Keywords

Summary



Keywords

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1 . SERVANTS OF THE COMMUNITY - APPLICATION FOR THE ANNULMENT OF AN ADMINISTRATIVE DECISION - JURISDICTION OF THE COURT

( TREATY, ARTS . 42 AND 38 )

2 . SERVANTS OF THE COMMUNITY - PERIOD BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS - CONTRACTS OF EMPLOYMENT - LIMITING THE TERM OF SUCH CONTRACTS

( TREATY, ART . 78 - CONVENTION ON THE TRANSITIONAL PROVISIONS THIRD PARAGRAPH OF ART . 7 )

3 . SERVANTS OF THE COMMUNITY - ABOLITION OF POST - POWERS OF THE ADMINISTRATION - REVIEW BY THE COURT - REINSTATEMENT OF THE SERVANT

( TREATY, ART . 31 )

4 . OFFICIALS OF THE COMMUNITY - STAFF REGULATIONS - ADOPTION BY THE COMMITTEE OF PRESIDENTS - ENTRY INTO FORCE

( TREATY, ART . 78 - CONVENTION ON THE TRANSITIONAL PROVISIONS, THIRD PARAGRAPH OF ART . 7 )

5 . SERVANTS OF THE COMMUNITY - PERIOD PRIOR TO THE ENTRY INTO FORCE OF THE STAFF REGULATIONS - SITUATION DURING SUCH PERIOD

( CONVENTION ON THE TRANSITIONAL PROVISIONS, THIRD PARAGRAPH OF ART . 7 )

6 . COSTS

( RULES OF PROCEDURE, ART . 61 - RULES OF THE COURT CONCERNING COSTS, SECOND SUBPARAGRAPH OF ART . 2 ( 1 ) AND ART . 5 )

Summary

1 . THE GENERAL WORDING OF ARTICLE 42 OF THE TREATY MAKES IT IMPOSSIBLE TO CONCLUDE THAT AN ARBITRATION CLAUSE CAN BE SUBJECT TO A BINDING LEGAL LIMITATION WHICH IN THIS CASE WOULD RULE OUT THE REMEDY OF AN APPLICATION FOR ANNULMENT .

THE REMEDIES AVAILABLE IN ADMINISTRATIVE MATTER TO THE STAFF OF ALL FOUR INSTITUTIONS ARE ORGANICALLY DISTINCT FROM THE RESTRICTED NATURE OF THE REVIEW BY THE COURT WHICH, UNDER ARTICLE 38 OF THE TREATY, APPLIES TO THE ACTIVITIES OF THE ASSEMBLY AS AN INSTITUTION .

SINCE THE AIM OF THESE REMEDIES IS TO RESTORE CONTRACTUAL RIGHTS OR RIGHTS UNDER THE STAFF REGULATIONS WHICH HAVE BEEN INTERFERED WITH IT INVOLVES THE RIGHT TO APPLY FOR THE ANNULMENT OF ANY MEASURE INFRINGING THEM .

2 . BY LIMITING THE DURATION OF CONTRACTS OF EMPLOYMENT THE PARTIES DID NOT INTEND THAT THEY SHOULD COME TO AN END BY THE MERE EFFLUX OF THE TERM FIXED; BUT TO PROVIDE FOR A TRANSITIONAL SITUATION MADE NECESSARY IN VIEW OF THE TIME REQUIRED TO DRAFT STAFF REGULATIONS .

3 . IF DEPARTMENTS ARE REORGANIZED AND STAFF IS REDUCED THE ALLOCATION OF POSTS AMONG FORMER HOLDERS IS WITHIN THE DISCRETION OF THE ADMINISTRATION, BUT IT IS FOR THE COURT TO CONSIDER WHETHER THIS DISCRETION HAS BEEN LAWFULLY EXERCISED OR WHETHER THE RELEVANT DECISION AMOUNTS TO A MISUSE OF POWERS EITHER BECAUSE A RIGHT VESTED IN THE SERVANT CONCERNED BY VIRTUE OF HIS GRADE AND SENIORITY WAS WILFULLY DISREGARDED OR BECAUSE IT WAS A CONCEALED DISCIPLINARY MEASURE .

IF DEPARTMENTS ARE REORGANIZED THE DECISION TO ASSIGN A SERVANT TO A NEW POST MUST BE BASED ON PERSONAL QUALIFICATIONS HAVING REGARD TO THE ABILITIES REQUIRED FOR EACH NEW POST TOGETHER WITH EXPERIENCE IN THE RELEVANT FIELD .

IF ASSIGNMENT TO ANOTHER POST HAVING THE SAME GRADE IS IMPOSSIBLE, THE ADMINISTRATION, IN THE ABSENCE OF A PROVISION UNDER THE CONTRACT OR THE STAFF REGULATIONS, IS NOT UNDER A DUTY TO OFFER THE SERVANT A POSITION SUBORDINATE TO THE ONE WHICH HAS BEEN ABOLISHED .

4 . WHEN THE COMMITTEE OF PRESIDENTS USED THE EXPRESSION " FINAL ADOPTION " IN RELATION TO THE WORDING OF A DRAFT OF THE STAFF REGULATIONS IT WAS NOT PREJUDGING THE DATE OF THE ENTRY INTO FORCE OF THE STAFF REGULATIONS, SINCE THAT WAS DEPENDENT ON STEPS TO BE TAKEN BY EACH OF THE FOUR INSTITUTIONS .

5 . THE FACT THAT A SERVANT'S CONTRACT OF EMPLOYMENT WAS CONCLUDED BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS DOES NOT IMPLY THAT THE PROVISIONS OF A DRAFT OF THE STAFF REGULATIONS WHICH HAVE NOT YET ENTERED INTO FORCE, ESPECIALLY THOSE PROVIDING FOR AND REGULATING THE ASSIGNMENT OF NON-ACTIVE STATUS, ARE TO BE APPLIED IN THEIR ENTIRETY IN ADVANCE .

NEVERTHELESS, IF AN EMPLOYEE'S POST IS ABOLISHED AND HE CANNOT BE ASSIGNED TO ANOTHER POST THE ADMINISTRATION MUST BE GUIDED BY THE DRAFT OF THE STAFF REGULATIONS AS FAR AS THE PAYMENT OF FAIR COMPENSATION FOR THE DAMAGE SUFFERED IS CONCERNED .

6 . THE QUESTION WHETHER AN ACTION IS UNREASONABLE AND VEXATIOUS AND FOR THIS REASON JUSTIFIES AN ORDER THAT THE APPLICANT MUST PAY THE COSTS MUST BE DETERMINED SUBJECTIVELY FROM THE POINT OF VIEW OF THE APPLICANT .