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Judgment No. 4
Complaint No. 4 Juan F. Bauta y Delgado v. Retirement and Pension Committee of the Organization of American States
THE ADMINISTRATIVE TRIBUNAL OF THE ORGANIZATION OF AMERICAN STATES, Composed of Mozart Víctor Russomano, President; Juan Bautista Climent Beltrán, Vice President; and Carlos Giambruno, Judge, Has before it for judgment the proceedings on the complaint filed by Juan F. Bauta y Delgado against the Retirement and Pension Committee of the General Secretariat of the Organization of American States. The Complainant acted on his own behalf and the Retirement and Pension Committee was represented, in accordance with Article 20 of the Rules of Procedure of the Tribunal, by José Ignacio Tremols, legal adviser to the Committee. WHEREAS: On November 10, 1972, Juan F. Bauta y Delgado filed a complaint, as authorized by the Statute of the Administrative Tribunal, against the Retirement and Pension Committee of the General Secretariat, hereinafter called "the Committee." The Complainant states that he is filing his complaint because of violation of the applicable provisions of the Retirement and Pension Plan of the General Secretariat and against the procedures and rules adopted by the Retirement and Pension Committee for computing the minimum pension. He adds that these procedures and rules appear in the Report of the Retirement and Pension Committee to the Permanent Council on Implementation of the Third Stage of Parity, dated October 5, 1972, and published on the 30th of the same month. After stating that the Tribunal is competent to hear the case, he sets out the facts that motivated his complaint, as follows: The Retirement and Pension Committee adopted certain rules and procedures called "Regulations for Computing the Minimum Pension," which the Secretariat of the Fund is to follow for this computation in the various situations provided for in the Plan. The Retirement and Pension Committee violated applicable provisions of the Retirement and Pension Plan of the Pan American Union. The procedures and rules challenged in the complaint were not made known to him; he learned of them from the document published on October 30, 1972. The complaint authorized by Article II.1 of the Statute of the Tribunal is not conditional on the exhaustion of the procedures provided for in the General Standards or other regulations, because there are no channels for appealing the violations committed by the Retirement and Pension Committee when it adopted the procedures and rules that are challenged in the complaint. The Complainant then states the grounds for his complaint and cites the provisions that in his opinion contravene provisions of the Retirement and Pension Plan. He refers particularly to the "Early Retirement Factor" table, which he calls a new element introduced into the Plan by the Retirement and Pension Committee. He says that this table was never mentioned during the long process in which the General Assembly, the Permanent Council, the General Secretariat, the Retirement and Pension Committee, and the Staff Association considered the changes in the Plan that became effective on July 1, 1972. He therefore believes that the table is an amendment of the Plan that affects the amount of staff members' benefits and that this amendment was introduced by the Retirement and Pension Committee and not by the General Assembly, the Permanent Council, or the Secretary General. He then refers to the grounds put forward by the Committee itself in trying to justify the changes it adopted and analyzes them, concluding that there is a conflict between what the Committee adopted and what is stipulated in Section VI.5.B.2 of the Plan. To demonstrate this conflict, the Complainant presents three hypothetical examples to show the different results obtained in identical situations by applying one or the other method for determining the amount of the pensions. He ends by saying that there is no legal basis for holding that the Committee can amend the Plan in any way, and cites paragraph 3.4 of the Regulations as amending it, since it is not in accord with Section VI.5.B.2 of the Plan, as he says he has shown by his examples. With respect to the Committee's claiming as authority paragraph 5 of resolution CP/RES. 51 (60/71) of the Permanent Council, which the Complainant quotes, he says that it contains no mandate to the Committee to amend the Retirement and Pension Plan; the only instruction the Permanent Council gave the Committee in the paragraph quoted by the Complainant was to make a periodic study of the actuarial situation of the Fund. In concluding his statement of grounds, the Complainant maintains that the Committee may not make any change whatever in the text of the Plan, for which reason his complaint should prevail over the four subparagraphs of the rules he mentions. In his petitions, the Complainant prays that his complaint be taken as lodged against each and every one of the procedures and rules adopted by the Committee that were published under the title "Regulations for Computing the Minimum Pension" as Appendix 3 of the Committee's report to the Permanent Council; that his complaint be processed appropriately and that a copy of it be delivered to the Retirement and Pension Committee for answer; that in due course oral proceedings be held; and that a judgment be issued allowing the complaint and consequently nullifying the procedures and regulations challenged. WHEREAS: On November 27, 1972, Santiago Ortiz asked to be permitted to intervene, in accordance with articles 22 and 23 of the Rules of Procedure of the Tribunal. He based his request on the fact that his interests as a participant in the Retirement and Pension Plan of the General Secretariat could be affected by the judgment of the Tribunal in this case. He states that he is 59 years of age and has been a participant in the Retirement and Pension Plan for 23 years, and that it is his intention to retire soon, a right that he would be unable to exercise if the pension due him under the Plan and the computation formula that entered into force on July 1, 1972, were adjusted in accordance with paragraph 3.4 of the rules adopted by the Retirement and Pension Committee, since the adjustment would reduce his pension by a most excessive amount, which would have the practical effect of annulling his right to retire. In joining the Complainant, the intervenor states that the Retirement and Pension Committee has no competence to adopt the adjustment formula, much less to amend the Plan. He adds some further information, referring to the letter dated August 24, 1972, from the firm Wyatt International to Ernesto S. Betancourt, Director of the Department of Program-Budget and Financial Services of the General Secretariat, and saying that this was the first time the table was mentioned. He presents many arguments in support of those presented by the Complainant, to the effect that the Retirement and Pension Committee took upon itself powers that did not belong to it when it corrected the supposed errors committed by the Council in retaining all the other rights that the Plan accords to the participants except for the percentage of contributions and the formula for computing pensions. WHEREAS: On December 20, 1972, José Ignacio Tremols y Jiménez, legal adviser to the Committee, appeared on behalf of the Committee. After presenting his credentials as representative, in accordance with Article 20.1 of the Rules of Procedure of the Tribunal, he answered the complaint as follows: As previous questions he raises three objections: incompetence, lack of standing on the part of the Complainant, and legal defect in the manner of presenting the complaint. With respect to the objection of incompetence, the Committee asserts that the rules for computing the minimum pension, which are the object of Mr. Bauta's complaint, constitute a general regulatory action carried out by the Committee in compliance with the specific mandate from the Permanent Council of the Organization contained in paragraph 4 of resolution CP/RES. 51 (60/71). This mandate was in turn approved by the General Assembly of the Organization in its resolution AG/RES. 63 (II-O/72), and consequently the rules form part of the Retirement and Pension Plan of the General Secretariat. The Committee adds that these general regulations have not yet been applied to any individual case and therefore could not in any way have affected the particular interests of the Complainant. From this the Committee infers that the Tribunal lacks the authority to hear a case like the one brought by Mr. Bauta and consequently is incompetent for that purpose. With respect to the objection of lack of standing on the part of Mr. Bauta, the Committee states that it should be sustained because the Complainant has not shown that he is a participant in the Retirement and Pension Plan or that he represents the participants in the Plan. With respect to the objection of legal defect in the manner of presenting the complaint, the Committee states that Article 11.1(b) of the Rules of Procedure of the Tribunal has not been complied with, since the Complainant does not indicate the authority against which the complaint is brought, but rather that it is "against each and every one of the procedures and rules adopted by the Retirement and Pension Committee for computing the minimum pension." For this reason, the Committee adds, the Tribunal should find Mr. Bauta's complaint inadmissible because of the legal defect in the manner of its presentation: the Complainant has not complied with the requirement that when a decision of the Committee is challenged the complaint should be brought against the Committee. In referring to the substantive issue, the Committee asserts that the Complainant's allegations are without merit, since they are based on an erroneous interpretation and understanding of the provisions, grounds, and circumstances to which he alludes in his complaint. There is no contradiction between the provisions of the Plan cited by the Complainant and the rules for computing the minimum pension. Nevertheless, the Committee adds that the mandate conferred on the Committee by the Permanent Council, the text of which is given in Appendix 1, empowers it to amend the Retirement and Pension Plan within the limits established by that mandate, that is to say, as necessary to "adopt . . . the formula used by the United Nations for computing the minimum pension of the OAS General Secretariat staff." For this reason, the Committee states, only Section VI.5.B of the Plan was changed by the United Nations formula when the Committee adopted it in compliance with the mandate from the Permanent Council. The Committee adds that it found it impossible in practice, mathematically speaking, to use the figures in the United Nations table together with the minimum-pension formula for calculating early-retirement pensions in the Retirement and Pension Plan of the General Secretariat, because except for the amount of the contributions and the adoption of the "formula used by the United Nations," the Permanent Council resolution on the third stage of parity with the United Nations retained all the other features of the OAS Plan, including the normal retirement age, which is not the same as in the United Nations. In view of this, the Committee decided to adapt the United Nations table of reductions to the peculiar characteristics and actuarial needs of the Organization of American States Plan, and commissioned the firm Wyatt and Co. to prepare the table. The Committee repeats that Section VI.5.B.2 of the Plan was changed when the "formula used by the United Nations" was adopted in compliance with the mandate from the Permanent Council. Consequently, the Committee states, the examples the Complainant presents are false, because he used "gross salary" and the "formula used by the United Nations" to compute the minimum pension. The Committee asserts that the Complainant's examples are wrong because they mix elements of the Plan predating the United Nations formula with characteristics of the latter. In concluding, the Committee prays that the complaint be considered answered; that the Tribunal declare itself incompetent to hear it in view of what was stated in presenting the previous question; that it dismiss the complaint in the event that it declares itself competent to hear it, because the Complainant has not shown that he is a participant in the Retirement and Pension Plan and because he is not an authorized representative of all or a majority of the participants; that it likewise dismiss the complaint, in the event that it declares itself competent to hear it, in view of the defect of form, because the Complainant has not complied with the requirement that it be brought against the Committee; that, without prejudice to the three previous questions, if the Tribunal finds itself competent it dismiss the complaint in all its parts in view of the facts and legal grounds asserted. With regard to the intervention presented by Santiago Ortiz, the Committee repeats its objections on the ground that they are also applicable to the intervenor party; and in the event that the Tribunal denies them and decides to hear the substantive issue, the Committee repeats with respect to Mr. Ortiz's intervention each and every one of its statements on the substantive issue, and attaches for the pertinent purposes the text of the remarks delivered by the Chairman of the Committee at the meeting of the Permanent Council on November 17, 1972. WHEREAS: On January 12, 1973, the Complainant again appeared, in accordance with Article 11.3 of the Rules of Procedure, to reply to the answer presented by the Retirement and Pension Committee. In his reply, the Complainant refers to the previous questions raised by the Committee and to the substantive issue. With respect to the incompetence of the Tribunal, the Complainant asserts that this incorporates two objections: jurisdictional incompetence and lack of standing. He mentions each of them separately, arguing that the Tribunal is competent to hear the case and that the Complainant has standing. He adds that the suit cannot be described as "public" or "private"; it is sui generis. The Complainant states that the action challenged is null because it was carried out without authority, and that its nullity must be declared so that it will not be accepted as valid and to prevent it from causing the harmful consequences that the participants in the Retirement and Pension Plan would suffer. He also says that the regulations challenged have in fact been applied to him and considers himself affected since his right to have the Plan administered and governed by the proper authorities and in accordance with law has been impaired. As to his standing, the Complainant asserts that his capacity as a staff member of the General Secretariat and a participant in the Plan is so well known as not to require proof, and that the argument that he has not shown that he is representing the other members of the staff is unacceptable because in this case he is appearing on his own behalf and without claiming to represent anyone else. The Complainant also comments on the objection of legal defect in the manner of presenting the complaint. He says that this procedure is "informal," and that furthermore he indicates in his original complaint, though implicitly, that the authority against which the complaint is brought is the Retirement and Pension Committee. In his comments on the Committee's answer on the substantive issue, the Complainant states that the Respondent has accepted some of the points he raised in his complaint. With respect to the examples given his original complaint, he says that he has not mixed elements of the old formula with the new one and that the calculations were made in accordance with the currently valid text of Section VI.5.B, that is, with the first paragraph amended to include the United Nations formula. In concluding his reply, the Complainant prays that this stage of the proceedings be considered completed and that steps be taken towards a judgment as requested in his original complaint. WHEREAS: On January 30, 1973, the Committee again appeared and, in accordance with Article 13.5 of the Rules of Procedure presented its response to the Complainant's reply. In its response, the Committee follows the same order as previously, referring first to the Complainant's comments on the previous questions raised by the Committee and then to his comments on the substantive issue. With respect to the objection of incompetence, the Committee says that the Complainant begins with the false assumption that the general regulatory action he is challenging was adopted without authority. Furthermore, it states, the competence of the Tribunal is limited to disputes that may arise as a result of administrative decisions affecting members of the staff of the General Secretariat. In referring to the Complainant's lack of standing, the Committee repeats that it is an obligation of the Complainant to show that he is a participant in the Retirement and Pension Plan, and that he has not even shown that he is a permanent member of the General Secretariat staff. As to the objection of legal defect in the manner of presenting the complaint, the Committee maintains that the Complainant should expressly name the authority against which he is complaining and that the Rules of Procedure clearly state that the complaint should be brought against the Committee. Responding to the Complainant's comments on the substantive issue, the Committee states that it has not accepted what the Complainant said. The Permanent Council delegated powers to the Committee by virtue of the mandate in paragraph 4 of resolution CP/RES. 51 (60/71), and those powers sufficed it for amending the Plan because that was essential to the adoption of the United Nations formula and the Early Retirement Factor table, since the United Nations formula referred to in the Permanent Council mandate in fact contains a table of reductions for cases of early retirement. In concluding, the Committee reiterates its earlier petitions and prays that the case be placed on the list of matters pending consideration by the Tribunal. WHEREAS: On March 21, 1973, in accordance with Article 14.2 of the Rules of Procedure of the Tribunal, this case was placed on the list of matters pending consideration. WHEREAS: On May 1, 1973, Santiago Ortiz appeared to withdraw his third-party intervention presented on November 27, 1972, under the terms of articles 22 and 23 of the Rules of Procedure. The parties were heard with regard to the withdrawal. On May 3, the representative of the Committee stated that the Committee did not object to Mr. Ortiz's withdrawal, but added that this did not mean that it shared the interpretations and conclusions expressed in his withdrawal statement. For his part, the Complainant appeared on May 11 to oppose the withdrawal and request that it be denied. WHEREAS: On May 16 the Tribunal began considering the complaint. Since the Complainant's petition involves the general interests of the staff, it decided to apply Article 27 of the Rules of Procedure and hear duly authorized representatives of the Staff Association of the General Secretariat. It set a period of five days within which the staff representatives could present their views. WHEREAS: On May 21, within the time allowed, Ribamar de Carvalho, representing the Staff Association, expressed his endorsement of the Complainant's argument, especially as to the competence of the Tribunal. On the same day the Tribunal decided to add to the record the memorandum containing the views of the Staff Association and also the report of the rapporteur of the Fourth Committee--Administrative and Budgetary Matters--of the General Assembly (AG/doc.391/73 corr. 1) and the report of the Working Group of the Committee on Program and Budget of the Permanent Council appointed to study the report of the Retirement and Pension Committee on the implementation of the third stage of parity with the United Nations and the notes of the Secretary General (CP/CPP-576/73). WHEREAS: During its consideration of this case, the Tribunal felt it necessary to decide first on the request of Mr. Ortiz for permission to intervene as a third-party and his withdrawal of that request. Consequently, on May 22, the Tribunal ruled, for the pertinent purposes, that Mr. Ortiz had withdrawn his third-party intervention in this proceeding. WHEREAS: On May 23 the Tribunal took cognizance of document CP/CPP-576 corr. 1, which had been distributed the previous day and which contains the corrected version of the Report of the Working Group to Study the Report of the Retirement and Pension Committee on Implementation of the Third Stage of Parity, with the Notes of the Secretary General. The Tribunal points out that the report, which bears the date of May 8, the same date as the previous version, differs from the latter in its final part, for which reason it is considered appropriate to transcribe the pertinent paragraph here:
As had been ordered, the oral proceedings were held on the afternoon of May 23, with the Complainant and the representative of the Retirement and Pension Committee speaking in turn. The President, on behalf of the Tribunal, then addressed questions to the representative of the Committee. After these proceedings, in accordance with Article 25 of the Rules of Procedure of the Tribunal, Mozart Víctor Russomano was designated to draft the judgment. Having examined the proceedings, the Tribunal now CONSIDERS: 1. The first argument in the answer to the complaint, reiterated in the subsequent proceedings, is that the Tribunal is not competent to hear the complaint. The objection of incompetence is based essentially on Article II.1 of the Statute, which establishes the competence of the Tribunal in matters having to do with either of two hypotheses: (a) nonobservance of the conditions established in a staff member's appointment or contract; and (b) violation of regulations, which are understood as constituting an effective guarantee of the conditions of employment. The case sub judice is not concerned with examining the nonobservance of conditions established in the Complainant's appointment or contract, but rather with ascertaining whether the Committee, in formulating the rules challenged, violated the Retirement and Pension Plan--a legal standard of a higher rank. The distinction that the Tribunal basically adopts is that it is competent both in cases of nonobservance of appointment or contract conditions and in cases of violation of regulations provided that the administrative decision challenged specifically impairs the rights of the staff member. That is not the situation in this case. The Complainant is disputing the validity of the regulations adopted by the Committee for the computation of the minimum pension, which he alleges have amended the Retirement and Pension Plan. These regulations are not self-applying and have not been applied specifically to the Complainant through an administrative action. The Complainant nevertheless challenges their validity and efficacy, arguing that they amend the Retirement and Pension Plan, something the Committee is not competent to do. Entering into the debate is the scope of operative paragraphs 4 and 5 of resolution CP/RES. 51 (60/71), adopted by the Permanent Council on December 15, 1971, as to what authority they give the Retirement and Pension Committee. But this question of interpretation will not be considered, since the Tribunal is not examining the substance of the complaint. Actually, no administrative action consisting in the application of a given rule to a specific event or situation is being challenged. In such a case the competence of the Tribunal would be evident. This is a generic, abstract challenge to regulations adopted by the Committee, as the specific, repeated petitions of the Complainant show. It is the Tribunal's understanding that in principle it lacks competence to judge challenges to regulatory actions that are entirely normative and general, because Article II.1 presupposes a specific violation of conditions of employment or of regulations. The Statute does not adopt the criterion that legal rules may be challenged in abstracto, as occurs in the domestic law of various nations through the procedure of class action. But the criterion in the Statute should be interpreted and applied with a certain flexibility, in cases where the mere formulation of rules that have immediate application constitutes injury to the staff member that is also immediate, which is not so in the case under examination. (This thesis finds support in the doctrine enunciated by the Uruguayan jurist Enrique Sayagués Laso in his Tratado de Derecho Administrativo, Vol. II, Montevideo, 1959, pp. 574 and 575.) 2. Within this fundamental consideration, in view of the specific characteristics of this complaint, there are two additional circumstances to take into account:
3. Apart from what has been said above, and even though the Committee maintains that it was competent to prepare the rules challenged and that they are in effect, the Committee itself presented them to the Permanent Council and admitted in the oral proceedings that there is a possibility of their revision by a higher organ of the Organization. The Respondent itself transferred the consideration of these rules to the Permanent Council, which in turn referred them to the Committee on Program and Budget, which established a working group to study them. What is more, during its third regular session, last April, the General Assembly decided, in operative paragraphs 1 and 2 of resolution AG/RES. 118 (III-O/73), to instruct the Permanent Council, by delegation of authority from the Assembly, to continue revising the Retirement and Pension Plan and to put the revised provisions into effect when it considers them definitive. In operative paragraph 3 of the same resolution, the General Assembly went further, establishing on a transitory basis that until the revised provisions enter into effect, retirement and pension payments shall be made in accordance with the credits accumulated by the staff members concerned. It is important to note that the minutes of the discussions on paragraph 3 show that an amendment to the effect that the very rules that have been challenged here should govern temporarily was proposed to the General Assembly, but was not adopted. In addition, it was stated in the oral proceedings that thus far there is a consensus within the Retirement and Pension Committee not to apply the regulations adopted. The Tribunal considers that the foregoing makes it evident that the process of preparing the rules that have been challenged is not yet over. By virtue of the foregoing, the Tribunal unanimously RESOLVES: To declare that it is not competent to hear the present complaint.
Let notification be given. Washington, D.C., May 25, 1973
Mozart Víctor Russomano, Esq. / President Juan Bautista Climent Beltrán, Esq. / Vice President Carlos Giambruno, Esq. / Judge Jorge L. Zelaya, Esq. / Secretary OEA/Ser.R TRIBAD/10 25 May 1973 Original: Spanish |
