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UNDT/2016/214

UNAT Held or UNDT Pronouncements

The Tribunal found that, although the decision to appoint a new panel emanated indeed from the Administration, it did not amount to an appealable administrative decision because it was merely preparatory in nature. Consequently, the Tribunal did not have jurisdiction to review it. Discretionary and not discretionary decisions: The well-established definition of administrative decision does not even mention—let alone require—any given degree of discretion among the elements characterising it. Administrative decisions may be discretionary or not discretionary, and this does not affect their qualification as administrative decisions. For this purpose, as long as a decision produces legal effects, is of individual applicationand emanates from the Administration, it is irrelevant whether the decision-maker disposes of a large latitude to act or whether its action is tightly dictated by legislation or a judicial ruling. Decision made by the Administration: It is an essential feature of any administrative decision that it must emanate from the Administration. Where an official of the Organization takes action upon the orders of a judicial body (as opposed to the judicial body taking action itself), the resulting actions still come from the Administration. The fact that the concerned official is bound to implement the tribunal’s instructions does not change this reality. Moreover, even in situations where it receives very precise instructions from a tribunal, the Administration often retains a certain discretion in various aspects.

Decision Contested or Judgment/Order Appealed

The Applicant contests the appointment of a new fact-finding panel to investigate a complaint for prohibited conduct under ST/SGB/2008/5 brought against him by one of his former supervisees. Such complaint had been investigated in 2013, but the UNAT found, in 2015, the fact-finding panel’s composition improper and rescinded the decision taken based on its conclusions. Accordingly, UNAT ordered the Executive Director, OAJ, to appoint a new fact finding panel.

Legal Principle(s)

N/A

Outcome

Dismissed as not receivable

OAJ prepared this case law summary for informational purposes only. It is no official record and should not be relied upon as an authoritative interpretation of the Tribunals' rulings. For the authoritative texts, please refer to the judgment or order rendered by the respective Tribunal. The Tribunals are the only bodies competent to interpret their respective judgments, as provided under Article 12(3) of the UNDT Statute and Article 11(3) of the UNAT Statute. Any inaccuracies in the publication are the sole responsibility of OAJ, which should be contacted directly for any correction requests. To provide comments, don't hesitate to get in touch with OAJ at oaj@un.org.

The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.