FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 10523/02
by COORPLAN-JENNI GESMBH and Elvir HASCIC
against Austria
The European Court of Human Rights (First Section), sitting on 24 February 2005 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrsN. Vajić,
MrsS. Botoucharova,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having regard to the above application lodged on 7 August 2001,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the submissions at the hearing on 24 February 2005,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Coorplan-Jenni GmbH is a company with its seat in Feldkrich (“the applicant company”). The second applicant, Mr Elvir Hascic is a citizen of Bosnia-Herzegovina, who was born in 1970 and lives in Rankweil. They are represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz. At the oral hearing on 24 February 2005 the applicants were represented by Mr W.L. Weh, assisted by Mr Rony Kolb. The respondent Government are represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs. At the oral hearing on 24 February 2005 the Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs, assisted by Mrs Ingrid Nowotny and Mrs Johanna Höller.
A. The circumstances of the case
In April 1991 the second applicant entered Austria with a tourist visa. His first two requests for a residence permit (Aufenthaltserlaubnis) filed in February 1992 and April 1994 respectively were of no avail. In May 1996 the applicant filed a new request for a residence permit. In July 1996 this request was granted for a period of two years for the purpose of family reunification as the applicant was married in Austria and father of a daughter born in 1995. The residence permit was subsequently repeatedly extended for another two years.
As from 1991 on the second applicant was working within the service of the applicant company.
Upon the Labour Market's Service's instruction according to which the second applicant's employment needed a corresponding permit, the applicants, on 23 April 1998, filed a request with the Feldkirch Labour Market Service (Arbeitsmarktservice) for the granting of an employment permit to the applicant company.
On 4 June 1998 the Labour Market Service dismissed the request in accordance with S. 4 § 6 of the Employment of Foreigners Act (Ausländerbeschäftigungsgesetz). It found that the maximum quota fixed for the employment of foreigners this year in Vorarlberg had been exceeded and none of the exceptional conditions of S. 4 § 6 of the above Act were met.
On 18 June 1998 the applicants appealed. They submitted that the second applicant was living since 1991 in Austria and was a shareholder of the Jenni Montagen OEG company. The applicants claimed that the second applicant had a right to employment in Austria. They referred in this regard to the Geneva Refugee Convention, the European Social Charter and the International Convenant on Economic, Social and Cultural Rights. They further referred to the Association Agreement between the European Union and Turkey and submitted that this treaty had to be applied analogical to their case.
On 22 July 1998 the Vorarlberg Labour Market Service dismissed the applicant company's complaint and rejected the second applicant's complaint. It noted that only the applicant company as proposed employer but not the second applicant had the right to file a request for the granting of an employment permit. According to S. 21 of the Employment of Foreigners Act a foreigner was only then party to the proceedings concerning the issuing of a work permit when his particular personal circumstances were relevant for the decision or in case there was no employer. In the present case, however, none of these two conditions were met. In particular, the Bregenz Labour Market Service had based its decision exclusively on the situation of the labour market, namely that the maximum quota for the employment of foreigners had been exceeded. Therefore, the second applicant was not a party to the proceedings.
As regards the applicant company's complaint it noted that only certain refugees who were authorised to an unlimited stay in Austria or who were married with an Austrian national or had a child of Austrian nationality were exempted from the regulations of the Employment of Foreigners Act. However, during all of the proceedings it had remained uncontested that the second applicant was not a refugee. The Association Agreement between the European Union and Turkey was not applicable in the present case as the second applicant was not a Turkish national.
On 3 September 1998 the applicants filed a complaint with the Administrative Court and requested an oral hearing. They contested the lawfulness of the fixed maximum quota and the correctness of the official statistics according to which the maximum quota had been exceeded. The submitted in the latter regard that, having regard to the number of employed foreigners given in the official statistics some months before, the number now given could not be correct. They further complained that the Labour Market Service had failed to establish in an objective way and in adversarial proceedings that the maximum quota for Vorarlberg had been exceeded.
They further submitted that the second applicant had a right to claim employment in Austria and should be granted legal standing in the proceedings at issue. They submitted in this regard that the applicant was living since 1991 together with his wife in Austria and had a daughter born in 1995. The applicant was in possession of a settlement permit (Niederlassungsbewilligung) limited in time while his wife and his daughter had been granted unlimited residence permits (Aufenthaltsbewilligung). The applicants referred to Art. 17 of the Geneva Refugee Convention and submitted that this Convention should be analogical applied to nationals of Bosnia and Herzegovina who had come to Austria before the civil war. They further referred to Art. 23 of the Universal Declaration of Human Rights, Art. 6 of the International Convenant on Economic, Social and Cultural rights and the European Social Charta. They finally invoked Article 6, Article 8 and Article 1 of Protocol 1 of the Convention.
On 12 October 1998 the Vorarlberg Labour Market Service submitted its comments.
On 19 December 2000 the Administrative Court dismissed the applicant company's complaint and rejected the second applicant's complaint.
As regards the second applicant it noted that he had not been violated in any of his rights as it was in principle for the employer to request the issuing of an employment permit. It further referred to the case-law of the Constitutional Court according to which the decision upon the issuing of an employment permit did not concern a “civil right” within the meaning of Article 6 of the Convention.
As regards the complaint of the applicant company the Administrative Court noted that the official statistics according to which the maximum quota had been exceeded constituted documentary evidence which was open for a proof of the contrary. The applicant company had, however, not made any proper objections to the finding that the maximum quota had been exceeded before the Labour Market Service. The complaint now made before the Administrative Court that the Labour Market Service had failed to establish in an objective way and in adversarial proceedings that the maximum quota for Vorarlberg had been exceeded, was unsubstantiated and, in any way, inadmissible, as it had not been previously raised before the Labour Market Service.
As regards the referral to the Geneva Refugee Convention and the Association Agreement between the European Union and Turkey it noted that these treaties were not applicable to the present case as the second applicant had never alleged to be a refugee within the meaning of the Geneva Refugee Convention and was not Turkish. It further noted that a right to employment of the second applicant could not be deduced from the Universal Declaration of Human Rights or the International Convenant for economic, social and cultural rights.
The Administrative Court rejected at the same time, in accordance with S. 39 § 2 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the applicants' request for a hearing. Referring to its case-law it found that the proceedings at issue did not concern a “civil right” within the meaning of Article 6 of the Convention. This decision was served on the applicants' counsel on 7 February 2001.
Meanwhile, on 23 October 2000, the second applicant's wife acquired Austrian citizenship. Consequently, from that date on, the Employment of Foreigners Act is not any longer applicable to the second applicant.
B. Domestic law in force at the relevant time
The Employment of Foreigners Act (Ausländerbeschäftigungsgesetz) regulates a foreigner's access to the Austrian labour market.
According to S. 1 the Employment of Foreigners Act is not applicable inter alia to:
- certain refugees who are authorised to an unlimited stay in Austria or who are married with an Austrian national or have a child of Austrian nationality (§ 2 lit a);
- foreigners who are married to an Austrian national if they are in possession of a residence title (Aufenthaltstitel) within the meaning of the Aliens Act (§ 2 lit l); under the Aliens Act (Fremdengesetz) there are two types of residence titles: residence permits (Aufenthaltsbewilligung) and settlement permits (Niederlassungsbewilligung). The relevant provisions of the Aliens Act provide that foreigners married to an Austrian national have eased access to a settlement permit.
Under S. 3 § 8 of the Employment Act the competent Regional Labour Office has to certify a foreigner that he fulfils the requirements of S. 1 § 2 lit l before his first taking up an employment.
S. 3 §§ 1 and 2 of the Employment of Foreigners Act provide that the employment of a foreigner requires in principle an employment permit (Beschäftigungsbewilligung) issued to the proposed employer for the concerned foreigner. Without such a permit an employment contract between an employer and a foreign employee is null and void. As long as he is actually employed a foreigner who had been employed without an employment permit has, however, the same claims against his employer as if the employment contract had been valid. Is the lack of an employment permit due to the employer's negligence, the foreign employee further enjoys all rights to which he would be entitled to upon termination of a valid employment relationship (S.29).
S. 15 of the Employment Act provides that upon request for a certain group of foreigners, namely inter alia for foreigners who have been continuously legally employed within the meaning of the Employment Act at least five years during the last eight years in Austria, and for foreigners who have been married with an Austrian national for at least five years and who have their residence (Wohnsitz) in Austria, an “exemption certificate” (Befreiungsschein) can be issued which subsequently relieves the foreigner or potential employer from the obligation to apply for an employment permit. S. 19 provides that the concerned foreigner can request an “exemption certificate” at the competent Regional Labour Market Service.
If a foreigner had been continuously legally employed within the meaning of the Employment Act for at least 52 weeks in the last fourteen months, he may request the issuing of a personal work permit (Arbeitserlaubnis) which is normally valid for one region only and may be restricted to certain kinds of employment (Section 14a).
S. 19 provides that, for an employment permit to be issued, the employer must submit the proposed employment of a specific employee to the concerned Regional Labour Market Service. Only if there is no employer, the foreigner can apply himself.
According to S. 4 § 1 an employment permit can only be granted if the situation and development of the labour market so allows and provided important public or economic interests are not infringed. Furthermore, specific conditions, enlisted in S. 4 § 3, have to be fulfilled.
S. 4c provides that for Turkish nationals who fall within the relevant provisions of the Association Agreement between the European Union and Turkey an employment permit has to be issued ex officio.
Under S. 13a the Minister for Labour and Social Affairs can fix maximum quotas for the employment of foreigners in a specific Region (Landeshöchstzahl) for the following year. S. 4 § 6 provides that once the maximum quota is exhausted, no further employment permits can be issued unless there are certain exceptional circumstances.
S. 21 provides that, in principle, a foreigner is not party to the proceedings concerning the issuing of an employment permit. Exceptions hereto are cases where the particular personal circumstances of the foreigner are relevant for the decision or where there is no employer.
According to the constant case-law of the Constitutional Court and the Administrative Court a refusal of an employment permit under S. 4 §§ 1 and 6 of the Employment of Foreigners Act, cannot violate a proposed foreign employee's rights because no accordant legal position is granted to him under this Act (see VfSlg 14.347/1995, VfSlg 13617/1993; and the Administrative Court's decision of 16 November 1995, 94/09/0330).
The Constitutional Court and the Administrative Court have further held that the refusal of an employment permit to a proposed employer is not a decision concerning his “civil rights” (see, for example, VfSlg 13617/1993 and Administrative Court's decision of 29 October 1997, 95/09/0254 with further references).
According to S. 39 § 1 of the Administrative Court Act, the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. S. 39 § 2 (6) provides, however, that, notwithstanding a party's application, the Administrative Court may decide not to hold a hearing, if it is apparent to the court from the written pleadings of the parties and the files relating to the previous proceedings, that an oral hearing is not likely to contribute to the clarification of the case and the lack of an hearing is not in breach with Article 6 of the Convention.
COMPLAINTS
1. The applicants complain under Article 6 of the Convention about the lack of an oral hearing before the Administrative Court. The second applicant complains under Article 6 and Article 13 of the Convention that he was denied access to court as he was not a party to the proceedings concerning the issuing of an employment permit to the applicant company.
2. The applicants complain under Article 6 of the Convention about the length of the proceedings.
3. The second applicant further complains under Article 3, 8 and 14 of the Convention about the Austrian authorities' refusal to grant the requested employment permit. He submits in this regard that he had been legally residing since 1991 in Austria and has a family in Austria.
THE LAW
I. Applicants' status as “victims” within the meaning of Article 34
In the oral hearing before the Court the Government maintained that the applicants can no longer be regarded as victims within the meaning of Article 34 of the Convention. They referred in this regard to the fact that the second applicant is exempted from the application of the Employment of Foreigners' Act since October 2000 and has been legally employed with the applicant company since end of 2000.
The applicants contested that they have ceased to be victims under the Convention. They argued that the fact that the Employment of Foreigners' Act is not any longer applicable to the second applicant is due to his particular personal circumstances, namely the fact that his wife became an Austrian citizen, and cannot be regarded as an achievement by the Austrian authorities.
The Court reiterates that the Convention institutions have ruled that an applicant will only cease to have standing as victims within the meaning of Article 34 of the Convention if national authorities have acknowledged the alleged violation either expressly or in substance and then afforded redress or if that matter has been resolved. A decision or measure favourable to the applicant is in principle not sufficient to deprive him of his status as a victim in the absence of such acknowledgement and redress (see, as a recent authority, Pitkänen v. Finland, no. 30508/96, § 47, 9 March 2004, with further references).
In the present case, the applicants complain about unfairness of proceedings concerning their request for an employment permit which was refused. The Austrian authorities did not afford any acknowledgement or other redress in respect of these proceedings. Nor can it be said that this particular question had been otherwise resolved. In these circumstances the applicants may still claim to be “victims” of a violation of Article 6.
II. Alleged unfairness of the proceedings
The applicants complain under Article 6 of the Convention about the lack of an oral hearing before the Administrative Court. The second applicant complains under Article 6 and Article 13 of the Convention that he was denied access to court as he was not a party to the proceedings concerning the issuing of an employment permit to the applicant company.
The Court will examine the applicants' complaints under Article 6 § 1 of the Convention, namely the applicant company's complaint about the lack of an oral hearing before the Administrative Court and the second applicant's complaint about lack of access to court. In the view of the latter complaint, the Court does not consider it necessary to also examine the second applicant's complaint about the lack of an oral hearing before the Administrative Court. The Court further does not find it necessary to consider this complaint also under Article 13, this is because its requirements are less strict than, and are here absorbed by those of Article 6 § 1 (see for instance Håkansson and Sturesson v. Sweden, no. 11855/85, § 69, 21 February 1990).
Article 6 § 1, as far as relevant, reads as follows:
“1. In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing ...by a... tribunal.... “
Applicability of Article 6 to the proceedings at issue
The Government submitted that Article 6 is not applicable to the proceedings at issue.
In respect of the second applicant they submitted that he cannot claim a right within the meaning of Article 6 as under domestic law he had neither a right to apply for an employment permit nor a right to the issuing of such a permit. They referred in this regard to the decision B. against the Netherlands (no. 12074/86, Commission decision of 14 July 1988, unreported) where the Commission found that, in the absence of an independent right of a foreigner to an application for a work permit under Dutch law, Article 6 was not applicable to the proceedings relating to such an application. They further stressed that the refusal of the issuing of an employment permit affects the foreigner's legal position only to a limited extent as, in the absence of an employment permit a foreign worker who is actually employed has the same claims against his employer as if the employment contract had been valid. Furthermore, if the lack of an employment permit is due to the employer's negligence, the foreign employee enjoys all rights to which he would be entitled upon termination of a valid employment relationship.
The Government further argued that the proceedings did not involve the determination of a “civil” right of the applicants. They argued in this respect that the requirement of an employment permit to a foreign worker serves the regulation of the Austrian labour market and social policy. Although a decision concerning such a permit has certain effects on relationships under civil law, its primary purpose is public. In the present case the refusal of an employment permit was exclusively based on considerations concerning the public interest.
The Government finally argued that the applicant company was free to employ any other person. It had therefore not been restricted in the manner and scope of the exercise of its economic activities and property rights.
At the hearing before the Government further submitted that the Employment of Foreigners' Act provides for a gradual integration of foreigners into the Austrian labour market. The decision concerning a foreigner's first step into the Austrian labour market, the issuing of an employment permit, is exclusively based on public interests and the concerned foreigner has, therefore, no right to such a permit. With a foreigner's further integration into the labour market, however, public interests are less and less decisive and a foreigner acquires a legal right to a work permit and, subsequently, to an exemption certificate granting him full access to the Austrian labour market.
The applicants contested the Government's arguments. They submitted that the second applicant is integrated in Austria and has a right to an employment permit under Article 8 of the Convention. They submitted in this regard that the first applicant had been legally residing in Austria since 1991 and has a wife and a daughter in Austria who, in meanwhile, had become Austrian nationals. The second applicant had already worked for the applicant company for seven years. They submitted that the right of a foreign employee to an employment permit is indirectly granted by the case-law of the Constitutional Court according to which a foreigner must not be discriminated against another foreigner. Further, the competent authorities cannot decide the question whether or not an employment permit should be granted with unfettered discretion but are bound by the conditions under the Employment Act. They argued that the second applicant's right to employment in Austria could be deduced from the Geneva Refugee Convention, the International Convenant on economic, social and cultural rights, the Association Agreement between Austria and Turkey and the European Social Charter.
They further argued that the granting of an employment permit is a condition for the validity of the employment contract between the employer and the foreign employee and is therefore decisive for relations in civil law. Therefore, the proceedings at issue are comparable to administrative proceedings concerning the approval of a transaction under the Real Property Transactions Act to which the Court had found that Article 6 was applicable (Ringeisen v. Austria, judgement of 16 July 1971 and Sramek v. Austria, judgement of 22 October 1984, Series A, no. 84).
At the hearing before the Court the applicants further argued that the fact that a foreigner permanently established with his family in the host country claims to work there is, at the least, an arguable right.
Merits
The Government argued that, provided that the Court found that Article 6 was applicable, the applicant company had not been violated in their right to an oral hearing before a tribunal as the special features of the proceedings constituted “exceptional circumstances” which justified the absence of a hearing. The Government noted in this regard that in their submissions with the Administrative Court the applicants had not substantiated their complaint relating to the correctness of the maximum quota nor had they substantiated their request for an oral hearing. The Administrative Court could therefore adequately decide the case on the basis of the case-file.
The Government admitted that, provided that the Court found that Article 6 was applicable to the proceedings at issue, the second applicant's right of access to a court had been violated.
The applicants submitted that the lack of an oral hearing before the Administrative Court and the fact that the second applicant was denied access to court were in violation of Article 6 and, as regards the latter complaint, in eventu, Article 13 of the Convention.
The Court's considerations
In the Court's opinion, the question whether Article 6 is applicable to the proceedings at issue must be further examined together with the merits of the complaints under Article 6 of the Convention. Thus, the Court finds necessary to join the Government's objection in this regard to the merits of the case.
The Court finds, in the light of the parties' submissions, that the applicants' complaints under Article 6 raise complex issues of law and fact under the Convention, the determination of which should depend on examination of the merits of the application. Consequently, the Court concludes that these complaints cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
III. Further complaints under Article 6 § 1, 3, 8 and Article 14 of the Convention
1. The applicants complain under Article 6 § 1 of the Convention about the length of the proceedings.
Even assuming Article 6 of the Convention is applicable to the proceedings at issue, this complaint is manifestly ill-founded for the following reasons: The Court notes that the proceedings started on 18 June 1998 when the applicants appealed against the Labour Market Service's decision refusing their request for an employment permit. The proceedings were terminated on 7 February 2001 when the Administrative Court's decision was served. Thus, the proceedings lasted for two years and some seven months. The Court finds that this duration can still be regarded as reasonable.
Therefore, the complaint about the length of the proceedings is, in any event, manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The second applicant complains under Article 3, 8 and 14 of the Convention about the Austrian authorities' refusal to grant the requested employment permit. He submits in this regard that he had been legally residing since 1991 in Austria and has a family in Austria.
The Court will first to examine the second applicant's complaint under Article 8 of the Convention. The Court notes at the outset that the Convention does not guarantee, as such, the right to work (see, for instance, Jazvinsky v. Slovak Republic (dec.) no.33088/96, 7 September 2000, unreported). Nevertheless, the Court does not exclude that the refusal of a corresponding permit to a foreigner legally residing in his host state and willing to work may affect the concerned foreigner's possibility to pursue a professional activity to such a significant degree that there are consequential effects on the enjoyment of his right to respect for his “private life” within the meaning of Article 8 of the Convention (see mutatis mutandis Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, 6 July 2004, § 50). However, the Court does not consider this to be the case in the particular circumstances of the present case. It firstly notes that the Austrian authorities' refusal to grant the employment permit requested in 1998 was based on their finding that the maximum quota for the employment of foreigners in the concerned Region for that year had been exceeded and did, therefore, not prejudge the eventual outcome of further requests for such a permit in another Region or in the following years. Moreover, even before the Administrative Court issued its final decision in the proceedings at issue in December 2000, the second applicant had full access to the Austrian labour market as his wife became an Austrian national in October 2000.
The Court, therefore, concludes that the facts complained of do not fall within the ambit of Article 8 of the Convention.
With regard to Article 3 of the Convention the Court finds that the refusal of an employment permit for the second applicant does not attain the minimum level of severity required for a treatment to fall within the scope of this provision.
As regards the complaint under Article 14 of the Convention, the Court notes that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous –, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, the Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, § 22, and the Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, § 33).
The Court recalls its reasoning above as to the complaints under Article 3 and 8 of the Convention, finding that there has been no interference with the rights invoked. If follows, that Article 14 of the Convention is not applicable in the circumstances of the case taken in conjunction with Articles 3 and 8 of the Convention.
Therefore, the second applicant's complaints under Articles 3, 8 and 14 of the Convention are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Decides to join to the merits the Government's objection as to the applicability of Article 6 of the Convention to the proceedings at issue;
Declares admissible, without prejudging the merits, the applicant company's complaint under Article 6 § 1 of the Convention about the lack of an oral hearing before the Administrative Court and the second applicant's complaint under Article 6 § 1 of the Convention about lack of access to court;
Declares inadmissible the remainder of the application.
Santiago quesadaChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy