Provision (241,-666)
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Keywords: Provision
Total judgments found: 208
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Judgment 2232
95th Session, 2003
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
The complainant, who had been the Organisation's Director-General, impugns the decision to terminate his appointment. The Organisation raises an objection to receivability, arguing that the complainant was not a staff member. "The defendant [...] considers that since the particular case of the Director-General of the Organisation was not expressly provided for in the texts on which the Tribunal's jurisdiction is based, an express provision recognising its jurisdiction would have been necessary. It points out that [another international organisation] (UNESCO), having realised that it had no statutory provision nor any contractual stipulation attributing jurisdiction in the event of a dispute involving its Director-General, decided in 1999 to include such a clause in the contract it signed with him. whilst the Tribunal does not deny that UNESCO thereby clarified difficulties which were liable to arise, it does not view that as authority for the reverse proposition that contracts containing no such clause, entered into by other organisations with their respective chief administrative officers, must be deemed to exclude the jurisdiction of the Tribunal."
Keywords:
competence of tribunal; contract; decision; exception; executive head; grounds; interpretation; no provision; organisation; provision; rebuttal; receivability of the complaint; staff regulations and rules; status of complainant; termination of employment; written rule;
Judgment 2230
95th Session, 2003
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
The complainant claims that a payment made to him by mistake should not have been recovered from him three years later. "While it is a general principle of law that lapse of time may extinguish an obligation, the complainant has not cited any provision relative to recovery of overpayments [...] establishing a prescriptive period beyond which the undue payments may no longer be recovered."
Keywords:
definition; discontinuance; general principle; payment; period; provision; recovery of overpayment; request by a party; right;
Judgment 2216
95th Session, 2003
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 8-9
Extract:
Article VI 1.01 of ESO's International Staff Rules reads as follows: " 'Every member of the personnel shall have the right to appeal against any decision of the Director General concerning himself.' Thus, a person who is not a "member of the personnel" has no right to launch an internal appeal and his or her only recourse is directly to the Tribunal."
Reference(s)
Organization rules reference: ARTICLE VI 1.01 OF ESO'S INTERNATIONAL STAFF RULES
Keywords:
cause of action; consequence; decision; direct appeal to tribunal; executive head; general principle; internal appeal; official; procedure before the tribunal; provision; right; right of appeal; staff regulations and rules; status of complainant;
Judgment 2214
95th Session, 2003
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3(B) and (C)
Extract:
The complainant asked for the payment of the expatriation allowance provided for in Article 72 of the EPO's Service Regulations. The Tribunal gave "a definition of permanent or continuous residence". While this requires actual long-term presence in the country concerned, it does not necessarily exclude another residence. In judgment 1099 the Tribunal held that in order to establish whether the complainant met the condition of 'continuous residence' in the country of his duty station for at least three years prior to being recruited by the Office, it was necessary to determine whether there were "objective and factual links with that country". It added that: "what matters is that the complainant had to live, and did live [in that country]". It was not important to know whether the complainant had paid taxes there or whether, at the same time, he kept a home address at his former place of residence (see Judgment 1099, under 8). The status of the residence is not relevant either (see Judgment 1150). It is clear from the case law when residence must be deemed to have been interrupted, within the meaning of Article 72 of the Service Regulations. It is not sufficient for the person concerned to have stopped living in a particular country; he must in addition have intended to leave the country for some length of time."
Reference(s)
Organization rules reference: ARTICLE 72 OF THE SERVICE REGULATIONS FOR PERMANENT EMPLOYEES OF THE EUROPEAN PATENT OFFICE
ILOAT Judgment(s): 1099, 1150
Keywords:
appointment; assignment; case law; condition; definition; duty station; iloat; judgment of the tribunal; non-resident allowance; period; place of origin; provision; request by a party; residence; staff member's duties; staff regulations and rules; tax;
Judgment 2174
94th Session, 2003
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The complainant "may not in any event rely on the provisions of an administrative circular which does not apply to him."
Keywords:
administrative instruction; applicable law; provision; status of complainant; written rule;
Judgment 2170
94th Session, 2003
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
The Organisation withheld the complainant's salary increment on the grounds that more time was needed to assess her performance. The Tribunal concludes from the relevant provisions that "the requirement that an annual performance report be established prior to the scheduled date of the annual salary increment is a formal one. The salary increment [...] was not preceded by an evaluation [...] it is the Organisation's responsibility to see to it that [an annual performance] report is prepared on time. a staff member's right to an increment cannot be defeated by the organisation's failure to comply with its own rules."
Keywords:
applicable law; binding character; breach; consequence; date; grounds; increase; increment; increment withheld; official; organisation; organisation's duties; performance report; provision; refusal; right; salary; time limit; written rule;
Judgment 2122
93rd Session, 2002
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The complainant submitted her candidacy for a post of legal assistant. Her application was not taken into consideration because she did not fulfil the eligibility conditions set out in the notice of competition. She submits that there is a contradiction between the provisions of Staff Regulation Article 30 and those of Rule of Application No. 2 which sets out conditions for eligibility. The Tribunal finds "no contradiction between the provisions of Staff Regulation Article 30 and those of Rule of Application No. 2. [...] Contrary to what the complainant appears to suggest, the fact that Article 30(1) of the Staff Regulations says that the 'selection of candidates shall be based on qualifications' does not preclude the setting of eligibility conditions. [...] The eligibility conditions provided for in Rule No. 2 offend against no provision of the Staff Regulations. [...] The complainant did not meet all the conditions set in the notice of competition, and the Agency was therefore right to reject her application."
Reference(s)
Organization rules reference: ARTICLE 30 OF THE STAFF REGULATIONS GOVERNING OFFICIALS OF THE AGENCY
Keywords:
appointment; breach; candidate; competition; complainant; condition; criteria; degree; difference; enforcement; grounds; post; provision; refusal; staff regulations and rules; vacancy notice;
Judgment 2120
93rd Session, 2002
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 10-11
Extract:
A paragraph of a notice issued by the Organisation's secretariat stipulates that the spouse of a staff member shall normally not be employed in the same department as the staff member. The Tribunal considers that "the provision improperly discriminates between candidates for appointment based on their marital status and family relationship [...]. Discrimination on such grounds is contrary to the Charter of the United Nations, general principles of law and those which govern the international civil service, as well as international instruments on human rights. [...] All forms of improper discrimination are prohibited. What is improper discrimination? It is, at least in the employment context, the drawing of distinctions between staff members or candidates for appointment on the basis of irrelevant personal characteristics. Manifestly, the fact that two staff members may be married to each other is not relevant to their competence or the capacity of either one of them to fulfil their obligations. and, if it is thought that marital or intimate personal relationships between staff members may create management problems, such problems must be dealt with in ways that do not discriminate against either of them as a result of such relationships. The Tribunal notes that [the notice] as it is written, besides being too broad, is not even effective in dealing with the presumed possibility of undue influence or favouritism for it is silent on non-marital intimate relationships. It also fails to deal with marriages taking place after appointment".
Keywords:
administrative instruction; assignment; breach; candidate; competition; definition; difference; equal treatment; family relationship; general principle; grounds; international civil service principles; international instrument; official; organisation; post; provision; publication; qualifications; staff member's duties; terms of appointment; un charter; universal declaration of human rights;
Consideration 9
Extract:
The complainant assumes that the provisions of a notice issued by the Organisation's secretariat, being subordinate legislation, are incompatible with the corresponding provisions of the primary legislation, namely the Staff Rules. The Tribunal considers that the notice "does not merely implement or clarify the Staff Rule; it purports to extend its reach substantially. It cannot stand."
Keywords:
administrative instruction; condition; definition; difference; enforcement; limits; organisation; precedence of rules; provision; publication; purport; purpose; staff regulations and rules;
Judgment 2097
92nd Session, 2002
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
"If the contracts are valid and enforceable and not in breach of any applicable staff rule or principle of international civil service law, the Tribunal has no power to reform them or to remake the bargain which the parties themselves have chosen to make."
Keywords:
acceptance; amendment to the rules; applicable law; competence of tribunal; contract; iloat; international civil service principles; official; provision; staff regulations and rules; terms of appointment;
Judgment 2091
92nd Session, 2002
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 10 and 12
Extract:
The complainant had an accident while on duty. He signed a settlement agreement with the organisation and the CERN Pension Fund in order to solve the issue of the payment of an incapacity pension by the pension fund. "The ESO submits the complaint is not receivable as it does not allege non-observance of the terms of the complainant's appointment or of the [organisation]'s rules and regulations [...]. The Tribunal considers that since the settlement between the complainant, the [organisation] and the CERN Pension Fund arises out of the complainant's rights under his contract of employment as well as the Staff Rules and Regulations, it has jurisdiction to consider the effect of the trilateral agreement."
Keywords:
breach; cern pension fund; competence of tribunal; complainant; complaint; consequence; contract; definition; effect; iloat; incapacity; judicial review; organisation; payment; pension; professional accident; provision; receivability of the complaint; right; service-incurred; staff regulations and rules;
Judgment 2090
92nd Session, 2002
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The organisation asserts that "Article 1010.1 allows it to terminate an appointment by giving one month's notice per year of service [...] The Tribunal observes that [...] 1010.1 may not be interpreted as authorising [the organisation] to terminate [fixed- term] contracts arbitrarily. Decisions of this kind must be based on unsatisfactory performance, or the interests of the service. Furthermore, there must be no breach of adversarial procedure nor any error of fact or of law, nor abuse of authority, nor obvious misappraisal of the facts."
Reference(s)
Organization rules reference: ARTICLE 1010.1 OF THE IFRC STAFF REGULATIONS
Keywords:
abuse of power; adversarial proceedings; bias; contract; due process; duty to substantiate decision; fixed-term; grounds; mistake of fact; mistaken conclusion; misuse of authority; notice; organisation's duties; organisation's interest; provision; staff regulations and rules; termination of employment; unsatisfactory service;
Judgment 2088
92nd Session, 2002
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 27
Extract:
The complainant seeks "a termination indemnity under Rule 109.5 which does not deal with indemnities. These are in fact dealt with under 109.7 [...] the question of a termination indemnity was not argued before the Tribunal probably because the complainant did not cite the number of the Staff Rule correctly. The Tribunal considers that the question of a claim under 109.7 (mistakenly referred to as 109.5) should be returned to the parties for argument on this single issue".
Reference(s)
Organization rules reference: UNESCO STAFF RULE 109.5 UNESCO STAFF RULE 109.7
Keywords:
adversarial proceedings; complainant; enforcement; iloat; provision; remand; request by a party; staff regulations and rules; terminal entitlements;
Judgment 2086
92nd Session, 2002
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
In order to be awarded a personal promotion the complainant must have completed 18 years of continuous service under a fixed-term or permanent contract. "The [organisation] is arguing that [...] in determining whether the complainant fulfilled [such a] requirement [...] reference must be made to clauses of the contracts which came into force unopposed, [including] short-term contracts [...] The approach is too rigid [...] The issue was [not] one of applying or interpreting the complainant's early appointments [...] It is a matter of applying a rule which is currently in force and which concerns the legal nature of former contractual relationships between the parties. In other words, in the light of the current rule, what type of appointment did the early contracts establish? It should be noted that the name they were given will not necessarily express the actual relationship".
Keywords:
applicable law; condition; contract; criteria; definition; effective date; enforcement; fixed-term; interpretation; permanent appointment; personal promotion; provision; reckoning; short-term; working hours;
Judgment 2081
92nd Session, 2002
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"Consistent precedent has it that an organisation is ordinarily free to determine the pay of its staff, provided that it respects certain requirements arising from general principles of international civil service law [...] Furthermore, if the organisation has a rule granting certain rights to staff members in relation to their level of salary, it may not depart from that rule in individual decisions without amending it in accordance with the prescribed procedure."
Keywords:
amendment to the rules; amount; case law; condition; discretion; formal requirements; general principle; individual decision; international civil service principles; official; organisation; organisation's duties; provision; right; salary; staff regulations and rules;
Judgment 2080
92nd Session, 2002
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 16
Extract:
The complainant's contract was not renewed upon expiry. "Interim Staff Rule 4.4.02(b) provides that separation as a result of the expiration of an appointment shall not be regarded as a termination [...] Rule 9.1.01(b) defines termination [...] as any separation initiated by the Director-General, other than the expiration of a contract. Therefore, the question of any termination indemnity payable to the complainant does not arise."
Reference(s)
Organization rules reference: OPCW INTERIM STAFF RULE 4.4.02(B), OPCW INTERIM STAFF RULE 9.1.01(B)
Keywords:
consequence; contract; decision; definition; difference; executive head; non-renewal of contract; official; provision; separation from service; staff regulations and rules; terminal entitlements; termination of employment;
Judgment 1897
88th Session, 2000
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11(a)
Extract:
"In keeping with the rule that similar acts require similar procedures, the modification of a rule - including allowing an exception - must respect the same process which was used for its adoption."
Keywords:
amendment to the rules; exception; formal requirements; general principle; parallelism of form; provision; staff regulations and rules; written rule;
Judgment 1852
87th Session, 1999
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"The Tribunal's case law is consistent to the effect that a complainant cannot attack a rule of general application unless and until it is applied in a manner prejudicial to him. [The present complaint] is a general attack which is not tied to any particular application of the impugned rules to the complainant. It will not therefore be considered by the Tribunal."
Reference(s)
ILOAT Judgment(s): 764, 1329, 1423
Keywords:
case law; cause of action; enforcement; general decision; individual decision; injury; lack of injury; provision; receivability of the complaint; staff regulations and rules;
Judgment 1339
77th Session, 1994
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
Both the complainant and his wife are international civil servants. They work for different organisations. The complainant claimed a share of the leave for which the rules provide in the event of childbirth. "But parental leave is something to be negotiated and agreed with the employer: it may not be claimed as of right. The WHO's rules provide for the grant of maternity leave, not of paternity or parental leave, and until the latter is agreed upon or prescribed the right to it does not exist."
Keywords:
maternity leave; provision; right; staff regulations and rules;
Consideration 12
Extract:
"An official's acceptance of the regulations and rules does not preclude his arguing that some provision of them is discriminatory as it affects him. If the organization's argument were sustained, no staff member would be free to challenge a rule. The complainant is entitled to found his case on the plea of discrimination even though in the event it proves unsuccessful."
Keywords:
acceptance; equal treatment; provision; right of appeal; staff member's interest; staff regulations and rules;
Judgment 1126
71st Session, 1991
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
Article 61(5) of the Interpol Staff Rules empowers the Secretary General to grant an official a supplementary indemnity on termination of appointment, "taking into account the particular circumstances relating to the personal situation of the official concerned". The Tribunal finds no evidence of such a "particular circumstance" in this case.
Reference(s)
Organization rules reference: ARTICLE 61(5) OF THE INTERPOL STAFF RULES
Keywords:
amount; condition; discretion; enforcement; provision; staff regulations and rules; terminal entitlements;
Judgment 1125
71st Session, 1991
Intergovernmental Organisation for International Carriage by Rail
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"Where the Rule [viz. Article 25 of the 1956 Staff Rules] is silent the competent authority - here the Administrative Committee - does have discretion to set the amount of the contribution to be paid from the date of retirement. But its decision will not be immune to review by the Tribunal, which will interfere if it finds some mistake of fact or of law [etc.]". The decision to do away with the material benefit is in breach of Article 25 and cannot stand.
Reference(s)
Organization rules reference: ARTICLE 25 OF THE 1956 STAFF RULES
Keywords:
amount; breach; contributions; discontinuance; discretion; judicial review; no provision; organisation; provision; staff regulations and rules;
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