BOIVIN v. 34 MEMBER STATES OF THE COUNCIL OF EUROPE
Inadmissible
The applicant, Mr Philip Boivin, who has dual Belgian and French nationality, was born in 1966 and lives in Bornem (Belgium). He was represented before the Court by Mr F. Krenc, a lawyer practising in Brussels. The facts of the case, as submitted by the applicant, may be summarised as follows. The European Organisation for the Safety of Air Navigation (“Eurocontrol”) was created in 1960 for the purpose of supervising air traffic control in the airspace of its member States, which have included Belgium and France since the beginning. By a decision of Eurocontrol’s Director General dated 6 September 1995, the applicant was appointed to the post of chief accountant at the Institute of Air Navigation Services (a body which is part of Eurocontrol and is situated in Luxembourg) for a renewable term of five years. On 29 February 1996 Eurocontrol’s Director of Human Resources notified the applicant that his appointment had been cancelled following a complaint by another official of the organisation who claimed that there had been no notice of competition for the vacancy filled by the applicant. After a specific competition the applicant was appointed again. However, the same official challenged the applicant’s new appointment on the ground that there had been no substantiated report and obtained its cancellation. A fresh recruitment procedure was organised to fill the vacancy. However, the applicant’s name was not included on the list of qualified candidates drawn up by the new selection board. As a result, Eurocontrol’s Director General decided not to appoint him to the post. On 18 January 1999 the organisation’s Director of Human Resources sent the applicant a letter notifying him of the termination of his employment on 31 January 1999 and inviting him to discuss compensation with the legal department. After filing a number of internal administrative complaints, the applicant took his case to the International Labour Organisation’s Administrative Tribunal (the “ILOAT” – having sole competence to settle all disputes between Eurocontrol and its staff) to challenge the cancellation of his appointment and to seek compensation for the injury caused to him. In a judgment of 3 November 2000 (notified to the applicant on 12 February 2001), the ILOAT, finding that the recruitment procedure had not been flawed, upheld the decisions cancelling the applicant’s appointment. However, observing that Eurocontrol had “fail[ed] in its duty ... to protect [the applicant] from the injury caused by the quashing of an appointment he [had] accepted in good faith”, the ILOAT partly granted the applicant’s compensation claim and awarded him 220,000 euros in damages. The International Convention relating to Cooperation for the Safety of Air Navigation (the “Eurocontrol Convention”), signed in Brussels on 13 December 1960, established, as provided in Article 1, a European Organisation for the Safety of Air Navigation (Eurocontrol) to create a uniform European air traffic management system. Article 4 of the Eurocontrol Convention provides that “[t]he Organisation shall have legal personality”. Under Article V § 2 of Eurocontrol’s Statute, annexed to the Eurocontrol Convention, the ILOAT has “sole jurisdiction in disputes between the Organisation and the personnel of the Agency, to the exclusion of the jurisdiction of all other courts and tribunals, national or international”. The International Labour Organisation was founded in 1919 as the “International Labour Office” and since 1946 has operated as a tripartite agency of the United Nations that brings together representatives of governments, employers and workers from its member States. Its Administrative Tribunal hears complaints from officials or former officials of the International Labour Organisation and the other international organisations that have recognised its jurisdiction. The relevant provisions of the Tribunal’s Statute are as follows: “... 5. The Tribunal shall also be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations of any other international organisation meeting the standards set out in the Annex hereto which has addressed to the Director General a declaration recognising, in accordance with its Constitution or internal administrative rules, the jurisdiction of the Tribunal for this purpose, as well as its Rules of Procedure, and which is approved by the Governing Body.” “1. The Tribunal shall take decisions by a majority vote; judgments shall be final and without appeal. 2. The reasons for a judgment shall be stated. The judgment shall be communicated in writing to the Director General of the International Labour Office and to the complainant. ...” Article XII § 1 of the Annex to the ILOAT’s Statute reads as follows: “In any case in which the Executive Board of an international organisation which has made the declaration specified in Article II § 5 of the Statute of the Tribunal challenges a decision of the Tribunal confirming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed, the question of the validity of the decision given by the Tribunal shall be submitted by the Executive Board concerned, for an advisory opinion, to the International Court of Justice.”