Judicial review (538, 540, 542, 544, 547, 548, 549, 550, 551, 553, 555, 557, 558, 862, 559, 561, 563, 565, 569, 571, 572, 927, 841,-666)
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Keywords: Judicial review
Total judgments found: 548
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Judgment 2899
108th Session, 2010
European Free Trade Association
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 21
Extract:
"[T]he decision of the chief executive officer of an organisation to recover an unduly paid sum of money falls within his or her discretionary authority and is subject to only limited review by the Tribunal, but this decision must nevertheless be censured if it is tainted with a formal or procedural irregularity, or if it was based on a mistake of fact or of law."
Keywords:
decision; discretion; executive head; formal flaw; judicial review; limits; mistake of fact; procedural flaw; recovery of overpayment;
Judgment 2883
108th Session, 2010
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 8 and 10
Extract:
The complainant joined the Organisation under a three-year fixed-term contract. The first six months of his appointment constituted a probationary period, which was extended for an additional three months.
"The Tribunal is of the opinion that the Director-General's decision not to renew the complainant's contract is based on errors of fact and law, and must therefore be set aside."
"The Tribunal holds that reinstatement, which could only be as a probationer without any guarantee of confirmation, would raise practical difficulties because of the time that has elapsed since the termination of the complainant's appointment and the scheduling conflicts that may occur between the training courses and the new probationary period [...]. Therefore, the Tribunal finds it appropriate not to order reinstatement but it will award the complainant material damages in the amount of 35,000 euros for the loss of a valuable opportunity to have his appointment confirmed."
Keywords:
discretion; judicial review; non-renewal of contract; organisation's duties; probationary period; reinstatement; unsatisfactory service;
Judgment 2879
108th Session, 2010
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 20
Extract:
"The Tribunal concludes that the Joint Advisory Committee's finding, in turn endorsed by the Director General, namely that the complainant was responsible for the publication of the article, was tainted by the failure to consider the evidence against the correct standard of proof, by error of law, and by the drawing of adverse inferences which were not supported by the facts. Accordingly, the impugned decision must be set aside."
Keywords:
appraisal of evidence; decision; judicial review; liability;
Consideration 14
Extract:
"[I]t is not the Tribunal's role to engage in fact-finding and to make a determination on the question of culpability. Instead, the Tribunal's role is to assess whether the decision taken by the Director General is well founded."
Keywords:
judicial review; limits; tribunal;
Judgment 2877
108th Session, 2010
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 18
Extract:
In their capacity as staff representatives, the complainants challenged the Administrative Council's decision to introduce a new specimen contract for Vice-Presidents without prior consultation with the General Advisory Committee. The Tribunal held that to the extent that the new specimen contract introduced provisions with respect to the pensions of Vice-Presidents who previously served in the European Patent Office it should have been referred to the General Advisory Committee.
"It is trite law that "where a final decision refuses, to a staff member's detriment, to follow a favourable recommendation of the internal appeal body such decision must be fully and adequately motivated" (see Judgment 2339, under 5). It is equally well established that if reasons are required, the reasons must be sufficiently clear, precise and intelligible so that a complainant knows why the appeal has been rejected and he is in a position to assess whether a complaint should be filed with the Tribunal."
Reference(s)
ILOAT Judgment(s): 2339
Keywords:
decision; duty to inform; duty to substantiate decision; judicial review; organisation's duties; right; staff member's interest;
Judgment 2869
108th Session, 2010
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The complainant, a staff union representative, challenged the Agency's decision not to promote him in the course of the 2007 promotion exercise. He claimed that he was among the most senior staff eligible for promotion and that the Administration had failed to provide adequate reasons for its decision. The Tribunal found in his favour.
"[T]he present situation has the appearance of an abuse of discretion. The complainant's situation is extreme (i.e. being promoted much less frequently than the average) yet there has been no valid reason given for the continued nonpromotion. According to Eurocontrol's reasoning, without a breach of procedure or obvious flaw, the Agency does not have to explain its decisions. This is not correct. Precedent has it that "there is no rule or principle of law that requires the Director-General to state in so many words just why he has turned someone down for promotion or appointment. What matters is that, if the official asks, the reasons must be revealed. Otherwise the Tribunal may not exercise its power of review and determine whether the reasons are lawful and the decision sound" (see Judgment 1355, under 8)."
Reference(s)
ILOAT Judgment(s): 1355
Keywords:
abuse of power; discretion; duty to inform; duty to substantiate decision; judicial review; misuse of authority; promotion; staff member's interest; staff representative; staff union activity;
Consideration 8
Extract:
"[I]t is not enough that the decision may be reasonable and in good faith; it must also appear to be reasonable and in good faith. [...] [A]ll decisions regarding the promotion or non-promotion of staff union representatives must be, and must appear to be, made impartially so as to avoid any hint of preference or prejudice."
Keywords:
abuse of power; bias; discretion; equal treatment; good faith; judicial review; misuse of authority; promotion; respect for dignity; staff representative; staff union activity;
Judgment 2856
107th Session, 2009
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"As the Tribunal pointed out in Judgment 1131, under 5, «[i]t may not supplant an organisation's view with its own on such matters as a restructuring of posts or redeployment of staff intended to make savings or improve efficiencies». Decisions on them are discretionary and the Tribunal's power of review in this respect is limited."
Reference(s)
ILOAT Judgment(s): 1131
Keywords:
abolition of post; creation of post; discretion; judicial review; limits; reassignment; reorganisation;
Judgment 2854
107th Session, 2009
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 18-20
Extract:
The complainant asserts that the decision to terminate his contract is tainted with procedural irregularities and amounts to a disguised disciplinary measure.
"In Judgment 2090 the Tribunal explained that the provisions of the Federation's Staff Regulations dealing with termination do not authorise the arbitrary termination of contracts and added, under 5, that 'there must be no breach of adversarial procedure [...] nor abuse of authority, nor obvious misappraisal of the facts'. The same applies to Article 11.4 of the Staff Regulations which deals with termination at will. Further, a decision taken pursuant to the latter must be taken in the interests of the Federation. Thus, a decision purportedly taken under Article 11.4 of the Staff Regulations in the interests of the Federation will be set aside if it constitutes a disguised disciplinary measure. A decision of that kind is not taken in the interest of the Federation but for the purpose of avoiding the procedural requirements that must be observed in the case of disciplinary measures.
"The Tribunal identified a hidden sanction in Judgment 2659 as 'a measure which appears to be adopted in the interests of the Organization and in accordance with the applicable rules, but which in reality is a disciplinary measure imposed as a penalty for a transgression, whether real or imaginary'. The Tribunal also pointed out in that judgment that '[t]he true disciplinary nature of an administrative measure that constitutes a hidden sanction is not always apparent' and that, accordingly, it is 'necessary to examine the particular circumstances in each case'.
"There are a number of matters in the present case that indicate that the decision to terminate the complainant's contract was a disciplinary measure. In this regard, the complainant was requested not to report to his office, his access to electronic files and to e-mail was terminated and he was allowed access to the Federation's building only to collect his personal belongings. Further, the letter of termination [...] referred to the complainant's refusal to accept the Secretary General's instructions and said that his 'defiance of [the Secretary General's] instructions [might] constitute grounds for termination for valid reasons with immediate effect'. The Secretary General had already stated in July 2006 that he considered the complainant had been guilty of misconduct [...] and had then warned him of the consequences of noncompliance with his formulation of principles [...]. Additionally, the Secretary General's letter [...] referred to the 'seriousness of [the] matter and the potential consequences it [might] entail'."
Reference(s)
ILOAT Judgment(s): 2090, 2659
Keywords:
definition; disciplinary measure; hidden disciplinary measure; judicial review; termination of employment;
Consideration 23
Extract:
The complainant asserts that the decision to terminate his contract is tainted with procedural irregularities and amounts to a disguised disciplinary measure.
"In a case such as the present one where termination constitutes a hidden disciplinary sanction and reinstatement is not appropriate, compensation should be assessed on the basis of what would have occurred if proper procedures had been followed."
Keywords:
compensation; disciplinary measure; hidden disciplinary measure; judicial review; reinstatement; termination of employment;
Judgment 2850
107th Session, 2009
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"[T]he complainant argues that his initial appointment ought to have been for an undetermined period since his duties were of a lasting nature. However, as he was recruited under a contract for a limited period his situation is in any case governed by the provisions applicable to such contracts, and even on the assumption that his post should normally have been filled by a servant appointed for an undetermined period - which, as can be seen from Judgment 1450, is not a matter which the Tribunal will review - this fact by itself could not lead to a redefinition of his appointment."
Reference(s)
ILOAT Judgment(s): 1450
Keywords:
amendment to the rules; appointment; contract; duration of appointment; judicial review; permanent appointment; provision; short-term;
Judgment 2849
107th Session, 2009
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 20-22
Extract:
The complainant was dismissed for misconduct.
"The question remains whether the sanction of dismissal was warranted in the circumstances. In Judgment 207 the Tribunal held that it is not its role to substitute one disciplinary sanction for another unless the penalty imposed is clearly out of proportion with the gravity of the offence. The Tribunal further commented in Judgment 2656, under 5, that '[...] lack of proportionality is to be treated as an error of law warranting the setting aside of a disciplinary measure even though a decision in that regard is discretionary in nature [...]. In determining whether disciplinary action is disproportionate to the offence, both objective and subjective features are to be taken into account and, in the case of dismissal, the closest scrutiny is necessary (see Judgment 937).'"
"In the present case, the Director-General rejected the Appeals Committee's recommendation that a lesser sanction be imposed. [The] Director-General [...] observed that 'it is well established in law that unsatisfactory conduct and unsatisfactory performance are different matters with different administrative consequence'. While the Director-General's observation is correct, it does not follow that exemplary prior service is not a relevant mitigating factor in the determination of a proper sanction."
"It must be noted, however, that in the present case it was not a matter of a single transgression within the context of an otherwise unblemished career. The Director-General properly considered the incompatibility of the complainant's conduct with his role as a representative of the FAO and considered the nature of the actions of misconduct in deciding that, when taken together they justified a dismissal from service. In these circumstances, the Tribunal will not interfere."
Reference(s)
ILOAT Judgment(s): 937, 2656
Keywords:
discretion; general principle; judicial review; misconduct; proportionality; termination of employment;
Judgment 2839
107th Session, 2009
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"It is clear that in accordance with Staff Regulation 1.1 staff members are subject to the authority of the Director-General and to assignment by him or her to any of the activities or offices of the Organization. Further, under Staff Rule 565.2 a staff member may be reassigned at any time in the interest of the Organization. However, in the exercise of the discretion to reassign a staff member, the Organization must take into account the interests and dignity of the staff member, including the provision of work of the same level as that which was performed in the former post and matching the staff member's qualifications, and care must be taken not to cause undue injury to the staff member (see Judgments 2067, under 17, 2191, under 3, and 2229, under 3). Moreover, the staff member is entitled to be informed of the reasons for the reassignment. In addition to ensuring transparency in decision making, providing the reasons for the reassignment permits a staff member to assess the courses of action that may be taken, including the lodging of an appeal, and it also permits a review of the lawfulness of the decision on appeal (see Judgment 1757, under 5)."
Reference(s)
ILOAT Judgment(s): 1757, 2067, 2191, 2229
Keywords:
assignment; discretion; duty to inform; duty to substantiate decision; judicial review; organisation's duties; reassignment; respect for dignity; staff member's interest; transfer;
Judgment 2835
107th Session, 2009
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"It is well established that an organisation has a wide discretion in relation to the appointment and promotion of staff. For this reason, these decisions are subject to limited review. That is, the Tribunal will only interfere if the decision was taken without authority; if it was based on an error of law or fact, some material fact was overlooked, or a plainly wrong conclusion was drawn from the facts; if it was taken in breach of a rule of form or of procedure; or if there was an abuse of authority (see Judgments 2060, under 4, and 2457, under 6)."
Reference(s)
ILOAT Judgment(s): 2060, 2457
Keywords:
breach; discretion; judicial review; limits; promotion;
Judgment 2834
107th Session, 2009
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"It is well established that an organisation has a wide discretion in relation to the appointment and promotion of staff. For this reason, these decisions are subject to limited judicial review. That is, the Tribunal will only interfere if the decision was taken without authority; if it was based on an error of law or fact, a material fact was overlooked, or a plainly wrong conclusion was drawn from the facts; if it was taken in breach of a rule of form or of procedure; or if there was an abuse of authority (see Judgments 2060, under 4, and 2457, under 6)."
Reference(s)
ILOAT Judgment(s): 2060, 2457
Keywords:
appointment; breach; discretion; judicial review; limits; promotion;
Judgment 2826
107th Session, 2009
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"In the present case, the Secretary-General took a new decision to refer the question of the recognition of domestic partnership to the ITU Council and thereby executed Judgment 2643. There is no basis on which the Tribunal can require anything further, save on a receivable complaint with respect to that new decision."
Reference(s)
ILOAT Judgment(s): 2643
Keywords:
decision; execution of judgment; judgment of the tribunal; judicial review; limits; tribunal;
Judgment 2809
106th Session, 2009
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The complainant impugns the decision not to award him an indefinite contract for one of the long-term jobs offered to other candidates who had been found better qualified.
"In accordance with its case law, the Tribunal will not assess the candidates on merit or rule on the Organization's choice [...]."
Reference(s)
ILOAT Judgment(s): 1497
Keywords:
appointment; candidate; competition; judicial review;
Judgment 2807
106th Session, 2009
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"The Tribunal will not undertake an exercise to classify or reclassify posts in an organisation's structure [...], since decisions in this sphere lie within the discretion of the organisation and may be set aside only on limited grounds. Such is the case, for example, if the competent bodies breached procedural rules, or if they acted on some wrong principle, overlooked some material fact or reached a clearly wrong conclusion [...]. In the absence of such grounds, the Tribunal will not remit the case to the organisation, nor will it substitute its own post evaluation for that of the competent bodies [...]."
Reference(s)
ILOAT Judgment(s): 2151, 2514, 2581
Keywords:
case law; discretion; disregard of essential fact; flaw; grade; judicial review; limits; mistake of fact; mistaken conclusion; post classification; post held by the complainant;
Judgment 2806
106th Session, 2009
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
In Judgment 2575, the Tribunal annulled a decision to transfer the complainant from Vienna to Berlin. No action was taken to return him to Vienna. Instead, on 13 February 2007, the IOM informed him that he was to be transferred to Berlin with immediate effect. In Judgment 2691, the Tribunal declared that the decision of 13 February 2007 was "null and void ab initio".
"Like all judicial bodies, the Tribunal has inherent jurisdiction and power to take action to ensure that its judgments are implemented. That power may be exercised in any proceedings where a question is raised with respect to the implementation of a judgment. Accordingly, an order will be made for a penalty to be paid in the event that [the complainant] is not posted to Vienna within 30 days."
Reference(s)
ILOAT Judgment(s): 2575, 2691
Keywords:
application for interpretation; application for review; continuing breach; delay; execution of judgment; general principle; judgment of the tribunal; judicial review; organisation's duties; res judicata; time limit;
Judgment 2803
106th Session, 2009
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"Although the Director-General will ordinarily be treated as the best judge of what the Organization's interests are and the Tribunal will not ordinarily interfere in his assessment of them, nevertheless it will do so in this case. It is quite inadequate to plead that the decision to transfer the complainant was "in the interests of the Organization". The basis for reaching that conclusion must be made clear so that the Tribunal may exercise its power of review and determine whether there exists any of the grounds for setting aside a discretionary decision of that kind."
"In the present case, [...] the Tribunal considers that the Organization's clear explanation of the reasons for the complainant's transfer enabled it to conduct a review [...]."
Reference(s)
ILOAT Judgment(s): 1234
Keywords:
discretion; duty to substantiate decision; judicial review; limits; organisation's duties; organisation's interest; post;
Judgment 2757
105th Session, 2008
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"In the context of 'serious misconduct', the question whether a statement was made falsely is not simply whether the statement is true or false. A statement made innocently, which turns out to be false, does not constitute serious misconduct. A statement is made innocently if the person concerned honestly believes on reasonable grounds that the statement is true. Conversely, for the purposes of serious misconduct, a statement is falsely made if it is both untrue and the person concerned did not believe on reasonable grounds that it was true."
Keywords:
definition; grounds; intention of parties; judicial review; misrepresentation; serious misconduct;
Consideration 10
Extract:
"In determining whether a statement is objectively true or false, it is necessary to have regard to the statement actually made. The same is necessary when deciding whether the person who made the statement believed on reasonable grounds that it was true. In that process, regard must be had to the whole statement, not selected excerpts or [...] a single excerpt."
Keywords:
grounds; judicial review; misrepresentation;
Judgment 2752
105th Session, 2008
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
"The Tribunal exercises only a limited power of review in the case of warnings or reprimands which are not of a disciplinary nature. As pointed out in Judgments 274 and 403:
'The Tribunal will not interfere unless the measure was taken without authority, or violates a rule of form or procedure, or is based on an error of fact or of law, or if essential facts have not been taken into consideration, or if it is tainted with abuse of authority, or if a clearly mistaken conclusion has been drawn from the facts.'
In Judgment 274 it was also explained that '[a] warning or reprimand must be based on unsatisfactory conduct since what it is saying in effect is that if the conduct is repeated a disciplinary measure may be taken'."
Reference(s)
ILOAT Judgment(s): 274, 403
Keywords:
abuse of power; censure; condition; conduct; disciplinary measure; disregard of essential fact; formal flaw; grounds; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; procedural flaw; reprimand; unsatisfactory service; warning;
Judgment 2751
105th Session, 2008
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 3 and 6
Extract:
"Statements made in legal proceedings are privileged, whether those statements are made in writing in the pleadings or orally in the course of a hearing. The consequence is that, even if defamatory, they cannot be the subject of legal proceedings or sanction. The privilege, sometimes referred to as 'in court privilege', exists, not for the benefit of the parties or their representatives, but because it is necessary for the proper determination of proceedings and the issues that arise in their course. In Judgment 1391 the Tribunal recognised that the privilege attaches to its proceedings, as well as those of internal appeal bodies. [...]
[T]he Tribunal's consideration of the extent of the privilege that attaches to statements made in the course of internal appeal proceedings or proceedings before the Tribunal has concentrated on statements made by staff members. However, the privilege is the same in the case of statements made by or on behalf of defendant organisations, and they must be allowed a similar degree of freedom in what they say and the manner of its expression. Even so, a statement will constitute a perversion of a defendant organisation's right of reply if it is wholly irrelevant and it can only serve an improper purpose."
Reference(s)
ILOAT Judgment(s): 1391
Keywords:
abuse of power; breach; confidential evidence; consequence; disciplinary measure; formal requirements; freedom of speech; iloat; internal appeals body; judicial review; language; misuse of authority; official; oral proceedings; organisation; privileges and immunities; procedure before the tribunal; purpose; reply; respect for dignity; right; settlement out of court;
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