Another Fish in The Sea or the New Kid on The Block? The Newborn NATO Mission Appeals Tribunal – Part II

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The First Cases Decided by the MAT

2023 was a pivotal year for the MAT. Not only its establishment process was completed, but also the first cases were decided and finally made public in January 2024. In adjudicating them the MAT judges could solve some of the most relevant challenges, highlighted in part one, concerning the actual collocation of this Tribunal in the sea of IATs.

The first judgment concerned allegations brought by Mr. K and C against EUFOR in November 2022. They claimed that the mission unlawfully differentiated in the regulations governing social benefits, including severance pay, overtime, and paid sick leave, between similar categories of employees to the detriment of the applicants. Moreover, they pleaded for moral damages for denied justice because of the undue delay in the establishment of the Tribunal. By recognizing both the discrimination and the damages for denied justice, the MAT partially upheld the applications and issued its first judgment (MAT/EUFOR/01) on 2nd September 2023. On 22nd September, EUFOR filed a motion for revision. It was rejected by the MAT on 6th November because it did not meet any of the requirements included in Rule 49 (a) MAT ROPs. Thus, EUFOR was ordered to compensate the applicants for the delay in the execution of the judgment (MAT/EUFOR/03).

Concerning the second judgment, the MAT was seized by an appeal lodged in July 2022 by Mr. M against EUFOR. EUFOR commander’s final decision rejected the appellant’s request to initiate disciplinary proceedings against his supervisor and compensation for employment rights breaches, work-related medical issues, and alleged harassment. Before the MAT the appellant demanded the annulment of the final decision, an order from the Tribunal to initiate disciplinary proceedings, and compensation for the mentioned contractual breaches and medical conditions. On 30th September the MAT rejected the appeal (MAT/EUFOR/02) arguing that the appellant did not support any of his claims with sufficient evidence.

Jurisdiction over EUFOR

Being the applicants’ employer, EUFOR has acted as respondent for all cases and has unsuccessfully requested the revision of the first judgment. Operating outside NATO authority, the MAT jurisdiction is not based on Rule 2 (a) (2) MAT ROPs. Thus, the Tribunal must ascertain whether the requirements in Rule 2 (c and d) are met, which makes the MAT’s competence conditional on an agreement between an international or national organization cooperating with NATO-led missions and NATO itself. To do so, the judges addressed firstly the legal characterization of EUFOR and then the existence of the mentioned cooperation agreement signed with any NATO missions.

The analysis of the legal characterization of EUFOR has been dealt with differently by the two Panels. In MAT/EUFOR/01 the MAT only pointed at the Berlin Plus Agreements as “the legal basis that has created EUFOR” (para. 35). Conversely, in MAT/EUFOR/02, the judges, in considering whether EU law is applicable, reckoned that “EUFOR is not a body of the European Union, but an international organization sui generis”, based on a Council Joint Action 2004/570/CFSP, and “a multinational stabilization force” formed following UN SC Resolution 1575 (2004) (para. 80). The former provides that the mission “shall be carried out with recourse to NATO common assets and capabilities” (Art. 1.3), while the latter declares that EUFOR will cooperate with NATO HQ in Sarajevo (para.10). This reasoning is significant. If the Tribunal had recognized that EUFOR was an EU body, then the applicants would have had to refer the matter to the CJEU under Art. 270 of the Treaty on the Functioning of the EU, while the MAT would have been incompetent.

Concerning the cooperation agreement, the two panels reached the same results by traveling different paths. In MAT/EUFOR/01 the MAT deemed that the Berlin Plus Agreements were sufficient to constitute the cooperation with NATO and the mission, as it declared that these agreements “established inter alia, the terms of cooperation and mutual assistance between NATO and the EU in relation to mission in the Balkans” (para. 35). Conversely, in the latter case, the judges did not refer to those agreements, while they considered that EUFOR had implicitly accepted the Tribunal’s jurisdiction by implementing the staff regulations envisaging the MAT already in 2021 (para. 47). Furthermore, as the MAT noted in the second case, EUFOR has never contested the jurisdiction of the Tribunal in its pleadings (para. 47).

Judicial Review over Regulatory Acts

A significant stance taken by the Tribunal concerns the review of IO’s regulatory acts governing the employment relationship with the staff. This is no novelty in IAL as long as they carry individual effects upon applicants. As seen in part one of this post, many tribunals have done this, although this decision requires caution concerning the general legal effects it produces (ILOAT 3146).

In the case MAT/EUFOR/01, the applicants pleaded that the staff regulations governing social benefits clash with the principle of non-discrimination and equal pay for equal work. The MAT stated that, although it has no power over regulatory decisions, it can “incidentally declare illegality of a specific norm or set of norms once it is reviewing a given administrative decision based on those norms” (para. 30). It is worth noting that the MAT reviewed general acts insofar as they indirectly affected the applicants. Indeed, in MAT/EUFOR/02, the Tribunal did not review any staff regulations because they did not alter the applicant’s legal position. Therefore, the MAT has aligned itself with other IATs in conditioning its jurisdiction over said acts upon the existence of a contested final administrative decision (WBAT 23). This suggests that the effects of this ruling do not automatically extend to similarly-situated personnel, as they are not targeted by the challenged administrative decision.

General Principles and Cross-Fertilization

Similar to other IAT case law, the MAT has demonstrated to be rather proactive in relying on general principles. The Tribunal recognized their existence as a source of IAL, their function to fill lacunae, and their capability to interpret provisions. Furthermore, the Tribunal has borrowed from other tribunals’ jurisprudence by generally pointing at their case law, referring to specific decisions (para. 84 MAT/EUFOR/02), and quoting passages of their argumentations (para. 53 and 53 MAT/EUFOR/01). It is worth noting that the MAT is one of the few IATs (Art. III IMF AT Statute) that enjoys a statutory provision mentioning “general principles of international administrative law” as an applicable source (Rule 4 (m)).

The principles of equal pay for equal work and non-discrimination are the legal bedrock of MAT/EUFOR/01. The Tribunal first reconstructed its legal content by quoting significant passages in two landmark rulings, namely the 2011-UNAT-177, which explains the need to ascertain legal reasons to differentiate between cases, and ILOAT 2313, which identifies the positive obligations upon the IO stemming from the principles. Then, it reviewed the staff regulations provisions allegedly being in contrast with these principles. Therefore, the Tribunal concluded that the staff regulations governing sick leave and severance pay unreasonably differentiate between staff categories deemed similar. Furthermore, the Tribunal recognized that EUFOR did not fulfill the obligation of creating alternative means of redress for its employees, thus impeding the applicants from accessing justice in due time. Specifically, four years passed between the commander’s adoption of the final decision and the creation of the Tribunal, resulting in moral damages suffered by the applicants.  

The relevance of general principles in MAT/EUFOR/02 is less intense, though present. In facing allegations of harassment by the applicant’s superior, the MAT, because of the lack of written regulations on the matter, placed the burden of proof on the complainant. Although the tribunal did not explicitly mention it as a general principle, the onus probandi principle governs both national, international, and IAL proceedings (ILOAT 3318). Furthermore, to justify the application of this principle, the MAT listed its use in the case law of other IATs, such as the NAT and ILOAT, by pointing to specific judgments (para. 84).

IATs do not usually reveal the cognitive process leading to the identification of a general principle. However, they often rely on the jurisprudence of their counterparts to demonstrate that their application is not revolutionary. Hence, cross-fertilization among IATs plays a normative role because it provides an applicable source to settle the case at hand and gradually develops a common set of principles. In resorting to cases of its counterparts, the MAT has revealed itself to be an active member in the sea of IATs borrowing principles and adapting them to the peculiar context in which it operates.

Conclusion

As foreseen by De Cooker, the phenomenon of proliferation of IATs did not stop. Over the last decades, IOs have modernized IAL by reforming or establishing new tribunals, while IAT judges responded to the substantive needs of the law. This has been reflected in the first year of the MAT. On the one hand, its constitutive act reflects the peculiarities of the context in which this Tribunal fits. On the other, in the early rulings, the judges showed awareness of the existence of experiences of other IATs they may borrow from. However, the journey has just begun. It is now up to the MAT judges to turn this Tribunal from just a new fish in the sea of IAL to a new kid on the block to look up to.

The post reflects the opinions of the author, expressed in his personal capacity, and does not bind the MAT or the JFC Naples.

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