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- Herausgeber: Duncker & Humblot
- Kategorie: Fachliteratur
- Sprache: Englisch
Gerhard Ullrich provides an overall review of the employment law of international intergovernmental organisations. In the first part of the book, he explains the basics of employment law and provides statistical data. He comments extensively on the privileges and immunities of international officials. The core of the book is dedicated to the examination of the legal sources for international civil service law. Here, the international administrative tribunals' case law on the general principles of law occupies a particularly broad area. A second legal source are the structures and elements of the statutory employment in international organisations. The author finally comments on the system of legal protection for the staff of the international civil service. Despite the differences in the employment laws across international organisations, in many aspects it is more than justified today to speak of a unity of the law of the international civil service within diversity. This trend continues. With his overall presentation of the law of the international civil service, Gerhard Ullrich makes an important practice-oriented and legal-dogmatic contribution to this increasingly important part of international institutional law.
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Veröffentlichungsjahr: 2019
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GERHARD ULLRICH
The Law of the International Civil Service Institutional Law and Practice in International Organisations
The Law of the International Civil Service
Institutional Law and Practice in International Organisations
By
Gerhard Ullrich
Duncker & Humblot · Berlin
Bibliographic information published by the Deutsche Nationalbibliothek
The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de.
Enlarged, updated, and translated edition published in the year 2009 by Duncker & Humblot Gerhard Ullrich: Das Dienstrecht der Internationalen Organisationen. Institutionelles Völkerrecht, Recht und Praxis. ISBN 978-3-428-12947-8.
All rights reserved. © 2018 Duncker & Humblot GmbH, Berlin Printing: CPI buchbücher.de gmbh, Birkach Printed in Germany
ISBN 978-3-428-14914-8 (Print) ISBN 978-3-428-54914-6 (E-Book) ISBN 978-3-428-84914-7 (Print & E-Book)
Printed on no aging resistant (non-acid) paper according to ISO 9706 ♾
Internet: http://www.duncker-humblot.de
Preface
In a world of increasing globalisation, sovereign states, as the classic actors in international relations, find themselves in growing need of transnational cooperation. More than ever, international organisations are important players in global governance and the interdependency of states. In coping with world issues such as climate change, financial stability, poverty, ageing populations and terrorism, the tasks of international organisations have taken on a new dimension. While the material tasks and fields of competence of international organisations range across all aspects of human life, the structures of the institutional law of international organisations have much in common. Indeed, international organisations face similar problems in the context of their institutional law and one international organisation will frequently rely extensively on the proven experience of others. This is especially true for the employment law of international organisations. When setting up their rules of employment, they do not re-invent the wheel but take inspiration from the civil service law of comparable existing organisations. This book categorises the various civil service rules of organisations into four schemes, it aims at contributing to a better understanding of the similarities and differences of the employment law of international organisations.
Since the first edition of this book in 2009, the law of the international civil service has undergone substantial changes.
The global financial crisis was not without repercussion for the financing of international organisations. As a result, most organisations have introduced moderation and exception clauses into their regular salary adjustment systems.
The increase in life expectancy is leading to a lengthening of the time during which pension benefits are being paid out. In parallel to national legislation, ever more organisations have shifted the right to an unreduced pension payment to a higher retirement age and reduced the yearly rates of acquired pension claims, or even replaced the defined benefit scheme by a defined contribution scheme.
In other fields of institutional law, like data protection, measures against corruption, whistle-blowing and harassment, there has been a flood of new rulings with an impact on the employment law of international organisations.
The first addition of this book was published in German in 2009. Many people have assisted me in the accomplishment of this book. I would like to repeat the acknowledgment of the previous edition of this book to my former colleagues. In order to achieve a wider circulation of this book it has been decided to publish this edition in English, the lingua franca of international organisations today.
Munich, April 2018
Gerhard Ullrich
Table of Contents
Introduction
A.
The civil service law of international organisations – unity within diversity
B.
Objectives
Part 1
Basic elements
Chapter 1
The international organisations
A.
The legal nature of international organisations
B.
The classification of international organisations
C.
Other types of international organisations
I.
Supranational organisations
II.
Non-governmental organisations
D.
The number of public international organisations
Chapter 2
The employment law of the international civil service
A.
Legal basis for the employment law of the international organisations
I.
The organisational sovereignty
II.
The autonomous sovereignty in personnel matters
III.
The drafting of service regulations (secondary law) prior to the entry into force of the constituent instrument (primary law)
IV.
The development of the service regulations
V.
The influence of the jurisprudence
VI.
The power to initiate proposals to amend the service regulations
B.
The four large civil service systems of the international organisations as
pars pro toto
I.
General introduction
II.
The systems
1.
The UN Common System
2.
The civil service system of the EU
3.
The civil service system of the co-ordinated organisations (CO)
4.
The mixed (hybrid) civil service system
III.
The unity of the employment systems of international organisations
IV.
The dual role of international organisations as an employer and a substitute state
V
The numbers of staff members in international organisations
1.
The numbers of staff members in organisations participating in the UN Common System
2.
The number of staff members participating in the civil service system of the EU
3.
The number of staff members participating in the civil service system of the co-ordinated organisations
4.
The number of staff members participating in some organisations of the mixed system
5.
The total number of staff members employed by international organisations
6.
The number of retired staff members
C.
The law of the international civil service and national law
D.
The privileges and immunities of the international organisations and international civil servants
I.
Legal basis
1.
The privileges and immunities of international organisations
2.
The privileges and immunities of staff members, their family members, and other persons performing functions for the organisation
a)
The personal scope of privileges and immunities
b)
The geographical scope of privileges and immunities
II.
Immunity of staff members and inviolability of official documents
1.
The immunity of staff members in respect of official acts
2.
The attachment of earnings
3.
The assignment of earnings
4.
Inviolability of documents
5.
Personal immunities of high officials
III.
Fiscal privileges of active staff members
1.
The exemption of salaries from national taxation
2.
Internal taxation
3.
Progressive taxation
4.
Additional privileges for high officials
5.
The privileges of other persons
6.
The exemption of invalidity benefits from national taxation
IV.
The taxation of pensions
V.
Other fiscal privileges
VI.
Exemption from compulsory national social security schemes
VII.
Various other privileges and facilities
1.
General
2.
Facilities concerning immigration, right of residence and repatriation
3.
Laissez-passer
4.
Working permits for spouses
5.
Private servants
6.
International crisis
7.
Exemption from military service
8.
Tax and duty-free purchase of goods
E.
The liability for employment derived damages
I.
The liability of the organisation
II.
The liability of the official
F.
The criminal responsibility of the officials
Part 2
The sources of international civil service law
Chapter 1
Statutory employment law and general legal principles – basics and survey
Chapter 2
The general legal principles of the international civil service law
A.
Introduction
I.
The concept of general principles of law
II.
The derivation of general legal principles applicable to the law of the international civil service
1.
General
2.
Special derivations
III.
General legal principles as superior rules of law
IV.
The general legal principles as a basis for the incidental (indirect) review of staff regulations
V.
The dynamic nature of general legal principles
VI.
The limitations of the general legal principles
1.
The limitations in general
2.
The codified limitations of the general legal principles
3.
The guarantee of the very essence of a general legal principle
VII.
The guarantee of social security and participation rights
VIII.
The doctrine of special status
IX.
Methods of interpretation in public international law
X.
The methods of interpretation applied by the international administrative tribunals
B.
The application of human (fundamental) rights in the international civil service
I.
The protection of human dignity at work
1.
General
2.
Psychological (moral) and sexual harassment
II.
Protection of privacy
III.
Data protection
IV.
The principle of equal treatment and non-discrimination
V.
Freedom of association, assembly and trade union matters
1.
General information
2.
Staff committees
3.
Trade unions
4.
Other groupings
5.
Collective bargaining
6.
The right to strike
a)
The principle
b)
Content and scope of the right to strike
7.
The freedom of assembly
VI.
The freedom of expression
VII.
The right to property
VIII.
Freedom of thought, conscience and religion
IX.
The right to a safe and healthy working environment
X.
The right to an effective remedy and to a fair trial
XI.
Excursus: Immunity of international organisations from national jurisdiction in staff matters
1.
The jurisprudence of the ECHR
2.
The German Federal Constitutional Court (Bundesverfassungsgericht)
3.
The Supreme Court of the Netherlands (Hoge Raad)
4.
The Belgian Supreme Court (Cour de Cassation)
5.
Other Supreme and Appeal Courts
C.
Objective legal principles of the international civil service law
I.
The derivation
II.
The principle of legality
1.
The administration
a)
General
b)
Reasonable discretion and value judgments
c)
Areas of judicial discretion
aa)
Appointment, promotion, selection board
bb)
Benefits/allowances
cc)
Disciplinary measures
dd)
Dismissal/termination of contract
ee)
Extension of retirement age limit
ff)
Facilities granted to staff union
gg)
Leave
hh)
Immunity
ii)
Organisational measures
jj)
Patere legem
kk)
Probation
ll)
Renewal/extension of contract
mm)
Salary adjustment
nn)
Seniority (prior experience)
oo)
Staff (appraisal, performance) reports
pp)
Transfer/reassignment
qq)
Vacancy notice
rr)
Miscellaneous
d)
Misuse of authority (non-discretionary decisions)
2.
The legislative power
III.
Legal certainty (stability in law)
1.
General
2.
Deadlines for complaints and appeals
3.
Limitation periods for claims
4.
Res judicata
and
stare decisis
5.
Clarity and precision of acts, rules and applications
6.
Revocation or alteration of decisions
7.
Unjust enrichment, recovery of undue payment
8.
The principle of non-retroactivity
9.
Delegation of authority
IV.
The principle of proportionality
V.
The principle of good faith
(bona fide),
fairness, equity and estoppel
VI.
Good administration and due process
1.
General
2.
The duty to state grounds of decisions
3.
The right to be heard (right to reply)
4.
Reasonable periods for decisions
D.
The specific general legal principles of the international civil service
I.
The introduction
II.
The principle of the protection of legitimate expectation
1.
The principle in general
2.
The assurance (promise)
3.
The principle of acquired rights
a)
The doctrine of acquired rights as applied by the judicature of the ILOAT
aa)
General introduction
bb)
Details
b)
The doctrine of acquired rights as applied by the judicature of the CJEU
4.
The protection of legitimate expectation in the renewal or extension of fixed-term contracts
5.
The principle of stability, foreseeability and a clear understanding of the results of a salary adjustment method
6.
The withdrawal of an administrative decision
7.
The recovery of undue payment
8.
The right to information
III.
The principle of unimpeded accomplishment of tasks of the organisation
1.
The privileges and immunities
2.
The independence of the organisation and its staff
3.
The Noblemaire and Fleming principles
4.
Facilitating the possibility for staff members to retain personal links with the place of origin
IV.
Other specific legal principles
1.
Participation rights
a)
The right of the staff associations to consultation
aa)
General introduction
bb)
The activities of staff committees
cc)
Facilities provided to staff committees
dd)
The details of the right to consultation
b)
Co-determination
2.
The right to receive care and assistance
a)
General introduction
b)
The duty to provide care (solicitude)
c)
The duty of assistance
3.
The
patere legem
principle
4.
The hierarchy of norms
5.
The right to material and moral damages
a)
General introduction
b)
The competences of international administrative tribunals
c)
Actions for annulment and damages in detail
aa)
Action for annulment
bb)
Action for damages
Chapter 3
The typical structures and elements of employment rules
A.
The legal nature of employment
I.
Permanent staff
II.
Contract staff
1.
Continuing appointments
2.
Fixed-term and temporary staff
III.
Local staff
IV.
Non-staff personnel
1.
Contractors
2.
Temporary agency staff
3.
Trainees
4.
De facto
employment relationship
V.
Structures of employment
B.
Recruitment, development and termination of employment
I.
Recruitment
1.
General introduction
2.
The recruitment procedure
a)
The publication of the vacancy notice
b)
The admittance to the selection procedure (pre-selection, prescreening)
c)
The selection process
aa)
The selection committee
bb)
The assessment
d)
Legal review of the selection process
e)
Excursus: The European Personnel Selection Office (EPSO) and the “inspira” system of the UN secretariat
aa)
EPSO of the EU
bb)
The “inspira” system of the UN secretariat
f)
The obligation to give reasons to unsuccessful candidates
g)
The appointment
h)
The probationary period
II.
The development of employment
1.
Career development
a)
General introduction
b)
Advancement in incremental steps
c)
Promotion
aa)
General information
bb)
The appraisal report
cc)
The joint promotion committees and review bodies
dd)
The judicature on promotion
d)
Temporary posting
e)
The transition from one category of grade (functional groups) to the other (vertical transition)
2.
Change of the administrative status
a)
General information
b)
Special leave
aa)
Secondment
bb)
Leave on personal grounds
cc)
Leave for military service
dd)
Assignment to non-active or reserve status
ee)
Parental (paternity) leave
ff)
Family leave
3.
Transfer and reassignment within the organisation
4.
Conversion of appointment (horizontal transition)
5.
Downgrading (demotion)
III.
The termination of employment
1.
General introduction
2.
EU
a)
Officials
aa)
Termination of service
bb)
Assignment to non-active status and resignation
b)
Temporary staff
c)
Contract staff
d)
Unemployment allowance for temporary and contract staff
3.
UN
4.
CoE
5.
EPO
6.
The termination of service due to age
7.
The protection of legitimate expectation in the renewal or extension of fixed-term contracts
C.
Rights and obligations of staff
I.
The rights
1.
Introduction
2.
Entitlement to remuneration
a)
The basic salary
aa)
The amount of salaries in general
bb)
The salary scales
cc)
Examples of the amount of salaries of the international civil service (after deduction of internal tax)
dd)
Adjustment of salaries
ee)
The salary increase
ff)
Payment arrangements
gg)
Forfeit or reduction of salary
b)
Allowances and reimbursement of expenses
aa)
Family allowances
(1)
The household allowance
(2)
Dependency benefits
(3)
The education allowance
(4)
No duplication (overlapping) of benefits
(5)
Excursus: Benefits for staff members in a union of two persons (same-sex marriage, registered partnership, cohabitation agreement etc.) equal to married heterosexual staff members
bb)
The expatriation allowance
(1)
EU
(2)
UN
(3)
CoE
(4)
EPO
cc)
Rent allowance (rental subsidy)
dd)
Service allowances
(1)
Language allowance
(2)
Overtime compensation/remuneration
(3)
Compensation for night work, shift and on-call duty, work on Sundays, Saturdays and public holidays
(4)
Compensation for temporarily performing duties of a post in a higher grade
(5)
Early termination indemnity
(6)
Compensation for protection of confidence (compensatory allowance)
ee)
Reimbursement of expenses
(1)
Expenses for official journey
(2)
Removal costs and travel expenses related to recruitment, transfer and termination of service
(3)
Travel expenses to the place of origin
(4)
Residence allowance and accommodation expenses
(5)
Installation allowance, resettlement allowance
(6)
Other expenses
(7)
Extinctive prescription
3.
The remuneration adjustment systems
a)
The adjustment systems of the EU, the CO, the EPO, CERN and ESO
b)
Exceptions from the regular adjustment procedure
aa)
The EU
bb)
The CO
cc)
The EPO, CERN and ESO
c)
The adjustment system of the UN-CS
4.
The social security
a)
General
b)
The social security system in case of illness, maternity, birth, longterm care, unemployment and in case of hardship
aa)
Health care
(1)
Claims
(2)
Premiums and contributions
(3)
Benefits
(4)
Funding of the health insurance
bb)
Paid sick leave
cc)
Long-term care insurance
dd)
Protection against unemployment
ee)
Paid leave in the event of maternity and adoption, unpaid parental or family leave, birth grant, allowances for parental and family leave, paid special leave
ff)
Hardship
gg)
Special issues
(1)
Short-term employment, local staff
(2)
Former staff
c)
Retirement pensions, invalidity (pensions, allowances) and death benefits
aa)
Retirement benefits
bb)
The general structure of pension systems
cc)
General prospects for pension entitlements
dd)
Special issues concerning retirement benefits
(1)
The rate of contributions
(2)
The level of benefits
(3)
The DCPS more in detail
ee)
Taxation of retirement benefits
ff)
Attachment and subrogation of retirement benefits
gg)
Individual retirement benefits
(1)
Conditions of entitlement
(2)
Commencement of entitlement
(3)
Yearly accrual rate of pension benefits
(4)
Maximum and minimum rate of pensions
(5)
The salary taken as calculatory basis for the pension benefits
(6)
Pension benefits for surviving spouses and dependants
(7)
Inward and outward transfer of pension rights
(8)
Taxation of pensions
(9)
Allowances
(10)
) Annual adjustment of pensions
hh)
Permanent invalidity and death benefits
(1)
General benefits
(2)
Occupational disease and accident at work
(3)
Taxation of invalidity benefits
5.
The pension schemes of international organisations
a)
Introduction
b)
Legal structures of the pension schemes
c)
Actuarial balance of pension schemes
d)
Legal protection of beneficiaries
e)
Financing guarantee of the pension scheme
aa)
During the existence of the international organisation
bb)
After dissolution of the international organisation
(1)
Pensions
(2)
Health and long-term care insurance
f)
Legal status of the pension (reserve) funds
6.
Brief overview of major pension and pension reserve funds of international organisations
a)
The United Nations Joint Staff Pension Fund (UNJSPF)
b)
The CERN/ESO Pension Fund
c)
The EPO Reserve Funds for Pensions and Social Security (EPO-RFPSS)
d)
The Scheme Assets of the European Central Bank
e)
The Pension Reserve Funds of the co-ordinated organisations
7.
Other rights
a)
Leave entitlements
aa)
Survey
bb)
Annual leave
cc)
Leave on personal grounds
dd)
Home leave
ee)
Public holidays
b)
The right to assistance and vocational training
aa)
Assistance
bb)
Vocational training
c)
Protection of dignity and professional reputation
d)
Occupational safety and health (OSH)
e)
Privileges and immunities
f)
Right to compensation for damages
g)
Legal protection
h)
The right to inspect the personal file
i)
Data protection
j)
Other benefits
8.
Collective rights of staff
a)
Survey
b)
The staff committees
aa)
General remarks
bb)
Facilities provided to staff committees
cc)
Formal participation in staff matters
dd)
Informal participation in staff matters
ee)
Co-determination
ff)
The right of staff committees to file complaints
c)
Trade unions and professional associations
aa)
Statutes of international trade unions
bb)
The right to strike
cc)
Framework agreements of international organisations with staff unions
II.
Duties and breach of duties
1.
Survey
2.
Public service obligations
a)
The duty to provide service
aa)
The duty to execute orders (duty to obey, subordination)
bb)
Hours of work, unauthorised absence
cc)
Place of work
dd)
Overtime, shift work, on-call duty
b)
Additional duties, which directly ensure the duty to provide service
aa)
Duty of residence
bb)
Duty to notify violations of privileges and immunities
cc)
Duty to transfer industrial property rights
dd)
Recovery of undue payment
ee)
Duty to undergo a medical examination
c)
Other obligations
3.
Duty of conduct
a)
The duty of loyalty and allegiance
b)
The duty of integrity
aa)
The duty of independence, impartiality and incorruptibility
bb)
The duty of maintaining discretion and secrecy
cc)
The duty to report possible illegal activity
dd)
The duty to respect the law and ethical standards
ee)
The duty to respect the dignity of colleagues (psychological and sexual victimisation)
ff)
Excursus: The duty of conduct and the freedom of expression
4.
Legal consequences for breaches of duties
a)
General
b)
Disciplinary and administrative consequences
aa)
Disciplinary measures
bb)
Disciplinary proceedings
c)
Hidden disciplinary measures
d)
Non-disciplinary actions and recourse claims
Part 3
The system of legal protection for the international civil service – The international administrative tribunals
Chapter 1
General
A.
The obligation to grant legal protection
B.
The legal basis for establishing an international administrative tribunal
C.
The limited jurisdiction of the international administrative tribunals
I.
The principle of limited subject matters
II.
The principle of limited remedial powers
III.
The principle of limited standards of judicial review
IV.
Details of the case law of the CJEU, ILOAT, UNDT/UNAT and the CoEAT on the application of general legal principles as standards for their judicial review
D.
The international administrative tribunals as genuine judicial organs
E.
The legal status of the international administrative tribunals and their judges
F.
The number of international administrative tribunals
G.
The success rate of complaints
H.
Legal assistance for staff in employment disputes
I.
Conflict of jurisdiction
J.
Alternative dispute resolution (ADR) mechanisms (arbitration, mediation, ombudsman services)
I.
Overview
II.
Internal ADR mechanisms
Chapter 2
International administrative tribunals and their legal proceedings
A.
International administrative tribunals
I.
Unity within diversity
II.
ADR and court proceedings
1.
The UNDT
2.
The CJEU
3.
The ILOAT
B.
The most important international administrative tribunals
I.
Tribunals extending their jurisdiction to several international organisations
1.
The ILOAT
2.
The UNDT and the UNAT
3.
The CJEU (CJ, GC, CST)
4.
The Administrative Tribunal of the World Bank Group (WBAT)
5.
The Administrative Tribunal of the Council of Europe (CoEAT)
6.
The Administrative Tribunal of the Organization of American States (TRIBAD)
II.
The tribunals competent for individual organisations
1.
The tribunals of the co-ordinated organisations
2.
The Administrative Tribunal of the International Monetary Fund (IMFAT)
3.
The African Development Bank Administrative Tribunal
4.
The Asian Development Bank Administrative Tribunal
5.
The Inter-American Development Bank Administrative Tribunal
6.
The Administrative Tribunal of the European Stability Mechanism (ESMAT)
7.
The Complaints Board of the European Schools
C.
The right to bring an action
(locus standi)
I.
Staff members and legal successors
II.
External candidates for a vacant post
III
.
De facto
employment relationships
IV
Experts, independent contractors and agency staff
V.
Locus standi
of staff committees and trade unions
VI.
Limited right of the organisation itself to bring an action
D.
Persons taking part in the proceedings
I.
Representation by another staff member or by a legal counsel
II.
Intervention
III.
Friend-of-the-court briefs
(amicus curiae
briefs)
E.
The admissibility of a complaint
I.
Overview, general questions and preconditions for admissibility
1.
The formal conditions of an application
2.
Examination of admissibility
proprio motu
3.
Strict application of the rules regarding admissibility
4.
Misdirection of an appeal
5.
Summary dismissal
6.
Types of admissible actions
7.
Filing fees (deposit)
8.
Precise terms of the claims
9.
Waiver to bring an action
10.
Amicable settlement of a dispute
II.
The specific admissibility requirements of a complaint
1.
Overview
2.
Individual and general decisions
a)
The appeals system
aa)
The individual decision
bb)
The general decision
b)
Preparatory, provisional and preliminary acts
c)
Cause of action – the adverse effect of a decision
d)
Confirmatory decisions
e)
Decisions with recurring effect
f)
Consistency between the administrative complaint (pre-litigation procedure) and the legal action
g)
Class actions, representative complaints
h)
The incidental (indirect) challenge of an act of general application (regulatory act)
3.
The direct challenge of a general decision (regulatory act)
a)
General
b)
The special case of the EPO
4.
The formal pre-litigation procedures
a)
Overview
b)
Non-peer administrative review
c)
Administrative review with the involvement of a peer advisory body
d)
The interaction between internal appeal proceedings and court proceedings
aa)
The importance of internal appeals committees
bb)
Consequences of the admissibility of an action brought before the tribunal based on an implied decision
cc)
Internal appeal proceedings and legal actions brought before the ILOAT – interpretation of Art. VII of its statute
e)
Time limits for the internal appeal proceedings
f)
The failure to exhaust the internal appeal proceedings
5.
The time limits for bringing an action
6.
Restitutio in integrum
(Re-establishment of rights)
III.
Interim measures
IV.
Interlocutory judgments/orders
V.
Stay of proceedings
F.
Procedural matters
I.
The principles of procedural law applicable to the international administrative tribunals
1.
General
2.
General legal principles
a)
The essence of the right to a fair trial
b)
Equality of the parties in the court proceedings
c)
Fundamental errors in procedure – failure in justice
d)
Publicity of an oral hearing
e)
International minimum standard of elementary procedural justice
f)
Oral hearing, accessibility, length of proceedings
II.
The proceedings before the tribunals
III.
Evidence and proof
1.
General
2.
The burden of proof
3.
Evidentiary presumption and shifting the burden of proof
4.
Standard of proof, evaluation of evidence
5.
Means of evidence
IV.
Change of claims
V.
Ex tunc
assessment
(tempus regit actum)
VI.
Withdrawal of complaint (discontinuance of proceedings)
VII.
Joinder of cases
VIII.
Prolongation of deadlines
G.
The judgment
I.
Content and other aspects
II.
Application for the interpretation of judgments
III.
Supplementary decisions
1.
Decisions as to costs
2.
Default interest on damages
H.
Res judicata, stare decisis
I.
General
II.
Substantive
res judicata
III.
Right of appeal, review
IV.
Stare decisis
I.
Enforcement (execution)
I.
General
II.
ILOAT Judgments
III.
CJEU Judgments
IV.
UNDT Judgments
Bibliography
Index
Abbreviations
AAFI/AFICS
Association of Former International Civil Servants – Geneva
ADR
Alternative dispute resolution
AöR
Archiv des öffentlichen Rechts (German Law Journal)
Art.
Article
ASG
Assistant Secretary-General of the UN
AT/EPO agreement
Agreement between the EPO and the Republic of Austria concerning the headquarters of the Vienna sub-office of the EPO of 2 July 1990, AT/BGBl. No. 263 of 6 November 1990, pp. 4071 et seq.
BGBl.
Bundesgesetzblatt (German Federal Law Gazette)
CCFSR
Community Charter of Fundamental Social Rights of Workers of 9 December 1989
CCISUA
Co-ordinating Committee for International Staff Unions and Associations of the UN System
CCR
Co-ordinating Committee on Remuneration
CERN
European Organisation for Nuclear Research
CERN/ESO-PF
Pension Fund of CERN and ESO
CFREU
Charter of Fundamental Rights of the European Union
CJEU
Court of Justice of the EU (before 1 December 2009 European Court of Justice)
CJEU (CST)
The European Civil Service Tribunal of the CJEU (until 1 September 2016)
CJEU (GC)
The General Court of the CJEU (before 1 December 2009 Court of First Instance)
CO
co-ordinated organisations
CoE
Council of Europe
CoE-GAPI
General Agreement on Privileges and Immunities of the CoE
CoE-NPS
New Pension Scheme of the CoE (Appendix Vbis CoE-SR)
CoE-SR
Staff Regulations of the CoE
CoE-TPS
Third Pension Scheme of the CoE (Appendix Vter CoE-SR)
CVPO
Community Plant Variety Office
DBPS
Defined benefit pension scheme
DCPS
Defined contribution pension scheme
DE/EPO agreement
Headquarters Agreement between the EPO and the Government of the Federal Republic of Germany of 19 October 1977, DE/BGBl. II No. 17 of 4 April 1978, pp. 337 et seq.
doc.
Document
EC
European Communities
ECB
European Central Bank
[27] ECB-SR
Conditions of employment for staff of the ECB
ECGAB
European Code of Good Administrative Behaviour
ECHR
European Court of Human Rights
ECMWF
European Centre for Medium Range Weather Forecast
EConHR
European Convention for the Protection of Human Rights and Fundamental Freedom
EFTA
European Free Trade Association
EGV
Vertrag zur Gründung der Europäischen Gemeinschaft (TEC, Treaty establishing the European Community)
EIB
European Investment Bank
EIF
European Investment Fund
EJIL
European Journal of International Law
EMBL
European Molecular Biology Laboratory
EP
European Parliament
EPO
European Patent Organisation
EPO (Office)
European Patent Office
EPO-Codex
EPO documents on personnel/policy and personnel/operational matters published on the website of the EPO Administrative Council since 30 September 2015
EPO-EPC
European Patent Convention
EPO-PPI
Protocol of Privileges and Immunities of the EPO
EPO-PRF
Pension Reserve Fund of the EPO
EPO-PS
Pension Scheme regulations and rules of the EPO
EPO-RFPSS
Reserve Funds for Pensions and Social Security of the EPO
EPO-SR
Service Regulations for permanent employees and the conditions of employment of other employees of the EPO
EPPO
European and Mediterranean Plant Protection Office
EPSO
European Personnel Selection Office
ES
European School
ESA
European Space Agency
ESC
European Social Charter
ESM
European Stability Mechanism
ESMAT
Administrative Tribunal of the ESM
ESO
European Southern Observatory
et seq.
and following pages
EU
European Union
EU-CEOS
Conditions of employment of other servants of the EU
EUIPO
EU Intellectual Property Office
EU-PPI
TEU Protocol No. 7 on the privileges and immunities of the EU
EU-PS
Pension Scheme of the EU (Annex VIII of the EU-SR)
EUR-LEX
Database of EU law
Eurocontrol
European Organisation for the Safety of Air Navigation
FAO
Food and Agriculture Organization of the UN
footn.
footnote
[28] GRUR Int
German Journal of Intellectual Property Law and Practice, international part
IAEA
International Atomic Energy Agency
IBRD
International Bank for Reconstruction and Development
ICAO
International Civil Aviation Organization
ICC
International Criminal Court
ICJ
International Court of Justice
ICSC
International Civil Service Commission
ICSID
International Centre for Settlement of Investment Disputes
IDA
International Development Association
IFAD
International Fund for Agricultural Development
IFC
International Finance Corporation
IGO
Intergovernmental IO
IIB
International Patent Institute
ILC
International Law Commission
ILO
Internation Labour Organization
ILOAT
Administrative tribunal of the ILO
IMF
International Monetary Fund
IMFAT
Administrative Tribunal of the IMF
INPADOC
International Patent Documentation Centre
IO
International Organisation(s)
IOLR
International Organizations Law Review
IOM
International Organization for Migration
IPSAS
International Public Service Accounting Standards
IPU
Inter-Parliamentary Union
ISA
International Seabed Authority
ISR
Internationale Steuer Rundschau (German international tax review)
ISRP/SIRP
International Service for Remuneration and Pensions
ITLOS
International Tribunal for the Law of the Sea
ITU
International Telecommunication Union
JIU
Joint Inspection Unit of the UN system
juris
German legal database
LTC
Long-term care
MIGA
Multilateral Investment Guarantee Agency
NATO-SR
Civilian Personnel Regulations of NATO
NGO
Non-governmental IO
NJW
Neue Juristische Wochenschrift (German Law Journal)
NL/EPO agreement
Agreement between the EPO and the Kingdom of the Netherlands concerning the branch of the EPO at The Hague, NL, of 27 June 2006, NL Tractatenblad 2006, No. 155
OAJ
Office of Administration of Justice of the UN
OASAT
Administrative Tribunal of the Organization Of American States (TRIBAD)
OECD
Organisation for Economic Co-operation and Development
[29] ÖGBl.
Österreichisches Gesetzblatt (Austrian Law Gazette)
OJ
Official Journal
OLA
Office of Legal Affairs of the UN
OLAF
European Anti-Fraud Office
Old UNAT
UNAT before 31 December 2009
OPCW
Organisation for the Prohibition of Chemical Weapons
OSCE
Organisation for Security and Co-operation in Europe
OSLA
Office of Staff Legal Assistance of the UNDT/UNAT
P.
page
para.
paragraph(s)
PF
Pension Fund
pp.
pages
PPI
Protocol on Privileges and Immunities
PS
Pension Scheme (Pension Regulation)
R.
Rule
Reg.
Regulation(s)
SG
Secretary-General
SR
Staff Regulations (Staff Rules), Service Regulations
StBl.
Bundessteuerblatt (German Federal Fiscal Tax Gazette)
SUEPO
Staff Union of the EPO
TEC
Treaty establishing the European Community
TEU
Treaty on European Union
TFEU
Treaty on the Functioning of the European Union
Triblex
Database of the ILOAT
UDHR
Universal Declaration of Human Rights
UN
United Nations
UNAT
Administrative Tribunal of the UN
UNBISNET
UN Bibliographic Information System
UN-CPI
Convention on the Privileges and Immunities of the UN
UN-CS
UN Common System
UNDP
United Nations Development Programme
UNDPI
UN Department of Public Information
UNDT
Dispute Tribunal of the UN
UNECOSOC
Economic and Social Council of the UN
UNESCO
UN Educational Scientific and Cultural Organization
UNFPA
United Nations Population Fund
UNGA
General Assembly of the UN
UNIDO
UN Industrial Development Organization
UNJSPF
United Nations Joint Staff Pension Fund
UNODC
UN Office on Drugs and Crime
UNOPS
United Nations Office for Project Services
UN-SG
Secretary-General of the UN
UN-SR
Staff Regulations and Rules of the UN
UN-WTO
UN World Tourism Organization
[30] UPC
Unified Patent Court
USG
Under Secretary-General of the UN
v.
versus, against
VCDR
Vienna Convention on Diplomatic Relations
VCLT
Vienna Convention on the Law of Treaties
VCLT-IO
Vienna Convention on the Law of Treaties between States and International Organizations (not yet in force)
WB
World Bank
WBAT
Administrative Tribunal of the WB
WHO
World Health Organization
WIPO
World Intellectual Property Organization
WMO
World Meteorological Organization
YBIO
Yearbook of International Organizations
ZaöRV
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (German Law Journal)
ZBR
Zeitschrift für Beamtenrecht (German Journal for the Law of Officials)
Introduction
A. The civil service law of international organisations – unity within diversity
The civil service law of public (intergovernmental) international organisations (IO) forms an integral part of the institutional law of IO and is within the sphere of public international law. The constituent instruments of IO are particular conventions by which each IO is endowed by its member states with a certain autonomy in order to ensure the unimpeded accomplishment of its tasks. The internal law of an IO is particular international public law since it is restricted in its effects to member states (Ipsen, p. 198: Given the different tasks of the IO one cannot speak of a self-contained law of IO). This is also the reason why the civil service law of IO does not constitute a uniform system of law applicable to all IO but, in principle, only refers to a specific IO. Nevertheless, the legal literature consistently refrains from using the plural form of the word “law” in the context of a description of the employment law of IO (e.g. Amerasinghe, The law; Schermers/Blokker; de Cooker). The use of the singular form shows that the law of the international civil service is a legal sphere in which largely uniform legal principles and similar structures and elements prevail justifying a coherent presentation.
In comparison with the other areas of institutional law of IO such as financing, general administration, internal legal order (Schermers/Blokker § 26 distinguish a total number of eleven areas of the institutional rules of IO) the employment law of IO is of enhanced coherence. A major reason for this lies in the jurisprudence of the international administrative tribunals. In constant case law the tribunals use the general legal principles common to member states and the principles enshrined in the international conventions and declarations on fundamental and human rights as a necessary complement to the service regulations (SR) of all IO. These general principles govern the employment relationship of all IO as a supreme value system (see, for example ILOAT Judgment 1118 para. 10: An IO “must at all times, and more particularly when amending the conditions of service, abide by those general principles”).
This common set of rights which is laid down in only a fragmentary manner in the SR of IO supplements the SR as a kind of “shadow constitution”. It provides the necessary judicial yardstick for the interpretation, gap filling and legal checks of the employment law of IO. The insular nature of the SR of an IO is thereby partly removed and the SR of IO are focused on common legal principles.
[32] But even the structure and the elements of the SR of each IO show more converging than separating elements. Despite all the diversity of tasks IO are confronted with identical or similar problems in the field of their employment relationships.
Newly established IO do not reinvent their own SR but resort to existing and proven SR of functionally comparable IO.
During the operational phase of IO there is an ongoing exchange of experiences between the human resources and legal departments of IO. This often leads to an alignment of the SR. If there are new developments in the law of the international civil service, e.g. in the areas of data protection, social security systems (long-term care) or protection of dignity (harassment) the provisions drafted by one organisation are often used as a template by others.
Despite all the diversity in the SR of IO it, therefore, does seem justified to speak of a certain uniformity in this area (Schermers/Blokker, subtitle and § 22 et seq: “Unity within diversity”). The growing uniformity of the law of the international civil service is, however, not to be understood as goal, unlike e.g. the motto on the Great Seal of the United States: “e pluribis unum” (out of many, one), but as a working hypothesis for a comparative study of the law of the international civil service.
B. Objectives
This book does not intend to supplement the series of monographs and commentaries on the SR of individual IO or of a group of IO. It intends to provide a general overview of the law of the international civil service, to disclose the substantial content of the SR and refer to their similarities and differences. Another purpose is the analysis of the general legal principles applicable to the law of the international civil service, notably derived from the case law of the international administrative tribunals. Given the multitude of IO a grouping of the IO in accordance with the similarities of their employment relationship is inevitable. For this purpose the law of the international civil service is subdivided into four civil service systems which show some degree of similarity in the structure and the elements of their SR.
For the purpose of this book the term SR is used in its broader sense, i.e. it also includes, in addition to the SR for active officials also the pension schemes (PS) and tertiary employment law (directives, circulars etc.).
Part 1
Basic elements
Chapter 1
The international organisations
A. The legal nature of international organisations
The establishment of IO is based on the realisation that certain goals cannot be achieved by individual states on their own but only in cooperation with others. IO serve the purpose of achieving political, scientific, technical, humanitarian, social and economic objectives which exceed the national resources and opportunities (a good overview of the various objectives pursued by IO can be found in Seidl-Hohenveldern/Loibl § 2101 to § 4001).
The member states of an IO endow their organisation with the necessary legal status and functional sovereignty sui generis (Schermers/Blokker § 209; Seidl-Hohenveldern/Loibl § 0107) in order to achieve their common objectives.
In order to accomplish these tasks IO have legal personality in international law and in the national law of their member states. The status of legal personality was not expressly attributed to IO until some 40 years ago. The legal status was, however, derived by implication from the need to exercise its powers properly (see Schermers/Blokker § 1565 et seq. concerning the UN; but see Art. 5(1) and 5(2) EPO-EPC and Art. 47 TEU; Art. 335 TFEU).
The question of whether the individual organs, subsidiary organs, institutions or other bodies of an IO have their own legal personality in international and national law cannot be answered in general terms but only according to its constituent instruments (see Schermers/Blokker § 1571).
On the basis of their international legal personality, which is functionally limited and determined by their tasks (Schermers/Blokker § 1570), IO may enter into bilateral agreements with member states (see, for example, the headquarters agreements) and codify their entire internal legal system as particular international law (Seidl-Hohenveldern/Loibl para. 1513).
In national law, IO generally enjoy the most extensive legal capacity accorded to legal persons under the national law of each member state in order to act within the national legal order (e.g. rent buildings, buy equipment etc., Schermers/Blok[34]ker § 1559 et seq.; Wenckstern para. 447; Art. 335 TFEU; Art. 104 UN Charter; Art. 5(2) EPO-EPC).
IO are principally bound to respect the substantial municipal law of the member state (public law, civil law, criminal law) in which they perform their functions (Schermers/Blokker § 1602 et seq.; Wenckstern para. 37, 447). They are, however, not subject to the municipal law of member states for as far as they are acting within their own internal legal order based on the attributed power of organisational autonomy (Schermers/Blokker § 1196 et seq. § 1601 et seq.; Wenckstern para. 37). In addition, IO are exempt from the application of national law in some privileged areas (e.g. taxation) in order to guarantee the unimpeded functioning of the IO. Finally, IO are exempt from the enforcement of substantive national law and from national jurisdiction (Schermers/Blokker § 1605 et seq., § 1610 et seq.).
For the purpose of this book an IO means a public (intergovernmental) organisation (IGO). (For non-governmental organisations, NGOs, see below).
There is no universally accepted definition of an IO (Schermers/Blokker § 32). Art. 2 of the draft articles on the responsibility of IO adopted by the international law commission (ILC) in 2011 (UN doc. A/66/10, p. 6), however, “outlines certain common characteristics” of IO. This provision reads: “International organisation means an organisation established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organisations may include as members, in addition to states, other entities”.
These characteristics of public IO are generally accepted in the literature (Schermers/Blokker § 33; Seidl-Hohenveldern/Loibl § 0101 to § 0112; Stephen Bouwhuis, The International Law Commission´s Definition of International Organizations; IOLR 2012 pp. 451 to 465). This definition of the term “IO” is also used in this book.
B. The classification of international organisations
Depending on the purpose of the examination of the entity “IO”, various methods of classification criteria can be applied in order to achieve a certain order and enhance transparency (Sands/Klein 1 – 031 to 1 – 033).
Most common is their classification according to the field and the geographical sphere of activities.
Depending on the substantive tasks enshrined in the constituent instruments, IO can be categorized in groups promoting, for example, international peacekeeping (UN), science and culture (EPO, ESA, ESO), social conflict solutions (ILO), health care (WHO), economy (FAO), trade (WTO), economic cooperation (EU), assistance to developing countries (World Bank, UNIDO), communication [35] (UPU, ITU), settlement of legal disputes (ICJ, Tribunal for the Law of the Sea). (See the detailed categorisation of IO according to their main tasks in Seidl-Hohenveldern/ Loibl § 2101 to 4001).
The classification according to the geographical scope of activity of an IO differs between a universal (open) and a regional (closed) IO. Regional IO restrict their membership to a limited group of member states, such as the EU, ASEAN or the OAS, whereas universal organisations like the UN and its specialised agencies aim at attracting all states as members (see A. Duxbury, The Participation of States in International Organisations, 2013; Schermers/Blokker § 53).
According to the sovereign powers conferred on an IO by its member states a distinction can also be made between general IO and supranational IO.
Another classification of IO is based on institutional similarities, notably in the areas of their organisational structure, financing and in human resources. Under this classification IO may be assigned to “families” or “systems” of organisations. This applies primarily to the organisations of the “UN family” and the coordinated organisations (CO). Also the EU as an integrated union may be considered as a “family” of organisations, institutions and related bodies (see for more details Schermers/Blokker § 1691 to 1701).
For the purpose of this book a pars pro toto approach is indispensable in order to cope with the abundance of material and to reach a comprehensive presentation of the law of the international civil service. To this end the classification according to “families” of IO seems to be most appropriate. However, in order to take account of the various IO which are outside these “families” but have incorporated parts of their institutional components, a fourth (“mixed” or “hybrid”) system of IO has to be added.
C. Other types of international organisations
I. Supranational organisations
IO may be called “supranational” if they are endowed with the power to enact rules which are directly binding on member states and their nationals without the need to transform regulations into national law by the parliament of a member state (Seidl-Hohenveldern/Loibl § 0113 et seq.; see, however, Schermers/Blokker § 61; they require in addition that IO should have the power to enforce their decisions and have some financial autonomy).
The EU is commonly referred to as the exemplary case of a supranational organisation (Seidl-Hohenveldern/Loibl § 0113). Another example of a supranational organisation is the EPO in Munich (Germany) which is an autonomous organisation “on the edge of the EU” (see also the order of the German Federal [36] Constitutional Court of 4 April 2001, case No. 2 BvR 2368/99: The EPO is a supranational organisation within the meaning of Art. 24(1) German Basic Law, which has the task of granting European patents. The European patent shall, in each member state for which it is granted, have the effect of and be subject to the same conditions as a national patent (Art. 2(2) EPO-EPC). The same classification applies to the European Union Intellectual Property Office (EUIPO) in Alicante (Spain) and the EU Community Plant Variety Office (CPVO) in Angers (France).
For the study of the international civil service law of IO the classification as a supranational organisation is of importance only insofar as the organisation performs permanent tasks (services) and, therefore, the SR provide mainly for a permanent employment relationship (officials) on a statutory basis (EU, EPO, EUIPO, CPVO).
II. Non-governmental organisations
Non-governmental IO (NGOs) have to be distinguished from public (intergovernmental) organisations (IGOs) by their legal basis and their powers. They are not established by a treaty governed by international law and do not act with a legal personality under international law. Accordingly, it is not too difficult to distinguish between NGOs and IGOs. There is, however, no commonly accepted definition of NGOs (Schermers/Blokker § 47).
Among the most important characteristics of a NGO is its non-profit status which excludes all profit-oriented commercial enterprises and funds. (This criterium also applies to IGOs, but is usually not addressed as a budgetary principle because the member states determine the level of contributions to the budget of the IO in such a way that revenue and expenditure are in balance, see, for example, Art. 310(1) TFEU. Only service-oriented IO such as the EPO are endowed with the power to fix the level of their fees by themselves. In these cases, the level of fees has to be fixed at such a level that the revenue is “sufficient” for the budget to be balanced, Art. 40(1) EPO-EPC).
In 2015 the yearbook of international organisations (YBIO) included a grand total of 68,000 IO (38,000 active and 30,000 dormant IO).
Often NGOs co-operate with IGOs in fulfilling their tasks. The Economic and Social Council of the UN (ECOSOC), for example, grants a consultative status to NGOs (see Art. 71 UN Charter) and an associated status is granted by the UN Department of Public Information to NGOs which meet certain criteria (see the websites of UN-DPI and the YBIO).
[37]D. The number of public international organisations
In contrast to the number of states it is not possible to determine the precise number of public IO. There is also no official record of IO as is the case, for example, with the registration of international treaties (see Art. 102 UN Charter). The number of IO largely depends on how a public IO is defined. Although the YBIO records more than 7,000 IO this does include inactive or dissolved IO and is based on a definition of IO which is excessively broad and encompasses agencies, programmes, offices, funds, institutes, colleges, centres etc., of IO as separate entities. The relevant literature, therefore, estimates the number of IO to only about 500 to 700 (Schermers/Blokker § 33: more than 500 and fewer than 700; see more in detail: Amerasinghe, IOLR, p. 10 footn. 2).
Chapter 2:
The employment law of the international civil service
A. Legal basis for the employment law of the international organisations
I. The organisational sovereignty
IO can only properly fulfil the tasks entrusted to them by the member states if they are free from all influence and pressure of individual member states. The unimpeded functioning of an IO and the achievements of its objectives imply that power of autonomous organisational, administrative and financial sovereignty is attributed to IO (Schermers/Blokker § 209).
This sovereignty which today is even recognised under customary law (Kunz-Hallstein/Ullrich, Art. 13 para. 1) is nowadays the subject of express statements in the primary law of an IO (the convention, the charter). IO unlike states do not possess a general competence to create their own powers but are governed by the “principle of speciality”, that is to say, they are invested by the states which create them with powers, the limits of which are a function of the common interests whose promotion those states entrusted to them” (Schermers/Blokker § 209). The organisational power of an IO includes the codification of the entire internal area of activity of an IO with a focus on its key activities, as well as the structuring and financing of the organisation and the implementation of its labour law.
In these areas IO act within their status as a personality of international law endowed with the power to provide a set of internal rules constituting “particular” public international law (Seidl-Hohenveldern/Loibl para. 1513; A. Gourgourinis in EJIL 2011, 993 ff); see, for example, Art. 47 TEU; Art. 5(1) EPO-EPC; see also Schermers/Blokker §§ 209, 1562).
In the national sphere of their member states IO enjoy the legal capacity accorded to legal persons under the national law (e.g. Art. 335 TFEU, Art. 5(2) EPO-EPC) in order to conclude contracts for the purchase of supplies, furniture, equipment or other goods and services for the acquisition of immovable property etc. (Kunz-Hallstein/Ullrich, Art. 9; Schermers/Blokker § 1591).
Demarcation problems may arise if a regulatory matter is assigned partially to the internal legislation of the organisation and partially to municipal legislation. Such interfaces, for example, occur in the areas of procurement (see Ullrich, procurement) and data protection (see Ullrich, data protection). IO, therefore, codify [39] their procurement law autonomously as far as the internal phases of procurement are concerned. With the publication of the “prior information”, but at the latest with the “invitation to tender”, IO enter the national legal sphere. At this point of time IO are subject to national law. Similar interfaces occur in the area of data protection when internal data of an IO are externalised or data from external persons is stored and processed within the organisation.
Since, however, the adjudication of national laws of the member states is limited by the immunity of an IO from national jurisdiction and execution, national law is not in principle enforceable. The immunity from national jurisdiction is, however, not a privilege (Schermers/Blokker § 1612). If IO do not waive their immunity in a particular case (which rarely occurs in practice), they have to provide for a “friendly settlement or for arbitration” (Schermers/Blokker § 1613).
Apart from the functional powers expressly bestowed upon it in the constituent instruments, an IO must be deemed to have those powers which are conferred upon it by the necessary implication as being essential to the performance of its duties (advisory opinion of the ICJ of 13 July 1954 concerning the establishment of the UNAT p. 14: “The Charter contains no provision which authorizes any of the principal organs of the United Nations to adjudicate upon these disputes [between the UN and its staff members] … It would, in the opinion of the Court, hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals … that it [the UN] should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it [the UN] and them”). The power to establish the UN Administrative Tribunal “arises by necessary intendment out of the Charter” (see also the decision of the German Federal Constitutional Court of 10 November 1981 “Eurocontrol II” decision, case No. 2 BvR 1058/79; for an English translation see the website of the University of Texas at Austin, Institute for Transnational Law, Foreign Law Translations).
These “implied powers” must, however, not only be necessary for the performance of the duties of the organisation but must also respect “the balance of powers which is characteristic of the institutional structure” of the respective organisation (CJEU Judgment 9/56 “Meroni”; Schermers/Blokker § 232).
Another example of the implied powers of an IO is the establishment of the Pension Reserve Fund of the EPO in 1991 (Ullrich, Pension Schemes; ILOAT Judgment 1392). Owing to the lack of explicit powers in the constituent instrument of the EPO (the EPO-EPC), the Pension Reserve Fund was established as a new subsidiary body of the EPO based on those powers which were conferred upon the EPO by necessary implication in order to lend support to the Pension Scheme of the EPO by providing appropriate reserves. It was only in 2000 that the EPO inserted Art. 38(b) EPO-EPC as an express legal basis for the establishment of a Reserve Fund for Pensions and Social Security (EPO Codex) into its [40] primary law, the EPO-EPC. Since then the EPO has, in addition, established a long-term care insurance Reserve Fund (EPO Codex), a Sickness Insurance Reserve Fund (EPO Codex) and a Reserve Fund to fund the Organisation’s liability for lump-sum payments as partial compensation for the national tax on pensions (EPO Codex). All these funds are based on implied organisational powers since Art. 38(b) EPO-EPC does not presently provide an explicit legal basis for their establishment.
In their internal sphere of competences IO are exempt from the national sovereign powers of member states both ratione personae and ratione materiae (Wenckstern para. 993 et seq.).
II. The autonomous sovereignty in personnel matters
The legal implementation of the autonomous regulatory area governing the staff members is aligned with the overall tasks of an IO. As “the backbone of every international organisation” (Schermers/Blokker § 491) its staff significantly contributes to the achievement of the results of an IO in pursuing the objectives set by member states. Thereby each organisation has its own codex of staff regulations to achieve them.
Despite the diversity of the civil service law of IO there is a continuous tendency “towards a certain rapprochement” (WBAT, Judgment 1 para. 28; Sands/Klein, 1 – 030). This is best illustrated by the subtitle of Schermers/Blokker’s book on international institutional law: “Unity within diversity”. This common approach to the law of the international civil service is not restricted to fundamental principles of law. It can be traced to the subtleties of the SR of IO which pay tribute to the phenomenon of complexification of all systems (Teilhard de Chardin, The Phenomenon of Man, 1955). IO are confronted with a large number of similar challenges concerning their personnel. All IO have, for example, to secure the recruitment on the broadest possible geographical bases from among nationals of the member states. The official duties of the staff members and their privileges and immunities have to be shaped in a way that guarantees the independence of the international civil service from any improper influence by individual member states. The working conditions have to be attractive enough to recruit staff on the broadest possible geographical basis from among nationals of the member states and must be directed to securing staff of the highest standard of ability, efficiency and integrity. The staff members must be guaranteed comprehensive legal remedies in disputes with their appointing authority.
Each IO is, therefore, confronted with a range of similar problems which can be solved by means of similar structures and elements in its SR. This trend towards standardisation of the SR (for an historical overview of the CO see Fürst/ Weber) takes place in different stages and is influenced in different ways.
[41] III. The drafting of service regulations (secondary law) prior to the entry into force of the constituent instrument (primary law)
It is common practice to draft the SR of an IO already prior to the establishment of an IO in preparatory bodies like interim committees and working groups, these bodies are not reinventing the wheel. Their deliberations are regularly based on a synoptic overview of existing SR of functionally comparable IO. For example, the working group IV of the Interim Committee of the EPO mainly took the SR of the International Patent Institute in The Hague and of the EU as a basis for establishing the SR of the EPO and the pension schemes (PS) of the CO as a template for the PS of the EPO (see the documents of the working group IV (Personnel) of the Interim Committee of the EPO, publicly available from the EPO).
IV. The development of the service regulations
