P . 367
A - JURISDICTION AND ADMISSIBILITY
IN THIS CASE THE COURT'S JURISDICTION ARISES UNDER ARTICLE 42 OF THE TREATY READ TOGETHER WITH ARTICLE 17 OF THE APPLICANT'S CONTRACT OF EMPLOYMENT WHICH REFERS TO " THE TERMS OF THE RULES OF PROCEDURE IN FORCE "; ALL THE VARIOUS VERSIONS OF THE RULES OF PROCEDURE OF THE COMMON ASSEMBLY HAVE CONTAINED AN ARTICLE CONFERRING JURISDICTION UPON THE COURT .
THE DEFENDANT MAINTAINS THAT, SINCE THE APPLICANT CLAIMS THE ANNULMENT OF A DECISION AFFECTING HIM, THE JURISDICTION OF THE COURT IS GOVERNED AND LIMITED BY THE PROVISIONS OF ARTICLE 38 OF THE TREATY, UNDER WHICH THE APPLICATION IS INADMISSIBLE .
NEVERTHELESS THE GENERAL WORDING OF ARTICLE 42 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 MATTERS 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 INFRINGED, THE ANNULMENT OF A MEASURE INFRINGING THEM CANNOT BE EXCLUDED IN AN APPROPRIATE CASE .
THEREFORE THE COURT HAS JURISDICTION TO HEAR THIS CASE AND THE APPLICATION IS ADMISSIBLE .
B - THE PURPOSE OF THE APPLICATION
IN HIS ORIGINATING APPLICATION THE APPLICANT LAUNCHES A GENERAL ATTACK ON THE DECISION OF THE BUREAU OF THE COMMON ASSEMBLY OF 25 NOVEMBER 1955 ( IN CONJUNCTION WITH ORDER NO 1087 OF THE PRESIDENT OF THAT INSTITUTION DATED 13 DECEMBER 1955 ).
THE DISCUSSIONS AND DECISIONS OF THE BUREAU ON THAT DAY ACCORDING TO THE MINUTES OF PROCEEDINGS OF THAT SITTING WERE COMPLEX AND MANY OF THEM ARE INTERCONNECTED .
DURING THE HEARING THE APPLICANT LIMITED HIS CHALLENGE TO THE MANY DECISIONS OF THE BUREAU TO THE ONE ( ITEM NO 15 OF THE MINUTES ) PROVIDING FOR THE NON-RENEWAL OF HIS CONTRACT AND HAS THEREBY ADMITTED THAT THE INSTITUTION IS ENTITLED TO ORGANIZE ITS ADMINISTRATION IN THE BEST INTERESTS OF THE SERVICE .
P . 368
IN THESE CIRCUMSTANCES THE APPLICANT'S OFFER IN HIS REPLY TO PROVE BY MEANS OF A NEW EXPERT'S REPORT THAT THE REORGANIZATION HAS NOT ACHIEVED ITS OBJECT AS WELL AS THE DEFENDANT'S REQUEST FOR THE PRESENTATION OF EVIDENCE BY EXPERTS WHOM IT CONSULTED ARE TO BE REJECTED AS HAVING NO PURPOSE .
C - THE SUBSTANCE OF THE CASE
THE APPLICANT CONCLUDES FROM THE GENERAL TENOR OF HIS CONTRACT, WHICH ACCORDING TO THE PROVISIONS OF THE THIRD PARAGRAPH OF ARTICLE 7 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS APPEARS TO FORESHADOW THE STAFF REGULATIONS, THAT HE HAS A RIGHT " ANTE-DATING THE STAFF REGULATIONS " TO PREVENT THE DEFENDANT FROM TERMINATING THE RELATIONSHIP BETWEEN THE PARTIES, EVEN THOUGH SUBJECT TO A FIXED TERM, EXCEPT FOR COMPELLING REASONS .
BY LIMITING THE DURATION OF THE CONTRACT TO A FIXED TERM THE INTENTION OF THE PARTIES WAS TO PROVIDE FOR A TRANSITIONAL SITUATION MADE NECESSARY IN VIEW OF THE TIME REQUIRED TO DRAFT STAFF REGULATIONS .
THE DEFENDANT DOES NOT DISPUTE THIS EXPLANATION BUT, IN SO FAR AS THE NON-RENEWAL OF THE CONTRACT IS CONCERNED, RELIES ON THE FACT THAT SINCE MR BOURGAUX'S POST HAD BEEN ABOLISHED IT COULD NOT CONTINUE TO EMPLOY HIM IN THE SERVICE .
IN FACT FOLLOWING A REORGANIZATION OF ITS ADMINISTRATION FOR REASONS OF ECONOMY IT EFFECTED STAFF REDUCTIONS AFTER CONSULTING EXPERTS IN THIS FIELD .
IN PARTICULAR, SINCE THE NUMBER OF HEADS OF DEPARTMENT AND HEADS OF DIVISION WAS REDUCED BY TWO UNITS, THE APPLICANT COULD NOT BE KEPT ON IN HIS GRADE UNLESS ANOTHER SERVANT OCCUPYING A POST UNAFFECTED BY THE STAFF REORGNIZATION WAS DISMISSED .
IN THIS RESPECT IT IS APPROPRIATE TO OBSERVE THAT IN THIS CASE THERE WAS A COMPLETE RECONSTRUCTION OF THE ASSEMBLY'S ADMINISTRATION FOLLOWED BY A REALLOCATION OF POSTS .
FIVE POSTS OF HEADS OF DEPARTMENT OR DIVISION WERE ABOLISHED AND THREE NEW POSTS WERE CREATED .
IN THESE CIRCUMSTANCES THE PROBLEM TO BE RESOLVED WAS WHICH OF THE FIVE HOLDERS OF THESE POSTS WERE TO BE GIVEN THE THREE NEW POSTS .
ALTHOUGH THE SELECTION WAS WITHIN THE DISCRETION OF THE BUREAU OF THE COMMON ASSEMBLY, IT IS NEVERTHELESS APPROPRIATE TO CONSIDER WHETHER IT HAS BEEN PROPERLY EXERCISED OR WHETHER THE RELEVANT DECISION, AS THE APPLICANT CLAIMS, AMOUNTS TO A MISUSE OF POWERS EITHER BECAUSE A RIGHT VESTED IN HIM BY VIRTUE OF HIS GRADE AND SENIORITY WAS WILFULLY DISREGARDED OR BECAUSE IT WAS A CONCEALED DISCIPLINARY MEASURE .
THE SELECTION SHOULD HAVE BEEN DETERMINED BY PERSONAL QUALIFICATIONS HAVING REGARD TO THE ABILITIES REQUIRED FOR EACH NEW POST TOGETHER WITH EXPERIENCE IN THE RELEVANT FIELD .
P . 369
IN THIS CASE THE APPLICANT'S PREVIOUS DUTIES HAD BEEN SPREAD OVER SEVERAL DIVISIONS .
THE DISMISSAL OF OTHER EMPLOYEES WHO WERE ALREADY IN POSITIONS OF AUTHORITY COULD NOT BE JUSTIFIED SINCE THE INTERESTS OF EVERYONE AFFECTED DESERVED EQUAL CONSIDERATION .
MOREOVER THERE WAS NO REASON WHY THE DEFENDANT SHOULD DECIDE TO ASSIGN ONE OF THE POSTS TO THE APPLICANT RATHER THAN TO THE THREE OTHER RECLASSIFIED EMPLOYEES WHOSE ABILITY HAS NEVER GIVEN GROUNDS FOR CRITICISM .
THERE ARE THEREFORE NO GROUNDS FOR THE VIEW THAT THE APPLICANT WAS THE VICTIM OF A DECISION BASED ON REASONS OTHER THAN THE EXIGENCIES OF THE SERVICES .
NEITHER CAN THE COURT SUBSCRIBE TO THE VIEW THAT THE SELECTION ADVERSELY AFFECTING THE APPLICANT AMOUNTED TO A CONCEALED SANCTION .
ALTHOUGH MR BOURGAUX'S PERSONAL FILE CONTAINING THE CORRESPONDENCE, WHICH WAS PRODUCED TO THE COURT, SHOWS THAT CERTAIN DIFFICULTIES AROSE BETWEEN HIM AND HIS SUPERIORS, IT ALSO APPEARS FROM THESE LETTERS, WHICH MAKE IT CLEAR THAT HE WAS HIGHLY REGARDED, AND FROM THE DEFENDANT'S STATEMENTS AT THE HEARING, THAT THE COMMON ASSEMBLY HAD NO CAUSE TO CRITICIZE HIM .
AS FAR AS CONCERNS THE UNFAVOURABLE VIEWS EXPRESSED BY THE SECRETARY GENERAL OF THE ASSEMBLY RECORDED IN STATEMENTS COMMUNICATED TO THE PRESIDENT, WHICH SURPRISINGLY CONTRADICT THE RECOMMENDATIONS ALREADY CONTAINED IN THE DOCUMENTS CLEARLY REFERRED TO, IT MAY BE NOTED, WITHOUT ITS BEING NECESSARY TO CONSIDER THEIR MORE OR LESS CONFIDENTIAL NATURE, THAT THERE IS NOTHING TO SHOW THAT THEY WERE BROUGHT TO THE NOTICE OF THE BUREAU AND INFLUENCED ITS DECISION, ESPECIALLY AS THE ONLY IMPORTANT OPINION, THAT OF 27 JANUARY 1955, WAS GIVEN ALMOST ONE YEAR BEFORE THE CONTESTED MEASURE .
THIS SUBMISSION IS THEREFORE UNFOUNDED .
THE APPLICANT'S ARGUMENT THAT THE DEFENDANT SHOULD HAVE OFFERED HIM SOME OTHER SIMILAR POST IN ITS ADMINISTRATION CANNOT BE ACCEPTED, BECAUSE THE REORGANIZATION OF THE DEPARTMENTS MADE SUCH A STEP IMPOSSIBLE . MOREOVER THERE WAS NO OBLIGATION TO OFFER A POSITION SUBORDINATE TO THE ONE WHICH HAD BEEN ABOLISHED, SINCE EVEN THE DRAFT STAFF REGULATIONS ONLY PROVIDE IN SUCH A CASE FOR ENTITLEMENT TO A POST OF THE SAME GRADE AND COMPENSATION IF SUCH REINSTATEMENT IS IMPOSSIBLE; FURTHERMORE THE EXPERT'S OPINION DOES NOT MENTION SUCH A POSSIBILITY AND THERE IS NO GROUND FOR ASSUMING THAT ANY SUCH POST WOULD HAVE BEEN AVAILABLE .
THE APPLICANT SUBMITS IN THE ALTERNATIVE THAT THE EFFECT OF THE REFUSAL TO INCORPORATE HIM IN THE REORGANIZED ADMINISTRATION OF THE ASSEMBLY SHOULD NOT HAVE BEEN THE COMPLETE TERMINATION OF ALL LEGAL RELATIONS BETWEEN THE PARTIES BUT THE ASSIGNMENT TO HIM OF NON-ACTIVE STATUS TOGETHER WITH ALL THE ATTENDANT CONSEQUENCES OF SUCH A STEP, FOR INSTANCE THAT HE MIGHT HAVE A PRIOR CLAIM TO BE REINSTATED AND, IF THIS PROVED TO BE IMPOSSIBLE, THE RIGHT TO A PENSION .
HE BASES THIS SUBMISSION ON THE PROVISIONS OF THE STAFF REGULATIONS OF THE COMMUNITY WHICH HE MAINTAINS WERE ADOPTED BY THE COMMITTEE OF PRESIDENTS ON 12 DECEMBER 1955 AND REPLACED THE PROVISIONAL STAFF REGULATIONS OF 1 JULY 1953 . HOWEVER THE CONSTRUCTION WHICH THE APPLICANT WISHED TO PLACE UPON THE DECISION OF THE COMMITTEE OF PRESIDENTS IS WRONG .
P . 370
THIS DECISION WAS ONLY CONCERNED WITH THE PROVISIONS OF THE DRAFT REGULATIONS AND THIS MOREOVER DID NOT PREVENT DRAFT AMENDMENTS FROM BEING DISCUSSED AT THE MEETING OF THE COMMITTEE OF PRESIDENTS ON 28 JANUARY 1956 . THE EXPRESSION " FINAL ADOPTION " THEREFORE HAD NO RELEVANCE EXCEPT WITHIN THE COMMITTEE OF PRESIDENTS AND THE DATE OF THE ENTRY INTO FORCE OF THE STAFF REGULATIONS IN THE VARIOUS INSTITUTIONS WAS STILL INDETERMINATE, SINCE IT IN FACT DEPENDED ON THE COMPLETION OF THE ANNEXES APPLICABLE TO EACH INSTITUTION AND ON THE DRAWING UP BY A JOINT COMMITTEE OF THE GENERAL PROVISIONS WITHOUT WHICH THE STAFF REGULATIONS COULD NOT BE APPLIED .
EVEN IF THE STAFF REGULATIONS HAD BEEN APPLICABLE BEFORE THEIR ENTRY INTO FORCE AND PUBLICATION AND HAD REPLACED THE PROVISIONAL REGULATIONS AS SOON AS THEY HAD BEEN " ADOPTED ", THE POSITION STILL REMAINS THAT THEIR PROVISIONS ON THE ASSIGNMENT OF NON-ACTIVE STATUS WOULD NOT HAVE APPLIED TO THE APPLICANT SINCE HE HAD NOT PREVIOUSLY BEEN ESTABLISHED .
THIS SUBMISSION MUST THEREFORE BE REJECTED AS UNFOUNDED .
THE POSITION IS THE SAME WITH REGARD TO THE ARGUMENT THAT THE STAFF REGULATIONS APPLIED DE FACTO, WHICH IS INFERRED FROM THE FACT THAT FOLLOWING A REQUEST BY EMPLOYEES OF THE COMMON ASSEMBLY TO THE PRESIDENT THAT THE STAFF REGULATIONS MIGHT BE APPLIED TO THEM, ORDERS ISSUED BY HIM PROVIDED ON THEIR BEHALF FOR A SPECIAL FORM OF EXTENSION OF THEIR CONTRACTS, WHICH AMOUNTED IN PRINCIPLE TO THE REVOCATION AS FROM 31 DECEMBER 1955 OF THE PROVISIONAL STAFF REGULATIONS OF 1 JULY 1953 BUT RETAINING IN AN ANNEX THE PROVISIONS THEREIN MENTIONED UNTIL THE DATE WHEN THE DEFINITIVE STAFF REGULATIONS ENTERED INTO FORCE .
THE APPLICANT HOWEVER COULD NOT DERIVE ANY BENEFIT FROM SUCH AN EXTENSION BECAUSE THE NEW STAFF ORGANIZATION GOVERNED BY THE ABOVE-MENTIONED REGULATIONS ENTERED INTO FORCE ON 1 JANUARY 1956, BUT DID NOT PROVIDE A POST FOR HIM .
FINALLY, THE APPLICANT CLAIMS THAT, SINCE HIS CONTRACT WAS CONCLUDED BEFORE THE ENTRY INTO FORCE OF THE STAFF REGULATIONS, IT GIVES HIM THE RIGHT TO HAVE APPLIED TO HIM IN ADVANCE THE PROVISIONS OF THE STAFF REGULATIONS RELATING TO THE POSSIBILITY OF THE ABOLITION OF A POST AND IN PARTICULAR THE ASSIGNMENT OF NON-ACTIVE STATUS .
THERE ARE HOWEVER IN THIS CASE NO GROUNDS FOR THE DIRECT APPLICATION IN THEIR ENTIRETY OF THE RULES RELATING TO ASSIGNMENT OF NON-ACTIVE STATUS, WHICH WOULD AMOUNT TO THE APPLICATION IN ADVANCE OF A DRAFT WHICH WAS STILL IN THE PROCESS OF BEING DRAFTED .
FURTHERMORE THE STAFF REGULATIONS COULD NOT IN ANY CIRCUMSTANCES APPLY TO THE APPLICANT AS OF RIGHT, BECAUSE HE HAS NOT BEEN ESTABLISHED, WHICH IS A CONDITION PRECEDENT TO THEIR APPLICATION, AND BECAUSE THE RELEVANT BUDGET RULES AND ESTIMATES HAD NOT BEEN DRAWN UP .
WHEN THE BUREAU OF THE COMMON ASSEMBLY TOOK ITS DECISION IT HAD TO BE GUIDED BY THE PROVISIONS OF THE DRAFT STAFF REGULATIONS GOVERNING THE CONSEQUENCES OF ABOLITION OF A POST .
P . 371
IN THIS CONNEXION THE BUREAU OF THE ASSEMBLY DECIDED TO AWARD THE APPLICANT NOT ONLY THE MINIMUM COMPENSATION PROVIDED FOR UNDER ARTICLE 15 OF HIS CONTRACT BUT ALSO COMPENSATION EQUAL TO HIS ENTIRE SALARY FOR TWO COMPLETED YEARS . THE COMPENSATION WHICH THE BUREAU OF THE ASSEMBLY HAS THUS AWARDED THE APPLICANT IS IN KEEPING WITH ITS OBLIGATION TO BE GUIDED BY THE RULES SPECIFIED IN THE DRAFT STAFF REGULATIONS, EVEN THOUGH THE DEFENDANT REFERRED IN ITS ORAL ARGUMENT TO DRAFT REGULATIONS WHICH AT THE TIME HAD BEEN WITHDRAWN AND REPLACED .
MOREOVER THE APPLICANT HAS NOT MADE ANY COMPLAINT AS TO THE AMOUNT OF THE COMPENSATION GRANTED .
THIS SUBMISSION IS UNFOUNDED .
THE APPLICANT'S APPLICATION MUST BE DISMISSED .
THE PARTIES HAVE FAILED IN SOME OF THEIR SUBMISSIONS AND IN PARTICULAR THE DEFENDANT HAS FAILED IN ITS SUBMISSION THAT THE APPLICATION IS INADMISSIBLE; IT WOULD THEREFORE BE APPROPRIATE FOR THE PARTIES TO BEAR THEIR OWN COSTS .
IN THIS CASE THE DEFENDANT SUBMITS THAT MR BOURGAUX'S APPLICATION IS FRIVOLOUS AND VEXATIOUS AND THAT HE SHOULD THEREFORE BE ORDERED TO BEAR THE ENTIRE COSTS . ALTHOUGH THE COURT HAS OBJECTIVELY ACKNOWLEDGED THAT THE INSTITUTION, WHICH RELIES ON THE FACT THAT OWING TO THE REORGANIZATION OF ITS DEPARTMENTS IT COULD NOT KEEP THE APPLICANT ON ITS STAFF, HAS ACTED IN GOOD FAITH, THE APPLICANT FROM HIS POINT OF VIEW MIGHT DOUBT WHETHER HIS REDUNDANCY WAS UNAVOIDABLE ESPECIALLY IN VIEW OF THE FACT THAT THE DEFENDANT'S BEHAVIOUR WAS, AS MENTIONED ABOVE, TO SOME EXTENT EQUIVOCAL .
AS THE APPLICATION WAS THEREFORE NOT VEXATIOUS THE COURT DECIDES THAT THE PARTIES MUST BEAR THEIR OWN COSTS .
THE COURT
HEREBY :
DECLARES THAT MR BOURGAUX'S APPLICATION IS ADMISSIBLE;
DISMISSES MR BOURGAUX'S APPLICATION AS UNFOUNDED;
ORDERS EACH PARTY TO BEAR ITS OWN COSTS .
