UNDT/2023/122, Reilly
It is common cause that the recommendations, acts, or determinations of the UNEO are without direct legal consequences and do not constitute administrative decisions. The Administration’s rejection of the March 2020 Alternate Chair’s report did not represent a request to the Ethics Office for its review, i.e., “a review of the review”. Available documentary evidence is that, within the applicable legal framework, exchanges took place between the Administration, the Ethics Office and OIOS concerning the acceptance or non-acceptance of the March 2020 Alternate Chair’s report and recommendations, and the Ethics Office’s referral of the Applicant’s matter to OIOS. These did not rise to the level of instructions from the Administration or OIOS to the Ethics Office. It is therefore clear that the Ethics Office took the impugned decision. In keeping with established jurisprudence said decision was not an administrative decision subject to judicial review. The application was not receivable with respect to this decision.
However, the decision of OIOS not to investigate the matter was reviewable. This aspect of the application was receivable and the only issue for examination related to the validity of the exercise of discretion by OIOS. The reasoning of OIOS in support of its decision not to investigate was right. It is inconceivable that in a structured review process, an Alternate Chair’s mandate to issue recommendations, including investigative ones, would be unrestricted in the way suggested by the Applicant. Requiring unquestionable compliance from actors with a flawed review process would be atrocious, and certainly against the letter of the law. Since the March 2020 Alternate Chair’s report and recommendations were validly rejected, the Tribunal found that OIOS properly exercised its discretion in refusing to comply with the recommendation to investigate the Applicant’s matter because the latter arose from a flawed process. Consequently, the Tribunal found that the impugned decision of OIOS not to investigate the matter pursuant to the recommendation of the March 2020 Alternate Chair was rational and reasonable, and it rejected the application in its entirety.
The Applicant contested the decision to revise the findings and recommendations of the Alternate Chair of the Ethics Panel of the United Nations and the implied decision not to investigate based on those findings and recommendations.
Since the Ethics Office is limited to making recommendations to the Administration, its acts or determinations are without direct legal consequences and are thus not administrative decisions subject to judicial review.
When judging the validity of the exercise of discretion in administrative matters, the role of the Tribunal is limited to determining if the decision is legal, rational, procedurally correct and proportionate. In so doing, the Tribunal is barred from considering the correctness of the choice of the decision-maker, and from substituting its own decision for that of the decision-maker.