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Patere legem (209,-666)
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Keywords: Patere legem
Total judgments found: 80
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Judgment 4697
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director General’s decision to impose on him the disciplinary sanction of downgrading.
Considerations 14-15
Extract:
The Tribunal considers that it is clear from these provisions, which are peculiar to Eurocontrol’s Staff Regulations, that officials of the Organisation are entitled to a due process which affords them the opportunity to be fully heard in connection with the misconduct of which they are accused and to a genuine opportunity to express themselves on the “penalty envisaged” in terms both of its content and of its proportionality to the facts complained of.
In the present case, bearing in mind that the Director General had the ability to apply a large range of disciplinary measures which had to be commensurate with the facts complained of and which had potentially significant consequences for the complainant depending on the severity of the penalty decided upon, the Tribunal considers that the provisions required the complainant to be given the opportunity to make observations on the penalty envisaged by the Director General before that penalty was imposed.
[...]
The Tribunal considers that the Organisation therefore breached its own disciplinary rules and substantially undermined the complainant’s right to be heard under the Staff Regulations in order to put forward his comments on the penalty envisaged against him. This breach of the rules was all the more serious that the penalty in question was significant and had severe consequences for the complainant, as downgrading by two grades brought with it an immediate and permanent reduction by almost 20 per cent of the amount of his pension.
Keywords:
disciplinary procedure; patere legem; right to be heard;
Judgment 4695
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision requiring him to reimburse the undue payments of salary he received during absences that were declared to be unjustified by the Administration.
Considerations 16-18
Extract:
[T]he Tribunal considers that the Organisation is mistaken in maintaining that it never sought to apply that provision of the Staff Regulations on the facts, since that was the only provision of the Staff Regulations that could apply to this situation. [...]
It is clear from these assertions that the Administration knew that it was following a procedure which did not exist anywhere in the Organisation’s rules and which it was, therefore, unable to impose on an official without first informing him of the relevant parameters, where applicable. The Tribunal considers that Eurocontrol cannot justify its conduct, as it attempts to do in its submissions, by arguing that what occurred was ultimately done for the benefit of the complainant since “a strict application by [the Organisation] would have had harsher consequences for [him]”, which, in any event, has not been established.
Since the Organisation breached its own rules by ignoring the procedure laid down in Article 59(1) of the Staff Regulations before concluding that the complainant’s absences due to sickness during the period concerned were unjustified, this second plea is also well founded and renders both the impugned decision and the decision of 26 November 2019 legally flawed.
Keywords:
patere legem;
Judgment 4592
135th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the calculation of the amounts transferred into the Eurocontrol scheme in respect of his previously-acquired pension rights and seeks compensation for the injury he considers he has suffered as a result of alleged negligence on the part of the Organisation.
Consideration 15
Extract:
[A]ccording to the settled case law of the Tribunal, where the rules applicable to an organisation provide for an internal procedure, that organisation is required to observe and apply those rules under the principle tu patere legem quam ipse fecisti (see Judgments 4506, consideration 5, and 4310, consideration 9). Given that, in the aforementioned Office Notice No. 06/11, Eurocontrol specifically provides that the Joint Committee for Disputes is tasked with giving advisory opinions on complaints made pursuant to Article 92.2 of the Staff Regulations, and that, before taking a decision to reject even a part of such a complaint, the Director General must seek the opinion of that committee, Eurocontrol could not, as it in fact did, reject the complainant’s complaints without first receiving that opinion, which, moreover, it had undertaken to obtain in the present case.
By acting as it did, Eurocontrol effectively decided to make its own finding, without the benefit of such an opinion, that the complainant’s complaint was unfounded and void because of what he had signed on 8 January 2019 and because he had not challenged the final decision of 14 January 2019. The Head of Human Resources thereby disregarded an essential safeguard in the right to an internal appeal, from which all officials of the Organisation are entitled to benefit (see Judgment 4167, under 3), thus rendering the impugned decision unlawful.
Reference(s)
ILOAT Judgment(s): 4167, 4310, 4506
Keywords:
internal appeal; internal appeals body; patere legem;
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed; internal appeal; patere legem; transfer of pension rights;
Judgment 4540
134th Session, 2022
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her dismissal as a result of disciplinary proceedings.
Consideration 11
Extract:
[T]he failure to give the complainant a written warning and a reasonable time to improve was an important factor to be considered in determining what was an appropriate measure having regard to her conduct, even as determined by the Director in the impugned decision. Indeed, having regard to the terms of Staff Rule 1070.2, no decision to dismiss should have been made in the absence of a warning and providing a reasonable time to improve. The measure of dismissal under Staff Rule 1070 was unlawful. Accordingly, the impugned decision should be set aside.
Keywords:
due process; patere legem; termination of employment; warning;
Judgment 4524
134th Session, 2022
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to appoint, as a development reassignment, Ms V.M. to the post of Client Relationship Manager.
Consideration 10
Extract:
[I]t is recalled that according to the case law, an international organisation which decides to hold a competition in order to fill a post cannot select a candidate who does not satisfy one of the required qualifications specified in the vacancy notice. Such conduct, which is tantamount to modifying the criteria for appointment to the post during the selection process, incurs the Tribunal’s censure on two counts. Firstly, it violates the principle of tu patere legem quam ipse fecisti, which forbids the Administration to ignore the rules it has itself defined. In this respect, a modification of the applicable criteria during the selection procedure more generally undermines the requirements of mutual trust and fairness which international organisations have a duty to observe in their relations with their staff. Secondly, the appointment body’s alteration, after the procedure had begun, of the qualifications which were initially required in order to obtain the post, introduces a serious flaw into the selection process with respect to the principle of equal opportunity among candidates. Irrespective of the reasons for such action, it inevitably erodes the safeguards of objectivity and transparency which must be provided in order to comply with this essential principle, breach of which vitiates any appointment based on a competition (see Judgment 3073, consideration 4).
Reference(s)
ILOAT Judgment(s): 3073
Keywords:
criteria; patere legem; qualifications; selection procedure;
Judgment 4519
134th Session, 2022
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to suspend her without pay.
Consideration 5
Extract:
The wording of Staff Rule 10.1.3(a) makes plain that the suspension provided for under Staff Rule 10.1.3 is intended as a measure that may be taken “pending an investigation” and that the staff member concerned may thus be suspended – whether with or without pay – only until its end. As the Tribunal has already held concerning the application of similarly worded staff rules in another organisation, such a reference to the possibility of suspending a staff member until the end of the investigation into the actions of which she or he is suspected cannot be interpreted as authorising an extension of that suspension beyond the end of the investigation in question and, in particular, during any disciplinary proceedings subsequently brought against the staff member concerned (see Judgment 3880, consideration 20).
Contrary to what the Organisation submits, this approach does not contradict that adopted in previous cases concerning ITU. Although in Judgment 3138 the Tribunal accepted the lawfulness of a suspension ordered after the delivery of the report into the investigation of the acts of which the complainant was accused in that case, it did so on the ground, set out in consideration 11 of that judgment, that an “additional investigation” was planned when the decision was taken. Nor is Judgment 2601, also quoted by ITU, relevant since it concerned a challenge to decisions taken at the end of a disciplinary procedure and, as pointed out in consideration 13 thereof, did not call into question the lawfulness of the prior suspension. Finally, although ITU also refers to Judgment 3502, concerning another organisation where the suspension of staff members is governed by similar provisions, the Tribunal observes that the suspension at issue in that judgment was ordered pending the outcome of an investigation and that, although the suspension was extended until the end of the subsequent disciplinary procedure, the plea was not framed in the same way in the other case.
Reference(s)
ILOAT Judgment(s): 2601, 3138, 3880
Keywords:
inquiry; patere legem; suspension;
Judgment 4516
134th Session, 2022
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to investigate his allegations of harassment.
Consideration 7
Extract:
[P]aragraph 15 [of Service Order No. 19/08] contains the word “must”. Often provisions conferring a power use the word “must” or “shall” or, alternatively, “may”. Ordinarily the word “must” is, in such a context, construed as imposing a duty on the repository of the power to exercise the power. Ordinarily the word “may” is construed as creating a discretion in the repository of the power whether to exercise the power. Occasionally, the context in which either word is used might result in a construction of the provision conferring the power which is at odds with its ordinary meaning.
In the present case, the context in which the word “must” is used is consistent with its ordinary meaning.
Keywords:
interpretation; patere legem;
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed; harassment; investigation; patere legem;
Judgment 4515
134th Session, 2022
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the conversion of his suspension with pay into a suspension without pay pending an investigation for harassment undertaken against him.
Judgment keywords
Keywords:
complaint allowed; patere legem; suspension without pay;
Consideration 8
Extract:
The suspension provided for under Staff Rule 10.1.3a) is intended to be a measure that may be taken “pending [the outcome of the] investigation” and a staff member subject to it may thus be suspended – whether with or without pay – only until the investigation is completed. As the Tribunal has already had the occasion to hold in relation to the application of similarly worded regulations of another organisation, such a reference to the possibility of suspending an official until the end of the investigation into the facts of which she or he is suspected cannot be interpreted as authorising an extension of that suspension beyond the end of the investigation in question and, in particular, during any disciplinary proceedings subsequently instituted against the official concerned (see Judgment 3880, consideration 20).
Reference(s)
ILOAT Judgment(s): 3880
Keywords:
investigation; patere legem; suspension;
Judgment 4506
134th Session, 2022
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the length of the extension of appointment that was offered to him.
Consideration 5
Extract:
The Tribunal’s case law states that, as long as the rules are neither amended nor repealed, the principle tu patere legem quam ipse fecisti requires the Organization to apply them (see Judgment 4310, consideration 9).
[A]n international organisation has a duty to comply with its own internal rules and to conduct its affairs in a way that allows its employees to rely on the fact that these will be followed (see Judgment 3758, consideration 15). As to the interpretation of that Regulation, in its relevant version, it must be recalled that according to the Tribunal’s case law the primary rule of interpretation is that words are to be given their obvious and ordinary meaning (see Judgment 1222, consideration 4; see also Judgment 4321, consideration 4). Where the text is clear and unambiguous (as it is in the present case), the Tribunal will apply it without reference to the preparatory work or the supposed intent of the lawmaker. Strict textual interpretation is an essential safeguard of the stability of the position in law and so of the Organisation’s efficiency (see Judgment 691, consideration 9).
Reference(s)
ILOAT Judgment(s): 691, 1222, 3758, 4310, 4321
Keywords:
interpretation of rules; patere legem;
Judgment 4481
133rd Session, 2022
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to extend her appointment at the end of her period of probation.
Consideration 11
Extract:
[T]he Tribunal’s case law […] requires an international organization to comply with its own procedures that govern performance appraisals. Accordingly, the following was stated in Judgment 2414, consideration 24:
“The fundamental considerations which lead to the conclusion that an organisation must comply with the rules which it has established also dictate the conclusion that it cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance. Just as the decisions to withhold the complainant’s salary increments could not be justified on the basis of her unsatisfactory performance because the relevant rules had not been complied with, so also, for the same reason, the decisions neither to convert nor renew her contract cannot be justified on that basis.”
Reference(s)
ILOAT Judgment(s): 2414
Keywords:
patere legem; performance evaluation;
Judgment 4468
133rd Session, 2022
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision refusing to submit the alleged increase in her whole person impairment rating to the Medical Board and to reject her claim for compensation based on this alleged increase.
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed; patere legem; service-incurred;
Judgment 4434
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the refusal to organise a strike ballot under the new rules governing the exercise of the right to strike at the European Patent Office.
Considerations 12-13
Extract:
The President was the author of Circular No. 347. He could readily have made express what the EPO now argues is implied in the new regime (the appointment of interlocutors) or made clear what is, at best, cryptically embedded in paragraph 4 of Circular No. 347 (mandatory discontinuity of a month). He did not, and there is no warrant for interpreting Circular No. 347 in the way proposed by the EPO.
There is simply no reference to interlocutors and the scheme of regulating industrial action operates as a cohesive whole without the implication proposed. Indeed it can scarcely be suggested that the scheme is one directed to the resolution of industrial disputes including their amicable settlement. Were that so, one could have expected detailed procedures for dispute settlement involving discussion and even mediation. But they are singularly absent.
Keywords:
patere legem; right to strike; 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 9
Extract:
[T]he complainant initially sought and still seeks moral damages. In his brief he seeks 10,000 euros moral damages “for depriving [him] of his fundamental human right to strike and taking away his fundamental right to freedom of association”. But he was not deprived of the right, at least in its entirety. There was only a delay in taking a procedural step which may have led to a strike in which the complainant would have been involved. At best for the complainant, the facts reveal the EPO failed to comply with paragraph 3 of Circular No. 347 notwithstanding that it was bound by the rules it had itself issued until it amended or repealed them (see, for example, Judgments 963, consideration 5, and 3883, consideration 20). Putting it this way is not to suggest that the non-observance was trivial. The Organisation had put in place highly contentious provisions concerning a matter of fundamental importance, namely the right to strike. It could be expected that all elements of those provisions would be followed to the letter unless there was some insuperable reason for not doing so. In this case, there was not. The President acted unilaterally and arbitrarily in breach of the scheme the Organisation had adopted and, in any event, his conduct involved an abuse of power in that he purported to exercise a power which he did not have. The complainant is entitled to moral damages which are assessed in the sum of 6,000 euros.
Reference(s)
ILOAT Judgment(s): 963, 3883
Keywords:
abuse of power; misuse of authority; moral injury; patere legem; right to strike; strike;
Judgment 4397
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer her.
Considerations 10-12
Extract:
The claim that the [transfer] decision […] lacked legal basis is well founded. The Organisation relied on its general power to restructure its services to justify the complainant’s “reassignment” […]. The Organisation notes that the Tribunal’s case law forms part of its legal framework. However, the Tribunal’s consistent case law holds that “any authority is bound by the rules it has itself issued until it amends, suspends or repeals them. The general principle is that rules govern only what is to happen henceforth, and it is binding on any authority since it affords the basis for relations between the parties in law. Furthermore, a rule is enforceable only from the date on which it is brought to the notice of those to whom it applies (see Judgment 963, under 5). A competent body adopts rules in order to regulate its exercise of discretionary power in making specific decisions. It would radically contrast with the finality and essence of a rule (which is by nature general and abstract) to allow that in making a decision the authority can disregard a rule that was adopted in order to limit the authorities’ power concerning particular subjects and instead create an opportunity for expanding one’s power. Obviously, the procedure to adopt rules must be different from the procedure to make decisions, because rules are general and apply to many (undefined) and therefore must be published accordingly, whereas decisions are more precise and apply to few (defined)” (see Judgment 2575, consideration 6).
In stating that “the legal basis for restructuring decisions [is] not to be found exclusively in the [Service Regulations]”, the Appeals Committee misinterpreted the Tribunal’s case law. While it is true that, in taking restructuring decisions, the executive head can also rely on some well-established principles enshrined in the case law (see, for example, Judgments 4086, consideration 11, 3488, consideration 3, and 2839, consideration 11), she or he is bound by the proper application of the relevant provisions in force. In the present case, the Organisation erred in not following the provisions in force at the time the […] decision was taken, when it created a new post without advertising the vacancy. […]
The Organisation’s assertion that the impugned decision was lawful as it was based on its general power to restructure its services, in its generality, is not acceptable. The Organisation’s wide discretion still requires it to be exercised within the limits of the general principles of law and the existing provisions; otherwise, it becomes a way to circumvent the provisions in force, leading to arbitrariness. At the time the [transfer] decision was taken, there was no provision in the Service Regulations which allowed the EPO to reassign an employee, together with her or his post, to duties corresponding to her or his grade, or which allowed the EPO to create and fill a new post without following the provisions regarding transfers and creation of posts. […]
Reference(s)
ILOAT Judgment(s): 963, 2575, 2839, 3488
Keywords:
applicable law; patere legem; reorganisation; transfer;
Judgment 4375
131st Session, 2021
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the validity of a selection procedure in which he participated and the lawfulness of the ensuing appointment.
Consideration 8
Extract:
Once that procedure had begun, ESO had an obligation to follow it properly in accordance with the rules and regulations that it had itself established and, if they do not exhaustively prescribe a procedure, in accordance with the Tribunal’s case law (see, for example, Judgments 4153, consideration 5, 4001, consideration 15, and 1646, consideration 6), which eschews amendments to the competition rules not being properly publicized (see Judgment 1549, consideration 13). In the present case, the organisation does not challenge the complainant’s assertion that the extension of the closing date for applications was not published in the same manner as the original vacancy notice, that is, on the Intranet. Therefore, the extension was unlawful and the acceptance of an application beyond the original closing date was also unlawful.
Reference(s)
ILOAT Judgment(s): 1549, 1646, 4001, 4153
Keywords:
patere legem; selection procedure;
Judgment 4312
130th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to reclassify his post.
Consideration 2
Extract:
The complainant submits that the classification rules have become inappropriate, but he does not, in any event, provide any evidence that they have become unlawful. The ILO must therefore apply them in compliance with the principle tu patere legem quam ipse fecisti, according to which “[a]ny authority is bound by the rules it has itself issued until it amends or repeals them” (see Judgments 963, consideration 5, and 3883, consideration 20).
Reference(s)
ILOAT Judgment(s): 963, 3883
Keywords:
patere legem;
Judgment 4310
130th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to apply the sanction of summary dismissal to him.
Consideration 9
Extract:
It is not disputed that the above rules were not complied with. On this issue the ILO submits that the Committee’s Rules of Procedure, and in particular paragraph 13, reflect a practice that has gradually become superfluous following the establishment of the IAO, which is the only unit authorised to conduct investigations. Given that an official under investigation is heard by the IAO and notified of the procedure, she or he is fully informed of the content of the case file forwarded to the Committee, which hence no longer needs to provide it to the official concerned. The Rules of Procedure were being revised and would be published shortly on the Committee’s website.
However, the Tribunal observes that, so long as the rules are neither amended nor repealed, the principle tu patere legem quam ipse fecisti requires the Organization to apply them (see Judgment 3883, under 20). That principle is particularly applicable in disciplinary matters (see Judgment 3123, under 10).
Reference(s)
ILOAT Judgment(s): 3123, 3883
Keywords:
disciplinary procedure; patere legem; practice;
Judgment 4293
130th Session, 2020
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to select him for a post.
Consideration 9
Extract:
[C]onsistent principle stated in Judgment 4001, consideration 4, for example, has it that a person who challenges the selection of a candidate for a post must demonstrate that there was a serious defect in the selection process. The selection of candidates for promotion is necessarily based on merit and requires a high degree of judgement on the part of those involved in the selection process. Those who would have the Tribunal interfere must demonstrate a serious defect in it; it is not enough simply to assert that one is better qualified than the selected candidate. However, when an organization conducts a competition to fill a post the process must comply with the relevant rules and the case law, as the purpose of competition is to let everyone who wants a post compete for it equally. Precedent therefore demands scrupulous compliance with the rules announced beforehand: tu patere legem quam ipse fecisti.
Reference(s)
ILOAT Judgment(s): 4001
Keywords:
patere legem; selection procedure;
Judgment 4178
128th Session, 2019
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to grant him a promotion in the 2014 professional promotion exercise.
Consideration 15
Extract:
It is well settled in the case law that internal appeals must be conducted with due diligence and in a manner consistent with the duty of care an international organisation owes to its staff members (see, for example, Judgments 3160, consideration 16, 3582, consideration 3, and 3688, consideration 11). In Judgment 3160, consideration 17, the Tribunal also observed that “[t]he amount of compensation for unreasonable delay will ordinarily be influenced by at least two considerations” namely, the length of the delay and the effect of the delay. The complainant submits that he has suffered pain and distress, including as a result of the delay in the internal grievance procedures. It is observed that the FAO did not make a submission in relation to the delay in the appeal process. Accordingly, the complainant is entitled to moral damages [...].
Reference(s)
ILOAT Judgment(s): 3160, 3582, 3688
Keywords:
delay in internal procedure; moral injury; patere legem;
Judgment 4171
128th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss her internal complaints of moral harassment.
Consideration 13
Extract:
Even though the charge of harassment cannot stand, an international organisation fails in its duty to treat staff members with dignity and avoid causing them undue and unnecessary injury if the organisation is aware of an unhealthy working atmosphere in the service where a staff member works but allows it to remain without taking adequate measures to remedy the situation (see, to this effect, Judgment 2067, considerations 16 and 17).
Reference(s)
ILOAT Judgment(s): 2067
Keywords:
duty of care; duty to inform; good faith; harassment; organisation's duties; patere legem; respect for dignity;
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