FIRST SECTION
DECISION
Application no. 32413/08
Stefan LICHTENSTRASSER
against Austria
The European Court of Human Rights (First Section), sitting on 7 October 2014 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar.
Having regard to the above application lodged on 2 July 2008,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Stefan Lichtenstrasser, is an Austrian national, who was born in 1977 and lives in Pfaffstätten. He was represented before the Court by Mr R. Kilches, a lawyer practising in Vienna.
A. The circumstances of the case
2. The applicant was employed by the C. company from 1999 to 2004. On 9 November 2004 he attended a trade show for young entrepreneurs and gave an interview to a journalist. In this interview, he stated that in his opinion it was only possible to develop ideas in one’s own company, whereas this was difficult when working for an enterprise. He further declared that he intended to set up his own company together with a partner. He explained that they were not discouraged by the fact that a loan and a lot of work input was required. This statement was quoted on 10 November 2004 in the daily newspaper “Wirtschaftsblatt” in a report on the topic why young people dared to become self-employed, under the headline “We simply want more freedom”. One of the applicant’s superiors read the newspaper article and confronted the applicant with it on 16 November 2004.
3. The next day the applicant was told that the company wished to end the working contract. In order not to harm his future career, his superior advised him to either give notice out of his own motion, or end the contract in mutual consent (einvernehmliche Auflösung). If he did not choose one of the two options, the company would dismiss him.
4. After having reflected on the options, the applicant ended the contract in mutual consent with the company by a signed agreement dated 17 November 2004. The parties agreed that the contract ended on 30 November 2004 and that the applicant received the statutory dismissal pay (gesetzliche Abfertigung) of three months’ salary. They agreed that the applicant was off duty from that day on. The parties however did not agree on the payment of a compensation for the dismissal of the applicant.
5. On 24 November 2004 the applicant, represented by counsel, filed an action against his former employer challenging the mutual agreement at the Vienna Labour and Social Court (Arbeits- und Sozialgericht). He claimed that he had been under duress when signing the agreement. By terminating the employment agreement mutually he had waived several entitlements which he had not been informed about.
6. The applicant set the value of the dispute at 4,500 euros (EUR). The opponent company objected to this value and argued that the action rather concerned a declaratory judgment that the contract was still in force. According to the law the value should thus be set at EUR 462,000 (i.e. ten years’ salary), but at least EUR 138,600 (i.e. three years’ salary). The court set the value at EUR 138,600.
7. In its judgment of 18 July 2006 the Vienna Labour and Social Court (Arbeits- und Sozialgericht) dismissed the applicant’s claim. In its reasoning the court noted that the applicant had had time to reflect on the possibilities offered to him by his employer and read the agreement before signing it. The court found that the applicant was under no pressure when signing the agreement and his superior had not misused the special emotional situation of the applicant. The court also noted that the applicant obviously regretted having agreed on the termination without receiving a compensation for the dismissal.
8. The applicant appealed and argued, inter alia, that the value was set too high and that the legal reasoning was wrong. He also argued that not only the State but also the employer were held to observe his rights under Article 10 of the European Convention on Human Rights (“the Convention”).
9. On 25 July 2007 the Vienna Court of Appeal upheld the decision on the merits and the value at issue, holding that the value as set by the first instance court was not against the law. It noted that the value determined by the court of first instance was only challengeable if it was contrary to the law, but apart from that there was a margin of discretion afforded to the first instance. The Court of Appeal pointed out that the first instance had set the value at a fairly low rate.
10. The applicant lodged an extraordinary appeal with the Supreme Court and again argued that the employer had disregarded the applicant’s rights under Article 10 of the Convention.
11. On 28 November 2007 the Supreme Court refused to deal with the merits of the case for lack of an important question of law; it held that it had no jurisdiction to alter the set value at issue. The applicant was obliged to pay the costs of the court proceedings and of the opponent’s lawyer. This decision was served on the applicant’s counsel on 23 January 2008.
B. Relevant domestic law
12. According to Austrian labour law, an employee can in principle be dismissed without the employer being obliged to give any reason. The employer only has to respect the period for giving notice (Kündigungsfrist) and the dismissal date (Kündigungstermin). Only in case of a dismissal without notice (Entlassung) the employer would be obliged to rely on an important reason prescribed by law.
13. Section 29 of the Private Employees Act (Angestelltengesetz) stipulates that in case the employee is sent off-duty after a dismissal or in case of a dismissal without notice without an important reason, he or she is entitled to compensation for the dismissal (Kündigungsentschädigung). The employee is hence entitled to the full salary until the end of the period of notice and the aliquot part of the Christmas bonus (Weihnachtsgeld) and holiday pay (Urlaubsgeld). Furthermore the employee is entitled to a compensation for any vacation he did not consume (Urlaubsentschädigung).
14. In addition to the compensation for dismissal an employee is entitled to dismissal pay (Abfertigung) according to Section 23 of the Private Employees Act. This dismissal pay is paid out if the contract was concluded before 1 January 2003 and the employee had worked for the company for more than three years. The amount of the dismissal pay depends on the years of service.
15. In case an employment contract is terminated by mutual agreement, the parties are free to agree on the payment or the amount of the compensation for the dismissal. However, the payment of the dismissal pay is compulsory.
16. According to Article 879 and 1385 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) an agreement (Vergleich) can only be challenged in case the parties were mistaken about an essential fact of the agreement, in case of an error of expression or in case of extortion (Wucher).
17. According to Section 58 of the Act on Exercise of Jurisdiction (Jurisdiktionsnorm), in a court case regarding an action for a declaratory judgment that an employment contract is still in force, the value should be set at ten years’ salary of the employee.
18. In general, when a party challenges the fixing of the value of the claim, the court of first instance has to do so in accordance with Article 7 of the Lawyer’s Fees Act (Rechtsanwaltstarifgesetz). This decision is contestable only if it is contrary to mandatory rules. The value of the claim is the basis for the court costs and the lawyer’s fees.
COMPLAINTS
19. The applicant complained under Article 6 in conjunction with Article 13 of the Convention that the value at issue was changed by the first instance court and he had no means to challenge this decision before any other instance.
20. Relying on Article 10 of the Convention, the applicant complained that his employment contract was terminated because of the statements he had made, which were published in a newspaper but were quoted out of context. He argued that the company was not entitled to dismiss him for that statement, and that the State had thus failed to protect his freedom of expression. He further alleged that the mutual agreement to terminate the working contract was against bonos mores, thus should have been declared void as he had been under duress when signing the contract.
THE LAW
A. Alleged violation of Article 6 in conjunction with Article 13 of the Convention
21. The applicant alleged that he had no legal remedy available to challenge the value of the dispute which had been fixed by the court of first instance. He relied on Article 6 in conjunction with Article 13 of the Convention, which, in their relevant parts, provide as follows:
Article 6 (1)
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
22. The Court notes that in its judgment of 25 July 2007 the Court of Appeal held that it was in fact in a position to amend the value which was fixed by the first instance, if it was against the law. Since the fixing of the value had not been against the law, the Court of Appeal had no reason to amend the value. Accordingly, there was a legal remedy available to challenge the value which had been fixed by the first instance.
23. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Alleged violation of Article 10 of the Convention
24. The applicant complained of a violation of his right to freedom of expression under Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
1. Principles deriving from the Court’s case-law
25. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions of its progress and for each individual’s self-fulfillment. Subject to paragraph 2 of Article 10, it is applicable not only to "information" or "ideas" that are favorably received or regarded as inoffensive or as matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no "democratic society". As set forth in Article 10, this freedom is subject to exceptions, which must however, be construed strictly, and the need for any restrictions must be established convincingly (see, among others, Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; Hertel v. Switzerland, 25 August 1998, § 46, Reports of Judgments and Decisions 1998‑VI and Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005‑II).
26. Because of their direct, continuous contact with the realities of the country, the State Parties’ courts are in a better position than an international court to determine how, at a given time, the right balance can be struck. For this reason, in matters under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing the necessity and scope of any interference in the freedom of expression protected by that Article (see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001‑I, and Pedersen and Baadsgaard v. Denmark [GC], no. 4901/99, § 68, ECHR 2004‑XI), in particular when a balance has to be struck between conflicting private interests.
27. Thus, while it is true that in certain cases the State has a positive obligation to protect the right to freedom of expression against interference by private persons (see Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000), the Court at the same time is mindful that employees owe to their employer a duty of loyalty, reserve and discretion (see, for example, Marchenko v. Ukraine, no. 4063/04, § 45, 19 February 2009). This feature doubtlessly also applies to employees in private-law employments (see Heinisch v. Germany, no. 28274/08, § 64, ECHR 2011 (extracts)).
28. The Court’s task is therefore to weigh an employee’s right to freedom of expression against the protection of the employer’s reputation and commercial interests and the employee’s duty of loyalty. The Court also has to take into account whether there is a public interest involved in the disclosed information since there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see, mutatis mutandis, Stoll v. Switzerland [GC], no. 69698/01, § 106, ECHR 2007‑XIV).
2. Application of the above principles to the present case
29. In the light of the foregoing principles, the Court will examine whether the national authorities were required to intervene in order to guarantee the respect of the applicant’s freedom of expression in the dispute concerning the mutual agreement to terminate the working contract.
30. The Court notes firstly that the applicant did not disclose any alerting information of any public interest but only his own personal view on his future career which apparently had a negative connotation towards the company he was actually working for. As an employee of the C. company, the applicant had a duty of loyalty towards his employer. The Court observes that the reasoning of the domestic courts was elaborate and plausible. They found that the applicant was not under pressure or duress when he signed the agreement regarding the termination of his working contract. Hence, the applicant agreed on the termination out of his free will. There is no indication that the domestic courts overstepped their margin of appreciation when reaching this conclusion in the instant case. Thus, the Court finds that the dispute was an ordinary labour contract dispute which did not disclose any inappropriate limits to the applicant’s freedom of expression within the meaning of Article 10 of the Convention and therefore did not engage the State’s positive obligations under this provision.
31. It follows that the complaint under Article 10 of the Convention is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident
Full & Egal Universal Law Academy