AS TO THE ADMISSIBILITY OF
Application No. 28934/95
by Karlheinz BEER and Philip REGAN
against Germany
The European Commission of Human Rights sitting in private on
24 February 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 13 September 1995
by Karlheinz BEER and Philip REGAN against Germany and registered on
17 October 1995 under file No. 28934/95;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
15 February 1996 and the observations in reply submitted by the
applicant on 3 April 1996;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, born in 1952, is a German national and
resident in Darmstadt. He is an engineer by profession. The second
applicant, born in 1960, is a British national and resident in
Strathclyde in the United Kingdom. He is a systems programmer by
profession.
A. Particular circumstances of the cases
The facts of the case, as presented by the parties, may be
summarised as follows.
In 1982 the first applicant, employed by the company S., was
placed at the disposal of the European Space Agency to render services
at the European Space Operations Centre in Darmstadt. The first
applicant's contract was later taken over by the company T., which has
its seat in France. The second applicant, employed by the Italian
company T.I., was placed at the disposal of the European Space Agency
to render services at the European Space Operations Centre in Darmstadt
in 1991.
The European Space Agency with headquarters in Paris, formed out
of the European Space Research Organisation and the European
Organisation for the Development and Construction of Space Vehicle
Launchers, was established under the Convention for the Establishment
of a European Space Agency of 30 May 1975. The European Space Agency
operates the European Space Operations Centre in Darmstadt.
In October and November 1993 the applicants instituted
proceedings before the Darmstadt Labour Court (Arbeitsgericht) against
the European Space Agency, claiming that, pursuant to the German
Provision of Labour Act (Arbeitnehmerüberlassungsgesetz), they had
acquired the status of employees of the defendant organisation. In his
submissions, the second applicant indicated that, by letter of 27
September 1993, his employer T.I. had dismissed him.
In the respective labour court proceedings, the defendant
organisation relied on their immunity from jurisdiction under
Article XV para. 2 of the Convention for the Establishment of a
European Space Agency and its Annex I.
On 21 March 1995 the Darmstadt Labour Court, following hearings,
declared the applicants' respective actions inadmissible. In both
decisions, the Labour Court considered that the defendant organisation
had validly relied on its immunity from jurisdiction. The Labour
Court, in this respect, relied on S. 20 para. 2 of the Court
Organisation Act (Gerichtsverfassungsgesetz), according to which
immunity from jurisdiction could be provided for, inter alia, in
international agreements. The defendant organisation enjoyed such
immunity under Article XV para. 2 of the Convention on the
Establishment of the European Space Agency and its Annex I. The Labour
Court further recalled that the Federal Labour Court (Bundesarbeits-
gericht), in a decision of 10 November 1993 in a similar case, had
found that the rules in question could not be objected to from a
constitutional point of view.
B. Relevant law
a. Provision of Labour Act
According to S. 1 para. 1 of the Provision of Labour Act
(Arbeitnehmerüberlassungsgesetz), an employer, who, on a professional
basis (gewerbsmäßig), intends to hire out his employees, i.e. temporary
workers (Leiharbeitnehmer) to third persons, i.e. borrowing employers
(Entleiher), is subject to permission. S. 9 (1) provides that
contracts between the hirer out (Verleiher) and the borrowing employer
as well as between the hirer out and the temporary worker are void in
the absence of a permission within the meaning of S. 1. If the
contract between a hirer out and a temporary worker is void, pursuant
to S. 9 (1), a contract between the borrowing employer and the
temporary worker is implied in law (gilt als zustande gekommen) as from
the envisaged start of employment (S. 10 para. 1).
b. Immunity from jurisdiction
SS. 18 to 20 of the German Court Organisation Act
(Gerichtsverfassungsgesetz) regulate the immunity from jurisdiction
(Extraterritorialität) in German court proceedings. SS. 18 and 19
concern the members of diplomatic and consular missions, and S. 20
para. 1 other representatives of States staying in Germany upon the
invitation of the German Government. S. 20 para. 2 provides that other
persons have immunity from jurisdiction according to the general rules
of international law, e.g. foreign States in the exercise of public
authority, or according to international agreements or other legal
rules.
c. The Convention for the Establishment of a European Space Agency
The European Space Agency with headquarters in Paris, formed out
of the European Space Research Organisation and the European
Organisation for the Development and Construction of Space Vehicle
Launchers, was established under the Convention for the Establishment
of a European Space Agency ("ESA Convention") of 30 May 1975, which
entered into force in 1980.
The purpose of the European Space Agency is to provide for and
to promote, for exclusively peaceful purposes, co-operation among
European States in space research and technology and their space
applications, with a view to their being used for scientific purposes
and for operational space applications systems (Article II). For the
execution of the programmes entrusted to it, the Agency shall maintain
the internal capability required for the preparation and supervision
of its tasks and, to this end, shall establish and operate such
establishments and facilities as are required for its activities
(Article VI para. 1 (a)).
Article XV regulates the legal status, privileges and immunities
of the Agency. According to paragraph 1, the Agency shall have legal
personality. Paragraph 2 provides that the Agency, its staff members
and experts, and the representatives of its Member States, shall enjoy
the legal capacity, privileges and immunities provided for in Annex I.
Agreements concerning the headquarters of the Agency and the
establishments set up in accordance with Article VI shall be concluded
between the Agency and the Member States on whose territory the
headquarters and the establishments are situated (paragraph 3).
Article XVII concerns the arbitration procedure in case of any
dispute between two or more Member States, or between any of them and
the Agency, concerning the interpretation or application of the ESA
Convention or its Annexes, and likewise any dispute referred to in
Article XXVI of Annex I, which is not settled by or through the
Council.
Annex I relates to the privileges and immunities of the Agency.
According to Article I of Annex I, the Agency shall have legal
personality, in particular the capacity to contract, to acquire and to
dispose of movable and immovable property, and to be a party to legal
proceedings.
Pursuant to Article IV para. 1 (a) of Annex I, the Agency shall
have immunity from jurisdiction and execution, except to the extent
that it shall, by decision of the Council, have expressly waived such
immunity in a particular case; the Council has the duty to waive this
immunity in all cases where reliance upon it would impede the course
of justice and it can be waived without prejudicing the interests of
the Agency.
Article XXV of Annex I provides for arbitration with regard to
written contracts other than those concluded in accordance with the
Staff Regulations. Moreover, any Member State may submit to the
international Arbitration Tribunal referred to in Article XVII of the
ESA Convention any dispute, inter alia, arising out of damage caused
by the Agency, or involving any other non-contractual responsibility
of the Agency. According to Article XXVII of Annex I, the Agency shall
make suitable provision for the satisfactory settlement of disputes
arising between the Agency and the Director General, staff members or
experts in respect of their conditions of service.
COMPLAINTS
The applicants complain under Article 6 para. 1 of the Convention
that they did not have a hearing by a court on the question of whether
a contractual relationship had existed between them and the European
Space Agency.
As regards the question of exhaustion of domestic remedies, as
required by Article 26 of the Convention, they submit that, having
regard to the established case-law of the German courts on the matter,
any further appeals could not prove to be effective.
The applicants submit that they could not have lodged an appeal
with the Appeals Board of the European Space Agency as such a
possibility was limited to the staff of this organisation. Moreover,
they could not have relied on an arbitration procedure, which
presupposed a contractual relationship and not a merely fictitious
contract.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 13 September and registered on
17 October 1995.
On 27 November 1995 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
15 February 1996. The applicants replied on 3 April 1996.
THE LAW
The applicants complain that they did not have a hearing by a
court on the question of whether a contractual relationship had existed
between them and the European Space Agency. They invoke Article 6
para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1). , as far as relevant, provides as
follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing ... by an independent and
impartial tribunal established by law."
1. The respondent Government raise doubts as to whether the
applicants exhausted the domestic remedies available to them under
German law, as required by Article 26 (Art. 26) of the Convention. As
regards the fact that the applicants did not lodge any further appeal
against the Darmstadt Labour Court decision of 21 March 1995, the
Government accept that, following negative decisions rendered by the
Federal Labour Court and the Federal Constitutional Court
(Bundesverfassungs-gericht) in a similar case, such remedies would not
have offered any prospect of success. However, in their view, the
applicants could have brought proceedings before the German
administrative courts requesting that, in order to comply with Article
6 para. 1 (Art. 6-1) of the Convention, Germany should bring
international arbitration proceedings, on behalf of the applicants,
pursuant to Article XVII of the ESA Convention.
The applicants disagree with the Government's objection.
Under Article 26 (Art. 26) of the Convention, the Commission may
only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international
law, and within a period of six months from the date on which the final
decision was taken.
Under Article 26 (Art. 26) of the Convention normal recourse
should be had by an applicant to remedies which are available and
sufficient to afford redress in respect of the breaches alleged. The
existence of the remedies in question must be sufficiently certain not
only in theory but also in practice, failing which they will lack the
requisite accessibility and effectiveness (cf. Eur. Court HR, Akdivar
v. Turkey judgment of 16 September 1996, para. 66, to be published in
the Reports of Judgments and Decisions for 1996). In this context, it
has been recognised that Article 26 (Art. 26) must be applied with some
degree of flexibility and without excessive formalism; it is essential
to have regard to the particular circumstances of each individual case
(cf. Akdivar judgment, op. cit., para. 69).
The Commission notes that the Darmstadt Labour Court, in its
decision of 21 March 1995, referred to the existing case-law of the
Federal Labour Court on the legal issue in question. The Government
pointed out that the position of the German labour courts had been
confirmed by the Federal Constitutional Court; and they have in essence
accepted that, in this situation, any further appeal would have had no
prospect of success. The Commission accordingly considers that, in the
circumstances of the present case, the applicants did not have any
effective remedy, within the meaning of Article 26 (Art. 26), before
the German labour courts.
Furthermore, the Commission notes that the Government did not
cite a single instance in which a plaintiff had instituted
administrative court proceedings, invoking Article 6 para. 1
(Art. 6-1) of the Convention, with a view to obliging the German
Government to institute an international arbitration procedure on their
behalf. Moreover, the Government failed to show that in the context
of the arbitration procedure under the ESA agreement, any rights under
the German Provision of Labour Act could have been invoked. In any
event, the Commission considers that Article 26 (Art. 26) requires an
applicant to have recourse to those remedies available at the domestic
level which in themselves are sufficient to redress the situation
complained about. Any court action with a view to having another
international procedure instituted for the purpose of deciding an issue
arising under the Convention, as suggested by the respondent
Government, cannot be regarded as an available and sufficient remedy
that the applicants ought to have exhausted.
It follows that the applicants' complaint under Article 6 para. 1
(Art. 6-1) cannot be rejected for non-exhaustion of domestic remedies
under Article 27 para. 3 (Art. 27-3) of the Convention.
2. The respondent Government further observe that the Labour Court
granted the European Space Agency immunity from the applicants' action
in accordance with the relevant provisions of the German Courts
Organisation Act. Referring to the case-law of the Convention organs,
they maintain that the right of access to court is subject to inherent
limitations which include the traditional and generally recognised
principle of parliamentary and diplomatic immunity and also the
immunity of international organisations. In this respect, they explain
that, like the state immunity, the immunity granted to international
organisations corresponds to the principle of the sovereign equality
of all states. An international organisation can only function
satisfactorily if its independence is ensured. The activities of
international organisations are so closely linked with their sovereign
purposes that even private acts cannot be entirely excluded from
immunity.
Moreover, the Government consider that sufficient legal
protection is provided for the applicants. Following his dismissal,
the second applicant could have brought an action against the Italian
company T.I., the other party to his employment contract, claiming
compensation under S. 10 para. 2 of the German Provision of Labour Act.
The question of whether he acted in good faith would have had to be
clarified in the said court proceedings. The first applicant, still
employed by the company T. and working for the ESA, could also bring
proceedings under the Provision of Labour Act against the French
company T., though, as the Government admit, any such procedure would
have no prospect of success. However, the Government submit that the
Convention only guarantees the right of access to a court and not a
favourable outcome of any envisaged action. In this context, the
Government state that, in any event, the applicants' action against the
ESA would have probably remained unsuccessful. In their view, national
legislation such as the Provision of Labour Act cannot result in a
temporary worker obtaining the status of a member of an international
organisation's permanent staff.
The applicants consider that it is not acceptable under Article 6
(Art. 6) that, in a dispute against an international organisation, the
access to an independent tribunal is entirely excluded by the principle
of immunity.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and of fact
under the Convention, the determination of which should depend on an
examination of the merits of the application. The Commission
concludes, therefore, that the application is not manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring it inadmissible have been
established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy