Cause of action (77,-666)
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Judgment 4899
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests modifications made to the healthcare insurance contribution.
Judgment keywords
Keywords:
cause of action; complaint dismissed; general decision; time bar;
Judgment 4893
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2008-2009.
Consideration 3
Extract:
One of the arguments advanced by the EPO is that this complaint is irreceivable as it is moot particularly given that the complainant has long since ceased being a member of its staff. It might also be thought that, when he ceased being a member of staff, he no longer had a cause of action. There is, in the Tribunal’s case law, some support for the view that a former staff member, who has retired since a contested staff report was drawn up, has “a moral interest in challenging a report appraising her or his performance” and has a cause of action which endures beyond retirement (see Judgment 4637, consideration 7).”
Reference(s)
ILOAT Judgment(s): 4637
Keywords:
cause of action; former official; performance report; rating;
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 4885
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the abolition of his training duties.
Consideration 4
Extract:
In support of his claims, the complainant submits essentially that UNESCO could not lawfully abolish his training duties, since the performance of those duties, which had long been entrusted to him, should be regarded as intrinsically linked to his employment.
However, it follows from what was stated in consideration 2 [...] that the Tribunal could in any event only interfere with the decision to end those duties if that decision had a direct adverse impact on the complainant’s rights conferred by his terms of appointment. Yet the file shows that the duties in question were not specified in those terms. They were only added to his functions, as defined by those terms, when the internal training arrangements [...] were put in place.
Admittedly, the abolition of the duties in question would have nevertheless needed to be accompanied by financial compensation if it had also led to a substantial reduction in the complainant’s remuneration. Under the Tribunal’s case law, an organisation is required by its duty of care towards its staff members to provide such compensation where outsourcing seriously affects a staff member’s financial situation (see Judgment 3373, considerations 7 and 9). In view of the evidence on file, that is not the case here. The complainant emphasises specifically in his complaint that he performed his training duties without any financial compensation, from which it can be inferred that the abolition of those duties had no tangible consequences of this nature.
Reference(s)
ILOAT Judgment(s): 3373
Keywords:
cause of action; duty of care;
Judgment 4881
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his change of immediate supervisor.
Considerations 3-5
Extract:
Article II of the Statute of the Tribunal provides, in paragraphs 1 and 5, that the Tribunal shall be competent to hear complaints alleging non-observance, in substance or in form, of the terms of an official’s appointment and of the provisions of the staff regulations of the organisation that employs her or him. As the Tribunal has repeatedly stated in its case law, it may be inferred from these provisions that, for a complaint to be receivable, among other requirements, the staff member must have a cause of action (see, for example, Judgments 4337, consideration 6, 4296, consideration 6, 4145, consideration 5, or 3426, consideration 16).
A cause of action may be recognised only if the decision challenged by that official adversely affects her or him (see, in particular, Judgments 4322, considerations 8 and 9, 3198, consideration 13, 2952, consideration 3, and 1852, considerations 2 and 3).
However, the Tribunal finds that the complainant has no such cause of action in the present case.
It is well established in the case law that an international organisation has broad discretion over the organisation of its services and the Tribunal cannot judge the wisdom of measures that it deems necessary to adopt in this regard (see, for example, Judgments 3362, consideration 13, 2856, consideration 9, 2510, consideration 10, or 1131, consideration 5). As the Organization correctly points out, a decision which – like the decision challenged in the present case –determines the reporting line of staff members belonging to a given category or service is a measure of this type and therefore falls within the scope of that case law.
It is also a general rule that an organisation’s staff members are, in the performance of their duties, placed in a position of hierarchical subordination to its executive head and the various supervisors to whom they report.[...]
[S]taff members cannot ordinarily be allowed the opportunity to challenge measures determining their reporting lines or the choice of persons designated to exercise supervisory functions in their respect. It is the organisation’s prerogative to take such decisions and they cannot therefore be considered to adversely affect those staff members.
Admittedly, under the Tribunal’s case law, as an exception to what has just been said, there are two particular situations in which a staff member may be considered to have a cause of action in challenging decisions of this type. The first is where the contested decision has a direct adverse impact on the rights conferred by that staff member’s terms of appointment (see in particular, for the use of this criterion in the similar context of criticism of a measure falling within an organisation’s management policy, Judgment 3376, consideration 3). The second is where the decision in question involves a manifest perversity that renders her or his challenge lawful (according to the criterion established by the Tribunal in Judgment 4322, consideration 9, in a situation that may be transposed to this area).
However, neither of these situations arises in the present case.
Reference(s)
ILOAT Judgment(s): 1131, 1852, 2510, 2856, 2952, 3198, 3362, 3376, 3426, 4145, 4296, 4322, 4337
Keywords:
cause of action; discretion; judicial review;
Judgment 4880
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the abolition of his training duties.
Consideration 4
Extract:
In support of his claims, the complainant submits essentially that UNESCO could not lawfully abolish his training duties, since the performance of those duties, which had long been entrusted to him, should be regarded as intrinsically linked to his employment.
However, it follows from what was stated in consideration 2 [...] that the Tribunal could in any event only interfere with the decision to end those duties if that decision had a direct adverse impact on the complainant’s rights conferred by his terms of appointment. Yet, as the complainant himself notes in his written submissions, the duties in question were not specified in those terms. They were only added to his functions, as defined by those terms, when the internal training arrangements established in particular by the aforementioned memoranda of 16 June 2011 and 6 February 2017 were put in place.
Admittedly, the abolition of the duties in question would have nevertheless needed to be accompanied by financial compensation if it had also led to a substantial reduction in the complainant’s remuneration. Under the Tribunal’s case law, an organisation is required by its duty of care towards its staff members to provide such compensation where outsourcing seriously affects a staff member’s financial situation (see Judgment 3373, considerations 7 and 9). In view of the evidence on file, that is not the case here. The complainant emphasises specifically in his written submissions that he performed his training duties without any financial compensation, from which it can be inferred that the abolition of those duties had no tangible consequences of this nature.
Reference(s)
ILOAT Judgment(s): 3373
Keywords:
cause of action; duty of care;
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 4853
138th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the direct appointment, ad interim, of Mr F. to the position of Director, Agricultural Development Economics Division.
Considerations 9-11
Extract:
It is tolerably clear that the case law establishes, in the context of the filling of a post following a competition, that a person who has not participated in the competition does not have a cause of action to challenge the competition (see, for example, in recent Judgment 4702, consideration 3). Indeed, if a person participates in the competition but was admitted to it erroneously, they have no cause of action if they were not eligible for the position (see Judgment 4087, considerations 6 and 7). One obvious rationale for this approach is that participation in the competition is a manifestation of interest in the position on the part of the complainant, with corresponding injury to that person if not appointed, who can then challenge the lawfulness of the competition and appointment. It would be an extremely curious result that a complainant who did not have an interest in a position (either immediate or longer term and thus risk of immediate or future injury) filled by appointment without competition, rather than by competition, had a significantly broader basis for challenging the appointment. The obvious question which arises is what is the credible basis for confining standing to challenge an appointment following a competition to those who participated in the competition, but not confining standing in a similar or analogous situation concerning an appointment without competition. If the latter is confined only by eligibility for appointment, the obvious question which arises is why would that not also be so of an appointment following a competition. The coherent answer lies in whether the complainant had an interest in the lawfulness of the filling of the position. That would derive from having an interest, either immediate or longer term, in the filling of the position.
The touchstone of the Tribunal’s jurisdiction is its Statute. Having regard to Article II, it concerns non-observance, in substance or in form, of the terms of appointment of officials and other provisions of the Staff Regulations. The relevant impugned decision must adversely affect the complainant’s rights or interests, or cause her or him injury, or be likely to cause injury (see, for example, Judgment 2670, consideration 5). This concerns legal rights or interests. As the Tribunal said in Judgment 4672, consideration 4:
“The Tribunal’s jurisdiction centres on whether there has been a reviewable administrative decision which, in turn, implies any act by an officer of an organisation which has a legal effect (see Judgments 4499, consideration 8, 3141, consideration 21, and 532, consideration 3).”
Plainly, if there is evidence that a staff member has manifested an interest in a position, then she or he has an interest in the preservation of the position for possible future appointment to it. That interest may be expressed, for example, by the staff member applying for the position in a competition. An interest might be inferred from all the circumstances, which might include that occupying the position would be a logical career progression or development for the staff member concerned. But, in the absence of evidence of interest, it is very difficult to discern what legal interest the staff member has in ensuring that the position, if filled, has been filled lawfully. Put slightly differently, it is difficult to discern what legal effect the appointment of another person to a position has on a staff member who has no interest in that position, even if she or he is qualified to be appointed to it.
Reference(s)
ILOAT Judgment(s): 4087, 4672, 4702
Keywords:
appointment; appointment without competition; cause of action; competition;
Consideration 6
Extract:
[T]he case law concerning a complainant challenging an appointment following a competition in which they did not compete and, accordingly, have no cause of action, informs the scope of the applicable principles, both when considering appointments following a competition and appointments which do not. Those principles should be coherent and consistent.
Keywords:
appointment; appointment without competition; cause of action; competition;
Judgment 4852
138th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment, by lateral transfer, of another official to the position of Director, FAO Liaison Office in Geneva.
Consideration 6
Extract:
[I]t cannot be assumed that one member of staff has an unfettered right to challenge the transfer of another member of staff (see Judgment 2670, consideration 5).
Reference(s)
ILOAT Judgment(s): 2670
Keywords:
appointment without competition; cause of action; transfer;
Judgment 4846
138th Session, 2024
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges a finding made in the decision not to initiate disciplinary proceedings against her.
Judgment keywords
Keywords:
cause of action; complaint dismissed; receivability of the complaint;
Consideration 10
Extract:
[W]hether a complainant has a cause of action is to be determined by reference to circumstances existing at the time of the filing of the complaint.
Keywords:
cause of action;
Considerations 11-12
Extract:
There is no material difference between the circumstances arising in this case and those that were considered by the Tribunal in Judgment 4295. In that case the complaint was dismissed because the complainant had no cause of action. A decision had been made by the Director General that no disciplinary measure would be imposed on the complainant. As the Tribunal observed, the decision was beneficial to the complainant, and thus he had no cause of action. To the extent that a finding of fact (contested by the complainant) had been made which led to the decision, that finding, as the Tribunal explained, “forms part of the reasons articulated in arriving at the decision”. In the present case, the decision not to commence disciplinary proceedings was likewise favourable to the complainant. To the extent findings of fact were made and adhered to in the impugned decision and reflected in the modified text of the letter of 22 February 2018, they were findings informing what was ultimately the favourable decision. Given the modification of the letter, there was no conclusory finding that the complainant had engaged in misconduct, the matter that troubled the WAB […] The complainant has no cause of action and her complaint should be dismissed.
Keywords:
administrative decision; cause of action; disciplinary measure; disciplinary procedure; impugned decision; misconduct; receivability of the complaint;
Judgment 4843
138th Session, 2024
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant – whose post was suppressed – challenges the decision to transfer another official to a post to which he believes he should have been reassigned as a priority.
Considerations 6-7
Extract:
First of all, and contrary to what the Organization submits, it is clear that the complainant had a cause of action in challenging the lawfulness of Ms M.’s appointment through an internal appeal, given that he himself was eligible to be appointed to that post. The question whether the complainant is correct in claiming that he should have been given priority over Ms M., or at least that his profile better suited the post in question, is a separate issue from his cause of action and has to be explored later, when the complaint is examined on the merits.
It also goes without saying that the decision to appoint Ms M. to a post for which the complainant was eligible constitutes an administrative decision that can be challenged by means of an internal appeal procedure and, subsequently, by a complaint before the Tribunal (see, for example, Judgments 4087, consideration 7, 3642, consideration 7, and 3450, consideration 7).
Similarly, contrary to what the Organization submits, in asserting in his internal appeal that efforts were supposed to be undertaken to reassign him within Interpol following the suppression of his post, the complainant was, implicitly but unquestionably, alleging a breach of the provisions of the Staff Manual relating to the reassignment process following the suppression of a post. The Secretary General himself had clearly acknowledged this given that, in the impugned decision, he had stated that the objection made by the complainant in support of his internal appeal formed part of the objections set out in an earlier internal appeal against the decision to terminate his appointment and that earlier appeal had been declared admissible. The argument put forward by the Organization in this regard is therefore irrelevant.
Reference(s)
ILOAT Judgment(s): 3450, 3642, 4087
Keywords:
appointment; cause of action; loss of opportunity;
Judgment 4833
138th Session, 2024
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision setting aside the disciplinary measure that had been imposed on him due to a procedural flaw, reopening the investigation by providing him with all the evidence gathered as part of the investigation and allowing him to comment on it, and declining to award him moral damages.
Consideration 3
Extract:
The Secretary General accepted all relief the Appeals Commission recommended the complainant be awarded, except moral damages. Thus, this complaint raises a cause of action only in relation to that issue. In this respect, the Secretary General was entitled to exercise his discretionary power to refuse to accept the recommendation to award moral damages. […] His decision in this respect was not unlawful. Accordingly, there is no basis for the Tribunal to award moral damages.
Keywords:
cause of action; discretion; moral damages;
Judgment keywords
Keywords:
cause of action; complaint dismissed; disciplinary measure;
Judgment 4817
138th Session, 2024
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns a decision ordering a new investigation into her alleged misconduct and suspending the disciplinary measures pending the new investigation and a new decision in the matter. She contests this decision to the extent it maintained the finding that she committed misconduct.
Judgment keywords
Keywords:
cause of action; complaint allowed; deduction; disciplinary measure; double jeopardy; investigation; manifest error; presumption of innocence; suspensive action;
Consideration 3
Extract:
The complainant contends that the impugned decision considered her misconduct as already proved and limited the scope of the new investigation. In addition, she contends that, even though the disciplinary measures, issued by the memorandum of 8 May 2018, no longer have a legal basis and have been suspended, she has not been reimbursed in full for the deductions from her salary applied from the date of the disciplinary decision until the date of the decision to suspend the disciplinary measures. The Tribunal finds that the impugned decision is potentially apt to immediately and adversely affect the complainant with regard to the alleged non-reimbursement of the salary deductions during the aforementioned period and the alleged improper limitation of the scope of the new investigation. In conclusion, the complaint is receivable and must be assessed on the merits. The Tribunal’s case law holds that the necessary, yet sufficient, condition of a cause of action is a reasonable presumption that the decision will bring injury. The decision must have some present effect on the complainant’s position (see Judgment 3337, consideration 7). This condition is met in the present case.
Reference(s)
ILOAT Judgment(s): 3337
Keywords:
cause of action; deduction; disciplinary measure; injury;
Judgment 4805
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests Circular No. 359 on the European Patent Office closure policy in 2015.
Consideration 3
Extract:
In his pleas before the Tribunal, the complainant makes no attempt to establish even an arguable case that this general decision either negatively impacted on him immediately or this was likely (Judgment 4119, consideration 4). In the absence of any argument which might persuade the Tribunal that this essential foundation of his case was even arguably correct, it is not open to the complainant to immediately develop lengthy arguments about the abolition of the [General Advisory Committee], the composition of the General Consultative Committee […] and whether consultation occurred or was necessary, and additionally challenge the internal appeal process. These last-mentioned matters are without purpose in the absence of any case concerning the lawfulness of the content of the Circular.
Reference(s)
ILOAT Judgment(s): 4119
Keywords:
cause of action; general decision; individual decision; receivability of the complaint;
Judgment 4799
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests, firstly, the decision to reassign him pursuant to the closure of his area of competence in Berlin, and to reallocate some patent files, secondly, the decision to reallocate some patent files in the context of his reassignment and, thirdly, the closure of an area of competence per se.
Judgment keywords
Keywords:
cause of action; complaint dismissed; reassignment; reorganisation;
Consideration 4
Extract:
The Tribunal recalls that in a judgment regarding the issue of alleged interference in the work of the Examining Division, the Tribunal held that decisions with respect to the law and/or procedures applicable to patent applications do not “adversely affect” staff members and, thus, cannot be the subject of an internal appeal. In short, such decisions are not appealable and do not create a cause of action (see Judgment 4417, considerations 7 and 8).
Reference(s)
ILOAT Judgment(s): 4417
Keywords:
administrative decision; cause of action;
Judgment 4798
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the closure of an area of competence in the Berlin sub-office, and her reassignment.
Judgment keywords
Keywords:
cause of action; complaint dismissed; reassignment; reorganisation;
Consideration 3
Extract:
The Tribunal recalls that the complainant’s claims alleging undue interference in her work in the Examining Division have already been adjudicated by the Tribunal, in Judgment 4417. The Tribunal held that decisions with respect to the law and/or procedures applicable to patent applications do not “adversely affect” staff members and, thus, cannot be the subject of an internal appeal (see Judgment 4417, considerations 7 and 8) […].
Reference(s)
ILOAT Judgment(s): 4417
Keywords:
administrative decision; cause of action;
Judgment 4789
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2016.
Consideration 4
Extract:
[T]here is no support in the Service Regulations for permanent employees of the European Patent Office or in the case law for the complainant’s statement, in response to the EPO’s submissions, that the Tribunal has jurisdiction to adjudicate on invoked inconsistencies between the terms of employment derivable from the European Patent Convention and the Service Regulations, including on the suspicions of bias. Quite on the contrary, the Tribunal has already ruled on the issue by asserting that, generally, decisions with respect to the law and/or procedures applicable to patent applications do not affect a staff member’s relationship with the Organisation (see, for example, Judgments 4417, considerations 7 and 8, and 3053, consideration 11).
Reference(s)
ILOAT Judgment(s): 3053, 4417
Keywords:
cause of action;
Judgment 4773
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment of another official by lateral transfer.
Consideration 6
Extract:
The defendant organisation does not raise as an issue the question of whether the complainant has a cause of action concerning the appointment of Ms Y.S. or otherwise put in issue the receivability of the complaint insofar as it directly challenges that appointment. However, it cannot be assumed that one member of staff has an unfettered right to challenge the transfer of another member of staff (see Judgment 2670, consideration 5).
Reference(s)
ILOAT Judgment(s): 2670
Keywords:
appointment without competition; cause of action;
Judgment 4771
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment of another official by lateral transfer.
Consideration 5
Extract:
The defendant organisation does not raise as an issue the question of whether the complainant has a cause of action concerning the appointment of Mr D. or otherwise put in issue the receivability of the complaint insofar as it directly challenges that appointment. However, it cannot be assumed that one member of staff has an unfettered right to challenge the transfer of another member of staff (see Judgment 2670, consideration 5).
Reference(s)
ILOAT Judgment(s): 2670
Keywords:
appointment without competition; cause of action;
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;
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