicious bias alleged by the complainant has been proven. Although it must be noted that the decision of 24 June 2022 was impugned by the complainant in his third complaint, which will be ruled on at a later date, if the Tribunal were to uphold that complaint, it would not fail to draw all the consequences in terms of compensation for the injury caused by that decision.
Lastly, although the complainant also contends that the decision to defer his application for clearance damaged his reputation and well-being, the Tribunal considers that, in the circumstances of the case, the alleged injury cannot in any event be regarded as substantial. As regards the complainant’s allegation that this decision also damaged his health, this has clearly not been proven, in particular since the only document submitted as evidence on this point, namely a statement of sick leave for 2018, does not establish that the medical problems justifying this leave were specifically linked to the decision in question.
Since the sequence of events recalled above shows that the complaint was already moot when it was filed with the Tribunal on 3 June 2022 – and not that it became moot during these proceedings, in which case the Tribunal would have found that there was no longer any need to rule on it – the complaint must simply be dismissed (see, in particular, Judgment 4635, consideration 6).
Reference(s)
ILOAT Judgment(s): 2856, 3583, 4060, 4635
Keywords:
cause of action; claim moot; complaint; receivability of the complaint;
Judgment 4879
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the deferral of his application for clearance to carry a service weapon.
Considerations 4-7
Extract:
It is settled case law that, “[a]s a matter of law, a claim is moot when there is no longer a live controversy”, bearing in mind that “[w]hether or not there is a live controversy is a matter to be determined by the Tribunal” (see Judgments 4060, consideration 3, 3583, consideration 2, and 2856, consideration 5). This case law cannot be construed to mean that the Tribunal must confine itself to determining whether there is still disagreement between the parties as to the claim in question – which, unless the complainant withdraws the complaint or the claim supporting it, must normally be the case. It is of course for the Tribunal to assess in the specific case, over and above that determination, whether the dispute objectively retains a reason for existence.
[...]
In this respect, the Tribunal notes that, even if the process of arming security officers was theoretically only suspended and not stopped, its implementation simply ceased following the Director-General’s decision to that effect and, in view of the evidence on file, has never been resumed since. Moreover, given the age of the clearances issued to some security officers before the process was suspended, it is hardly conceivable that they could still be considered valid should that process be restarted in the future.
In addition, it should be noted that the contested decision of 5 February 2018 was merely a deferral of the complainant’s application for clearance, and not a final rejection of it, as was subsequently confirmed by the Chief of the Security and Safety Section in his email of 11 May 2018, stating that the complainant’s file would not be submitted to the French authorities “as matters stand”.
It follows from these findings that the contested decision had no tangible bearing on the complainant’s situation, since the security officers who were cleared in 2018 were not actually equipped with a firearm. Furthermore, setting aside that decision would not have any practical effect – irrespective of the outcome of the dispute concerning the complainant’s dismissal, which has taken place in the meantime and is the subject of his eleventh complaint – since it would not allow the complainant to be armed.
Lastly, the circumstance referred to by the complainant in his rejoinder that the decision to defer his application for clearance was not formally withdrawn by the Organization is not determinative in this case, since that decision’s lack of effect has had the same practical consequences as a withdrawal and, as stated above, the question here is to determine whether the challenge to that decision objectively retains a reason for existence in this particular case.
Consequently, the Tribunal considers that the complainant’s claim for the setting aside of the deferral of his application for clearance must be regarded as moot.
The dispute may nevertheless have retained a purpose insofar as it concerns the award of moral damages, which the complainant claims on account of the alleged unlawfulness of the impugned decision.
However, the file shows that this is not the case.
[...]
Since the sequence of events [...] shows that the complaint was already moot when it was filed with the Tribunal on 29 January 2022 – and not that it became moot during these proceedings, in which case the Tribunal would have found that there was no longer any need to rule on it – the complaint must simply be dismissed (see, in particular, Judgment 4635, consideration 6).
Reference(s)
ILOAT Judgment(s): 2856, 3583, 4060, 4635
Keywords:
cause of action; claim moot; receivability of the complaint;
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 7
Extract:
As regards the memorandum [...] which the complainant describes as a general decision, the Tribunal observes that it is in fact a collective decision making various individual appointments against the backdrop of the planned restructuring to ensure that management functioned smoothly during a transition period before recruitment procedures were initiated or final appointment decisions adopted. However, even supposing that the complainant had a cause of action in challenging these appointments, he stated in his internal complaint of 20 September 2019 that he did not seek to cause injury to his colleagues appointed and that he therefore remained at the Organisation’s disposal to discuss possible alternatives to cancelling the decision not to appoint him and to appoint his colleagues. The complainant did not request that one or more recruitment procedures be initiated for these various positions, nor did he later challenge his colleagues’ final individual appointments by the Organisation on 12 November 2019. It follows that his request for the memorandum of 5 July 2019 to be set aside is lacking in substance in any event and is therefore irreceivable as being moot.
Keywords:
appointment; cause of action; claim moot; general decision; individual decision;
Judgment 4760
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the failure to establish a medical board to examine the percentage of her permanent loss of function.
Judgment keywords
Keywords:
claim moot; complaint dismissed; failure to exhaust internal remedies; final decision; internal remedies not exhausted;
Judgment 4739
137th Session, 2024
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the Global Fund’s decision to close his harassment complaint and not to provide him with a copy of the investigation report.
Consideration 5
Extract:
[T]he complainant’s claim is also moot, as there is no longer a live controversy (see Judgment 4060, consideration 3).
Reference(s)
ILOAT Judgment(s): 4060
Keywords:
claim moot;
Judgment 4684
136th Session, 2023
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the classification exercise for her post and seeks compensation in this regard.
Consideration 3
Extract:
With regard to the complainant’s request for disclosure of the full desk audit report for her post, she herself acknowledges in her submissions that the Organization has now acceded to her requests in this respect. Therefore, since the alleged flaw has been remedied through the provision of the relevant documents to the complainant in the proceedings before the Tribunal, the complaint has become moot on this point.
Keywords:
claim moot; disclosure of evidence;
Judgment 4671
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the restitution of amounts wrongly deducted from his salary in respect of sickness insurance contributions.
Consideration 2
Extract:
The evidence in the file shows that, once URSSAF had made the corresponding reimbursements, the Organization refunded to the complainant the sums wrongly deducted from his salary in respect of the ESC for the period after 1 January 2013. Thus, apart from the question of interest, the complaint is now moot insofar as it relates to the amounts wrongly deducted during that period.
Keywords:
claim moot;
Judgment 4669
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the restitution of amounts wrongly deducted from her salary in respect of sickness insurance contributions.
Consideration 2
Extract:
The evidence in the file shows that, once URSSAF had made the corresponding reimbursements, the Organization refunded to the complainant the sums wrongly levied in respect of the ESC for the period after 1 January 2013. Thus, apart from the question of interest, the complaint is now moot.
Keywords:
claim moot;
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 6
Extract:
Since [...] the complaint was already moot when it was filed with the Tribunal on 6 April 2019 – and not that its became moot during these proceedings, in which case the Tribunal would have found that there was no longer any need to rule on it – the complaint must simply be dismissed (on the concept of a complaint or claim devoid of purpose, see Judgments 4060, consideration 3, 3583, consideration 2, or 2856, consideration 5).
Reference(s)
ILOAT Judgment(s): 2856, 3583, 4060
Keywords:
claim moot; receivability of the complaint;
Judgment 4630
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to treat his participation in a strike as an unauthorised absence.
Judgment keywords
Keywords:
claim moot; complaint dismissed; intervention; strike;
Judgment 4629
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to treat their participation in a strike as an unauthorised absence.
Judgment keywords
Keywords:
claim moot; complaint dismissed; intervention; strike;
Judgment 4628
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to accept only part of the recommendations of the Appeals Committee on their appeals against the postponement of a strike ballot by the President of the European Patent Office.
Judgment keywords
Keywords:
amicus curiae; claim moot; complaint dismissed; intervention;
Consideration 2
Extract:
It is tolerably clear from the complainants’ final comments that they do not now seek, for themselves, any relief arising from their complaints (and none is identified) subject to pleas concerning Mr F,’s claim in his capacity as a staff representative. But his claim, in this respect, for a nominal amount of damages of one euro, is not maintainable (see Judgment 4550, consideration 20). Accordingly, the appropriate order to make is to dismiss the complaints.
Reference(s)
ILOAT Judgment(s): 4550
Keywords:
claim moot;
Judgment 4627
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to accept only part of the recommendations of the Appeals Committee on his appeal against the postponement of a strike ballot by the President of the European Patent Office.
Judgment keywords
Keywords:
claim moot; complaint dismissed; intervention;
Consideration 2
Extract:
[T]he complainant was invited to withdraw his complaint having regard to steps the EPO had taken to implement, in relation to him, judgments concerning actual or proposed strike action of EPO staff. […] In his letter […], the complainant says that the “only remaining point [is] [...] the claims of the interveners”. It is tolerably clear from the letter that he does not now seek, for himself, any relief arising from his complaint. None is identified. Accordingly, the appropriate order to make is to dismiss the complaint.
Keywords:
claim moot;
Judgment 4610
135th Session, 2023
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-reclassification of her post.
Judgment keywords
Keywords:
claim moot; complaint dismissed; post classification;
Judgment 4606
135th Session, 2023
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-recognition of her illness as an occupational illness and requests that her sick leave entitlements be re-credited to her.
Judgment keywords
Keywords:
claim moot; complaint dismissed; service-incurred; sick leave;
Consideration 7
Extract:
The complainant contends that her illness should be deemed as service-incurred on four grounds. However, it is unnecessary to address these arguments because, after the written proceedings had concluded, a binding decision has been made by an arbitrator. It arose this way: after the impugned decision had been made, the complainant requested an arbitration procedure pursuant to Article 15.2.2 of the insurance contract between WIPO and the insurer. The arbitrator, Dr C., assessed her state of health on 19 January 2021 and issued his final report on 17 February 2021 in which he found that her illness was to be considered as service-incurred as from 6 September 2017. Pursuant to the provisions of the insurance contract, Dr C.’s decision is final and binding on both the complainant and the insurer. A letter was sent to the complainant on 26 February 2021 to inform her of Dr C.’s final decision. Accordingly, the question of whether she suffered a service-incurred illness is now moot.
Keywords:
claim moot;
Judgment 4605
135th Session, 2023
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the lawfulness and the results of the election for members of the new Staff Council.
Judgment keywords
Keywords:
claim moot; complaint dismissed; election; staff representative;
Judgment 4562
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the deductions from their remuneration that were made in respect of their absences for strike participation as well as the lawfulness of the general normative decisions on which those deductions were based.
Judgment keywords
Keywords:
claim moot; complaint dismissed; moral damages; strike;
Judgment 4432
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to accept only part of the recommendations of the Appeals Committee on his appeal against the postponement of a strike ballot by the President of the European Patent Office.
Consideration 8
Extract:
[T]he jurisdiction of the Tribunal is to address alleged non-observance of the terms of appointment of a member of the staff of an international organisation or the non-observance of the Staff Regulations “as are applicable to the case” (Article II of the Tribunal’s Statute). If non-observance of a Staff Regulation (or other applicable normative legal document) is conceded before the proceedings in the Tribunal are commenced (in this case non-observance of paragraph 3 of Circular No. 347), there is no justiciable issue about non-observance for the Tribunal to determine. At least ordinarily, the reasons for the concession are irrelevant to the issue of non-observance.
Keywords:
claim moot; competence of tribunal; ratione materiae;
Judgment 4275
130th Session, 2020
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his classification in the new career structure established following the 2015 five-yearly review.
Judgment keywords
Keywords:
claim moot; complaint dismissed; reclassification;
Considerations 4-5
Extract:
By letter dated 12 July 2018, the Director-General informed the complainant that the career review by the Departmental Committee and the representative of the Human Resources Department had found that his functions and activities matched the benchmark job and the grade to which he had been assigned. On 10 September 2018 the complainant filed an internal appeal against that decision. The Joint Advisory Appeals Board recommended that the appeal be dismissed and, on 13 May 2019, the Director-General informed the complainant that she had decided to follow that recommendation and that, accordingly, his grade and benchmark post were maintained.
This was a new decision taken after a fresh examination by different bodies of the Organization. The complainant has not impugned that new decision before the Tribunal, and consequently it has become final.
If the decisions of 18 August 2016, 30 June 2017 and 25 May 2018 on the complainant’s assignment to grade 2 in the benchmark job of “mechanical craftsperson” were set aside, the new decision would remain intact.
Accordingly, this complaint has become moot and there is no need to rule on it.
Keywords:
claim moot;
Judgment 4257
129th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2014.
Consideration 19
Extract:
The substance of the relief sought concerning the 2014 staff report is that it be set aside and removed from the complainant’s personal file. That has already happened, but well after the complaint was filed, by administrative action. No orders to this effect need be made. However the complainant has succeeded in the sense that some of his arguments have been accepted. Accordingly he is entitled to his costs. In the unusual circumstances of this case, the complaint should be dismissed but an order for costs made in favour of the complainant.
Keywords:
claim moot; costs;
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