EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 23085/93
Ilse Baumgartner and Others
against
Austria
REPORT OF THE COMMISSION
(adopted on 16 October 1996)
TABLE OF CONTENTS
Page
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . .1
PART I : STATEMENT OF THE FACTS. . . . . . . . . . . . . . .3
PART II : SOLUTION REACHED. . . . . . . . . . . . . . . . . . . . . 4
ANNEX : LIST OF APPLICANTS . . . . . . . . . . . . . . . . . . . . 6
INTRODUCTION
1. This Report relates to the application introduced under
Article 25 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms by Ilse Baumgarnter and Others against
Austria on 16 August 1993. It was registered on 14 December 1993 under
file No. 23085/93.
2. The applicants were represented by Dr. G. Grießer, a lawyer
practising in Vienna.
3. The Government of Austria were represented by their Agent,
Ambassador F. Cede, Head of the International Law Department at the
Federal Ministry of Foreign Affairs.
4. On 16 January 1996 the Commission (First Chamber) declared the
application admissible insofar as it concerns the applicants'
complaint that they were not heard as regards the permission to
terminate their contracts of employment under SS. 20 b and c of the
Composition of Creditors Act which was given to their employer by the
Vienna Commercial Court. It then proceeded to carry out its task under
Article 28 para. 1 of the Convention which provides as follows:
"In the event of the Commission accepting a petition referred to
it:
a. it shall, with a view to ascertaining the facts, undertake
together with the representatives of the parties an examination
of the petition and, if need be, an investigation, for the
effective conduct of which the States concerned shall furnish all
necessary facilities, after an exchange of views with the
Commission;
b. it shall at the same time place itself at the disposal of
the parties concerned with a view to securing a friendly
settlement of the matter on the basis of respect for Human Rights
as defined in this Convention."
5. The Commission (First Chamber) found that the parties had reached
a friendly settlement of the case and on 16 October 1996 it adopted
this Report, which, in accordance with Article 28 para. 2 of the
Convention, is confined to a brief statement of the facts and of the
solution reached.
6. The following members were present when the Report was adopted:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
PART I
STATEMENT OF THE FACTS
The applicants, whose names are annexed to this report, were at
the relevant time employees of a limited company with seat in Vienna.
7. In the context of composition with creditors proceedings, the
employer company requested the Vienna Commercial Court (Handelsgericht)
for permission to terminate the contracts of employment of sixty-eight
employees, including the applicants, under SS. 20 b and c of the
Composition with Creditors Act (Ausgleichsordnung). These provisions,
in the version which was in force at the time of the relevant facts,
allowed the court, without being obliged to hear the persons concerned,
to grant a debtor permission to terminate contracts of employment. The
debtor had to respect the period of notice (Kündigungsfrist) provided
for in a law or in collective agreement, but, according to court
practice was not bound by the date for termination of contracts
(Kündigungstermin) as prescribed in S. 20 of the Employees Act
(Angestelltengesetz).
8. On 22 February 1993 the Vienna Commercial Court, without hearing
the applicants, granted their employer company permission to terminate
their contracts of employment in accordance with SS. 20 b and c of the
Composition with Creditors Act.
9. On 15 March 1993 the employer company, in pursuance of the
Court's permission and in accordance with the periods of notice
provided for by law, gave the applicants notice of the termination of
their contracts of employment which became effective on 26 April,
15 May, 15 June, 15 July or 15 August 1993 respectively. If S. 20 of
the Employees Act had been applicable, twenty of the applicants could
have only been dismissed 15 days later, eleven applicants only 45 days
later, three applicants 64 days later and seven applicants only 75 days
later.
10. On 23 March 1993 the Vienna Commercial Court rejected the appeal
lodged by the applicants against its decision of 22 February 1993. It
noted that according to SS. 20 b para. 2 of the Composition with
Creditors Act no remedy was available against the permission to
terminate contracts of employment.
11. Before the Commission, the applicants complained under Article 6
of the Convention that they were not heard by the Vienna Commercial
Court prior to its decision of 22 February 1993. They considered that
this decision directly affected their civil rights in that their claims
relating to their employment were reduced. In particular they
complained that their employer could terminate their contracts of
employment prematurely. Further, the applicants complained under
Article 4 of the Convention.
PART II
SOLUTION REACHED
12. Following the decision on the admissibility of the application,
the Commission (First Chamber) placed itself at the disposal of the
parties with a view to securing a friendly settlement in accordance
with Article 28 para. 1 (b) of the Convention and invited the parties
to submit any proposals they wished to make.
13. In accordance with the usual practice, the Chamber Secretary,
acting on the Commission's instructions, contacted the parties to
explore the possibilities of reaching a friendly settlement.
14. By letters of 27 June 1996 and 23 July 1996, respectively, the
applicants and the respondent Government informed the Commission that
they had agreed on the terms of a friendly settlement, and submitted
the following declaration.
"Statements of the parties with a view to a friendly settlement With reference to Article 28 para. 1 (b) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the parties in the proceedings concerning Application No. 23085/93, lodged by Ilse Baumgartner and Others, declare with a view to a friendly settlement, reached with the assistance of the European Commission of Human Rights, as follows: 1. The Government of the Republic of Austria will pay to the applicants a sum amounting to altogether AS 450,000 as compensation in respect of any possible claims relating to the present application. This sum is composed of an amount of AS 10,000 for each of the forty-one applicants and an amount of AS 40,000 in respect of the counsel's fees and expenses incurred in the proceedings before the Commission. This amount will be paid to the applicant's counsel, Mr. G. Grießer in Vienna. 2. The applicants declare their application settled. 3. The applicants waive any further claims against the Republic of Austria relating to the present application." "Erklärungen der Parteien zur gütlichen Regelung In der Beschwerdesache Nr. 23085/93 der Frau Ilse Baumgartner und anderer einigen sich die Parteien under Bezugnahme auf Artikel 28 Abs. 1 lit b der Europäischen Konvention zum Schutze der Menschenrechte und Grundfreiheiten und unter Mitwirkung der Europäischen Kommission für Menschenrechte auf die nachstehende gütliche Regelung: 1. Die österreichische Regierung zahlt den Beschwerdeführern als Ausgleich für sämtliche etwaige Ansprüche im Zusammenhang mit der vorliegenden Beschwerde einen Gesamtbetrag von öS 450,000. Dieser Betrag setzt sich zusammen aus einem Betrag von öS 10,000 für jeden der einundvierzig Beschwerdeführer und einem Betrag von öS 40,000 hinsichtlich der Gebühren und Auslagen, die im Rahmen des Verfahrens vor der Kommission entstanden sind. Dieser Betrag wird an den Verfahrensbevollmächtigten der Beschwerdeführer Herrn Rechtsanwalt Dr. Georg Griesser in Wien überwiesen. 2. Die Beschwerdeführer erklären ihre oben genannte Beschwerde als erledigt. 3. Die Beschwerdeführer verzichten auf die Geltendmachung allfälliger weiterer Forderungen gegen die Republik Österreich im Zusammenhang mit dem der Beschwerde zugrundeliegenden Sachverhalt." 15. At its session on 16 October 1996, the Commission noted that the parties had reached an agreement regarding the terms of a settlement. It further considered, having regard to Article 28 para. 1 (b) of the Convention, that the friendly settlement of the case had been secured on the basis of respect for Human Rights as defined in the Convention. 16. For these reasons, the Commission adopted the present Report. M.F. BUQUICCHIO J. LIDDY Secretary President to the First Chamber of the First Chamber A N N E X The applicants are: 1. Ilse BAUMGARTNER, born in 1944, resident in Altenberg 2. Gerhard BECAN, born in 1942, resident in Vienna 3. Helmut BLIEM, born in 1940, resident in Vienna 4. Franz BRAUNSTEINER, born in 1967, resident in Vienna 5. Beatrix BRAZDA, born in 1947, resident in Vienna 6. Gabriele BURGER, born in 1962, resident in Weikersdorf 7. Christian FELLNER, born in 1965, resident in Vienna 8. Ernst HACKENBERGER, born in 1958, resident in Vienna 9. Ernst HEGER, born in 1942, resident in Vienna 10. Gertrude HOFER, born in 1951, resident in Vienna 11. Robert HORAK, born in 1939, resident in Deutsch-Wagram 12. Silvia HRUSCHKA, born in 1952, resident in Vienna 13. Snezana JORGIC, born in 1961, resident in Vienna 14. Gerhard KATOLICZKI, born in 1951, resident in Vienna 15. Angela KLEER (married: Mikula), born in 1971, resident in Vienna 16. Walter KOMENDA, born in 1942, resident in Vienna 17. Gerhard KOMENDA, born in 1961, resident in Vienna 18. Helmut KRAMER, born in 1940, resident in Pischeldorf 19. Manfred KRAMMER, born in 1950, resident in Vienna 20. Thomas LACKNER, born in 1969, resident in Vienna 21. Claudia LEHNER, born in 1974, resident in Sierndorf 22. Michaela MEITZ, born in 1960, resident in Vienna 23. Irena MENZL, born in 1944, resident in Vienna 24. Rosanda MIDL, born in 1956, resident in Vienna 25. Elfriede RAUCH, born in 1940, resident in Vienna 26. Heinrich REIMER, born in 1943, resident in Vienna 27. Helmut RIENER, born in 1941, resident in Breitenfurt 28. Martin ROLENZ, born in 1942, resident in Vienna 29. Maria ROTHMAYER, born in 1948, resident in Vienna 30. Angela SCHWARZ, born in 1947, resident in Atzenbrugg 31. Elisabeth SCHWEINHAMMER, born in 1962, resident in Vienna 32. Annemarie SEJKA, born in 1948, resident in Vienna 33. Ernst SMAHA, born in 1945, resident in Vienna 34. Robert SOBOTKA, born in 1968, resident in Vienna 35. Wolfgang TESCH, born in 1959, resident in Viehofen 36. Elisabeth VLADAR, born in 1943, resident in Vienna 37. Manfred WACLAWIK, born in 1962, resident in Vienna 38. Monika WAGNER, born in 1957, resident in Vienna 39. Ernst WIDHALM, born in 1956, resident in Eschenbach 40. Sonja WRULICH (married: Wrulich-Zimmel), born in 1958, resident in Vienna 41. Andreas WYTEK, born in 1965, resident in Vienna
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