Information Note on the Court’s case-law No. 119
May 2009
Gasparini v. Italy and Belgium - 10750/03
Decision 12.5.2009 [Section II]
Article 6
Civil proceedings
Article 6-1
Fair hearing
Conformity with fair-hearing requirements of Nato’s internal labour dispute resolution machinery: inadmissible
The applicant was recruited by the North Atlantic Treaty Organisation (NATO) in 1976 and since then has been working at the organisation’s headquarters in Brussels. In late 1999 the North Atlantic Council, the organisation’s decision-making authority, decided to raise the rate of staff contributions to the pension scheme from 8% to 8.3% of the basic salary. In 2001 the applicant appealed to the NATO Appeals Board seeking the cancellation of that decision and the reimbursement to him of the additional sum (the difference between the two rates) which had been deducted from his salary since 1 January 2000. At the hearing the applicant challenged the conformity of the Appeals Board proceedings with Article 6 § 1 of the Convention, complaining in particular that hearings were not held in public. In an unappealable decision of 2002 the Appeals Board rejected the complaint concerning publicity and dismissed the applicant’s appeal on the merits.
The applicant complained under Article 6 of the Convention that the proceedings before the NATO Appeals Board had not met the requirements of a fair hearing. He specifically complained that the hearings had not been public and that the members of the Appeals Board had not been impartial. In general the applicant claimed that Belgium, as NATO’s host State, and Italy, the country of which he was a national, had failed to ensure the creation by the Organisation, at the outset, of an internal dispute resolution mechanism that complied with Convention requirements.
Inadmissible: The Court began by reiterating the principles set out in the cases of Bosphorus (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005‑VI, see Information Note no. 76), Behrami and Behrami v. France ((dec.) [GC], no. 71412/01, 31 May 2007, see Information Note no. 97) and Saramati v. Germany, France and Norway ((dec.) [GC], no. 78166/01, 31 May 2007, see Information Note no. 97). It then pointed out that in the present case, unlike the situation in the cases of Boivin (Boivin v. 34 Member States of the Council of Europe (dec.), no. 73250/01, ECHR 2008-.., see Information Note no. 111) and Connolly (Connolly v. 15 Member States of the European Union (dec.), no. 73274/01, 9 December 2008, unreported), the applicant had expressly alleged that NATO’s internal dispute resolution mechanism did not protect fundamental rights in a manner which was equivalent to that of protection under the Convention. The applicant had challenged certain intrinsic features of the system and the Court therefore had to ascertain whether the impugned dispute resolution mechanism, namely proceedings before the NATO Appeals Board, was “manifestly deficient”, such as to rebut the presumption of compliance by the respondent States with their Convention obligations. However, the scrutiny exercised by the Court in order to determine whether the proceedings before the NATO Appeals Board, an organ of an international organisation having its own legal personality and not being a party to the Convention, were “manifestly deficient”, would necessarily be less extensive than its scrutiny under Article 6 in respect of domestic proceedings in States that were parties to the Convention and thus bound by its provisions. The Court, in reality, had to ascertain whether the respondent States, at the time they joined NATO and transferred to it some of their sovereign powers, had been in a position, in good faith, to determine that NATO’s internal dispute resolution mechanism did not flagrantly breach the provisions of the Convention.
As to the complaint concerning the publicity of the proceedings: Whilst Article 4.71 of Annex IX to the NATO Civilian Personnel Regulations expressly provided that “[t]he meetings of the Appeals Board [would] be held in private”, that provision was considerably nuanced by the following article, which allowed parties to a dispute to “attend the hearings and make oral statements in support of the arguments put forward in their submissions” and to “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”. In general terms, the NATO Appeals Board entertained disputes between NATO’s administrative bodies and the civilian personnel employed by the organisation. It therefore heard disputes in civil matters which generally concerned technical issues and required prompt decisions. Lastly, in its decision dismissing the appeal the NATO Appeals Board had justified the non-public nature of the hearings by the need “to keep them dispassionate in the specific context of an organization such as NATO ...”. With all those factors in mind the Court found that the two respondent States had rightly considered, at the time they approved the NATO Civilian Personnel Regulations, that the type of cases heard by the NATO Appeals Board could be examined and adjudicated by it appropriately in the context of the procedure laid down by the applicable regulations and that, having regard to all the provisions thereof, the requirements of fairness were met without the holding of a public hearing. It could be seen from the decision of the NATO Appeals Board and the other material in the file that the lack of publicity had not undermined the fairness of the proceedings as a whole.
As to the applicant’s complaint about alleged bias on the part of the Appeals Board’s members: The Court first observed that the three members of the NATO Appeals Board, who were appointed for three years by the North Atlantic Council, had to be persons from outside the organisation and of “recognized” competence. Moreover, an appeal to the Appeals Board had to be lodged against a decision of the Head of a NATO body, whether or not the latter was applying a decision of the North Atlantic Council. In the decision complained of by the applicant, the Appeals Board had in fact expressly stated that it was “not competent to rule directly on a decision by the North Atlantic Council”. In addition, applicants were entitled to ask for a change in the composition of the Appeals Board on account of “presumed partiality”, but the applicant had not exercised that right during the proceedings before the Board. Having regard to all the relevant regulatory provisions, the two respondent States had been in a position to consider, at the time they adopted the applicable regulations, that the latter provided for a tribunal in accordance with the Article 6 requirements.
In view of the foregoing, the Court found that the two respondent States had rightly considered, at the time they approved the NATO Civilian Personnel Regulations and its annexes, through their permanent representatives on the North Atlantic Council, that the provisions governing the procedure before the Appeals Board guaranteed a fair hearing. Consequently, the protection afforded to the applicant in the present case by NATO’s internal dispute resolution mechanism was not “manifestly deficient” within the meaning given to that expression by the Bosphorus judgment, particularly in the specific context of an organisation such as NATO. The applicant had not therefore been justified in complaining that Italy and Belgium had endorsed a system that was in breach of the Convention, and the presumption of compliance with the Convention by those two States had not been rebutted: manifestly ill-founded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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