AS TO THE ADMISSIBILITY OF
Application No. 11334/85
by G. G.m.b.H.
against Austria
The European Commission of Human Rights sitting in private
on 7 January 1991, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 December 1984
by G. G.m.b.H. against Austria and registered on 7 January 1985
under file No. 11334/85;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having examined the case file;
Having regard to:
- the Commission's decision of 9 November 1987 to give notice of
the application to the respondent Government and to invite the parties
to submit observations in writing on its admissibility and merits;
- the Government's observations of 17 February 1988 and the
applicant company's reply of 23 March 1988;
- the Commission's decision of 10 March 1989 to invite the
parties to submit further observations in the light of the
Commission's report of 15 December 1988 on Application No. 11761/85,
Obermeier v. Austria;
- the supplementary observations submitted by the Government on
27 April and by the applicant company on 28 April 1989;
- the Commission's decision of 10 July 1989 to adjourn the case
pending the Court's judgment in the Obermeier case;
- the further supplementary observations submitted in the light
of the Obermeier judgment of 28 June 1990 (Eur. Court H.R. Series A
no. 179) by the applicant company on 16 September and by the
Government on 17 September 1990;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a limited liability company, registered in
Vienna. It is represented by Mr. Barazon and Ms. Birnbaum, both
lawyers practising in Vienna.
All persons working for the applicant company, with the
exception of one, Ms. J.K., are serving under a leasing contract with
the X. Company Ltd. This company has its office at the same address as
the applicant company and all its staff are in fact working for the
latter. A works council (Betriebsrat) is established only at the
X. Company.
By letter dated 14 August 1981, the applicant company gave
notice to Ms. J.K. of the termination of her employment contract with
effect from 30 September 1981. It did not inform the X. Company's
works council. At that time, Ms. J.K. did not bring her case before
the Labour Court.
On 7 December 1981 the works council applied to the
Conciliation Board (Einigungsamt) for declaring the X. Company and the
applicant company an organisational unit (organisatorische Einheit)
within the meaning of Section 34 of the Industrial Relations Act
(Arbeitsverfassungsgesetz).
The Conciliation Board granted the works council's application
on 18 January 1982.
Thereupon, on 17 June 1982, Ms. J.K. filed an action with the
Vienna Labour Court (Arbeitsgericht) against the applicant company.
She claimed that her employment had not been validly terminated in
1981 since the X. Company's works council had not been duly informed.
After conducting a hearing, the Vienna Labour Court declared by
judgment of 3 August 1982 that the notice of 14 August 1981 was
invalid, because the works council had not been informed. The
Court concluded from the evidence that the two companies were an
organisational unit and, in addition, considered itself bound by
the decision of the Conciliation Board.
The applicant company appealed to the Vienna Regional Labour
Court (Landesgericht als Berufungsgericht in arbeitsgerichtlichen
Rechtsstreitigkeiten). It complained that contrary to an earlier case
decided by the Administrative Court (Verwaltungsgerichtshof) the
decision of the Conciliation Board had wrongly been found to have
retroactive effect and that the evidence had not been taken and
evaluated correctly. The appeal (Berufung) was rejected on
9 December 1982.
The Regional Labour Court held that it was bound by the
decision of the Conciliation Board, notwithstanding the fact that the
applicant company had in the meantime challenged that decision before
the Constitutional Court (Verfassungsgerichtshof). The Regional Labour
Court did not approve the approach of the Labour Court which had taken
evidence on this question and had drawn its own conclusions therefrom.
As regards the scope of the Conciliation Board's decision the Regional
Labour Court held that it had retroactive effect because of its
declaratory nature (Feststellungsbescheid). The case where the
Administrative Court had denied a retroactive effect was based on
different facts and could not be compared with the present case. The
Court furthermore held that the Conciliation Board's decision affected
the relationship between the applicant company and Ms. J.K., although
the latter had not been a party to the Conciliation Board's proceedings.
Therefore Ms. J.K. could invoke that decision and seek a judicial
determination that her dismissal was invalid.
The applicant company's further appeal on points of law
(Revision) to the Supreme Court (Oberster Gerichtshof) was rejected
on 22 May 1984. The Supreme Court held that the existence of an
organisational unit at the time of the Conciliation Board's decision
had been established with binding effect. It observed that the
applicant company had not claimed that the situation had been
different at the time of the applicant's dismissal. Therefore there
was no need to consider the issue of retroactivity or the implications
of the Conciliation Board's decision for Ms. J.K.'s employment
contract.
On 7 December 1983 the Constitutional Court dismissed the
applicant company's complaints against the Conciliation Board's
decision. It held that the Conciliation Board had determined the
question whether an organisational unit existed according to the
applicable law, and therefore the applicant company's right to a
decision by the competent judge had not been violated. Nor had the
proceedings been unfair and contrary to Article 6 of the Convention
because the applicant company had in fact been heard. The effects of
the Conciliation Board's decision in the area of labour law were not
to be examined in this case. In any event the applicable provision
(Section 34 of the Industrial Relations Act) did not raise doubts as
to its compatibility with the constitutional right to property.
At the applicant company's request, the case was referred to
the Administrative Court which rejected its complaints on
15 January 1986. Like the Constitutional Court it held that the
applicant company's right to be heard had not been violated. It
furthermore considered that the decision had been taken in full
conformity with Section 34 of the Industrial Relations Act.
COMPLAINTS
1. The applicant company alleges breaches of Article 6
paras. 1 and 3, Article 14 of the Convention and Article 1 of
Protocol No. 1.
2. Under Article 6 para. 1 it submits
- that no "independent tribunal" has determined its civil
rights concerning the preliminary issue, because the courts considered
themselves bound by the decision of the Conciliation Board;
- that the Regional Labour Court showed partiality, because
it took a decision which differed from that taken in a similar case;
- that it did not have a "fair hearing" because the Regional
Labour Court did not conduct new proceedings as required by the
applicable law and because the Supreme Court did not consider its
substantial arguments and limited its decision to an irrelevant side
issue.
3. Under Article 6 paras. 1 and 3 (d) of the Convention the
company complains that the courts did not take the evidence as
requested.
4. The applicant company also alleges a violation of Article 1
of Protocol No. 1. By their retroactive effect the judgments wrongly
obliged the applicant company to pay Ms. J.K. arrears of salary in the
amount of more than AS 800,000.-.
5. Finally, the company complains under Article 14 of the
Convention that, as an employer, it suffered disadvantages compared
with employees.
PROCEEDINGS
The application was introduced on 10 December 1984 and
registered on 7 January 1985.
On 9 November 1987 the Commission decided that, in accordance
with Rule 42 para. 2 (b) of its Rules of Procedure, notice should be
given of the application to the respondent Government and that they
should be invited to submit observations in writing on the
admissibility and merits before 12 February 1988.
The Government submitted their observations on 17 February 1988
and the applicant company replied thereto on 23 March 1988.
On 10 March 1989 the Commission invited the parties to submit
before 28 April 1989 supplementary observations in writing in the
light of the Commission's Report of 15 December 1988 concerning
Application No. 11761/85, Obermeier v. Austria.
The applicant company submitted supplementary observations
on 27 and the Government on 28 April 1989.
On 10 July 1989 the Comission decided to adjourn the case
pending the decision of the European Court of Human Rights in the
Obermeier case. The Court gave its judgment on 28 June 1990 (Series A
no. 179).
On 4 July 1990 the parties were invited to submit before 17
September 1990 further supplementary observations in the light of this
judgment. The applicant company did so on 16 September and the
Government on 17 September 1990.
THE LAW
1. The applicant company complains of the Labour Court
proceedings brought against it by Ms. J.K. concerning the termination
of her employment contract. It invokes Article 6 paras. 1 (Art. 6-1)
and 3 (Art. 6-3) of the Convention.
Article 6 para. 1 (Art. 6-1), first sentence provides:
"In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by
law."
The Commission finds that the court proceedings complained of,
relating to the employment contract between the applicant company and
Ms. J.K., affected the determination of the applicant company's civil
rights and obligations within the meaning of Article 6 para. 1 of the
Convention. Article 6 para. 3 (Art. 6-3), which the company also
invokes, is not applicable because the company was not "charged with a
criminal offence".
2. Under Article 6 para. 1 (Art. 6-1) the applicant company
complains that its civil rights were not determined by an "independent
tribunal" in that the Labour Courts considered themselves bound by an
administrative decision, namely the decision of the Conciliation Board
according to which the enterprises of the applicant company and the X.
Company formed an organisational unit within the meaning of Section 34
of the Industrial Relations Act.
The applicant company claims that the Conciliation Board's
decision by which the Labour Courts considered themselves bound
involved a determination of its civil rights which was neither
reviewed by the Labour Courts nor subject to a sufficiently wide
judicial review by the Administrative Court.
The Government deny that the Conciliation Board's decision
concerned a determination of the applicant company's civil rights,
being a decision on a matter of industrial relations which had only
remote consequences for the applicant company's civil rights. Even if
the decision could be regarded as involving a direct determination of
the applicant company's civil rights, the Administrative Court's
review of this decision was sufficiently wide in scope. The
Administrative Court could review not only the lawfulness of the
decision, but also questions relevant for the establishment of the
facts, since in the present case the administrative authority did not
enjoy such wide discretionary powers as in the Obermeier case (Eur.
Court H.R. judgment of 28 June 1990, Series A no. 179).
In the light of the parties' observations, the Commission
considers that the applicant company's above complaint raises complex
and difficult questions as to the interpretation of Article 6 para. 1
(Art. 6-1) of the Convention. The applicant company's above complaint
therefore cannot at this stage be declared manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, but requires examination as to its merits, no other ground
of inadmissibility having been established.
3. The applicant company further complains under Article 6
para. 1 (Art. 6-1) that the Regional Labour Court showed partiality in
that it took a different decision from that adopted by the
Administrative Court in a similar case. However, having regard to the
reasons of the Regional Labour Court's decision, the Commission finds
that no particular grounds have been shown to assume that the judges
of the Court were biased against the applicant company. This part of
the application is therefore manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant company finally complains under Article 6
para. 1 (Art. 6-1) that the proceedings were unfair in that certain
requests for evidence were rejected, and because the Supreme Court
allegedly failed to deal with essential arguments submitted by the
applicant company. However, these complaints have not been
substantiated. The applicant company has failed to show that relevant
evidence or submissions were disregarded in an unfair manner. It
follows that this part of the application, too, is manifestly
ill-founded.
5. The applicant company invokes Article 1 of Protocol No. 1
(P1-1) claiming that, as a consequence of the above court decisions,
there has been an unjustified interference with its property rights.
However, the Commission notes that these decisions only concerned a
finding that an employment contract was not to be regarded as validly
terminated. Although this finding had financial repercussions
for the applicant company, the relevant court decisions did not
themselves involve any interference with its property rights.
Moreover, the guarantee of peaceful enjoyment of possessions as
stipulated in Article 1 of Protocol No. 1 (P1-1) only protects existing
property rights, but does not, in principle, affect the courts' power
to adjudicate claims raised in litigation between private parties (cf.
mutatis mutandis, No. 1420/62, Dec. 18.12.63, Coll. 13, p. 91;
No. 11460/85, Brigandi v. Italy, Comm. Report 6.12.89, paras. 67-69;
No. 11491/85, Zanghi v. Italy, Comm. Report 9.12.89, paras. 39-41;
No. 11634/85, Santilli v. Italy, Comm. Report 6.11.89, paras. 50-53).
The Commission therefore considers that Article 1 of Protocol No. 1
(P1-1) is not applicable in the present case, and that this part of the
application must accordingly be rejected under Article 27 para. 2
(Art. 27-2) as being incompatible, ratione materiae, with the
provisions of the Convention.
6. The applicant company finally invokes Article 14 (Art. 14) of
the Convention, claiming that it was discriminated against as an
employer in comparison to an employee. However, Article 14 (Art. 14)
applies only to discrimination in the enjoyment of one of the rights
guaranteed in the other Articles of the Convention. The only other
provision which could possibly be relevant in the present case in
connection with Article 14 is Article 6 para. 1 (Art. 14+6-1),
Article 1 of Protocol No. 1 (P1-1) having been found to be
inapplicable. The company's above complaint therefore can only be
considered insofar as it involves an allegation of unjustified
differential treatment as regards the procedural rights of employers
and employees.
However, the Commission finds that, in this respect, there is
no substantially different treatment of these two groups of persons.
In particular, there is no appearance that employers are in a worse
position than employees as regards the court's assumption of a binding
effect of administrative decisions. If the Conciliation Board, in the
present case, had taken a decision favourable to the applicant company
and had denied the existence of an organisational unit, that decision
would have been considered as binding by the courts in exactly the
same way as the actual decision. It follows that there is no
discrimination between employers and employees regarding their
procedural rights under Article 6 (Art. 6) of the Convention.
Accordingly this part of the application is again manifestly
ill-founded.
For these reasons, the Commission unanimously
1. DECLARES ADMISSIBLE, without prejudging the merits of the
case, the applicant company's complaint that with regard to
the determination of the preliminary issue decided by the
Conciliation Board it did not enjoy the guarantees of a
judicial procedure in conformity with Article 6 para. 1
(Art. 6-1) of the Convention;
2. DECLARES the remainder of the application INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy