EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 28934/95
Karlheinz Beer and Philip Regan
against
Germany
REPORT OF THE COMMISSION
(adopted on 2 December 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-30) . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 16-20). . . . . . . . . . . . . . . . . . 3
B. Relevant law
(paras. 21-30). . . . . . . . . . . . . . . . . . 3
III. OPINION OF THE COMMISSION
(paras. 31-70) . . . . . . . . . . . . . . . . . . . . 6
A. Complaint declared admissible
(para. 31). . . . . . . . . . . . . . . . . . . . 6
B. Point at issue
(para. 32). . . . . . . . . . . . . . . . . . . . 6
C. Article 6 of the Convention
(paras. 33-69). . . . . . . . . . . . . . . . . . 6
CONCLUSION
(para. 70). . . . . . . . . . . . . . . . . . . 12
CONCURRING OPINION OF MR K. HERNDL. . . . . . . . . . . . . 13
DISSENTING OPINION OF MR G. RESS
JOINED BY MM E. BUSUTTIL, A.S. GÖZÜBÜYÜK, A. WEITZEL,
J.-C. SOYER, C.L. ROZAKIS, L. LOUCAIDES,
M.A. NOWICKI, I. CABRAL BARRETO, B. CONFORTI,
I. BÉKÉS, J. MUCHA, A. PERENIC, E.A. ALKEMA and R. NICOLINI 16
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 19
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The first applicant is a German national, born in 1952 and
resident in Darmstadt. The second applicant is a British national,
born in 1960 and resident in London in the United Kingdom.
3. The application is directed against Germany. The respondent
Government were represented by their Agent, Ms. H. Voelskow-Thies,
Ministerialdirigentin, of the Federal Ministry of Justice.
4. The case concerns the question whether the applicants were denied
access to a court for a determination of their dispute with the
European Space Agency, relating to an issue under German labour law.
The applicants invoke Article 6 para. 1 of the Convention.
B. The proceedings
5. The application was introduced on 13 September 1995 and
registered on 17 October 1995.
6. On 26 June 1995 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 16 February 1996.
The applicants replied on 3 April 1996.
8. On 24 February 1997 the Commission declared the application
admissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 10 March 1997 and they were invited to submit such
further information or observations on the merits as they wished. The
applicants submitted observations on 14 April 1997 to which the
Government replied on 21 May 1997.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, 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
M.P. PELLONPÄÄ
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
MM R. NICOLINI
A. ARABADJIEV
12. The text of this Report was adopted on 2 December 1997 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. In 1982 the first applicant, a civil engineer by profession and
employed by the French 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 also has its seat in France.
The second applicant, a systems programmer and 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.
17. 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.
18. 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.
19. 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.
20. 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
21. 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 assumed by law to have been concluded (gilt als
zustande gekommen) as from the envisaged start of employment
(S. 10 para. 1). S. 10 para. 2 further provides for a compensation
claim against the hirer out in respect of any damage suffered as a
consequence of having relied on the validity of the contract, except
where the temporary worker was aware of the reasons rendering the
contract void.
b. Immunity from jurisdiction
22. SS. 18 to 20 of the German Court Organisation Act
(Gerichtsverfassungsgesetz) regulate immunity from jurisdiction
(Exterritorialität) 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
23. 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.
24. 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)).
25. 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).
26. 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.
27. Annex I relates to the privileges and immunities of the Agency.
28. 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.
29. 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.
30. 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.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
31. The Commission has declared admissible the applicants' complaint
that they did not have a fair hearing by a tribunal on the question of
whether a contractual relationship existed between them and the
European Space Agency.
B. Point at issue
32. Accordingly, the issue to be determined is whether there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
C. Article 6 (Art. 6) of the Convention
33. The applicants complain that they were denied access to a court
for a determination of their dispute with the European Space Agency,
relating to their claims under the German Provision of Labour Act.
They invoke Article 6 para. 1 (Art. 6-1) of the Convention.
34. 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."
a. Applicability of Article 6 para. 1 (Art. 6-1)
aa. Existence of a dispute over a right
35. For Article 6 para. 1 (Art. 6-1) under its "civil" head to be
applicable, there must be a "dispute" (contestation in the French text)
over a "right" which can be said, at least on arguable grounds, to be
recognised under domestic law. The dispute must be genuine and
serious; it may relate not only to the actual existence of a right but
also to its scope and the manner of its exercise; and, finally, the
result of the proceedings must be directly decisive for the right in
question (cf. Eur. Court HR, Neigel v. France judgment of
17 March 1997, para. 38, to be published in Reports of Judgments and
Decisions 1997).
36. The Commission notes that the applicants brought proceedings with
a German labour court against the European Space Agency, an
international organisation with seat in Paris, operating the European
Space Operations Centre in Darmstadt.
37. On a previous occasion, the Commission regarded a complaint about
the lack of access to a court in respect of a dispute with the Iran-
United States Claims Tribunal (The Hague) as being incompatible with
the provisions of the Convention. In this context, it considered that,
because of the immunity from suit before the Dutch courts under a
privileges and immunities agreement, the administrative decisions of
the Tribunal did not engage the responsibility of the Netherlands under
the Convention. The Commission observed that it was in accordance with
international law that States confer immunities and privileges to
international bodies which are situated in their territory, and that
such a restriction of national sovereignty in order to facilitate the
working of an international body did not give rise to an issue under
the Convention (No. 12516/85, Dec. 12.12.88, D.R. 58, p. 119).
38. In the present case, the applicants claimed before the German
labour courts a declaratory judgment on the existence of an employment
contract between them and the European Space Agency, pursuant to the
German Provision of Labour Act, as a result of their being hired out
for years to perform work for the European Space Agency in Germany.
The dispute at issue did not concern any decision taken by an
international body in the exercise of its powers which could not engage
the responsibility of Germany, but related to a right which had its
basis in German labour law.
39. The Commission further considers that the immunity from
jurisdiction, accorded to members of diplomatic or consular missions
of foreign States in the exercise of public functions or international
organisations such as the European Space Agency, does not exclude the
existence of substantive rights under domestic law and cannot be
regarded as delimiting the very substance of any such rights.
40. In this context, the Commission observes that, in any event, it
would not be consistent with the rule of law in a democratic society
or with the basic principle underlying Article 6 para. 1 (Art. 6-1) -
namely that civil claims must be capable of being submitted to a judge
for adjudication - if, for example, a State could, without restraint
or control by the Convention enforcement bodies, remove from the
jurisdiction of the courts a whole range of civil claims or confer
immunities from civil liability on large groups or categories of
persons (cf. Eur. Court HR, Fayed v. United Kingdom judgment of
21 September 1994, Series A no. 294-B, pp. 49-50, para. 65; see also
Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of
21 February 1990, Series A no. 172, p. 16, para. 36; No. 9310/89,
Dec. 16.7.86, D.R. 47, p. 5; No. 12816/87, Dec. 18.1.89, D.R. 59,
p. 186).
41. In the Commission's view, the rules on immunity from jurisdiction
of, inter alia, international organisations prevent claims concerning
substantive rights, which exist as such under German law, from being
raised and enforced against the privileged persons in German court
proceedings, unless they waive their immunity. In these circumstances,
it is merely a procedural bar preventing the possibilities of bringing
potential claims to court.
42. The labour court action brought by the applicants, therefore,
related to a dispute over a substantive right under German law.
bb. The civil nature of the right concerned
43. The Commission recalls that Article 6 para. 1 (Art. 6-1) applies
where the subject-matter of an action is "pecuniary" in nature and is
founded on an alleged infringement of rights which are likewise
pecuniary (cf. Eur. Court HR, Editions Périscope v. France judgment of
26 March 1992, Series A no. 234-B, p. 66, para. 40) or where its
outcome is "decisive for private rights and obligations" (cf. Eur.
Court HR, H. v. France judgment of 24 October 1989, Series A no. 162-A,
p. 20, para. 47).
44. Disputes relating to private law relations between employer and
employee generally are of a "civil" nature for the purposes of
Article 6 para. 1 (Art. 6-1) (cf. Eur. Court HR, Obermeier v. Austria
judgment of 28 June 1990, Series A no. 179, p. 21, para. 67).
45. It is true that the Convention does not secure a right of
recruitment to the civil service, and disputes relating to the
recruitment, employment and retirement of civil servants are as a
general rule outside the scope of Article 6 para. 1 (Art. 6-1)
(Eur. Court HR, Glasenapp and Kosiek v. Germany judgments of
28 August 1986, Series A no. 104, p. 26 para. 49, and no. 105, p. 20,
para. 35; Francesco Lombardo v. Italy judgment of 26 November 1992,
Series A no. 249-B, p. 26, para. 17; Fusco v. Italy judgment of
2 September 1997, para. 20, 21, to be published in Reports of Judgments
and Decisions 1997).
46. However, notwithstanding similar public law features of the
international civil service, the present case does not concern a
question of recruitment and employment by the European Space Agency on
the basis of its Staff Regulations. Rather, the applicants asserted
a right to employment on the basis of the German Provision of Labour
Act. In this situation, the European Space Agency may be compared with
any other private person to whom services were rendered by an employee
on the order of another private employer, within the meaning of the
German Provision of Labour Act.
47. In these circumstances, the Commission finds that the action
brought by the applicants before the German labour courts concerned
their civil rights within the meaning of Article 6 para. 1 (Art. 6-1).
The applicability of Article 6 (Art. 6) to the present case is indeed
not disputed by the respondent Government.
b. Compliance with Article 6 para. 1 (Art. 6-1)
48. Article 6 para. 1 (Art. 6-1) secures to everyone the right to
have any claim relating to his civil rights and obligations brought
before a tribunal (Eur. Court HR, Golder v. United Kingdom judgment of
21 February 1975, Series A no. 18, p. 18, para. 36; Ashingdane v. the
United Kingdom judgment of 28 May 1985, Series A no. 93, pp. 24-25,
para. 57; Fayed judgment, op. cit.; Bellet v. France judgment of
4 December 1995, Series A no. 333-B, p. 41, para. 31).
49. The applicants consider that it is not acceptable under Article 6
(Art. 6) that, in a dispute against an international organisation, the
access to a tribunal is entirely excluded by the rules on immunity from
jurisdiction.
50. The Government argue that the principle of immunity of
international organisations constitutes an inherent limitation to
Article 6 para. 1 (Art. 6-1).
51. In the case-law of the Court (cf., as a recent authority,
Eur. Court HR, Bellet judgment, loc. cit.), the scope of the principle
of the right of access to a court has been clarified in the following
terms:
"(a) The right of access to the courts secured by
Article 6 para. 1 (Art. 6-1) is not absolute but may be subject
to limitations; these are permitted by implication since the
right of access 'by its very nature calls for regulation by the
State, regulation which may vary in time and in place according
to the needs and resources of the community and of individuals'.
(b) In laying down such regulation, the Contracting States enjoy
a certain margin of appreciation, but the final decision as to
observance of the Convention's requirements rests with the Court.
It must be satisfied that the limitations applied do not restrict
or reduce the access left to the individual in such a way or to
such an extent that the very essence of the right is impaired.
(c) Furthermore, a limitation will not be compatible with
Article 6 para. 1 (Art. 6-1) if it does not pursue a legitimate
aim and if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to
be achieved."
52. In the present case, the applicants had access to the Darmstadt
Labour Court, however, only to be told that their actions were
inadmissible on the ground of the defendant organisation's immunity
from jurisdiction. They did not, therefore, achieve a determination
of the merits of their claims.
53. The Commission recalls that the fact of having access to domestic
remedies, only to be told that one's actions are barred by operation
of law does not always satisfy the requirements of Article 6 para. 1
(Art. 6-1). The degree of access afforded by the national legislation
must also be sufficient to secure the individual's "right to a court",
having regard to the principle of the rule of law in a democratic
society (cf. Eur. Court HR, Bellet judgment, op. cit., p. 42,
para. 36).
54. The Government maintain that the permissible limitations to the
right of access to a court include the traditional and generally
recognised principle of diplomatic immunity and also the immunity of
international organisations. In this respect, they explain that the
immunity granted to international organisations corresponds, like the
state immunity, 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. 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.
55. The Commission notes that SS. 18 to 20 of the German Court
Organisation Act confer immunity from jurisdiction on diplomatic
missions and consular representations, and on other persons 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. Pursuant to Article IV para. 1 (a) of Annex I
to the "ESA Convention" of 1975, the European Space 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.
56. As to the rationale of international immunities, the Commission
observes that the provision of privileges and immunities to
international organisations is an essential means of protection these
organisations from unilateral interference by individual governments.
The constitutional instruments of inter-governmental organisations
elaborately define their decision-making processes, and in particular
the type and degree of influence each government is to have in respect
of the organisation. It is therefore considered unacceptable for
individual governments to be able, whether through their executive,
legislative or judicial organs, to require an inter-governmental
organisation to take certain actions by commands addressed to the
organisation itself or to any of its officials (cf. R. L. Bindschedler,
International Organizations, General Aspects, and P. C. Szasz,
International Organizations, Privileges and Immunities, in:
R. Bernhardt (ed.), Encyclopedia of Public International Law, Volume II
(1992), pp. 1289 et seq., at p. 1307, and pp. 1325 et seq., at p. 1326,
respectively).
57. The Commission finds that the underlying aim of the system of
providing international immunities to international organisations is
to contribute to their proper functioning. The contested limitation
on the ability to take legal proceedings against the European Space
Agency therefore resulted from rules which pursued legitimate aims.
58. It remains to be determined whether in the circumstances of the
present case there was a reasonable relationship between the means
employed and the legitimate objectives pursued by the limitation in
question.
59. The Commission considers that States may transfer to
international organisations competences (cf. No. 13258/87,
Dec. 9.2.1990, D.R. 64, p. 138), and may also grant these organisations
immunity from jurisdiction, in particular in relation to the exercise
of those competences which are to be considered as public and not as
commercial (in the same sense as it is accepted for foreign states by
the distinction between acta iure imperii and acta iure gestionis,
cf. No. 24236/94, Dec. 4.12.95, D.R. 84-A, p. 84 with further
references) "provided that within that organisation fundamental rights
will receive an equivalent protection" (No. 13258/87, loc. cit.). This
is a special feature of the general principle that "if a State
contracts treaty obligations and subsequently concludes another
international agreement which disables it from performing its
obligations under the first treaty it will be answerable for any
resulting breach of its obligations under the earlier treaty"
(No. 235/56, Dec. 10.6.58, Yearbook 2, p. 256 (300), No. 13258/87,
op. cit., p. 138).
60. Viewed in the light of the foregoing considerations, the legal
impediment to bringing litigation before the German courts, namely the
immunity of the European Space Agency from German jurisdiction, is only
permissible under the Convention if there is an equivalent legal
protection. In this context, the Commission recalls that the object
and the purpose of the Convention as an instrument for the protection
of individual human beings requires that its provisions be interpreted
and applied so as to make its safeguards practical and effective
(cf. Eur. Court HR, Airey v. Ireland judgment of 9 October 1979,
Series A no. 32, p. 12, para. 24).
61. The applicants maintain that they did not have any other
appropriate legal possibility to establish their rights under German
labour law.
62. The Commission considers that the problems posed by the
application of the rules on immunity from jurisdiction in the present
case have to be seen against the general arrangements made for
appropriately resolving private law disputes to which the European
Space Agency is a party. As stated above (see para. 56), the object
of this immunity is merely to save an international organisation from
having to litigate unwillingly in national courts.
63. The Commission notes that, pursuant to the legal system
established under Annex I to the "ESA-Convention", the European Space
Agency has resorted to various devices to settle disputes with private
parties. Thus members of staff or experts may have recourse to an
Appeals Board in respect of their conditions of service. Arbitration
is provided for in respect of disputes concerning written contracts
other than those concluded in accordance with the Staff Regulations.
Moreover, any Member State may submit to the International Arbitration
Tribunal any dispute, inter alia, arising out of damage caused by the
Agency, or involving any other non-contractual responsibility of the
Agency. The possibility of requesting the German Government to bring
the applicants' case before the International Arbitration Tribunal was
already mentioned by the Federal Labour Court, in its decision of
10 November 1993. Moreover, Article IV of the said Annex I obliges the
Council of the European Space Agency to waive its 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.
64. The Commission concludes from the foregoing that, in private law
disputes involving the European Space Agency, judicial or equivalent
review may be obtained, albeit in procedures adjusted to the special
features of an international organisation and therefore different from
the remedies available under domestic law.
65. It is true that the procedures under the legal regime of the
European Space Agency did not provide the applicants with a remedy to
argue before a court that an employment contract between them and the
European Space Agency was assumed by law to have been concluded,
pursuant to the German Provision of Labour Act. They did not,
therefore, receive a legal protection within the European Space Agency
which could be regarded as equivalent to the jurisdiction of the German
labour courts.
66. However, the applicants' situation was the direct consequence of
the particular nature of their claim for recognition of a labour
contract with the European Space Agency under the German Provision of
Labour Act, i.e. special legislation enacted for the German labour
market. Litigation of this kind would bypass and could undermine the
employment policies of international organisations under their own
staff regulations. Bearing in mind that the aim of international
immunities, which are generally accorded to international
organisations, particularly by the States Parties to the Convention,
is to protect international organisations from unilateral interference
by individual governments, whether through their executive, legislative
or judicial organs (see above para. 56), the Commission cannot apply
the test of proportionality in such a way as to force an international
organisation to be a party to domestic litigation on a question of
employment governed by domestic law.
67. As regards the second applicant, a further factor is to be taken
into account. Following his dismissal, the second applicant had, as
pointed out by the Government, a possibility of bringing legal
proceedings in Germany, in pursuance of the relevant provisions of the
German Provision of Labour Act, against the T.I. company, the Italian
partner in the chain of contractual relations for hiring him out to the
European Space Agency. Whilst not covering his claim of employment,
such proceedings could have been a means enabling him to recover
compensation for financial loss suffered as a consequence of his legal
situation, pursuant to the Provision of Labour Act.
68. In the light of these considerations, the Commission finds that
the national authorities, in providing immunity from jurisdiction to
the European Space Agency, did not exceed their margin of appreciation
to limit the applicants' access to the courts under Article 6 para. 1
(Art. 6-1), either as regards the state of the applicable law or as
regards the effects of the application of that law in the present case.
Notwithstanding the applicants' special situation, a reasonable
relationship of proportionality can be said to have existed between the
rules on international immunity and the legitimate aims pursued.
69. In these circumstances, the Commission considers that the
limitation on the applicants' opportunity to take legal proceedings
against the European Space Agency did not amount to an unjustified
denial of their "right to a court" under Article 6 para. 1 (Art. 6-1).
CONCLUSION
70. The Commission concludes, by 17 votes to 15, that in the present
case there has been no violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
M. de SALVIA S. TRECHSEL
Deputy Secretary President
to the Commission of the Commission
(Or. English)
CONCURRING OPINION OF MR K. HERNDL
While I fully agree with the Commission's conclusion that there
was no violation of Article 6 para. 1 of the Convention and accept the
reasoning leading to that conclusion (paragraphs 83 to 90 of the
Report), I should like to elaborate a little further on some of the
legal issues involved in the present case.
1. The legal situation under international law
As a general rule international governmental organisations, in
particular those of a universal character, enjoy immunities on the
territory of their member States. Those immunities are laid down either
in the constitutional document of the respective organisation or in
special conventions which are binding on member States. The immunity
granted to international organisation is generally recognized and
should even be ensured under international custom (cf. Seidl-
Hohenveldern, Völkerrecht, 8th edition, 1994, margin No. 1498). In the
latter respect, Dominicé also affirms that at least as far as the
organisations of the UN system are concerned, there exists a customary
rule of international law concerning immunity from any national
jurisdiction (cf. Dominicé, l'Immunité de juridiction et d'exécution
des organisations internationales, Recueil des Cours, tome 187,
p. 220).
As the Commission rightly states, it is considered unacceptable
for individual governments to be able, whether through their executive,
legislative or judicial organs, to require an inter-governmental
organisation to take certain actions by command addressed to the
organisation or to any of its officials (cf. R. Bindschedler,
International Organizations, General Aspects; and P. Szasz,
International Organizations, Privileges and Immunities, in:
R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. II,
1992, pp. 1289, and pp. 1325 et seq.).
Only a corresponding rule of international law can ensure the
independence of an international organisation, protecting the
organisation as it were from unilateral interference by individual
governments.
In the case of ESA the constituent treaty, i.e. the Convention
for the Establishment of a European Space Agency of 30 May 1975,
provides for the organisation's immunity from (national) jurisdiction
and execution (Article XV read in conjunction with Annex I of the
Convention). These provisions are binding on all member States of the
Organisation, hence also on Germany.
2. The implication of this legal situation for German law
German law appears to be basically in line with this
international legal situation. The Courts Organisation Act, in
regulating the immunity from jurisdiction of internationally protected
persons, provides in its Section 20 that other persons (other than the
members of diplomatic or consular missions or representatives of other
States officially invited to Germany) have immunity from jurisdiction
according to the general rules of international law or according to
international agreements or other legal rules. This is exactly the case
with ESA.
Consequently, as ESA as a legal person does not come under German
jurisdiction, neither do the legal disputes of private persons with
ESA. It is legitimate to pose the question whether the European
Convention on Human Rights is at all applicable in respect of such
types of disputes for which the national courts do not have
jurisdiction under international law. Thus, as regards private law
disputes with ESA, the parties to such disputes might not fall under
German jurisdiction in the sense of Article 1 of the Convention,
because German jurisdiction over those kinds of disputes simply does
not exist under international law.
The situation can be regarded as similar to a situation where,
owing to the total lack of any link with the territorial jurisdiction,
courts have to decline to adjudicate a dispute as they have legally no
jurisdiction. It is in fact the State which lacks jurisdiction.
With this in mind, international organisations - and the report
refers to this fact in paragraph 44 - do make arrangements for the
legal settlement of their private law disputes outside the framework
of national courts. This has been done by ESA, and accordingly the
Commission found that, as a matter of principle, equivalent legal
protection does exist as regards private law claims against ESA.
3. The earlier jurisprudence of the Commission
It may serve as illustration to refer at this stage to the
Commission's decision in the analogous case of Spaans v. the
Netherlands (No. 12516/86, Dec. 12.12.88, D.R. 58 p. 119), where the
Commission considered exactly the above mentioned aspects.
In the case of Spaans v. the Netherlands which concerned the
immunity of the Iran-United States Claims Tribunal, an entity
established through international treaty, the respondent government
stressed that "the rule that the ... Tribunal in its capacity as a body
established under public international law enjoys certain immunities
and privileges ... is, in general terms, derived directly from the
generally accepted principles of international law (NB: not underlined
in the original)", the Netherlands Supreme Court upholding that view
by confirming that "an international organisation is, in principle, not
subject to the jurisdiction of the courts in the ... State concerning
disputes that have a direct connection with the fulfilment of the
organisation's tasks". Moreover the Commission rejected the application
as incompatible ratione personae, noting that "it is in accordance with
international law that States confer immunities and privileges to
international bodies ... The Commission does not consider that such a
restriction of national sovereignty in order to facilitate the working
of an international body gives rise to an issue under the Convention".
4. The results of the situation for the applicants
It must be recalled that there never existed a contractual
relationship, entered into by the applicants themselves, between ESA
and the applicants. They were employed by private companies (SPM, CDP,
T, T.I.) and at some stage two of the applicants even had set up their
own company to contract with these firms as to the services they would
render. At the end of their contracts - when their actual employers
informed them that the contract would not be continued following its
expiration (see para. 19 of the report) - they decided to put forward
claims against ESA. This was made possible only by the existence of a
particular and specific provision in German law concerning the hiring
out of employees (Provision of Labour Act). That act stipulates that
contracts between a hirer out and a borrowing employer, as well as
between the hirer and the temporary worker, require permission from a
German governmental authority (the Federal Employment Office),
otherwise they are void. As far as the granting of governmental
permission for such contracts is concerned, it must remain an open
question to what extent ESA - an international organisation and proper
subject of international law - could actually be subjected to such a
regime in respect of the service contracts which it concluded and which
were necessary for the fulfilment of it tasks. This issue was not, and
could not be, decided by the German courts for the simple reason that
ESA is not subject to German jurisdiction as explained. While the
applicants themselves do not deny that their alleged labour
relationship with ESA was "fictitious" (namely a "fiction" under German
law), they seem to have viewed ESA as the easiest target and sued ESA
although they admittedly had never entered into any legal relationship
with the organisation.
The applicants are, however, by no means barred from asserting
their claims in the courts against CDP (based in Ireland), T. (based
in France) or T.I. (based in Italy), their respective actual employers.
They failed to do so, mainly for the reason - as stated by themselves
- that any court action against their employer would not have afforded
them the possibility to ensure continuation of their work for ESA. What
they obviously wanted was to force ESA to continue a working
relationship which their own employers had terminated.
The present case illustrates very well the need of international
organisations to be protected through their immunity under
international law against abuse and possible unilateral interference.
The Commission recognizes this when it refers to the applicants'
situation as being "the direct consequence of the particular nature of
their claim for recognition of a labour contract with ESA under the
German Provision of Labour Act, i.e. special legislation enacted for
the German labour market. Litigation of this kind would bypass and
could undermine the employment policies of international organisations
under their own staff regulations" (para. 87 of the report).
5. Conclusion
a. ESA's immunity is founded in international law binding on
Germany.
b. German courts do not, therefore, have any jurisdiction over
private law disputes affecting ESA (unless a waiver would occur).
For such disputes ESA is obliged under its constituent treaty to
make suitable provision for settlement.
c. The applicants could have any time brought claims against
their actual (not their "fictitious") employers.
d. It cannot be maintained that in "providing" immunity from
jurisdiction to ESA, the national authorities exceeded their
margin of appreciation to limit the applicants' access to the
courts under Article 6 of the Convention. As a member State of
ESA, Germany did not "provide" immunity to ESA but is bound by
ESA's constituent treaty. Germany could otherwise not have become
a member of that organisation.
(Or. English)
DISSENTING OPINION OF MR G. RESS
JOINED BY MM E. BUSUTTIL, A.S. GÖZÜBÜYÜK, A. WEITZEL,
J.-C. SOYER, C.L. ROZAKIS, L. LOUCAIDES, M.A. NOWICKI,
I. CABRAL BARRETO, B. CONFORTI, I. BÉKÉS, J. MUCHA, A. PERENIC,
E.A. ALKEMA and R. NICOLINI
1. This case raises the important issue of relations of the System
of Protection of Human Rights under the ECHR to international
organisations. It raises in particular the question how far State
parties to the ECHR can by subsequent treaties grant immunities from
law suits to international organisations.
To my great regret I am unable to follow the reasoning of the
majority that in this case the margin of appreciation to limit the
applicants' access to the court has not been exceeded. Quite the
contrary. The applicants did not find a labour court at their disposal
in Germany to determine the merits of their specific legal claims
arising out of the German Provision of Labour Act (Arbeitnehmer-
überlassungsgesetz). Admitting that States may create international
organisations with specific competence and jurisdiction the States
cannot evade by these treaties their responsibility under the ECHR
which has created an objective European legal order. They must at least
provide "that within the organisation fundamental rights will receive
an equivalent protection "(No. 13258/87, X v. Germany, Dec. 9.2.90,
D.R. 64, p. 138). Immunities of international organisations, created
by subsequent treaties, cannot be considered as a kind of general
unwritten exception to the scope of application of the ECHR. There is
no inherent general exception under the ECHR to institutions of
international public law, which may as far as they are not of a
ius cogens nature be disposed of by the parties of the treaty.
Furthermore we have not here to decide on the rule of state immunity
or diplomatic or consular immunity or other forms of personal
immunities but only on immunities of international organisations
created after the coming into force of the ECHR. If States which are
members of the ECHR become members of such an international
organisation they must ensure that actions and other forms of legal
relations of these organisations do not violate the ECHR at least as
individuals under the jurisdiction of these States are concerned.
2. Unlike the opinion of the majority I find that the ESA did not
provide a protection which would meet the requirement of Article 6
para. 1. Pursuant to the legal system established under Annex I to the
"ESA-Convention", the European Space Agency apart from the possibility
of waiving its immunity has resorted to various devices to settle
disputes with private parties. Thus members of staff or experts may
have recourse to an Appeals Board in respect of their conditions of
service. Arbitration is provided for in respect of disputes concerning
written contracts other than those concluded in accordance with the
Staff Regulations. Moreover, any Member State may submit to the
International Arbitration Tribunal any dispute, inter alia, arising out
of damage caused by the Agency, or involving any other non-contractual
responsibility of the Agency. Thus, in various private law disputes
involving the European Space Agency, judicial review may be obtained.
However, the applicants, asserting a right to employment under German
labour law, were not covered by these remedies. The applicants'
interests did not, therefore, receive a legal protection within the
European Space Agency which could be regarded as equivalent to the
jurisdiction of the German labour courts or at least to the minimum of
a judicial review of their case.
As regards any other remedies, I note that the Federal Labour
Court referred the applicants to the possibility of requesting the
German Government to bring the applicants' case before the
International Arbitration Tribunal. Moreover, the Government addressed
the possibility of instituting administrative proceedings against the
German Government in order to enforce such proceedings. However,
proceedings before the International Arbitration Tribunal, to which the
applicants would not be a party and which would not directly relate to
their claim under the German Provision of Labour Act, cannot be
regarded as an effective legal remedy, for the purposes of Article 6
para. 1.
The applicants also had, as pointed out by the Government, a
possibility of bringing other legal proceedings, in pursuance of the
relevant provisions of the German Provision of Labour Act, against the
GDP company, the Irish partner in the chain of contractual relations
for hiring the applicants out to the European Space Agency. Arguing
that their contract with the private company was null and void under
the Provision of Labour Act, they could have claimed compensation in
respect of any damages suffered as a consequence of having relied on
the validity of their contract. However, such action against a company
seated abroad does not appear a practical solution to the applicants'
problems. Above all, they could not, in such proceedings, have secured
the right asserted by them, namely an employment contract with the
European Space Agency as borrowing employer. Accordingly, these
proceedings cannot be regarded as a substitute or the requirement of
access to court.
It cannot be the essence of the guarantee of access to court, in
particular in labour law matters, to refer the individual to the
possibility of legal procedure abroad or to the possibility of a claim
to damages when he is seeking a judgment on the employment contract or
contractual relation. If this would have to be adopted as the essence
of the right to access to court that would amount to "a right to access
to a court in another contracting State and on another legal claim".
In my view this misconstrues Article 6 para. 1.
I am aware that the applicants' situation was the direct
consequence of the particular nature of their claim for recognition of
a labour contract with the European Space Agency under the German
Provision of Labour Act, i.e. special legislation enacted for the
German labour market. However, I find that the question as to whether
and to what extent domestic legislation of this kind can be held
against an international organisation, which regularly enacts its own
staff regulations, cannot be resolved in removing such matters from
judicial review. In this connection, it must be borne in mind, as
stated in paragraph 70 of the Commission's Report, that the object of
the immunity from jurisdiction accorded to international organisations
is merely to save them from having to litigate unwillingly in national
courts.
In the light of these considerations, it cannot be said that a
reasonable relationship of proportionality was achieved between the
effects of the rules on immunity accorded to the European Space Agency
on the applicants' interest to have their claim under the German
Provision of Labour Act determined by a court and the legitimate aim
pursued. Consequently, in providing immunity from jurisdiction to the
European Space Agency, the national authorities exceeded their margin
of appreciation to limit the applicants' access to the courts under
Article 6 para. 1.
It would have been possible that the German labour courts also
interpret the relevant provisions of the ESA-Convention as to the
effect to bring these in line with the requirements of Article 6. In
particular due regard could and should have been given to the trend in
international public law to restrict state immunity in labour disputes.
There is nothing that warrants a wider application in relation to
immunities of international organisations.
In these circumstances, I consider that the limitation on the
applicants' opportunity to take legal proceedings against the European
Space Agency amounted to an unjustified denial of their "right to a
court" under Article 6 para. 1.
Full & Egal Universal Law Academy