Judgment No. 4711
The complaint is dismissed.
The complainant challenges the abolition of automatic step advancement pursuant to the introduction of a new career system.
acquired right; career; step; complaint dismissed
[T]he Tribunal first recalls its case law stating it is a general rule of law that an official who is called upon to take a decision affecting the rights or duties of other persons subject to her or his jurisdiction must withdraw in cases in which her or his impartiality may be open to question on reasonable grounds. It is immaterial that, subjectively, the official may consider herself or himself able to take an unprejudiced decision; nor is it enough for the persons affected by the decision to suspect its author of prejudice (see Judgments 4240, consideration 10, and 3958, consideration 11). A conflict of interest occurs in situations where a reasonable person would not exclude partiality, that is, a situation that gives rise to an objective partiality. Even the mere appearance of partiality, based on facts or situations, gives rise to a conflict of interest (see Judgment 3958, consideration 11). However, an allegation of conflict of interest or lack of impartiality has to be substantiated and based on specific facts, not on mere suspicions or hypotheses. The complainant bears the burden of proof of conflict of interest (see Judgments 4617, consideration 9, and 4616, consideration 6) [...].
ILOAT Judgment(s): 3958, 4240, 4616, 4617
burden of proof; bias; conflict of interest
An accusation of bad faith must be proven and the complainant bears the burden of proof. In the present case, there is no persuasive evidence that the Organisation intentionally submitted false or imprecise information to the Contracting States in order to mislead them. In addition, even if misleading information had been provided to the representatives of the Contracting States, there is no evidence from which it could be inferred that this had any bearing on the actual decision made.
consultation; bad faith
[T]he complainant contends that the new step advancement system infringed an acquired right. He alleges that in the former system he had a right to an automatic step advancement based on seniority, whilst in the new career system step advancement is based on performance and assessment of competencies. He concludes that the former automatic step advancement was a fundamental and essential term of employment in the meaning of the Tribunal’s case law on acquired rights. Namely, he recalls that Judgment 832 lays down three elements to be considered: the nature of the altered term; the reason for change; and the consequences on staff pay and benefits.
This plea must be rejected. According to the Tribunal’s case law, established for example in Judgment 61, clarified in Judgment 832 and confirmed in Judgment 986, the amendment of a provision governing an official’s situation to her or his detriment constitutes a breach of an acquired right only when such an amendment adversely affects the balance of contractual obligations, or alters fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced her or him to stay on. In order for there to be a breach of an acquired right, the amendment to the applicable text must relate to a fundamental and essential term of employment. Judgment 832, consideration 14, details a three-part test for determining whether the altered term is fundamental and essential. The test is as follows:
(1) The nature of the altered term: “It may be in the contract or in the Staff Regulations or Staff Rules or in a decision, and whereas the contract or a decision may give rise to acquired rights the regulations and rules do not necessarily do so.”
(2) The reason for the change: “It is material that the terms of appointment may often have to be adapted to circumstances, and there will ordinarily be no acquired right when a rule or a clause depends on variables such as the cost-of-living index or the value of the currency. Nor can the finances of the body that applies the terms of appointment be discounted.”
(3) The consequence of allowing or disallowing an acquired right and the effect it will have on staff pay and benefits, and how those who plead an acquired right fare as against others.
In addition, as the Tribunal observed in Judgment 4028, consideration 13, international civil servants are not entitled to have all the conditions of employment or retirement laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career and retirement. Most of those conditions can be altered though depending on the nature and importance of the provision in question, staff may have an acquired right to its continued application.
ILOAT Judgment(s): 61, 832, 986, 4028
acquired right; step; promotion
The complainant […] submits that the contested decision breached his legitimate expectations; he alleges that automatic step advancement had existed since the creation of the Office and had been applied for more than forty years. It was therefore a well-established practice, which he legitimately expected to continue. The former system was foreseeable, stable and transparent, whilst the new one is subject to the EPO’s finances and to the powers of the appointing authority, and therefore is not foreseeable, stable and transparent.
The Tribunal observes that it is not appropriate to raise an issue of legitimate expectations based on practice, as in the present case the previous automatic step advancement was not based on a practice, but instead on an express Service Regulation (former Article 48). Thus, in this case, the issue of the alleged infringement of legitimate expectations is not separate, in fact, from the one regarding the breach of acquired rights.
practice; legitimate expectation
The fact that staff members were informed only 15 days before the entry into force of the reform had no material consequences, considering that no action was required of them prior to its implementation.
duty to inform; notification
The transitional measures included in the reform of the career system fall within the discretion of the Organisation, do not appear unreasonable and cannot therefore be annulled by the Tribunal. In any case, it is not within the Tribunal’s purview to impose different transitional measures.