...
THE FACTS
1. The applicant, Mr Richard Chapman, is a national of the United States of America, who was born in 1943 and lives in Novato (USA). He was represented before the Court by Ms M. Dulk, a lawyer practising in Leefdaal (Belgium).
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant was employed under successive fixed-term contracts from 1988 to 2001 by the North Atlantic Treaty Organisation (NATO) and by agencies of NATO including the Air Command and Control System Management Agency (NACMA).
4. In 2001 the applicant, through his lawyer, served notices on NATO and NACMA seeking acknowledgment that, having exceeded ten years of service, he was employed by those organisations under a permanent contract with effect since 1998 and that he therefore enjoyed the benefits related to that status, in particular as regards his pension entitlement.
5. On 21 March 2002 the applicant brought proceedings against those organisations before the Brussels Employment Tribunal.
6. On 28 May 2002 the Employment Tribunal, ruling in the absence of the respondents, declared his application admissible and well-founded. It ordered the respondent organisations, jointly, to pay and/or acknowledge the following to the applicant: his life-long entitlement to health care, his reinstatement at grade A4 as a NATO official, promotions and corresponding pay-rises since October 2002, compensation for loss of non-taxable income since October 1998, and allowances for home leave and annual leave to which he should have been entitled.
7. In applications served on 28 August and 10 September 2002, the prosecutor at the Employment Tribunal sought to have the judgment set aside. The Belgian State also served an application for the same purpose on 28 November 2002.
8. After joining the two applications to have the judgment set aside, the Employment Tribunal, in a decision of 16 July 2003, declared them inadmissible. As regards that of the prosecutor, the Tribunal took the view that he could not allege a breach of public order. As to that of the Belgian State, the Tribunal found that the applicant had no personal interest in its action.
9. The prosecutor and the Belgian State appealed before the Brussels Employment Appeal Tribunal against the judgment of 16 July 2003. NATO and the NACMA were joined to the proceedings as third parties with a common interest in the judgment, but once again they did not appear.
10. Before the Employment Appeal Tribunal, the appellants asserted firstly that their third-party applications to have the judgment set aside were admissible. As to the merits of those applications, they argued in particular that NATO in principle enjoyed jurisdictional immunity and that there was no reason for it to be waived in the present case, because the applicant could have and should have had recourse to NATO’s internal procedure for the settlement of disputes raised by civilian personnel in accordance with Article 4.2.1 of that organisation’s Regulations governing complaints and appeals (Annex IX to the NATO Civilian Personnel Regulations (CPR)). In his submissions, the applicant explained that he had concluded from Article 61.1 of the CPR, which provided that complaints should be addressed first to the immediate supervisor, then to the Head of the NATO body concerned, before being submitted to the Appeals Board, that this procedure did not concern those, like himself, who were no longer serving members of staff. In support of this argument he invoked the fact that no proceedings had been initiated in response to his letters.
11. In a judgment of 1 February 2005 the Employment Appeal Tribunal declared admissible the third-party applications to have the judgment of 28 May 2002 set aside, and thus examined the merits of the appellants’ complaints. It observed that NATO’s immunity before the Belgian courts was established in its founding instrument. Referring to the case-law of the European Court of Human Rights in Waite and Kennedy v. Germany [GC], (no. 26083/94, § 63, ECHR 1999‑I), it took the view that the jurisdictional immunity was admissible under Article 6 § 1 of the Convention. It found it to be established, by Article 62 of the CPR and by Article 4 of the Regulations governing complaints and appeals (Annex IX), that it was open to the applicant to refer his complaint to the Appeals Board governed by that Annex, even though he was no longer a serving member of staff. According to the Employment Appeal Tribunal, having regard mainly to the composition of the Board, the independence of its members, the scope of its competence, the adversarial nature of its procedure, the possibility for appellants to be represented by a lawyer of their own choosing, the fact that decisions were taken by a majority, delivered in writing and accompanied by reasons, the procedure afforded sufficient safeguards for the purposes of the Convention and the applicant should thus have availed himself of that remedy. The Employment Appeal Tribunal annulled the Employment Tribunal’s judgment of 28 May 2002 and declared the applicant’s action inadmissible.
12. The Employment Appeal Tribunal’s judgment was not served on the applicant.
13. Following the judgment of the Employment Appeal Tribunal, the applicant wrote, in person and through his lawyer, to the administrative services of NATO in order to find out how to initiate the internal dispute settlement procedure. He never received a reply to his letters.
14. He also contacted by e-mail the civilian personnel association with regard to the merits of his dispute with NATO and the scope of the Appeals Board’s competence. In reply, the Chair of the association reminded him that he had knowingly accepted the contractual policy of which he was complaining and informed him that the association was looking into the possibility of bringing the case before the Appeals Board. That reply was never followed up.
15. In 2006 the applicant made contact with a lawyer at the Court of Cassation to seek an opinion as to his chances of successfully lodging an appeal on points of law.
16. On 27 March 2006 the lawyer issued his opinion. It examined in detail the possible grounds and concluded that there was no prospect of an appeal on points of law being successful, since the Employment Appeal Tribunal had delivered a judgment in accordance with European case-law and there was thus nothing in the judgment, duly reasoned as it was, that the Court of Cassation might call into question.
17. The applicant did not lodge an appeal on points of law.
B. Relevant international law
18. NATO’s jurisdictional immunity stems from the Agreement on the status of the North Atlantic Treaty Organization, National Representatives and International Staff (signed in Ottawa, 20 September 1951) of which the relevant provisions read as follows:
Article IV
“The Organization shall possess juridical personality ...”
Article V
“The Organization, its property and assets, ..., shall enjoy immunity from every form of legal process ...”
19. The relations between NATO’s management bodies and the civilian personnel employed by the Organisation are governed by NATO’s Civilian Personnel Regulations (CPR), a document approved by the North Atlantic Council (composed of permanent representatives of the member States having the rank of ambassador). The relevant provisions of the CPR may be summed up as follows.
20. Under Article 61.1 of the CPR, staff members who have a complaint affecting their work or their conditions of work or of service must, in the first instance, refer it to the head of their division or office, through their immediate supervisor. Under Article 61.3, if the staff member is unsatisfied with the response, he or she will be entitled to submit the “complaint” in writing and within a reasonable time to the Head of the NATO body concerned in accordance with the provisions of Articles 2 and 3 of Annex IX to the Regulations. Article 62 provides that the conditions under which “appeals” may be made by staff members, former staff members or their legal successors are laid down in Article 4 of Annex IX.
21. Annex IX to the Regulations contains the “Regulations governing complaints and appeals”.
22. Article 4.1.1 of Annex IX establishes an Appeals Board composed of a President and two full members, of different nationality. They are appointed by the North Atlantic Council for a period of three years from among persons of recognised competence of whom one at least must have legal qualifications. Article 4.1.7 provides that the members of the Appeals Board cannot receive any instructions or be subject to any constraint. They enjoy, so far as is necessary for the effective exercise of their functions, the privileges and immunities specified in Article 21 of the Ottawa Agreement.
23. The Appeals Board decides any individual dispute arising out of a decision taken by the Head of a NATO body either on his/her own authority or in application of a decision of the Council and which a staff member, or former staff member or his/her legal successors consider constitutes grounds for grievance (Article 4.2.1 of the Annex).
24. The Appeals Board may annul such decisions of the Heads of NATO bodies as are contrary to the contracts or other terms of appointment of the staff member concerned or to the relevant provisions of the Civilian Personnel Regulations. It may also order the Organisation to repair the damage resulting from any irregularity committed by the Head of a NATO body (Article 4.2.2 of the Annex).
25. Appeals must be lodged with the Secretariat of the Appeals Board within sixty days from the date of notification of the decision appealed against. Nevertheless, in very exceptional cases and for duly justified reasons, the Appeals Board may admit appeals lodged after that time (Article 4.3.2 of the Annex).
26. Appeals must be transmitted immediately to the Head of the NATO body concerned, who will then have sixty days from the date of submission of the appeal to make comments thereon in writing. These comments must be communicated to the appellant who may, within thirty days of their receipt, submit a reply in writing (Article 4.4.1 of the Annex).
27. The meetings of the Appeals Board are held in private (Article 4.7.1 of the Annex).
28. The proceedings before the Board are adversarial in nature. The interested parties may attend the hearings and make oral statements in support of the arguments put forward in their submissions. They may be aided or represented for this purpose either by a member of the civilian or military personnel of NATO or by counsel selected by them (Article 4.7.2 of the Annex).
29. Decisions of the Board are taken by majority vote. They are delivered in writing and must include a summary of the proceedings, together with the grounds on which they are based. They are notified to the Head of the NATO body concerned and to the applicant (Article 4.8.1 of the Annex).
COMPLAINTS
30. Relying on Article 6 § 1 of the Convention, the applicant complained that his right of access to a court had been breached, on the ground that, apart from the question of the implementation of NATO’s jurisdictional immunity, his “dispute” (“contestation”) had not been meaningfully examined by a court.
THE LAW
31. The applicant alleged that he had not had access to a court, for the purposes of Article 6 § 1 of the Convention, on the ground that he had not been able to have his “dispute” (“contestation”) meaningfully examined by the Belgian courts. Article 6 § 1, in its relevant part, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”
32. The Court begins by finding that, after submitting his complaint based on a violation of Article 6 § 1 of the Convention to the lower courts, the applicant, in order to comply with the Belgian judicial rules governing the initiation of proceedings before the Court of Cassation, contacted a lawyer at that court. As is the custom, the lawyer examined the file and gave the applicant an opinion on the chances of lodging a successful appeal on points of law. Looking at the issue in detail, including in relation to the Convention, the lawyer at the Court of Cassation took the view that there was no reasonable prospect of success. He observed that, as a matter of established case-law, decisions of the courts below that had correctly applied the Convention case-law were not called into question at the cassation stage. On the basis of that negative opinion, the applicant decided not to proceed with an appeal on points of law.
33. The assistance of a lawyer at the Court of Cassation is mandatory in civil matters. The applicant had consulted one for the purposes of lodging an appeal on points of law, and he received a negative opinion before the deadline for lodging such an appeal had started to run, as the applicant had not yet been served with a copy of the judgment of the Employment Appeal Tribunal. On that latter point, the present case must be distinguished from that of Van Oosterwijck v. Belgium (6 November 1980, §§ 36-40, Series A no. 40), in which the Court declared the application inadmissible for non‑exhaustion of domestic remedies. Having regard in particular to the preventive role of the lawyer at the Court of Cassation, in the interest both of that court and of potential litigants, the Court finds that, in the present case, the applicant did everything that could reasonably be expected of him to exhaust domestic remedies. This has not in fact been disputed by the Government.
34. As regards the calculation of the six-month period provided for in Article 35 § 1 of the Convention, the Court reiterates that, as a rule, it runs from the date of the final decision in the process of exhaustion of domestic remedies. However, Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate to take the start of the six-month period as the date when the applicant first became or ought to have become aware of those circumstances (see Varnava and Others v. Turkey ([GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009).
35. In the present case, the Court observes that the applicant precisely found himself in such a situation. He initiated the process to lodge an appeal on points of law against the judgment of the Employment Appeal Tribunal, but abandoned the idea after receiving a negative opinion on the chances of its success. The Court therefore finds that, for the calculation of the six‑month time-limit, it is appropriate to take into account not 1 February 2005, the date of the Employment Appeal Tribunal’s judgment, which has become the final domestic decision, but 27 March 2006, the date of the opinion issued by the lawyer at the Court of Cassation informing the applicant that an appeal on points of law was likely to be unsuccessful.
A. The parties’ submissions
36. The Government submitted that the applicant did not fall within the “jurisdiction” of Belgium, that there had been no State intervention and that the application was therefore inadmissible as incompatible ratione personae with the provisions of the Convention, in line with the Court’s decision in the cases of Behrami and Behrami v. France and Saramati v. France, Germany and Norway [GC] (dec., no. 78166/01, 2 May 2007), Boivin v. 34 Member States of the Council of Europe ((dec.), no. 73250/01, ECHR 2008), and Connolly v. 15 Member States of the European Union (dec., no. 73274/01, 9 December 2008).
37. Even supposing that the responsibility of the Belgian State had been engaged because the applicant had called into question the protection of fundamental rights by the international organisation concerned, the Government pointed out that in the case of Gasparini v. Italy and Belgium ((dec.), no. 10750/03, 12 May 2009) the Court had already ruled on the same internal procedure of NATO as that which was at issue in the present case. In the Gasparini case the Court had taken the view that NATO’s procedure for the settlement of internal disputes was not “manifestly deficient” within the meaning given to that term in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC] (no. 45036/98, ECHR 2005‑VI). Accordingly, the applicant’s complaints were manifestly ill‑founded.
38. That being said, it was a matter of established case-law (the Government referred in particular to Waite and Kennedy, cited above) that the right to have access to a domestic court was not absolute and that it could be limited by the principle of jurisdictional immunity, even in disputes concerning employment contracts, where the complainants had available to them, within the relevant international organisation, reasonable alternative means to ensure protection of their Convention rights. In the present case such a remedy had been available to the applicant before the NATO Appeals Board, as established by that organisation’s Regulations governing complaints and appeals. He therefore could and should have availed himself of this remedy, having wrongly believed that it was not applicable to him. Consequently, and in any event, the application was manifestly ill-founded.
39. The applicant, for his part, observed that, in the cases cited by the Government, the respondent States had not intervened and the impugned decisions had fallen entirely within the legal orders of the international organisations themselves. The situation in the present case was different, as the Belgian State had intervened through its judicial authorities. The applicant submitted that the Court therefore did have jurisdiction ratione personae.
40. In the applicant’s submission, it was necessary to take into account the general tendency, as reflected in both academic opinion and case-law, to limit the immunity of international organisations to acts of “public authority”, excluding disputes relating to employment contracts.
41. Even supposing, quod non, that such disputes were covered by the immunity granted to NATO, such immunity was not absolute, in any event, and had to be balanced against the right of access to a court guaranteed by the Convention, which could not be rendered ineffective by the application of immunity. The responsibility of the States parties could be engaged if it transpired that the protection of fundamental rights within the organisation was not sufficient and thus did not provide reasonable alternative means for the settlement of the dispute. That was precisely the situation in the present case, in view of the procedural failings which characterised the procedure before the NATO Appeals Board: meetings held in private, no mandatory representation, appointment of members by governmental representatives, etc. In addition, it had been for the Employment Appeal Tribunal to assess the applicant’s situation in concreto and to take account of the fact that, in his case, it had proved impossible to initiate the procedure in view of the lack of response to his letters. In those circumstances, he could not be found at fault for failing to refer his complaint to the NATO Appeals Board.
B. The Court’s assessment
42. The Court reiterates that, under Article 1 of the Convention, the engagement undertaken by a Contracting State is to “secure” the rights and freedoms listed in the Convention to persons within its own “jurisdiction”. The notion of “jurisdiction” under Article 1 is a threshold criterion for a Contracting State to be held responsible for acts or omissions attributable to it which give rise to an allegation of infringement of rights and freedoms set forth in the Convention (see, among many other authorities, Nada v. Switzerland [GC], no. 10593/08, § 118, ECHR 2012).
43. In the present case, the Court observes that the applicant’s complaints are directed against the decision of the Belgian courts, which, on appeal, refused to examine the merits of his complaints on account of NATO’s immunity from jurisdiction. In declaring the applicant’s action inadmissible, the Employment Appeal Tribunal noted, in particular, that reasonable alternative means were available to the applicant within NATO itself.
44. The Court takes the view that, as in the situation obtaining in the above-cited cases of Waite and Kennedy and Bosphorus, its jurisdiction ratione personae stems from the fact that the impugned decision was taken by an organ of the respondent State, namely the Brussels Employment Appeal Tribunal. This is a factor which distinguishes the present case from those cited by the Government, including Gasparini, and other cases such as Galić v. the Netherlands ((dec.), no. 22617/07, 9 June 2009), Blagojević v. the Netherlands ((dec.), no. 49032/07, 9 June 2009), and Beygo v. 46 member States of the Council of Europe ((dec.), no. 36099/06, 16 June 2009), where the Court found that it had no jurisdiction, as there had been no direct intervention by the respondent State and/or the complaints had been directed against acts of the international organisation in question.
45. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. It further observes that this right 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. In this respect, the Contracting States enjoy a certain margin of appreciation. However, it must be satisfied that the limitations applied do not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 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 (see Waite and Kennedy, cited above, § 59, and Kart v. Turkey [GC], no. 8917/05, § 79, ECHR 2009).
46. In the present case, the Court notes that the applicant had access to the Brussels Employment Tribunal then to the Brussels Employment Appeal Tribunal. Before both those domestic courts he was able to set forth his complaints concerning his contractual rights, together with his arguments as to the application of NATO’s jurisdictional immunity.
47. Before the Court, the applicant reiterated his argument to the effect that NATO’s jurisdictional immunity had been unduly invoked before the Employment Appeal Tribunal and that it could not legitimately restrict his right of access to a court. In his submission, the immunity granted to international organisations should be limited to disputes concerning acts of “public authority”, excluding disputes relating to employment contracts.
48. The Court reiterates that the Convention does not prevent States from establishing international organisations in order to pursue or strengthen their cooperation in certain fields of activity, or from attributing to them certain competences and according them immunities (see Waite and Kennedy, cited above, § 67; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 48, ECHR 2001‑VIII; and Bosphorus, cited above, § 152). The Court has recognised that the attribution of privileges and immunities to international organisations is an essential means of ensuring the proper functioning of such organisations free from unilateral interference by individual governments, and that it pursues a legitimate aim (see Waite and Kennedy, cited above, § 63).
49. In the present case, the Brussels Employment Appeal Tribunal found that NATO enjoyed jurisdictional immunity by virtue of its founding instrument. Referring to the Court’s case-law in the above-cited Waite and Kennedy judgment, it took the view that this conventional rule pursued a legitimate aim. Having regard to the foregoing, the Court reaches the same conclusion.
50. However, since the application of immunity may have implications as to the protection of fundamental rights, it should be observed that it would be incompatible with the purpose and object of the Convention if the States, by transferring powers to international organisations, were thereby absolved from their responsibility under the Convention in relation to the field of activity concerned (see Waite and Kennedy, cited above, § 67, and Prince Hans-Adam II of Liechtenstein, cited above, § 48).
51. An international organisation’s jurisdictional immunity will therefore only be admissible under Article 6 § 1 of the Convention if the resulting restriction is not disproportionate. On this point, the Court is of the view that, bearing in mind the legitimate aim of immunities of international organisations (see paragraph 48 above), the test of proportionality cannot be applied in such a way as to compel an international organisation to submit itself to national litigation in relation to employment conditions prescribed under national labour law. To read Article 6 § 1 of the Convention and its guarantee of access to court as necessarily requiring the organisation to accept the jurisdiction of national courts, at least in respect of the conditions of employment of its staff, would, in the Court’s view, thwart the proper functioning of international organisations and run counter to the trend existing for many years now towards extending and strengthening international cooperation (see Waite and Kennedy, cited above, § 72). The question of proportionality must nevertheless be assessed in the light of the particular circumstances of the case. It was for this reason that the Court examined, in a comparable case, whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention (ibid., § 68).
52. In the present case, the Brussels Employment Appeal Tribunal took the view that it was necessary to assess whether the restriction was disproportionate in the light of the procedure before the NATO Appeals Board and found, after examining the rules contained in NATO’s Regulations governing complaints and appeals, that it afforded sufficient safeguards for the purposes of Article 6 § 1 of the Convention (see paragraph 11 above). In addition, it observed that, contrary to the applicant’s argument, that procedure was accessible to former staff members. The Employment Appeal Tribunal concluded that, as a reasonable alternative internal means was available within NATO, the organisation’s jurisdictional immunity was fully applicable.
53. The Court finds nothing in the Employment Appeal Tribunal’s decision to suggest that it could be regarded as arbitrary.
54. It observes in particular that, before the domestic courts, the applicant’s main argument was based on his allegation that the procedure in question was inaccessible to former staff members, who, like himself, were no longer employed by the organisation. He had reached this conclusion from the text of the organisation’s Civilian Personnel Regulations and from the fact that the procedure had not been initiated spontaneously, in spite of his letters (see paragraph 10 above). Like the Employment Appeal Tribunal, the Court finds that, taken together, the applicable provisions were nevertheless sufficiently clear (see paragraphs 20 to 23 above) and that the applicant, in reality, failed to avail himself of a remedy that was available to him.
55. Moreover, the Court finds that, as he had not referred his complaint to the Appeals Board, the applicant remained unable to show how, if he had validly initiated such proceedings, the shortcomings that he attributed to them (see paragraph 41 above) would have prevented him, in the context of his dispute before that body, from enjoying adequate safeguards for the purposes of Article 6 § 1 of the Convention.
56. In view of all these circumstances, the Court finds that, in giving effect to NATO’s jurisdictional immunity, the Brussels Employment Appeal Tribunal did not exceed its margin of appreciation. Taking into account in particular the alternative means of legal process available to the applicant, it cannot be said that the limitation on his access to the Belgian courts in order to settle his dispute with NATO impaired the very essence of his “right to a court” or was disproportionate for the purposes of Article 6 § 1 of the Convention (compare Waite and Kennedy, cited above, § 73).
57. It follows that the applicant’s complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Claudia WesterdiekMark Villiger
RegistrarPresident
Full & Egal Universal Law Academy