Deviating from advice or recommendations - the organization’s duty to motivate

By Frédéric Dopagne, Saskia Lemeire and Bert Theeuwes

A recent judgment of the NATO Administrative Tribunal touched upon the duty of an administration to properly motivate its decisions when not following advice or recommendations from advisory organs.

In a decision of 21 November 2017, Judgment in Case No. 2017/1104, the Administrative Tribunal considers that “international administrative law requires that an international organization provide reasons for actions adverse to a staff member sufficient to allow the staff member to understand the rationale or justification for the adverse action and, as appropriate, to contest it”. It hereby refers to case law of the Administrative Tribunal of the International Labor Organization (ILO Administrative Tribunal) to conclude that “where a final decision refuses, to a staff member’s detriment, to follow a favourable recommendation of the internal appeal body such decision must be fully and adequately motivated”.

The ILO Administrative Tribunal indeed has reconfirmed this principle on numerous occasions. In a decision of 28 June 2017, the ILO Administrative Tribunal reiterated that “the executive head of an international organisation is not bound to follow a recommendation of any internal appeal body nor bound to adopt the reasoning of that body. However an executive head who departs from a recommendation of such a body must state the reasons for disregarding it and must motivate the decision actually reached” (ILO AT, Judgment  3862). More recently, it also highlighted the mirroring reasoning when an organization confirms a recommendation and stated that “the Tribunal said a departure from a recommendation of an appeal committee must be explained, but also said: “[w]hen the executive head of an organisation accepts and adopts the recommendations of an internal appeal body he [or she] is under no obligation to give any further reasons than those given by the appeal body itself” (ILO AT, Judgment 4044).

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