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Reply to Recommendation | Doc. 14629 | 28 September 2018
Jurisdictional immunity of international organisations and rights of their staff
1. The Committee of Ministers welcomes Parliamentary
Assembly Recommendation
2122 (2018) on “Jurisdictional immunity of international
organisations and rights of their staff”, which it agreed to communicate to
the Steering Committee for Human Rights (CDDH) and to the Committee
of Legal Advisers on Public International Law (CAHDI) for information
and possible comments, as well as to the Administrative Tribunal
for an opinion.
2. The Parliamentary Assembly calls on the Committee of Ministers
to encourage international organisations to which Council of Europe
member States are Parties to examine the availability of “reasonable alternative
means of legal protection” in the event of legal disputes between
international organisations and their staff (paragraph 1.1 of the
Assembly Recommendation). The Committee of Ministers considers that
as an Organisation advocating the values of human rights, democracy
and the rule of law, the Council of Europe should offer its staff
timely, effective and fair justice. It encourages other international
organisations to take steps to establish such “alternative means”.
3. In this respect, the Committee of Ministers notes that appropriate
alternative means of legal protection have been developed by the
most important international organisations in order to guarantee
the rights of their own staff since recourse to national judiciaries
of the member States is not available in such cases.
4. In the framework of the Council of Europe, 
the
Committee of Ministers notes that the rights, obligations and other
alternative means – to access to national courts – for the legal
protection of the staff of the Organisation are set out in the Council
of Europe Staff Regulations. As mentioned in the Preamble of the
Staff Regulations, “The Council of Europe, in its day-to-day functioning,
shall respect all the principles and ideals which the Organisation
defends. In particular, in the administration of the Secretariat,
the Secretary General shall endeavour to realise the conditions
which will ensure the effective application of the rights and principles set
out in the revised European Social Charter, in so far as these are
applicable to an international organisation”. It is further noted
that the settlement of disputes which may arise between the Council
of Europe and its staff is governed by “PART VII: Disputes” of the
Staff Regulations through a “complaints procedure” (Article 59)
and an “appeals procedure” (Article 60). The administrative complaint
is submitted to the Secretary General through the Director of Human
Resources and it may be referred to an “Advisory Committee on Disputes”.
In the event of either explicit rejection in whole or in part, or
implicit rejection of this complaint, the complainant may appeal,
under Article 60 of the Staff Regulations, to the Administrative
Tribunal set up by the Committee of Ministers.
the
Committee of Ministers notes that the rights, obligations and other
alternative means – to access to national courts – for the legal
protection of the staff of the Organisation are set out in the Council
of Europe Staff Regulations. As mentioned in the Preamble of the
Staff Regulations, “The Council of Europe, in its day-to-day functioning,
shall respect all the principles and ideals which the Organisation
defends. In particular, in the administration of the Secretariat,
the Secretary General shall endeavour to realise the conditions
which will ensure the effective application of the rights and principles set
out in the revised European Social Charter, in so far as these are
applicable to an international organisation”. It is further noted
that the settlement of disputes which may arise between the Council
of Europe and its staff is governed by “PART VII: Disputes” of the
Staff Regulations through a “complaints procedure” (Article 59)
and an “appeals procedure” (Article 60). The administrative complaint
is submitted to the Secretary General through the Director of Human
Resources and it may be referred to an “Advisory Committee on Disputes”.
In the event of either explicit rejection in whole or in part, or
implicit rejection of this complaint, the complainant may appeal,
under Article 60 of the Staff Regulations, to the Administrative
Tribunal set up by the Committee of Ministers.5. The Committee of Ministers points out that the principle of
transparency advocated by the Assembly is already applied in the
Council of Europe (paragraph 1.2 of the Assembly Recommendation).
In particular, all the legal texts mentioned in paragraph 4 above
are accessible to the staff via the Intranet and those relating
to the disputes system are also available on the Internet. The Committee
encourages other international organisations to which the member
States of the Council of Europe are Parties to ensure similar transparency and
availability of information on staff policies and employment disputes
to their staff.
6. Concerning the right of access of trade unions to administrative
tribunals of international organisations (paragraph 1.3.1), the
Committee of Ministers notes a recent ruling of the Dutch Supreme
Court in a case brought by a trade union against the European Patent
Organisation (EPO). The
Dutch Supreme Court considered that the requirements of Article
6 of the European Convention on Human Rights (ECHR) had been satisfied,
as EPO offered reasonable alternative means to effectively protect
the rights of the trade union ensuing from article 11 of the Convention.
The Supreme Court noted in particular that while the trade union could
not avail itself of any juridical process provided for by the Organisation,
EPO employees could challenge measures taken by the Organisation
that affect them by means of an internal procedure and subsequently
by means of a judicial process at ILOAT and that Organisation employee
representatives could complain to ILOAT regarding general rules
affecting all employees collectively.
The
Dutch Supreme Court considered that the requirements of Article
6 of the European Convention on Human Rights (ECHR) had been satisfied,
as EPO offered reasonable alternative means to effectively protect
the rights of the trade union ensuing from article 11 of the Convention.
The Supreme Court noted in particular that while the trade union could
not avail itself of any juridical process provided for by the Organisation,
EPO employees could challenge measures taken by the Organisation
that affect them by means of an internal procedure and subsequently
by means of a judicial process at ILOAT and that Organisation employee
representatives could complain to ILOAT regarding general rules
affecting all employees collectively.7. In the Council of Europe, under Articles 59 and 60 of the
Staff Regulations, the Committee of Ministers recalls that at present
only individuals and the Staff Committee may lodge an administrative
complaint with the Secretary General and subsequently an appeal
with the Tribunal. In particular, under Article 59 paragraph 8 indent
c. of the Staff Regulations, the Staff Committee may avail itself
of this remedy "where the complaint relates to an act of which it
is subject or to an act directly affecting its powers under the
Staff Regulations."
8. The Committee of Ministers also notes that the Administrative
Tribunal of the OECD has jurisdiction over applications filed by
trade unions in respect of any act affecting them or directly prejudicing
any rights accorded to them under the OECD Staff Regulations. In
this respect, the Committee of Ministers wishes to emphasise the
specific context of the Council of Europe where the Staff Committee
remains the main collective body participating in social dialogue
and trade unions do not enjoy any statutory rights.
9. The Committee notes that the question of creating an appellate
judicial body (paragraph 1.3.2) has been raised several times, especially
at the level of the co-ordinated organisations which is the appropriate
forum for exploring this matter. However, the Committee observes
that the introduction of any kind of appeals procedure would result
in additional costs and delays in having final decisions and that,
for the Council of Europe, the creation of an appellate body is
currently neither warranted nor expedient.
10. Furthermore, the Committee of Ministers wishes to underline
that the issue of privileges and immunities of international organisations
and the rights of their staff is of high complexity and multidimensional
in nature, involving both the independence and accountability of
international organisations. This topic raises not only legal questions
but also many political ones.
11. Taking into consideration the Assembly’s call to carry out
a comparative study on the compatibility of the internal remedy
systems in international organisations with Article 6 of the ECHR
(paragraph 1.4 of the Assembly Recommendation), the Committee of
Ministers notes that different international organisations are in the
process of examining the introduction of new alternative means of
staff dispute settlement. As part of the administrative reform currently
being undertaken by the Secretary General and its People Strategy
2018-2023, the Council of Europe will also be shortly looking into
its regulatory and administrative framework. The Committee of Ministers
consequently considers that the proposal to carry out such a comparative
study would at present be premature. Furthermore, the vast differences
existing between the various types of international organisations
would render a comparative study very difficult. In addition, the
Committee highlights the difficulties reaching an encompassing solution
considering that there is no uniform solution for all international organisations
and for all activities they carry out.
12. Finally, with respect to paragraph 2 of the Assembly Recommendation,
the Committee notes that the CAHDI regularly examines the issue
of jurisdictional immunity of international organisations under
all its different angles.