OBERMEIER v. AUSTRIA



 

 

Application No. 11761/85

 

 

 

 

 

 

Karl OBERMEIER

 

 

 

 

against

 

 

 

 

AUSTRIA

 

 

 

 

 

 

 

 

REPORT OF THE COMMISSION

 

 

(adopted on 15 December 1988)

 

 

 

 

TABLE OF CONTENTS

                                                              Page

 

I.      INTRODUCTION (paras. 1 - 19) .........................   1

 

        A.      The application (paras. 2 - 5) ...............   1

 

        B.      The proceedings (paras. 6 - 14) ..............   1

 

        C.      The present Report (paras. 15 - 19) ..........   2

 

 

II.     ESTABLISHMENT OF THE FACTS (paras. 20 - 118) .........   4

 

        A.      The particular circumstances of the case

                (paras. 20 - 90) .............................   4

                1) Previous litigation (paras. 20 - 22) ......   4

                2) The applicant's suspension from employment

                (paras. 23 - 25) .............................   4

                3) The first round of the Labour Court

                proceedings concerning the applicant's

                suspension (paras. 26 - 31) ..................   5

                4) The applicant's first dismissal and the

                administrative proceedings concerning prior

                consent to this dismissal (paras. 32 - 48) ...   6

                5) The second round of the Labour Court

                proceedings concerning the applicant's

                suspension (paras. 49 - 54) ..................  10

                6) The administrative proceedings concerning

                retroactive consent to the applicant's first

                dismissal (paras. 55 - 64) ...................  11

                7) The third round of the Labour Court

                proceedings concerning the applicant's

                suspension (paras. 65 - 72) ..................  12

                8) The Labour Court proceedings concerning

                the applicant's first and second dismissals

                (paras. 73 - 85) .............................  14

                9) The fourth round of the Labour Court

                proceedings concerning the applicant's

                suspension (paras. 86 - 90) ..................  17

 

        B.      Relevant domestic law and practice

                (paras. 91 - 118) ............................  18

                1) Substantive law (paras. 91 - 103) .........  18

                   a) Law of contracts (paras. 91 - 98) ......  18

                   b) Industrial relations (paras. 99 - 101) .  19

                   c) Special protection of disabled persons

                      (paras. 102 - 103) .....................  22

                2) Procedural law (paras. 104 - 118) .........  23

                   a) Administrative proceedings

                      (paras. 104 - 108) .....................  23

                   b) Judicial proceedings

                      (paras. 109 - 118) .....................  24

 

 

 

 

 

III.    SUBMISSIONS OF THE PARTIES (paras. 119 - 172) ........  28

 

        A.      The applicant (paras. 119 - 149) .............  28

                1) Applicability of Article 6 para. 1 of the

                   Convention (para. 119) ....................  28

                2) Length of proceedings (paras. 120 - 132) ..  28

                3) Access to court (paras. 133 - 146) ........  30

                4) Discrimination (paras. 147 - 149) .........  33

 

        B.      The Government (paras. 150 - 172) ............  34

                1) Applicability of Article 6 para. 1 of the

                   Convention (paras. 150 - 152) .............  34

                2) Length of proceedings (paras. 153 - 161) ..  35

                3) Access to court (paras. 162 - 171) ........  36

                4) Discrimination (para. 172) ................  38

 

 

IV.     OPINION OF THE COMMISSION (paras. 173 - 240) .........  39

 

        A.      Points at issue (para. 173) ..................  39

 

        B.      Applicability of Article 6 para. 1

                (paras. 174 - 176) ...........................  39

 

        C.      Access to court (paras. 177 - 196) ...........  40

                Conclusion (para. 196) .......................  44

 

        D.      Length of Proceedings

                (paras. 197 - 232) ...........................  44

                1) The relevant period (paras. 198 - 201) ....  44

                2) Criteria for assessing whether the length

                   of the proceedings was reasonable

                   (paras. 202 - 204) ........................  45

                3) The complexity of the case

                   (paras. 205 - 213) ........................  45

                4) The conduct of the applicant

                   (paras. 214 - 219) ........................  47

                5) The manner in which the proceedings were

                   conducted by the judicial authorities

                   (paras. 220 - 231) ........................  48

                Conclusion (para. 232) .......................  50

 

        E.      Article 13 of the Convention

                (paras. 233 - 235) ...........................  51

                Conclusion (para. 235) .......................  51

 

        F.      Article 14 of the Convention

                (paras. 236 - 239) ...........................  51

                Conclusion (para. 239) .......................  52

 

        G.      Recapitulation (para. 240) ...................  52

 

APPENDIX I      :  HISTORY OF THE PROCEEDINGS ................  53

 

APPENDIX II     :  DECISION ON THE ADMISSIBILITY .............  55

 

APPENDIX III    :  DECISION ON APPLICATION NO. 10247/83 ......  74

 

I.   INTRODUCTION

 

 

 

1.      The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

 

 

A.      The application

 

2.      The applicant is an Austrian citizen born in 1926 who resides

in Linz.  In the proceedings before the Commission he has submitted

his case himself.

 

3.      The application is directed against the Republic of Austria

whose Government were represented by their Agent, Ambassador Dr.

Helmut Türk, Head of the International Law Department of the Federal

Ministry of Foreign Affairs.

 

4.      The applicant's complaints relate to labour court proceedings

on his suspension from employment.  He complains, in particular, under

Article 6 para. 1 of the Convention that in these proceedings his

civil rights were not determined within a reasonable time and that his

access to court was interfered with in that the courts considered

themselves bound by administrative decisions consenting to his

dismissal and, following his dismissal, found that he had no longer

any legal interest in the determination of the suspension case.

 

5.      The applicant also invokes his right to an effective domestic

remedy under Article 13 and claims that he has been discriminated

against, as a disabled person, contrary to Article 14 of the

Convention.

 

 

B.      The proceedings

 

6.      The application was introduced on 24 September and registered

on 27 September 1985.

 

7.      On 12 March 1986 the Commission decided in accordance with

Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the

application to the respondent Government and to invite them to present

before 30 May 1986 their observations in writing on the admissibility

and merits of the application.  At the Government's request the

time-limit was subsequently extended until 22 August 1986.

 

8.      The Government submitted their observations on 21 August 1986

and the applicant replied on 9 October 1986.

 

9.      On 4 March 1987 the Commission decided in accordance with Rule

42 para. 3 (b) of the Rules of Procedure to invite the parties to

submit further observations orally at a hearing.

 

10.     At the hearing on 10 July 1987 the parties were represented as

follows:

 

-       The Government by their Agent, Ambassador Dr.  Helmut Türk,

        Dr.  Sabine Bernegger of the Federal Chancellery's

        Constitutional Law Department, and Dr.  Irene Gartner of

        the Federal Ministry of Justice, Advisers.

 

-       The applicant appeared in person, assisted by his wife,

        Mrs.  Obermeier, as adviser.

 

11.     Following the hearing, the Commission declared the application

admissible.  The text of this decision was approved on 15 October 1987

and communicated to the parties on 19 November 1987.  They were invited

to submit additional observations on the merits before 8 January 1988.

 

12.     The applicant submitted observations on 7 January and the

Government on 14 January 1988.

 

13.     The applicant, of his own initiative, submitted further

observations on 10 February and 12 June 1988.

 

14.     After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, also placed itself

at the disposal of the parties with a view to securing a friendly

settlement.  In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be

effected.

 

 

C.      The present Report

 

15.     The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

 

        MM.  J.A. FROWEIN, Acting President

             S. TRECHSEL

             F. ERMACORA

             A. WEITZEL

             H.G. SCHERMERS

             H. DANELIUS

             H. VANDENBERGHE

        Sir  Basil HALL

        MM.  F. MARTINEZ

             C.L. ROZAKIS

        Mrs.  J. LIDDY

 

16.     The text of this Report was adopted on 15 December 1988 and

is now transmitted to the Committee of Ministers of the Council of

Europe, in accordance with Article 31 para. 2 of the Convention.

 

17.     The purpose of the Report, pursuant to Article 31 of the

Convention, is:

 

i)      to establish the facts, and

 

ii)     to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the Convention.

 

18.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II. The

Commission's decision of 12 March 1986, by which it rejected the

applicant's previous Application No. 10247/83 relating partly to the

same facts, is reproduced at Appendix III.

 

19.     The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

 

II.   ESTABLISHMENT OF THE FACTS

 

 

A.      The particular circumstances of the case

 

        1) Previous litigation

 

20.     The applicant was employed by a private insurance company

("the company") as the director of their regional branch office for

Upper Austria.  He was also entrusted with the administration of the

company's building in which the branch office was situated.  For many

years the relations between the applicant and the company were very

satisfactory.

 

21.     However, in 1974 a dispute arose as to the termination of the

applicant's functions as property administrator.  In this dispute the

Labour Court (Arbeitsgericht) of Vienna held its first hearing on

9 March 1978.  The applicant's claim was allowed by the Labour Court on

23 October 1979, but upon appeal (Berufung) by the company the

Regional Civil Court of Vienna (Landesgericht für Zivilrechtssachen)

on 30 October 1980 referred the matter back to the Labour Court.  Upon

the applicant's further appeal (Rekurs) the Supreme Court (Oberster

Gerichtshof) on 22 September 1981 quashed this decision, directing the

Regional Court to reject the applicant's claim without taking further

evidence.  The Regional Court did so on 17 December 1981.  Upon the

applicant's appeal the Supreme Court finally rejected his claim on

18 May 1982.

 

22.     The applicant subsequently complained to the Commission that

these proceedings were unfair and contrary to Article 6 para. 1 of the

Convention (Application No. 10247/83).  This application was declared

inadmissible on 12 March 1986 (cf.  Appendix III at p. 74).

 

        2) The applicant's suspension from employment

 

23.     In connection with the above litigation, the company suspended

the applicant from his duties as director of the regional office on

the day following the first hearing before the Labour Court, i.e. on

10 March 1978.  The company took the view that such suspension was

possible at any time without giving reasons.

 

24.     The applicant contested this opinion and asked for the

institution of disciplinary proceedings against himself.  This was

however refused.  Subsequently, certain attempts were made to settle

the case, inter alia, through the mediation of Mr.  D, who was the

husband of the company's head of personnel and the chairman of the

applicant's trade union.  He was later appointed Federal Minister of

Social Affairs (Bundesminister für soziale Verwaltung).  However,

these attempts failed.

 

25.     Eventually the applicant challenged his suspension by an

action which he lodged with the Labour Court of Linz on 9 March 1981,

claiming, in particular, that the suspension was unjustified because

it was in reality a sanction for his having sued the company in court.

The applicant sought in the first place a declaratory judgment

(Feststellungsklage) that the suspension was invalid, subsidiarily a

judgment for performance (Leistungsklage) ordering the company to

revoke the suspension.

 

 

 

        3) The first round of the Labour Court proceedings

           concerning the applicant's suspension

 

 

26.     On 23 April 1981 the Labour Court of Linz rejected the

applicant's claims.  It held that a right of an employee to actual

employment (Recht eines Arbeitnehmers auf Beschäftigung) was

guaranteed only under special conditions (e.g. where specific

regulations existed for the particular profession, or where the

employment pursued training purposes etc.).  Even in the case of an

unjustified dismissal the law did not provide for a right to

reinstatement, but only for a right to continued payment of the salary

and to compensation.  Therefore the suspension was a discretionary

decision of the employer which did not involve ethical disapproval and

could not as such be challenged under the law.  If the employee

considered such a suspension as an interference with his right to a

good reputation he could only seek compensation for his real damage

and lost earnings.  Section 32 of the collective agreement for

insurance employees expressly distinguished between disciplinary

sanctions and non-disciplinary suspension without loss of salary.  For

these reasons, it was not necessary to examine the question whether

the reasons advanced by the company, in particular the institution of

judicial proceedings by the applicant against the company, were

sufficient to justify his suspension.  The applicant lodged an appeal

(Berufung) against the above decision.  On 14 July 1981 he received a

notice of dismissal from the company (cf. para. 32 below).

 

27.     On 25 November 1981 the Regional Labour Court of Linz

(Landesgericht als Berufungsgericht in arbeitsgerichtlichen

Rechtsstreitigkeiten) dismissed the applicant's appeal against the

Labour Court's decision insofar as he had sought a declaratory

judgment, but allowed it insofar as the Labour Court had rejected the

claim for the revocation of the suspension.  In this latter respect

it referred the case back to the Labour Court of first instance,

directing it to determine whether there were reasons which justified

the applicant's suspension under Section 32 of the collective

agreement for insurance employees.

 

28.     As regards the refusal of a declaratory judgment, the Regional

Court referred to Section 228 of the Code of Civil Procedure

(Zivilprozessordnung) according to which a declaratory judgment was

only possible as regards the existence or non-existence of a legal

relationship (Rechtsverhältnis) as such, but not as regards the

validity of a particular legal act (Rechtshandlung) such as the

suspension of an employee.

 

29.     As regards the claim for the revocation of the suspension, the

Regional Court observed that the applicant's employment contract was

based on the collective agreement for insurance employees (cf.

para. 94 et seq. below), which formed an integral part of this

contract insofar as nothing else was provided therein.  Section 32 of

the collective agreement allowed the suspension of an employee only

under certain specific conditions.  They had to be proven by the company.

By failing to examine whether such conditions had existed in the

applicant's case the Labour Court had violated its procedural duties

and its proceedings should be completed in this respect (Section 486

para. 3 of the Code of Civil Procedure).

 

30.     The Regional Court further held that suspension without

justifying reasons under the collective agreement amounted to a breach

of contract by the company.  The applicant was entitled to claim,

first of all, fulfilment of the contract.  The Labour Court had

wrongly refused to examine the issue of the suspension as such.  The

Regional Labour Court added in this context that the fact that the

applicant had taken lawsuits against the company was not in itself a

sufficient ground to justify his suspension.  An employee could not be

prevented from pursuing alleged legal claims before the courts.

 

31.     Upon the company's further appeal this decision was confirmed

by the Supreme Court on 30 March 1982.  The Supreme Court agreed with

the Regional Labour Court that the company was required to give

reasons for the applicant's suspension.  It also shared the Regional

Court's view that the mere fact that the applicant had brought

lawsuits against the company was not sufficient to justify the

suspension.  It was necessary to examine whether in connection with

the bringing of lawsuits the applicant had shown a behaviour which

objectively justified the taking of preventive measures such as a

suspension under Section 32 of the collective agreement.  The case

was therefore referred back to the Labour Court of first instance.

 

        4) The applicant's first dismissal and the administrative

           proceedings concerning prior consent to this dismissal

 

32.     Shortly after the introduction of the applicant's above action

with the Labour Court of Linz, the company, on 14 July 1981, dismissed

the applicant in the form of a so-called "administrative retirement"

(administrative Pensionierung) under Section 33 para. 9 of the

collective agreement (cf. para. 96 below).  In the company's view the

conditions of this provision were met since the applicant had reached

the age of 55 in January 1981 and the company's works council

(Betriebsrat) had declared its consent.

 

33.     As the applicant had been recognised on 21 May 1980 as a

disabled person ("begünstigter Invalide") within the meaning of the

Disabled Persons (Employment) Act (Invalideneinstellungsgesetz), his

dismissal also required the previous consent of the Disabled Persons

Board (Invalidenausschuss) in accordance with Section 8 para. 2 of

that Act (cf. para. 103 below).  The company sought the Board's

consent to the intended dismissal by an application of 8 May 1981

which was granted by the Board on 8 July 1981.

 

34.     The Board observed that Section 8 para. 2 of the Disabled

Persons (Employment) Act did not contain any guidelines as to the

conditions for the authority's consent to the dismissal.  Therefore

the decision was a matter of the authority's discretion which it must

exercise according to the law ("im Sinne des Gesetzes"), i.e. having

regard to the justified interest of the employer in the dismissal and

the special need for the employee's protection from the social point

of view.  In this context it was necessary to examine in the light of

all circumstances whether it was more justified to expect the employer

to continue the employment, or the employee to lose his job.

 

35.     The Board noted the company's submissions according to which

there were no doubts concerning the applicant's professional

qualification, but personal reasons which made him unbearable for the

company.  The applicant's lawsuits against the company and the

 

unfounded allegations which he had made against the company in this

context had undermined the relationship of trust between the parties.

For some time the applicant himself had tried to secure an early

retirement at the age of 55, but this had been refused by the company

on the basis of the collective agreement which provided for retirement

at the age of 60 only.  In view of the pending litigation both the

local works council in Linz and the central works council in Vienna

shared the company's conclusion that the applicant's "administrative

retirement" was the only solution.

 

36.     In the light of the evidence, the Board found that a dispute

had arisen between the company and the applicant which had culminated

in his suspension by the company and the institution of lawsuits by

the applicant.  The applicant was also on bad terms with the works

councils in Linz and Vienna which had not raised objections against

his dismissal and had even declared that it was impossible to consider

his reinstatement as director of the regional branch office.

Settlement negotiations between the company, the works councils and

the applicant, in which the trade union had also been involved, had

not produced any results.  In the circumstances the interest of the

employer in terminating the contract was by far the most important

consideration, because it was apparently not possibile to reach even

a partial settlement of the various disputes and accordingly the

relationship of trust between the parties was so seriously undermined

that the company could not reasonably be expected to continue to

employ the applicant as the director of its regional branch office.

 

37.     The social need to protect the applicant did not outweigh the

company's interest because in the case of an "administrative

retirement" he was entitled to a compensation (Abfertigung) of

AS 800,000 and a monthly pension of AS 27,000 to be paid by the company

(Firmenpension) until his 65th year of age (to be increased in

accordance with the development of salaries under the collective

agreement), plus a yearly compensation of some AS 20,000 in respect of

commission for insurance contracts negotiated by the applicant.  The

Board also noted the applicant's maintenance obligations for his wife

and two children.

 

38.     On the basis of the Board's consent, the company on 14 July 1981

gave notice of termination of his contract to the applicant with effect

from 31 March 1982.

 

39.     However, the applicant appealed against the Board's decision,

claiming that the Board had failed to investigate the case and instead

had based its decision on the one-sided submissions of the company.

He further referred to the important financial disadvantages which he

would suffer as a consequence of his dismissal and which, in his view,

justified the conclusion that his interest must prevail over that of

the company.

 

40.     On 16 October 1981 the Provincial Governor (Landeshauptmann)

of Upper Austria rejected the applicant's appeal.  He confirmed the

view of the Disabled Persons Board that the decision on the consent to

the dismissal was at the discretion of the authority.  The discretion

was limited in that, having regard to Section 8 para. 3 of the

Disabled Persons (Employment) Act, the disabled employee's protection

against dismissal could not go beyond the protection afforded to the

members of the works council (cf.  Administrative Court decision

No. 5037/1959).  A disabled person thus could be dismissed on grounds

 

which did not justify the dismissal of a member of the works council,

having regard to the latter's specific functions.  By contrast, the

protection afforded to a disabled person was of an individual nature,

in particular he could not be dismissed on the very ground of his

disablement.  It was the purpose of the Disabled Persons (Employment)

Act to prevent arbitrary dismissals by the employer by balancing the

interests of the parties concerned, i.e. the employer's interest in

terminating the employment and the interest of the disabled employee

in social protection.

 

41.     In the present case a number of disputes had arisen, beginning

with the termination of the applicant's functions as property

administrator in 1974.  These disputes had reached a climax in 1978

when the applicant's employment had been suspended.  Subsequent

settlement negotiations had had no results.  Three actions had been

brought by the applicant against the company (i.e. his action against

the termination of the administration of the company's building (cf.

para. 21 above), his action against his suspension from employment

(cf. para. 25 above), and an action concerning the amount of

commission due to the applicant for insurance contracts negotiated by

him (cf. para. 69 below)) and one action by the company against the

applicant (because he had refused to pay back a loan).  The applicant

had also sued his trade union (for failure to grant him legal

assistance in the actions against the company) and the works council

(for refusal to allow his participation in certain meetings).  None

of the cases had been finally decided because the applicant, in

principle, pursued every litigation up to the last instance.  The

various court files had been consulted as far as necessary, but it did

not appear necessary to hear witnesses as the Provincial Governor

could not decide the various disputes pending before the courts.  In

any event it appeared from the files that the applicant's prospects of

success were not good.

 

42.     The applicant's disablement had been of no relevance in the

relations between the parties.  The applicant had worked in a very

satisfactory way for the company despite his disablement and did not

claim that the dismissal was due to his disablement.  He had applied

to be recognised as a disabled person only in 1980, long after his

suspension, apparently in order to enjoy better protection against the

employer.  Nevertheless, it was now necessary to weigh his interests

against those of the company.

 

43.     It was not appropriate to adjourn the proceedings pending the

outcome of the various court proceedings as requested by the applicant

as, in any event, the parties had fundamentally different views

concerning the applicant's duties of employment.  A settlement had not

been possible despite attempts made during several years in direct

negotiations between the company and the applicant, through the

mediation of the works council and finally through the mediation of

the present Federal Minister of Social Affairs.

 

44.     It was understandable that an employee in a leading position

was unbearable for the company if he insisted on pursuing his alleged

claims by lawsuits up to the last instance, rejected any settlement

proposals which even the works council considered as generous and

acceptable, and consistently upheld his view that he alone was right

while all other institutions, such as the company's management, the

trade union, the courts and the administrative authorities were wrong.

 

The Provincial Governor did not accept the applicant's argument that,

with an attitude such as the company's, any employer could get rid of

a disabled employee by rejecting his legitimate claims and compelling

him to pursue these claims through the courts.  The applicant himself

had failed to react to the readiness for settlement and compromise

which the company had shown for years and had rejected the intensive

settlement efforts of the trade union.  It was clear from the file

that the company had not suspended the applicant, a qualified employee

who had done a lot for the firm, in a light or rash manner and without

reasons.

 

45.     As regards the social protection of the applicant, the

Provincial Governor noted that he had completed his 55th year of age

in January 1981 and that he had maintenance obligations for his wife

and two children who pursued university studies.  He further noted the

applicant's financial position after the dismissal as determined by

the authority of first instance (para. 37 above).  The applicant's

argument that his income would be considerably below that which he

would perceive if the employment continued was not correct.  In 1980

the applicant had had a monthly net income of some AS 48,000, in 1981

it would be some AS 50,000.  Taking into account the compensation of

AS 880,000 payable in case of dismissal, the monthly income would be

some AS 49,000 until 30 September 1983, thereafter he would receive a

pension of AS 27,000.  The applicant had not contested these figures.

Even taking into account that after 30 September 1983 the applicant

would have a net income below that of an active employee, this did not

amount to a considerable deterioration of his standard of living.  It

could not be said that the financial disadvantage was such that it

substantially interfered with the applicant's interests.  Even if he

was prevented from seeking alternative employment (Konkurrenzverbot),

the applicant would not be compelled to live below his standard of

education and social status.  A social hardship did not exist merely

because of a low income.  The provisions of the Disabled Persons

(Employment) Act did not guarantee an employee in a leading position

a life of luxury.  Renouncing luxury was no social hardship.  The

maintenance obligations for children pursuing university studies could

not be taken into account as it was possible to obtain State subsidies

for that purpose.  It was irrelevant that the applicant would be

entitled to a compensation also if he reached the normal retirement

age, because the decisive criterion was the situation at the time of

dismissal.

 

46.     The weighing of interests showed that the relationship between

the company and the applicant had been seriously disturbed for years,

and this not without the applicant's fault;  therefore the company

could not be expected to continue the applicant's employment.  In view

of the financial situation of the applicant after his dismissal there

was no social need to protect him.

 

47.     The applicant then lodged a complaint with the Administrative

Court (Verwaltungsgerichtshof) which was rejected on 9 March 1983.

The Administrative Court found essentially that the reason for the

applicant's dismissal had not been his invalidity, and that the

authorities had not overstepped the limits of their discretionary

powers by finding that there were objective reasons for the

applicant's dismissal as he had rejected all offers to settle the

dispute with his employers.  In view of the pension to which the

applicant was entitled no social hardship arose for him.  The

 

Administrative Court finally considered that no procedural principles

had been violated in the administrative proceedings, in particular as

regards the applicant's right to be granted access to the file.

 

48.     The applicant subsequently challenged the Administrative

Court's proceedings in his application No. 10247/83 which was rejected

by the Commission on 12 March 1986 (cf.  Appendix III at p. 74).

 

        5) The second round of the Labour Court proceedings

           concerning the applicant's suspension

 

49.     Simultaneously with the above administrative proceedings

concerning the consent to the applicant's dismissal under the Disabled

Persons (Employment) Act, the Labour Courts proceeded with the second

round of the proceedings concerning the applicant's suspension from

employment, which had become necessary following the Supreme Court's

decision of 30 March 1982 (cf. para. 31 above).

 

50.     In these proceedings, the company now invoked the applicant's

dismissal, claiming that in these circumstances he lacked a legal

interest in the revocation of the suspension.  The applicant contested

the validity of the dismissal inter alia on the ground that it had

been pronounced before the consent necessary under the Disabled

Persons (Employment) Act had become final.  He also referred to the

proceedings before the Administrative Court (cf. para. 47 above),

which at that time were still pending.

 

51.     In its decision of 9 December 1982, the Labour Court of Linz

rejected the applicant's action for lack of legal interest (mangels

Rechtschutzinteresses).  It found that the dismissal was valid because

it had been pronounced with the consent of the competent administrative

authorities and because the Administrative Court proceedings had no

suspensive effect.

 

52.     This decision was confirmed on 11 May 1983 by the Regional

Labour Court of Linz which noted that the applicant's appeal to the

Administrative Court had in the meantime been rejected.

 

53.     On 16 August 1983, the applicant appealed further to the

Supreme Court which on 23 October 1984 reversed the above decisions of

the Labour Courts.  It found - contrary to its own earlier case-law -

that the consent of the competent authority must have become final

(rechtskräftig) before the dismissal of a disabled person such as the

applicant could be pronounced by his employer.  It also stated that

the applicant's case did not come within the scope of the provision in

Section 8 para. 2 of the Disabled Persons (Employment) Act according

to which a handicapped person may exceptionally be dismissed without

prior consent of the authority, in which case the consent may be

sought retroactively.  The applicant's dismissal was therefore invalid

and his claim relating to his suspension could not be rejected on the

ground that he lacked a legal interest because of this dismissal.

 

54.     The Supreme Court therefore again referred the case back to

the Labour Court of first instance, directing it to deal with the

applicant's suspension.

 

        6) The administrative proceedings concerning

           retroactive consent to the applicant's first dismissal

 

55.     Following the Supreme Court's above decision the company on

21 December 1984, as a matter of precaution, addressed a new notice of

dismissal to the applicant with effect from 30 June 1985.  The local

works council in Linz declared its consent to this dismissal on

21 December 1984.

 

56.     On 9 January 1985 the company further applied for the

retroactive consent of the Disabled Persons Board to the applicant's

dismissal pronounced on 14 July 1981, basing itself on Section 8

para. 2 of the Disabled Persons (Employment) Act according to which

such retroactive consent can be sought in exceptional cases.  It

claimed that the Supreme Court's decision had not been foreseeable,

and that there was therefore an exceptional case within the meaning of

that provision.

 

57.     The applicant relied on the Supreme Court's decision that this

provision did not apply.  He further submitted that the employers'

application was inadmissible on the ground of res judicata.

 

58.     By a decision of 14 March 1985, the Board refused to grant

retroactive consent to the dismissal on 31 March 1982, but stated at

the same time that the earlier consent continued to produce effect for

any future notice of dismissal.  Insofar as the application sought to

reopen the issues discussed in the earlier proceedings, it was

therefore struck by res judicata.

 

59.     Both parties appealed, and on 17 June 1985 the Provincial

Governor of Upper Austria allowed their appeals.

 

60.     The company's appeal against the refusal of retroactive

consent was allowed on the ground that the administrative authority

was not bound by the opinion of the Supreme Court that the provision

in Section 8 para. 2 concerning retroactive consent was inapplicable.

The Provincial Governor considered that the company had acted in

conformity with the law as it was applied at the relevant time when it

gave notice to the applicant without awaiting the final effect of the

administrative decision.  The Supreme Court's change of jurisprudence

had not been foreseeable and constituted an exceptional case within

the meaning of Section 8 para. 2, in particular as the company had

acted in good faith and would suffer unfair disadvantages if the

dismissal at the original date was considered as ineffective.  It

would have to pay the applicant's full salary without his having

worked for the company.

 

61.     The applicant's appeal concerning the Board's findings as to

the continued effect of the earlier consent was also allowed.  The

Provincial Governor noted that the company had not applied for the

authorities' consent to the dismissal pronounced on 21 December 1984

and therefore there was no reason to invoke res judicata in this

respect.  He agreed with the Disabled Persons Board that the previous

decisions continued to produce effect if the same case of dismissal

was concerned.  However, if there was a new case of dismissal, the

proceedings would have to be repeated.

 

62.     On 23 July 1985, the applicant appealed against this decision

to the Constitutional Court (Verfassungsgerichtshof), invoking his

right to a decision by the competent judge under Article 83 para. 2 of

the Federal Constitution (Bundes-Verfassungsgesetz).  This provision

had allegedly been violated by the Provincial Governor in that he had

given a new decision on the merits by declaring his retroactive

consent to the dismissal instead of rejecting the company's

application on the ground of res judicata as required by Section 68

of the Code of General Administrative Procedure (Allgemeines

Verwaltungsverfahrensgesetz).  In the alternative the applicant

requested the Constitutional Court to refer the question of the

alleged violation of provisions of the Code of General Administrative

Procedure to the Administrative Court.

 

63.     On 25 November 1985, the Constitutional Court decided, in

conformity with Article 144 para. 2 of the Federal Constitution as

amended in 1984 (Fed.  Law Gazette No. 196/1984), to refrain from

dealing with the case as it did not raise specific questions of

constitutional law.  Any violation of the right to a decision by the

competent judge could only result from an error of ordinary law, a

matter which could be decided by the Administrative Court to which the

case was accordingly referred.

 

64.     On 21 May 1986 the Administrative Court allowed the

applicant's appeal finding that retroactive consent to the dismissal

of a disabled person could only be granted in very exceptional cases,

i.e. cases at the borderline of justified protection against

dismissal, characterised by a situation where the employer could not

reasonably be expected to solicit the prior consent of the authority.

The present case was not of such a nature.  The company had in fact

applied for prior consent and had given notice of dismissal only after

the decision of first instance had been given.  The fact that in doing

so it had committed an error of law because it had failed to await the

final decision could not be considered as a "very exceptional

circumstance" justifying a retroactive consent.

 

        7) The third round of the Labour Court proceedings

           concerning the applicant's suspension

 

65.     Simultaneously with the above administrative proceedings

concerning the retroactive consent to the applicant's dismissal under

the Disabled Persons (Employment) Act, the Labour Courts proceeded

with the third round of proceedings concerning his suspension from

employment, which had become necessary following the Supreme Court's

decision of 23 October 1984 (cf. para. 54 above).

 

66.     By a decision of 30 January 1985 the Labour Court of Linz

allowed the applicant's claim that his suspension had been unlawful,

finding that the reasons given by the company - essentially the fact

that the applicant had brought lawsuits against it - were not

sufficient to justify this suspension.  The employers were not

entitled to prejudge the decision of the competent courts by taking

such a measure, in particular as the applicant's lawsuits had not been

abusive.  The Labour Court rejected the company's request to adjourn

the proceedings pending the outcome of the new administrative

proceedings which it had in the meantime instituted to obtain

retroactive consent of the authority to the applicant's dismissal (cf.

paras. 56 et seq. above).

 

67.     The company appealed against this judgment, claiming that the

retroactive consent to the dismissal had in the meantime been granted

by the Provincial Governor (cf. para. 60 above) and that as a

consequence the dismissal was valid and deprived the applicant of his

legal interest to challenge his previous suspension.  The applicant

claimed that the grant of retroactive consent to the dismissal was

unlawful.  He referred to his appeal to the Constitutional Court and

the Administrative Court (cf. paras. 62 - 64 above) and requested the

adjournment of the Labour Court proceedings pending the decision of

these courts.

 

68.     However, this request was rejected and the Regional Labour

Court of Linz allowed the company's appeal by a decision of 31 July

1985.  In the reasons, the Regional Labour Court noted, in particular,

that the retroactive consent to the dismissal had in the meantime been

granted by the Provincial Governor on 15 June 1985 (cf. para. 60

above).  It considered that it was bound by this decision

notwithstanding the applicant's appeals to the Constitutional and

Administrative Courts.  The dismissal was therefore to be considered as

valid and accordingly the applicant could raise claims resulting from

his earlier suspension only until the date of the dismissal, i.e. 31

March 1982.

 

69.     The Court further noted that in other Labour Court proceedings

(instituted by the applicant prior to his dismissal, on 28 January 1981),

the parties had reached a settlement on 26 May 1983 according to which

the employer undertook to pay the applicant compensation (Abfertigung)

for certain claims arising from his employment until the date of

dismissal.  The Court considered that the settlement covered all

claims which the applicant could still raise as a consequence of his

suspension, and therefore it rejected his action for lack of legal

interest in the judicial determination of these claims.  It stated

that it was not required in these circumstances to deal with the

justification of the suspension.

 

70.     On 7 October 1985, the applicant lodged an appeal on points of

law (Revision) to the Supreme Court which thus was seized for the

third time in this case.  He claimed that the Regional Labour Court

had wrongly stated the facts concerning the settlement of 26 May 1983

because that settlement by its express terms was only of a partial

nature and did not cover all claims; in particular, it did not cover

any claims posterior to the date of the dismissal.  He further claimed

that the Regional Labour Court had committed an error of law in

considering the dismissal as valid.  In doing so it had disregarded

the Supreme Court's earlier finding that the provision on retroactive

consent in Section 8 para. 2 of the Disabled Persons (Employment) Act

was not applicable in his case and that a retroactive consent to the

dismissal was therefore excluded (cf. para. 53 above).

 

71.     The applicant's appeal was rejected by the Supreme Court on

15 July 1986.  The Supreme Court considered it as irrelevant whether

the settlement of 26 May 1983 had been correctly interpreted by the

Regional Labour Court as in any event the applicant's dismissal had to

be regarded as valid, the Provincial Governor having in the meantime

declared his retroactive consent to this dismissal under Section 8

para. 2 of the Disabled Persons (Employment) Act (cf. para.60 above).

The Regional Labour Court had correctly held that it was bound by the

administrative decision in this respect.  The administrative authorities

 

were exclusively competent to apply the said Act and they were not

bound by the Supreme Court's opinion expressed in the decision of

23 October 1984, according to which the conditions of Section 8 para. 2

concerning retroactive consent were not met (cf. para. 53 above).  The

civil courts had no power to review the administrative authorities'

decisions and therefore were required to base their own decisions on

the administrative decisions concerned without any further

examination.  The Supreme Court concluded that the applicant had no

legal interest in the determination of his claim concerning his

suspension.

 

72.     The Supreme Court did not deal with the relevance of the

public law appeals which the applicant had filed with the

Constitutional and Administrative Courts against the authorities'

retroactive consent to his dismissal (cf. paras. 62 - 64 above).

The Administrative Court's decision of 21 May 1986 quashing the

administrative authority's retroactive consent (para. 64) was

apparently unknown to the Supreme Court, although the applicant

had been notified of it on 24 June 1986.

 

        8) The Labour Court proceedings concerning the

           applicant's first and second dismissals

 

73.     Following his dismissal the applicant had brought a new action

against the company at the Labour Court of Linz on 16 August 1982.  By

this action he sought a declaration that his employment had not

validly been terminated by the notice of dismissal of 14 July 1981 and

thus continued after 31 March 1982.  He complained that the company

had not waited until the consent of the Disabled Persons Board to his

dismissal had become final, and that it had not informed the works

council of the intended dismissal in accordance with Section 105 para. 1

of the Industrial Relations Act (Arbeitsverfassungsgesetz).  The

applicant further claimed arrears of salary to the amount of AS 46,515.40.

 

74.     The proceedings concerning this action remained suspended

until 14 August 1985, when the Labour Court rejected the action on the

ground that the administrative authority had, in the meantime, given

its retroactive consent to the applicant's dismissal on 31 March 1982

(cf. para. 60 above), which therefore had to be regarded as valid.  The

parties did not appeal against this decision.

 

 

75.     Following the Administrative Court's decision of 21 May 1986

quashing the authority's retroactive consent (cf. para. 64 above), the

applicant applied for the reopening of the proceedings (Wiederaufnahms-

klage) and, at the same time, for their extension to the issue of the

dismissal pronounced by the company on 21 December 1984 (cf. para. 55

above).  He claimed that the first dismissal was invalid because it

had been pronounced before the authority's previous consent had become

final and because the authority's retroactive consent had finally been

refused.  As regards the second dismissal he claimed that it was

equally invalid because it could no longer be based on the previous

consent given by the Disabled Persons Board in 1981 which had become

final (cf. paras. 33 - 47 above).  He sought both a declaratory

judgment that he was still validly employed, and the adjudication of

arrears of salary and other payments due to him by the company on the

basis of the continued employment.

 

76.     On 24 September 1986 the Labour Court of Linz decided to

reopen the proceedings.

 

77.     On the company's appeal this decision was confirmed by the

Linz Court of Appeal (Oberlandesgericht) on 3 February 1987 and, on

further appeal,  by the Supreme Court on 15 July 1987 (cf. para. 117

below).

 

78.     By a partial decision of 15 September 1987 the Labour Court

then confirmed the continued validity of the applicant's employment.

It considered that the previous consent of the authority to the

dismissal of a disabled employee did not have a permanent effect.

It justified only a dismissal which was in a close temporal and

substantive relationship to it.  Such a relationship did not exist in

the present case between the authority's consent of 8 July 1981 and

the dismissal of 21 December 1984 as there were more than three years

between the two dates and as a substantive relationship could not be

established merely by a change in the jurisprudence of the Supreme

Court.  The company had to seek the new consent of the authority for

the dismissal of 21 December 1984, and - having regard to the Supreme

Court's view (cf. para. 53 above) - to wait until that decision had

become final.  As this had not been done, the dismissal lacked the

required consent of the authority, and was thus invalid.

 

79.     The company's appeal against this decision was allowed by the

Linz Court of Appeal on 15 March 1988.  It held that the effect of the

authority's consent under the Disabled Persons (Employment) Act had

to be judged according to the same principles which had been developed

in the case-law regarding the works council's consent to the dismissal

of a normal employee (cf.  Section 120 of the Industrial Relations

Act).  Therefore it must be possible for the employer to pronounce a

dismissal again on the basis of the same declaration of consent, no

matter what reasons were given for the invalidity of a previous

dismissal, as long as the employee still had to expect to be

dismissed.  The applicant had never been in doubt about the company's

intention to terminate his employment, therefore there was a

sufficient link between the authority's consent and the dismissal

of 21 December 1984.  The company had not acted arbitrarily by

pronouncing this new dismissal, following the change of the Supreme

Court's case-law.  A new consent by the administrative authority was

not necessary if the reasons for the dismissal remained the same.

Moreover, a new application for the authority's consent in the same

case would have to be rejected on the ground of res judicata.  There

was a continuing situation as regards the employer's willingness to

dismiss the applicant, and this must also have been clear to the

latter.  The new dismissal had been pronounced as a matter of

precaution, and there was a link sufficiently close to the authority's

original consent.  Therefore the applicant's dismissal was valid and

his employment did not continue after 30 June 1985.

 

80.     The Court of Appeal's decision did not deal with the question

of consent of the works council as required under Section 33 para. 9

of the collective agreement (cf. para. 96 below).  The applicant

claims that at the hearing of the appeal on 15 March 1988 he invoked

the lack of valid consent by the competent works council as an

additional ground for the invalidity of his dismissal.  As this

statement did not appear in the short transcript of the hearing

which was served on the applicant on 31 March 1988, the applicant

 

on 5 April 1988 raised an objection against that transcript.  However,

by a decision of 12 April 1988 the Court of Appeal rejected the

objection as having been filed out of time.

 

81.     In the meantime the applicant had lodged an appeal on points

of law with the Supreme Court against the Court of Appeal's decision

of 15 March 1988.  On 23 June 1988 he supplemented the appeal,

invoking the requirement of consent of the works council.  He observed

that the application of Section 105 para. 1 of the Industrial

Relations Act, which provided for the information of the works council

before any dismissal, was not excluded by Section 8 para. 2 of the

Disabled Persons (Employment) Act which also required the hearing of

the works council before the decision of the Disabled Persons Board.

In his submission this requirement had been modified by Section 33

para. 9 of the collective agreement which required not only the

hearing, but the explicit consent of the works council.  Allegedly,

the consent had not been validly declared prior to the second dismissal.

Two members of the works council had subsequently declared that they

had not been informed of the intended dismissal, and the relevant

declaration was only signed by four of the five members of the works

council.

 

82.     However, by a decision taken in non-public proceedings on

29 June 1988, which was served on the applicant in September 1988,

the Supreme Court rejected the submissions of 23 June as inadmissible

on the basis of the principle that all relevant submissions must be

made in the appeal (Grundsatz der Einmaligkeit des Rechtmittels).  At

the same time the Supreme Court rejected the applicant's appeal.  It

held that his argument based on Section 33 para. 9 of the collective

agreement could not be taken into account.  In his appeal he had only

invoked Section 105 para. 1 of the Industrial Relations Act, which was

applicable also to dismissals of disabled persons, Section 8 para. 2

of the Disabled Persons (Employment) Act having excluded only

Section 105 paras. 2-6.  The sanction stipulated in Section 105

para. 2 for non-observance of Section 105 para. 1, namely invalidity

of the dismissal, did not apply to disabled persons if the works

council had not been informed prior to the dismissal.  This was

justified as, in any event, the works council had to be heard by the

Disabled Persons Board by virtue of Section 8 para. 2 of the Disabled

Persons (Employment) Act.  It was therefore irrelevant for the case

whether or not the works council had been seized with the matter

before the dismissal was pronounced.

 

83.     As regards the continued effect of the Disabled Persons

Board's decision for the second dismissal, the Supreme Court

confirmed the Court of Appeal's opinion.  It agreed that in the

particular circumstances of his case the applicant had no legitimate

interest in the dismissal being pronounced shortly after the Disabled

Persons Board's decision granting consent to that dismissal.  He could

never have been in doubt about the employer's continued intention to

dismiss him.  The second dismissal was pronounced immediately after

the Supreme Court's decision of 23 October 1984 by which it had been

clarified that the first dismissal was to be regarded as invalid.

A settlement which had in the meantime been reached between the

applicant and the company on 15 September 1987 concerning the

financial consequences of this decision did not change the situation.

The settlement in question allowed no conclusion to the effect that

the company had abandoned its intention to dismiss the applicant at

the earliest possible date.

 

84.     On 30 June 1988, before the above decision of the Supreme

Court was notified to the applicant, he brought a new action with the

Linz Regional Court acting as Labour and Social Court.  He sought a

declaratory judgment to the effect that the second dismissal was

invalid for failure of the company to obtain the prior consent of the

competent works council as required by Section 33 para. 9 of the

collective agreement.

 

85.     A preliminary hearing took place on 15 July 1988.  The company

objected to the admissibility of the action on the ground of pending

litigation.  It was apparently not aware of the Supreme Court's

decision of 29 June 1988.  After notification of that decision the

company invoked res judicata and contested the applicant's claim.  A

further hearing took place on 23 September 1988 at the end of which

the Regional Court rejected the applicant's action.  It held that the

works council's consent of 1981 continued to take effect for the

dismissal on 21 December 1984, and that a new consent of the works

council was not required for this dismissal.  On 8 November 1988 the

applicant lodged an appeal which is pending before the Linz Court of

Appeal.

 

        9) The fourth round of the Labour Court proceedings

           concerning the applicant's suspension

 

86.     On 22 July 1986 the applicant, relying on the Administrative

Court's judgment of 21 May 1986 (cf. para. 64 above), also applied for

the reopening of the Labour Court proceedings concerning his

suspension from employment, which had finally been concluded by the

Supreme Court's judgment of 15 July 1986 (cf. paras. 71 - 72 above).

 

87.     On 15 October 1986 the Regional Labour Court of Linz, basing

itself on a restrictive interpretation of Section 530 of the Code of

Civil Procedure (cf. para. 116 below), refused to reopen the proceedings.

 

88.     Upon the applicant's appeal, the Supreme Court reopened the

proceedings by a decision of 15 July 1987 (cf. para. 117 below).  It

referred the case to the Linz Court of Appeal which had become

competent by virtue of the new Labour and Social Courts Act (Arbeits-

und Sozialgerichtsgesetz), directing it to take a decision on the

suspension issue as the applicant's employment had not validly been

terminated on 31 March 1982 and as his legal interest concerning the

suspension could no longer be denied after the Administrative Court's

above judgment.

 

89.     However, on 19 November 1987 the Court of Appeal allowed the

company's application to adjourn the proceedings pending the outcome

of the parallel proceedings concerning the dismissal of 21 December 1984

(cf. paras. 75 et seq. above).  It considered that the adjournment was

appropriate, notwithstanding the long duration of the proceedings, as

the decision in the parallel proceedings was clearly prejudicial.  If

the result of these proceedings, which then were pending before the

Court of Appeal, was a confirmation of the validity of the dismissal

of 21 December 1984, the applicant would again lack a legal interest

in the determination of the suspension issue.  The appeal decision in

the parallel case was to be expected within a short period, and

therefore it was reasonable on the ground of procedural economy to

await that decision.

 

90.     The decision in question was taken on 15 March 1988 (cf.

para. 79 above) and confirmed by the Supreme Court on 29 June 1988

(cf. paras. 82 - 83 above).  However, in view of the new action brought

by the applicant on 30 June 1988 (cf. para. 84 above), the proceedings

concerning the suspension case have not been resumed.  They have been

further adjourned by the Regional Court of Linz on 23 September 1988.

 

 

 

B.      Relevant domestic law and practice

 

        1) Substantive law

 

        a) Law of contracts

 

91.     Employment contracts are governed by the general law of

contracts as laid down in the Civil Code (Allgemeines Bürgerliches

Gesetzbuch, Sections 859 et seq.), and by the particular provisions of

the Civil Code on contracts for services (Dienstvertrag, Sections 1151

et seq.).

 

92.     In the case of employees of commercial enterprises, the

provisions of the Civil Code are supplemented by those of the Private

Employees Act (Angestelltengesetz, Fed.  Law Gazette No. 292/1921 as

amended).  It provides, in Section 27, that the dismissal of an

employee can only be pronounced on certain specific grounds.

 

93.     As a general rule employment contracts are concluded on the

basis of collective agreements (Kollektivverträge) negotiated by the

respective employers' and employees' organisations.  Unless otherwise

stipulated in the individual contract, the regulations of the

collective agreement form part of the employment conditions.

 

94.     The collective agreement applicable in the present case

was the one for insurance employees of the internal service

(Kollektivvertrag für Angestellte der Versicherungsunternehmen -

Innendienst).

 

95.     It provides, inter alia, for permanent employment

(Definitivum) after five years (Section 4 paras. 1 and 3).  Thereafter,

with very few exceptions, insurance employees cannot be dismissed

other than on the basis of a disciplinary procedure (Section 33

para. 4).  The case-law has established that this provision, read in

the context of the collective agreement as a whole, further restricts

the employer's right to pronounce dismissals as provided in Section 27

of the Private Employees Act (cf.  Supreme Court decision 4 Ob 121/83,

SZ 57, 193).

 

96.     One of the exceptions referred to is the dismissal by way of

a so-called "administrative retirement" (administrative Pensionierung),

under Section 33 para. 9 of the collective agreement.  In the case of a

male employee it is possible if the employee concerned has completed

his 55th year of age.  It is further required that his employment has

lasted more than 25 years or that he has paid social security

contributions for at least 300 months, and that the works council

consents to this dismissal.  The employee's right to compensation for

retirement (Abfertigung) is preserved.

 

97.     Under Chapter VI of the collective agreement various sanctions

can be imposed on the employee for violation of his professional

duties, including reprimands (Ordnungsstrafen, Section 22) and

disciplinary sanctions (Disziplinarstrafen, Section 23).  The

latter include dismissal (strafweise Kündigung, Section 23 para. 2

sub-para. 4).  The disciplinary proceedings are subject to detailed

regulations in Chapter VII of the collective agreement (Sections 24-31).

 

98.     Chapter VIII of the collective agreement is entitled

"suspension from employment" (Suspendierung).  The only provision in

this Chapter is Section 32 which reads as follows:

 

(German)

 

"(1)  Die Suspendierung ist keine Strafe, sondern eine

administrative Vorbeugungsmaßnahme und kann von der

Direktion in folgenden Fällen angeordnet werden:

 

a)  wenn ein Angestellter einer strafgerichtlichen oder

    einer Disziplinaruntersuchung unterzogen wird;

 

b)  im Falle einer groben Verletzung der den Vorgesetzten

    gebührenden Achtung und dienstlicher Unterordnung;

 

c)  wenn die Sicherheit des Dienstes und die Interessen

    des Unternehmens es als notwendig erscheinen lassen.

 

(2) Während der Suspendierung bleibt der Angestellte im

Genuß der ihm zustehenden Bezüge.  Auch die Zeitvorrückung

bleibt gewahrt."

 

(English translation):

 

"(1) The suspension is not a penalty, but a preventive

administrative measure which can be ordered by the

management in the following cases:

 

a)  if criminal or disciplinary investigations are

    being conducted against an employee;

 

b)  if an employee grossly fails to show due respect

    and professional subordination to his superiors;

 

c)  if it appears necessary on grounds of security of

    the service or in the interests of the enterprise.

 

(2) While he is suspended the employee continues to perceive

his emoluments.  His right to advancement according to the

length of his service is likewise respected."

 

        b) Industrial relations

 

99.     While the law of contracts regulates the relations between the

employer and the employee on an individual basis (Arbeitsvertragsrecht),

the legislation on industrial relations (Betriebsverfassungsrecht)

 

establishes additional safeguards for the staff as a whole.  Nevertheless,

this legislation also affects the relations between the employer and

an individual employee, in particular where rights of workers'

participation (Mitbestimmungsrechte) in certain decisions of the

management, including dismissals, are concerned.

 

100.    As regards the dismissal of ordinary employees, Section 105 of the

Industrial Relations Act (Arbeitsverfassungsgesetz, Fed.  Law Gazette

No. 22/1974) in the version in force at the relevant time provided the

following:

 

"Anfechtung von Kündigungen

 

(1) Der Betriebsinhaber hat vor jeder Kündigung eines

Arbeitnehmers den Betriebsrat zu verständigen, der innerhalb

von fünf Arbeitstagen hierzu Stellung nehmen kann.

 

(2) Der Betriebsinhaber hat auf Verlangen des Betriebsrates

mit diesem innerhalb der Frist zur Stellungnahme über die

Kündigung zu beraten.  Eine vor Ablauf dieser Frist

ausgesprochene Kündigung ist rechtsunwirksam, es sei denn,

daß der Betriebsrat eine Stellungnahme bereits abgegeben

hat.

 

(3) Hat der Betriebsrat der beabsichtigten Kündigung

innerhalb der in Abs. 1 genannten Frist nicht ausdrücklich

zugestimmt, so kann diese beim Einigungsamt angefochten

werden, wenn

 

  1. ....

 

  2. die Kündigung sozial ungerechtfertigt und der

     gekündigte Arbeitnehmer bereits sechs Monate im Betrieb

     oder Unternehmen, dem der Betrieb angehört, beschäftigt

     ist.  Sozial ungerechtfertigt ist eine Kündigung, die

     wesentliche Interessen des Arbeitnehmers beeinträchtigt,

     es sei denn, der Betriebsinhaber erbringt den Nachweis,

     daß die Kündigung

 

     a) durch Umstände, die in der Person des Arbeitnehmers

        gelegen sind und die betrieblichen Interessen

        nachteilig berühren oder

 

     b) durch betriebliche Erfordernisse, die einer

        Weiterbeschäftigung des Arbeitnehmers

        entgegenstehen,

 

     begründet ist.

 

     ...

 

     Bei älteren Arbeitnehmern sind ... bei der Prüfung, ob eine

     Kündigung sozial ungerechtfertigt ist, ... der Umstand einer

     vieljährigen ununterbrochenen Beschäftigungszeit im Betrieb

     oder Unternehmen, dem der Betrieb angehört, sowie die wegen

     des höheren Lebensalters zu erwartenden Schwierigkeiten bei

     der Wiedereingliederung in den Arbeitsprozeß besonders zu

     berücksichtigen.

 

(4) Der Betriebsinhaber hat den Betriebsrat vom Ausspruch

der Kündigung zu verständigen.  Der Betriebsrat kann auf

Verlangen des gekündigten Arbeitnehmers binnen einer Woche

nach Verständigung vom Ausspruch der Kündigung diese beim

Einigungsamt anfechten, wenn er der Kündigungsabsicht

ausdrücklich widersprochen hat.  Kommt der Betriebsrat dem

Verlangen des Arbeitnehmers nicht nach, so kann dieser

innerhalb einer Woche nach Ablauf der für den Betriebsrat

geltenden Frist die Kündigung selbst beim Einigungsamt

anfechten.  ...

 

(5) ...

 

(6) Gibt das Einigungsamt der Anfechtung statt, so ist die

Kündigung rechtsunwirksam.  Die Entscheidung des Einigungs-

amtes ist endgültig."

 

(English translation)

 

"Challenge of dismissals

 

(1) Before dismissing an employee, an employer is required

to notify the works council, which may comment within five

working days.

 

(2) If so requested by it, the employer is required to

discuss the dismissal with the works council within the five

days allowed for comment.  Any dismissal prior to expiry of

this period shall be invalid, unless the works council has

already stated its position.

 

(3) If the works council has not expressly consented to the

intended dismissal within the period specified in para. (1),

application may be made to the conciliation board to set it

aside, if

 

  1. ....

 

  2. the dismissal is not justified from a social point of

     view and the dismissed employee has already been employed

     for six months by the firm or the company of which the firm

     is part.  Dismissal is unjustified from a social point of

     view when it damages the employee's vital interests, unless

     the employer can show that it is due to

 

     a) circumstances personally connected with the employee

        and detrimental to the interests of the firm or

 

     b) business requirements which militate against his

        continued employment.

 

     ...

 

     In the examination whether a dismissal is unjustified

     from a social point of view .... special attention shall

     be given in the case of older employees to the fact that

 

     they have been employed without interruption for many years

     in the firm or the company of which the firm is part, and

     to the difficulties to be expected because of their age in

     being reintegrated in a professional activity.

 

(4) The employer is required to give the works council

notice of the dismissal.  If it has expressly objected to

the intended dismissal, the works council may, within one

week of being notified, contest it before the conciliation

board at the dismissed employee's request.  If the works

council does not contest the dismissal at the employee's

request, he may himself do so before the conciliation board

within the week following expiry of the time-limit for

applying to the works council.

 

(5) ...

 

(6) If the conciliation board grants the application, the

dismissal shall be invalid.  The conciliation board's

decision shall be final."

 

101.    The Act further contains special safeguards concerning

members of the works council who may not be dismissed on account of

their specific functions.  Their dismissal on other grounds requires

the express consent of the works council (Section 120).  In the

present case this provision has been invoked for interpreting the

scope of protection against dismissal afforded by the Disabled Persons

(Employment) Act which, according to Section 8 para. 3 of that Act,

may not go beyond the protection of the members of the works council.

 

        c) Special protection of disabled persons

 

102.    The employment of disabled persons is governed by the Disabled

Persons (Employment) Act (Invalideneinstellungsgesetz, Fed.  Law Gazette

No. 22/1970 as amended).  It obliges employers to employ a certain

proportion of disabled persons or to pay a special tax if they fail to

do so.

 

103.    As regards the dismissal of disabled persons, Section 8 of the Act

provides the following:

 

(German)

 

"Kündigung

 

(1)  Das Dienstverhältnis eines begünstigten Invaliden darf

vom Dienstgeber, sofern keine längere Kündigungsfrist

einzuhalten ist, nur unter Einhaltung einer Frist von vier

Wochen gekündigt werden. ...

 

(2)  Die Kündigung eines begünstigten Invaliden darf von

einem Dienstgeber erst dann ausgesprochen werden, wenn der

Invalidenausschuß .... nach Anhörung des Betriebsrates ...

zugestimmt hat; dem Dienstnehmer kommt in diesem Verfahren

Parteistellung zu.  Eine Kündigung ohne vorherige Zustimmung

 

des Invalidenausschusses ist rechtsunwirksam, wenn dieser

nicht in besonderen Ausnahmefällen nachträglich die

Zustimmung erteilt.  Gesetzliche Bestimmungen, die die

Beendigung des Dienstverhältnisses an zusätzliche

Voraussetzungen knüpfen, bleiben unberührt.  Auf die

Kündigung eines begünstigten Invaliden finden die

Bestimmungen des § 105 Abs. 2 bis 6 des Arbeits-

verfassungsgesetzes, BGBl.  Nr. 22/1974, ... keine

Anwendung."

 

(English translation)

 

"Dismissal

 

(1) Except when a longer period of notice is required,

a disabled person enjoying special status may only be

dismissed by his employer on four weeks' notice. ...

 

(2) A disabled person enjoying special status may be

dismissed by his employer only when the Disabled Persons

Board ... after having consulted the works council ...

has given its consent; the employee shall have the status of

a party in these proceedings.  Dismissal without the prior

consent of the Disabled Persons Board shall be invalid

unless the Board gives its consent retroactively in

exceptional cases.  Legal provisions imposing further

conditions on termination of employment shall not be

affected.  Section 105, paras. 2 to 6 of the Industrial

Relations Act, Fed.  Law Gazette No. 22/1974 ... shall not

apply to the dismissal of disabled persons enjoying special

status."

 

        2) Procedural law

 

        a) Administrative proceedings

 

104.    Unless otherwise provided for in the Disabled Persons

(Employment) Act, the proceedings of the Disabled Persons Board are

governed by the Code of General Administrative Procedure (Allgemeines

Verwaltungsverfahrensgesetz, Fed.  Law Gazette No. 172/1950 as

amended).

 

105.    By virtue of Section 19a of the Act the authority of second

instance is the Provincial Governor (Landeshauptmann), acting as an

organ of indirect federal administration (mittelbare Bundesverwaltung)

within the meaning of Article 103 of the Federal Constitution (Bundes-

Verfassungsgesetz).  In this capacity he is subject to instructions

(Weisungen) of the competent Federal Minister (cf.  Article 103 para. 1

in conjunction with Article 20 para. 1 of the Federal Constitution),

i.e. the Federal Minister of Social Affairs (Bundesminister für

Soziale Verwaltung).

 

106.    The appeal to the Provincial Governor has suspensive effect

according to Section 64 of the Code of General Administrative

Procedure.  No further appeal lies against his decision (Article 103

para. 4 of the Federal Constitution in conjunction with Section 19a of

the Disabled Persons (Employment) Act).

 

107.    The Provincial Governor's decision is regarded as final

(formell rechtskräftig), although complaints can be lodged against his

decision with the Administrative Court (Verwaltungsgerichtshof) under

Article 131 and with the Constitutional Court (Verfassungsgerichtshof)

under Article 144 of the Federal Constitution.  Such complaints do not

have suspensive effect unless the above courts decide so (Section 30

of the Administrative Court Act (Verwaltungsgerichtshofgesetz, Fed.

Law Gazette No. 10/1985), Section 85 of the Constitutional Court Act

(Verfassungsgerichtshofgesetz, Fed.  Law Gazette No. 85/1953)).

 

108.    As regards the relationship of the administrative authorities

and the courts, Article 94 of the Federal Constitution provides that

they shall be separate from each other in all instances.  Article 83

para. 2 of the Federal Constitution further guarantees the

constitutional right of the individual to a "decision by the competent

court" (Recht auf den gesetzlichen Richter) which is generally

construed as a right to a decision by the competent authority,

irrespective of whether this is a judicial or administrative body.

 

        b) Judicial proceedings

 

109.    Until the entry into force of the Labour and Social Courts Act

(Arbeits- und Sozialgerichtsgesetz, Fed.  Law Gazette No. 104/1985) on

1 January 1987, the proceedings in the present case were governed by

the Labour Court Act (Arbeitsgerichtsgesetz, Fed.  Law Gazette

No. 170/1946 as amended).

 

110.    This Act provided for special Labour Courts at first instance

(Section 6).  The appeal proceedings took place before the ordinary

civil courts, i.e. the Regional Courts and the Supreme Court, which

for this purpose constituted special chambers with lay assessors

(Section 25 para. 2 and Section 26).  Under the new legislation the

jurisdiction in labour disputes has been entrusted to special chambers

of the ordinary courts in all three instances.  Outside Vienna the

Regional Courts are now competent in first instance while appeals are

being dealt with by the Courts of Appeal and finally the Supreme Court

(Section 2).

 

111.    Special rules applied to the appeal proceedings under the

former legislation in that they involved a retrial of the case with a

possibility for the parties of introducing new facts and evidence

(Section 25 para. 1 of the Labour Court Act).  Under the new

legislation new facts and evidence may only be brought forward in

appeal proceedings under certain conditions (Section 63 of the Labour

and Social Courts Act).  Proceedings concerning labour disputes shall

be conducted with special expediency (Section 39 para. 1 of the Act).

Unless otherwise provided for, the proceedings are governed by the

Code of Civil Procedure (Zivilprozessordnung).

 

112.    Under Section 228 of this Code, a declaratory judgment may be

sought (Feststellungsklage) as regards the existence or non-existence

of a legal relationship or right (Bestehen oder Nichtbestehen eines

Rechtsverhältnisses oder Rechtes) if the plaintiff has a legal interest

(rechtliches Interesse) in a speedy judicial decision concerning the

determination of that legal relationship or right.

 

113.    As regards actions for performance (Leistungsklagen), the law

does not explicitly lay down the requirement of legal interest.

However, this requirement is generally regarded as being an inherent

condition of any court action.

 

114.    As regards preliminary issues in respect of which other

proceedings are pending, Section 190 of the Code provides the

following:

 

(German)

 

"Unterbrechung wegen Entscheidung von Vorfragen

 

(1) Wenn die Entscheidung eines Rechtsstreites ganz oder zum

Teile von dem Bestehen oder Nichtbestehen eines Rechts-

verhältnisses abhängt, welches Gegenstand eines anderen

anhängigen Rechtsstreites ist, oder welches in einem

anhängigen Verwaltungsverfahren festzustellen ist, so

kann der Senat anordnen, daß das Verfahren auf so lange

Zeit unterbrochen werde, bis in Ansehung dieses Rechts-

verhältnisses eine rechtskräftige Entscheidung vorliegt.

 

(2) ...

 

(3) Nach rechtskräftiger Erledigung des bezüglichen

Prozesses oder Verwaltungsverfahrens ist das Verfahren in

der Hauptsache auf Antrag oder von Amts wegen aufzunehmen."

 

(English translation)

 

"Interruption of the proceedings pending the decision

on preliminary issues

 

(1) If the decision of a legal dispute depends wholly or in

part on the existence or non-existence of a legal

relationship concerning which other judicial proceedings are

pending or which is to be determined in administrative

proceedings which are pending, the Chamber may order the

interruption of the proceedings until the time when a final

decision concerning the legal relationship in question has

been taken.

 

(2) ...

 

(3) Once the judicial or administrative proceedings in

question have been finally concluded, the main proceedings

shall be resumed on the application of the parties or

ex officio."

 

115.    It follows that the court must decide the preliminary issue

itself if no proceedings are pending concerning that issue, and it may

do so according to its discretion even if proceedings are pending.

Once a final decision concerning the preliminary issue has been taken

by the competent judicial or administrative authority, the court is

generally regarded as bound by that decision.  A similar regulation

exists for administrative authorities under Section 38 of the Code of

General Administrative Procedure.

 

116.    Disregard of an earlier final decision concerning a

preliminary issue may constitute a ground for reopening the judicial

proceedings under Section 530 (6) of the Code of Civil Procedure.

 

However, the law does not expressly provide for the reopening of the

proceedings if a final administrative decision which the courts have

considered as binding is subsequently quashed or amended.  This

follows from Section 530 the relevant parts of which read as

follows:

 

 

(German)

 

 

"Wiederaufnahmsklage

 

        Ein Verfahren, das durch eine die Sache erledigende

Entscheidung abgeschlossen worden ist, kann auf Antrag einer

Partei wieder aufgenommen werden,

 

1. - 4. ...

 

5.      wenn ein strafgerichtliches Erkenntnis, auf

        welches die Entscheidung gegründet ist, durch

        ein anderes rechtskräftig gewordenes Urteil

        aufgehoben ist;

 

6.      wenn die Partei eine über denselben Anspruch

        oder über dasselbe Rechtsverhältnis früher

        ergangene, bereits rechtskräftig gewordene

        Entscheidung auffindet oder zu benützen in

        den Stand gesetzt wird, welche zwischen den

        Parteien des wiederaufzunehmenden Verfahrens

        Recht schafft;

 

7.      wenn die Partei in Kenntnis von neuen Tatsachen

        gelangt oder Beweismittel auffindet oder zu

        benützen in den Stand gesetzt wird, deren

        Vorbringen und Benützung im früheren Verfahren

        eine ihr günstigere Entscheidung herbeigeführt

        haben würde.

 

        Wegen der in Z. 6 und 7 angegebenen Umstände ist die

Wiederaufnahme nur dann zulässig, wenn die Partei ohne ihr

Verschulden außerstande war, die Rechtskraft der

Entscheidung oder die neuen Tatsachen oder Beweismittel vor

Schluß der mündlichen Verhandlung, auf welche die

Entscheidung erster Instanz erging, geltend zu machen."

 

(English translation)

 

"Action for reopening of the proceedings

 

        Proceedings which have been concluded by a final

decision on the merits may be reopened,

 

1. - 4. ...

 

5.      if a criminal judgment on which the decision is

        based has subsequently been quashed by another

        judgment which has become final;

 

6.      if the party in question finds or becomes able

        to use a previous decision determining with final

        effect the legal relations between the persons who

        are parties to the proceedings to be reopened as

        regards the same claim or the same legal relationship;

 

7.      if the party in question gets knowledge of new

        facts or finds or becomes able to use new evidence,

        the invocation or use of which would have led to a

        decision more favourable to that party in the earlier

        proceedings.

 

        The reopening of the proceedings on the grounds

mentioned under (6) and (7) above is admissible only if the

party has been unable, without his or her fault, to invoke

the final decision or the new facts or evidence before the

conclusion of the oral proceedings of first instance."

 

117.    In its decisions concerning the applicant's case

(cf. paras. 77 and 88 above) the Supreme Court has clarified that,

in case of the subsequent quashing or amendment of a final

administrative decision which has been regarded as binding on the

courts, a reopening of the proceedings is possible by analogous

application of Section 530 (5).  It is irrelevant in this

respect whether the binding effect of the administrative decision

results - as in the present case - from legislation which has

compulsorily transferred the jurisdiction on a preliminary question

from the courts to an administrative authority ("wenn der Gesetzgeber

die Entscheidung einer Vorfrage dem Gericht zwingend abgenommen und

auf die Verwaltungsbehörde übertragen hat"), or merely from a judicial

decision in which the court by its discretion has considered itself

bound by an administrative decision on a preliminary issue.  According

to the Supreme Court this interpretation is in line with the

principles underlying Section 69 of the Code of General Administrative

Procedure, being the more recent law than the Code of Civil Procedure

and which therefore reflects more accurately the views of the present

legislator concerning the binding effect of acts of the Judiciary on

the Administration and vice-versa.  This provision allows the

reopening of administrative proceedings if a relevant preliminary

issue determined by the administrative authority by virtue of

Section 38 of the Code of General Administrative Procedure (cf.

para. 115 above) has subsequently been decided differently by the

competent court.

 

118.    The Supreme Court determines appeals on points of law as a

rule in non-public proceedings (Section 509 of the Code of Civil

Procedure) on the basis of the file submitted to it by the court of

second instance (Section 508), and without taking into account new

facts or evidence unless they have been included in the parties'

formal submissions on the appeal (Grundsatz der Einmaligkeit des

Rechtsmittels) and concern a ground of nullity or its contestation

(cf.  Sections 504 para. 2 and 507 para. 3).  The Supreme Court is, in

principle, required to determine the merits.  It may refer a case to

the courts below only if special conditions are met (Section 510).

These conditions include the case that the proceedings appealed

against were defective and did not allow a complete discussion or

thorough assessment of the matter in dispute (Section 503 para. 2).

 

III.  SUBMISSIONS OF THE PARTIES

 

A.      The applicant

 

        1)  Applicability of Article 6 para. 1 of the Convention

 

119.    The applicant claims that the right to be actually employed is

derived from the collective agreement and from the obligation of the

employer to protect his employees (Fürsorgepflicht des Dienstgebers)

which follows from Section 1157 of the Civil Code and from Section 18

of the Private Employees Act as interpreted by the courts.  He refers

to various commentaries concerning these provisions and the relevant

case-law as contradicting the Government's assertion that the

applicant's right to work is not a civil right within the meaning of

Article 6 para. 1.

 

        2) Length of proceedings

 

120.    The applicant, invoking Article 6 para. 1 of the Convention,

complains of the length of the labour court proceedings and the fact

that the question of whether or not this suspension was justified has

not yet been determined by the courts.

 

121.     He states that he successfully performed his functions for

many years.  Some time before his suspension he had difficulties with

the central management concerning certain parts of his income which

were related to the real property administration.  Nevertheless, this

did not disturb the enthusiasm which he showed for the insurance

business and the esteem which he enjoyed for his activities.  The

situation suddenly changed when the first court hearing in that case

took place.  The following day, on 10 March 1978, he was informed that

he was suspended with immediate effect.  This was followed by a

general staff meeting in his absence at which the works council

defended his suspension.

 

122.    The applicant considers that he had not given any cause for

the suspension.  He asked for disciplinary proceedings but none were

taken.  His employers used the suspension as an instrument to secure

his being amenable.

 

123.    The applicant considers that in view of the serious

consequences of the suspension for him it must be understood that he

fought for his rehabilitation.  He was not so much interested in the

actual revocation of the suspension as in a judicial finding that he

had done nothing to justify it.

 

124.    The applicant accepts that the period prior to the filing of

his action cannot be taken into account for the purposes of Article 6.

However, he also observes that he waited until the end of the

limitation period because he hoped to reach a settlement with his

employers.  For three years he undertook many efforts to settle the

question of his suspension, but these were to no avail.  He finally

filed his action one day before the expiration of the legal

limitation period on 9 March 1981.  This shows that he did not start

the litigation prematurely or in an abusive way.

 

125.    The applicant originally brought an action for a declaratory

judgment combined with an action for performance, i.e. he sought both

a declaration that the suspension was unlawful and an order to revoke

the suspension.  However, the action for a declaratory judgment was

rejected by the decision of the Regional Court of Linz of 25 November 1981

which in this respect has become final.  Therefore, only the action

for performance remained pending.  The decision on the latter action

was made dependent on his continued legal interest which, in turn, was

linked to the question of the validity of his dismissal.

 

126.    More than ten years after the suspension and seven years

after the introduction of the action this civil claim has not been

determined.  The one decision which was taken in January 1985, in the

applicant's favour, could not become final because his legal interest

was again denied in the subsequent appeal proceedings.  The proceedings

were concluded on 15 July 1986, i.e. after five years and four months,

by a decision of the Supreme Court which confirmed the lack of legal

interest and thus finally refused a determination of the claim.

 

127.    The applicant obtained a reopening of the proceedings by

the Supreme Court decision of 15 July 1987.  However, the resumed

proceedings were adjourned on 19 November 1987 pending the outcome of

the parallel proceedings concerning the dismissal, and this although

in these parallel proceedings the court of first instance had allowed

the applicant's action, and although the applicant had objected to the

adjournment because of the length of the proceedings.  Even after

the termination of the parallel proceedings by the Supreme Court's

decision of 29 June 1988 further time will elapse before the

determination of the suspension case as now the outcome of the

proceedings on the applicant's new action of 30 June 1988 has to

be awaited.  If the termination of the applicant's employment on

30 June 1985 should be finally confirmed, the applicant would again be

deprived of any possibility of obtaining a decision to the effect that

he had done nothing to justify his suspension.

 

128.    The applicant refers to the Buchholz case (Eur.  Court H.R.,

judgment of 6 May 1981, Series A no. 42) where the entire proceedings

lasted five years and nine days.   In that case the applicant had

complained of an unbearable physical and mental strain caused by the

uncertainty concerning his dismissal, which in the end was found to be

justified by the courts, already eight months after dismissal.  In the

applicant's case the suspension which he sought to challenge in the

courts had taken place already ten years ago and the courts have not

yet dealt with the substance of the matter.  Until the Supreme Court

judgment of 15 July 1986 the proceedings had lasted almost five and

a half years and thus considerably longer than those in the Zand case

(No. 7360/76, Comm.  Rep. 12.10.78, D.R. 15 p. 70) where the Commission

stated, with regard to similar proceedings which had lasted three and

a half years, "that such a delay can only be accepted, under Article 6

para. 1 of the Convention, in very exceptional cases".

 

129.    In the applicant's view the question at issue in his Labour

Court proceedings was not particularly complex.  It was disputed

whether his employer could take a serious measure such as the

suspension of his employment without giving reasons and, if not,

whether there were reasons justifying that suspension.  The

complication was brought about by the courts' consideration of the

preliminary issue of legal interest and their view that they were

bound by administrative decisions concerning the validity of his

dismissal.

 

130.    The applicant does not feel responsible for any delay which

occurred in his case.  He submits that the responsibility lies with

the opposite party.  By pronouncing his dismissal the company has

hitherto been able to avoid the obligation to give reasons justifying

the applicant's suspension which resulted from the Supreme Court

judgment of 30 March 1982 (die Entscheidung des Obersten Gerichthofes

zu unterlaufen).

 

131.    The applicant admits that both the judicial proceedings

concerning the suspension and the administrative proceedings

concerning the consent to his dismissal were conducted by the

competent authorities without any major delay.  Only the judicial

proceedings concerning his first dismissal remained adjourned for

several years, although they could, in the applicant's view, have been

conducted simultaneously with the proceedings concerning the

suspension.  However, the judicial proceedings concerning the first

dismissal did not have any impact on the suspension case.  After the

reopening of both judicial proceedings there is now an unjustifiable

delay in the suspension case because it has been adjourned, despite

the applicant's objection, pending the outcome of the judicial

proceedings concerning the second dismissal.

 

132.    Apart from that the length of the Labour Court proceedings

concerning the suspension was mainly caused by the interaction with

the parallel administrative proceedings concerning the consent to the

dismissal.  The reason was not the change of the Supreme Court's

constant case-law in its decision of 23 October 1984.  It was thus the

structure of the proceedings which led to their unreasonable

prolongation: The legal system allowed for an interaction between

judicial and administrative proceedings in such a manner that a

consideration of the real issue was blocked for years by a shuttle

(Pendelbewegung) between administrative and judicial decisions.  In the

applicant's submission the respondent State is responsible for the

delay caused by this complicated legal system in which administrative

decisions could interfere with the proper administration of justice by

the courts.

 

        3) Access to court

 

133.    The applicant further complains under Article 6 para. 1 that

he was refused access to court insofar as the courts considered

themselves bound by administrative decisions and, on this basis,

denied his legal interest in the determination of the suspension case.

He also invokes Article 13 of the Convention in this context.

 

134.    In the applicant's view the interaction between the

administrative and the judicial proceedings not only prolonged the

proceedings unreasonably, it also interfered with his right of access

to court insofar as the labour courts considered themselves bound by

the administrative decisions on the validity of his dismissal.  In his

view the administrative authority's consent to the dismissal was not

a relevant preliminary question in the judicial proceedings.  The fact

that on this basis his legal interest was repeatedly denied

constituted, according to him, breaches of Articles 6 and 13.

 

135.    The preliminary question considered by the Courts was

exclusively the validity of the dismissal according to the Disabled

Persons (Employment) Act.  The Courts neither did nor could consider

any other questions concerning the lawfulness of the dismissal under

 

labour or civil law.  This is clearly borne out by the judicial

decisions taken in the case, in particular the decision of the Supreme

Court of 15 July 1986 (para. 71 above) which expressly confirmed the

binding effect of the administrative decisions which could not be

reviewed by the civil courts, notwithstanding the fact that the

Supreme Court had earlier adopted a different interpretation of

Section 8 para. 2 of the Disabled Persons (Employment) Act concerning

retroactive consent.  The applicant also considers it as significant

that the Supreme Court denied the relevance of a question of civil

law, namely whether the judicial settlement of 26 May 1983 had been

correctly interpreted by the Regional Court.  He further refers to the

decision of the Labour Court of 14 August 1985 concerning his action

against the dismissal (cf. para. 74 above).  The action was rejected on

the sole ground that the Court was bound by the administrative

decision by which the Provincial Governor had retroactively declared

his consent to the dismissal and the lawfulness of which could not be

reviewed by the Court.

 

136.    The Courts' concentration on the question of the validity of

the dismissal under the Disabled Persons (Employment) Act is, in the

applicant's view, due to the Austrian legal system which does not

empower the Courts to examine the justification of the dismissal of a

disabled person to which the administrative authority has consented.

For the dismissal of other employees such a power exists according to

Section 105 of the Industrial Relations Act.  The applicability of

this provision is, however, expressly excluded by Section 8 para. 2 of

the Disabled Persons (Employment) Act which thus leaves the decision

on the justification of dismissals to the discretion of the

administrative authorities.  These authorities deal with all aspects

of the dismissal and leave no room for a different decision of the

courts.

 

137.    The applicant contests the Government's submission that the

administrative proceedings are limited to the issues arising under the

Disabled Persons (Employment) Act and that all other questions

concerning the lawfulness of the dismissal are reserved to the

subsequent Labour Court proceedings.  It is true that the Labour Court

can be seized with an action claiming that a dismissal is invalid

under civil law.  This is what the applicant did when he claimed that,

despite the prior consent of the Disabled Persons Board, his dismissal

was invalid because it had been pronounced before the consent had

become final.  This is only one instance of the normal rule that

invalid legal transactions can be challenged before the courts.

However, the Austrian law does not allow the challenge of the

substantive justification of the dismissal of a disabled person before

the courts.

 

138.    Thus the applicant was prevented from pleading before the

Labour Courts that his dismissal had not been in conformity with the

collective agreement.  Under this collective agreement the applicant

could not be dismissed except by way of an administrative retirement

according to Section 33 para. 9 which required the consent of the

works council.  If the works council had not consented to his

dismissal, he could have successfully raised this before the Labour

Courts and the dismissal would have been regarded as invalid.  However,

his arguments in this respect were not taken into account in the

Labour Court proceedings concerning his dismissal although, in the

applicant's view, the courts would have been required to consider this

question ex officio on the basis of the principle "jura novit curia".

 

The applicant refers to Section 43 of the Labour and Social Courts Act

and its interpretation in leading commentaries.  He was therefore

compelled to bring a new action concerning this issue on 30 June 1988.

In any event he could not claim before the Labour Courts that the

conditions of an administrative retirement, which, in principle, must

be applied restrictively, were not met and that therefore the works

council had wrongly declared its consent.

 

139.    Nor could he claim that the dismissal was contra bonos mores

as suggested by the Government.  Section 879 of the Civil Code

prohibits contracts which are contra bonos mores and Section 1295 of

the Civil Code provides for a compensation claim against everybody who

deliberately, in a manner which is contra bonos mores, causes damage

to another, inter alia, by exercising a right for the purpose of doing

harm to him (chicanery).  It cannot be assumed that a dismissal to

which the administrative authority has consented could subsequently be

challenged under this provision of the Civil Code as being contra

bonos mores.  Such a possibility only exists for ordinary employees

whose dismissal does not depend on a prior administrative decision.

It would, moreover, be against the principles of labour law to refer

a dismissed person to the possibility of an action for compensation.

 

140.  In reality, therefore, it is not possible to challenge the

substantive justification of the dismissal of a disabled person by a

Labour Court action as the Commission assumed in the admissibility

decision of 12 March 1986 on the applicant's earlier application

No. 10247/83 (cf.  Appendix III at p. 89).  The legal situation in

Austria concerning the dismissal of disabled persons differs in this

respect from the legal situation in the Netherlands considered in

Application No. 8974/80 (Dec. 8.10.80, D.R. 24 p. 187) to which the

Commission referred in that decision.  In fact the civil rights

concerning the dismissal are determined by the administrative

authorities in the proceedings under the Disabled Persons (Employment)

Act and their decisions cannot subsequently be reviewed by the Labour

Courts.  Contrary to the Commission's above decision, the

administrative proceedings in the present case therefore should come

within the scope of Article 6 para. 1 of the Convention.

 

141.    The applicant submits that those administrative proceedings,

whose outcome the Labour Courts considered as binding on them, were

incompatible with the requirements of Article 6 para. 1 in several

respects.

 

142.    Firstly, the competent authorities, i.e. the Disabled Persons

Board and the Provincial Governor, are not independent courts.  They

are administrative authorities bound by instructions of the Federal

Minister of Social Affairs.  In the present case this Minister was at

the same time the husband of the head of personnel in the company.

Furthermore, he was chairman of the applicant's trade union (whose

representatives in the works council had backed the company's measures

and which had refused him legal aid).  Finally, the Minister had also

acted as mediator.

 

143.    Secondly, the proceedings were unfair because the Disabled

Persons Board refused to adjourn the case pending the parallel court

proceedings concerning the dismissal, and because it failed to take

into account numerous pieces of evidence which the applicant had

submitted in order to show that his dismissal was unjustified.  The

 

Provincial Governor's proceedings were likewise unfair.  His decisions

were taken each time without hearing the applicant.  The second

decision relied on documents which had not been part of the file and

the applicant had not been given an opportunity to comment on these

documents.  Access to the file was granted to the applicant only after

the decision had been taken.

 

144.    It is true that the administrative decisions could be

challenged before the Administrative Court.  However, the applicant

contests the Constitutional Court's opinion expressed in decisions

Nos. 5100 and 5102 according to which the Administrative Court

proceedings satisfy the requirements of Article 6 of the Convention.

In this respect he invokes the Commission's view in the Ettl Case

(No. 9273/81, Comm.  Rep. 3.7.85).  The Administrative Court cannot

take a decision on the merits, but can only confirm or quash the

administrative decisions.  It is impossible to raise questions of fact

before it.  Also, certain important procedural principles such as the

direct evidence rule (Unmittelbarkeit), the principles of oral

proceedings (Mündlichkeit) and hearing of both parties (beiderseitiges

rechtliches Gehör) are widely disregarded.

 

145.    In the applicant's case the Administrative Court refused to

hold a hearing in the first proceedings concerning prior consent.  In

this respect the applicant refers to the submissions in his earlier

application No. 10247/83 which he reiterates despite the Commission's

decision of 12 March 1986 to reject that application.  He stresses, in

particular, that the Administrative Court's findings that the

management and works council of the company had tried for years to

come to a settlement with the applicant concerning his suspension and

that it was the applicant who rejected all proposals are incorrect and

contradicted by the file.  There had only been one proposal for a

settlement submitted to the applicant through the good services of the

Federal Minister of Social Affairs, and this proposal had not been

rejected by the applicant, but had been withdrawn by the company's

management.

 

146.    The applicant asks the Commission to consider the case as a

whole, including the elements which were already considered in the

decision on application No. 10247/83 which, in his submission, is

based on wrong assumptions.  He therefore requests a reopening of the

proceedings concerning that application.

 

        4) Discrimination

 

147.     The applicant alleges discrimination contrary to Article 14

of the Convention, in that the protection against unjustified

dismissal laid down in the Industrial Relations Act does not extend to

disabled persons.  Unlike that Act the Disabled Persons (Employment)

Act contains no specific regulations concerning unfair dismissal but

leaves the matter to the discretion of the administrative authority.

Allegedly no effective judicial remedy is available to disabled

persons after the administrative authority's consent to the dismissal

has become final.

 

148.    Although it is apparently the intention of the Disabled

Persons (Employment) Act to provide better protection against

dismissal for disabled persons, they are in fact protected less

effectively than normal employees and thus discriminated against.  As

 

the present case shows, the system of dual protection by the courts

and administrative authorities has only adverse effects on the

individual concerned.  In fact it leads to divergent decisions of the

administrative authorities and the courts.  The applicant challenges

this dual system as such.

 

149.    Unlike the Industrial Relations Act (Section 105), the Disabled

Persons (Employment) Act does not contain any specific regulations on

unfair dismissal, nor a social hardship clause.  It therefore leaves

the decision in this respect to the discretion of the administrative

authority whose decision will be considered as binding by the courts.

Since the entry into force of the Labour and Social Courts Act all

groups enjoying special protection against dismissal, including

persons doing military service, women on maternity leave and members

of the works council, can challenge dismissals before the courts.  Only

disabled persons are still subject to a system of dual protection by

administrative authorities and the courts in which the important

issues are decided by the administrative authorities.  The applicant

considers that the continued application of this dual system to

disabled persons and the withholding from them of effective protection

against dismissal in judicial proceedings grossly violates the

principle of equality.

 

 

B.      The Government

 

        1) Applicability of Article 6 para. 1 of the Convention

 

150.    The Government observe that the applicant originally raised

two claims concerning his suspension from employment.  He sought both

a declaratory judgment to the effect that the suspension was unlawful,

and a judgment for performance to the effect that the suspension

should be revoked.  However, the action was finally rejected by the

Regional Court's decision of 25 November 1981 insofar as the applicant

had asked for a declaratory judgment (cf. paras. 27-28 above).  After

this date, therefore, the proceedings have been exclusively concerned

with the applicant's claim that his suspension be revoked.

 

151.    The Government stress that apart from the claim that his

suspension be revoked the applicant has not raised any other claims in

the proceedings at issue.  In particular, these proceedings did not

concern any financial claims nor the validity of his dismissal as

such.  These matters were the subject of different proceedings which

are not at issue here.

 

152.    The Government contest the applicability of Article 6 of the

Convention to the proceedings concerning the suspension.  In substance

the applicant demands the reinstatement in his job, for his suspension

was based on Section 32 of the Collective Agreement for Insurance

Employees, according to which such a measure leaves unaffected all

aspects of the employment contract except the employee's obligation to

work.  He has no right to work, neither under the Convention nor under

civil law.  He only has a contractual duty to work which, in this

case, the employer suspended by a disciplinary measure.  However, in

the Government's view the taking of disciplinary measures in the

context of a private law relationship between employer and employee

does not necessarily come within the scope of Article 6 of the

Convention.

 

        2) Length of proceedings

 

153.    As regards the length of the Labour Court proceedings

concerning the applicant's suspension, the Government observe that

these proceedings were not instituted until three years after the

suspension, on 9 March 1981.  The previous period during which

settlement negotiations took place between the applicant and his

employer cannot be taken into account for the purposes of Article 6

para. 1 of the Convention.

 

154.    Until the Supreme Court's final judgment of 15 July 1986 the

proceedings lasted some five years and four months.  This included

three rounds of court proceedings through all levels of jurisdiction.

The Government observe that in the course of these proceedings delays

have hardly occurred, despite the complexity of the matter and the

interaction of court and administrative proceedings.  They consider

that in these circumstances the total length of the proceedings was

not unreasonable.

 

155.    The particular complexity of the case arose from several

circumstances:  The fact that the applicant was given notice of

dismissal before a final decision had been taken in the case

concerning the revocation of his suspension;  the interaction between

the court proceedings and the administrative proceedings concerning

the consent to that dismissal;  the change of the Supreme Court's

case-law as to when the authority's prior consent becomes effective;

finally, the fact that as a reaction to this unexpected change of

jurisprudence the applicant's employers requested and eventually

obtained retroactive consent, a fact which was binding on the Labour

Court and created a new legal situation.

 

156.    The main reason for the length of the proceedings is in the

Government's view the Supreme Court's decision of 23 October 1984

which brought about a change of the constant case-law.  Without that

decision a third round of the proceedings would not have become

necessary.  The Government admit that a certain delay occurred in the

preparation of this decision which was the reaction to an appeal

registered on 16 August 1983.  However, this delay is attributed to

the complexity of the matter and the fact that the Supreme Court

decided contrary to its long established previous case-law.  Such a

departure from previous case-law is not an everyday affair.  It

requires thorough consideration and should be made in the interest

of legal security only in the presence of good reasons and sound

arguments.  This explains why the short delay occurred.

 

157.    As such, this change of the case-law did not interfere with

the applicant's rights.  The decision was in his favour as he was

thereby given a new opportunity to assert his claim concerning his

suspension:  He again acquired a legal interest which, according to

the earlier practice, would no longer have existed.  Accordingly, he

cannot complain of the resultant prolongation of the proceedings.

 

158.    The change of the Supreme Court's case-law was completely

unexpected.  That is why the applicant's employers requested

retroactive consent to the dismissal under Section 8 para. 2 of the

Disabled Persons (Employment) Act which was eventually granted by the

Provincial Governor for Upper Austria.  In the Government's submission

it was not unreasonable for the Provincial Governor to consider the

unexpected change of the Supreme Court's case-law as an exceptional

circumstance within the meaning of this provision.

 

159.    The Provincial Governor's decision was a final administrative

decision and thus binding on the Regional Labour Court which, at the

relevant time, was seized with an appeal.  In fact, it changed the

legal situation underlying the case (veränderte Entscheidungsgrundlage),

and this was subsequently also confirmed by the Supreme Court.  In

the meantime, however, the proceedings have been reopened because of

the Administrative Court's decision of 21 May 1986 which quashed the

Provincial Governor's decision.  They have subsequently been adjourned

pending the outcome of the parallel case concerning the validity of

the second dismissal.

 

160.    The Government observe that the interaction between the

administrative proceedings and the judicial proceedings did not lead

to any unjustifiable delays.  The two proceedings were conducted

simultaneously without any adjournment of the judicial proceedings

pending an administrative decision, or vice versa.  Only the result

and not the length of the judicial proceedings was thus influenced by

the administrative proceedings.

 

161.    The Government conclude that the length of the procedure,

caused above all by the particular legal structure of the interaction

of courts and administrative authorities and the change in the

jurisprudence of the Supreme Court, cannot be considered unreasonable.

 

        3) Access to court

 

162.    The mere fact that Austrian law attributes a role to

administrative authorities in dismissal proceedings concerning

disabled persons cannot, in the Government's view, be criticised as

reducing the legal protection of the persons concerned.  On the

contrary, it improves that protection.

 

163.    If the employer fails to obtain the required administrative

consent, or if the consent is defective, the dismissal will not be

regarded as valid.  However, this lack of validity becomes operative

only if the employee subsequently challenges the dismissal by a Labour

Court action in which he claims that he is still employed and thus

entitled to continued payment of his salary (Leistungsklage).  The

applicant used this possibility, i.e. he challenged his dismissal in

Labour Court proceedings which, however, are not at issue here.  He

cannot pretend that in this respect he was refused access to court.

 

164.    Nor was the applicant's right of access to court interfered

with in the case concerning his suspension insofar as the courts

assumed a binding effect of the administrative decisions taken under

the Disabled Persons (Employment) Act when judging the preliminary

question of the validity of his dismissal.  In the Government's view

the binding effect of administrative decisions only played a role in

the third round of the Labour Court proceedings.  Moreover, it was only

the fact that the administrative authority had consented to the

dismissal which was regarded as binding (Tatbestandswirkung).  There

was no decisive determination of the applicant's civil rights in this

respect.  As the Commission confirmed in its decision on the

applicant's first application No. 10247/83, the administrative

proceedings did not determine such rights and fell outside the scope

of Article 6 (cf.  Appendix III at p. 89 - 90).

 

165.    The preliminary issue in the suspension case concerned the

applicant's legal interest (Rechtsschutzinteresse) in the judicial

determination of his claim that the suspension should be revoked.  The

existence of such legal interest is a condition for the admissibility

of judicial proceedings (Prozessvoraussetzung) which the court is

required to examine ex officio at any stage of the proceedings in the

interest of procedural economy.

 

166.    The applicant's specific claim to have his suspension revoked

logically presupposes a situation of continuing employment.  It would

not make sense to demand the revocation of a suspension from

employment after the termination of this employment.  Therefore the

applicant's legal interest in the action depended on whether or not

his employment had been validly terminated by the employer's notice of

dismissal.

 

167.    The validity of the dismissal and thus of the applicant's

legal interest was not exclusively dependent on the consent of the

competent administrative authority under the Disabled Persons

(Employment) Act.  There are a number of other requirements for a

dismissal to be legally valid.  They include, inter alia, compliance

with contractual clauses, with the applicable collective agreement and

with the Private Employees Act (both as regards restrictions on the

employer's right to dismiss and observance of terms and dates for

termination of contract).  They further include compliance with the

provisions of the Civil Code (as regards the pronunciation of the

dismissal in the form of a declaration of intent which the addressee

of the declaration has received, legal capacity both on the part of

the notifying party and on the part of the party under notice, power

of representation in case a representative pronounces the dismissal on

behalf of the employer, etc.).  Finally, it could also be examined

whether the dismissal infringed the Civil Code as being contra bonos

mores (sittenwidrig).

 

168.    As civil proceedings are governed by the principle of party

disposition, the validity of the dismissal with regard to the various

above conditions could not be examined unless specifically challenged

in this respect.  In the present case the validity of the dismissal

was only challenged as far as the approval under the Disabled Persons

(Employment) Act is concerned.  The justification of the dismissal

under labour legislation could therefore be assumed since it was not

challenged.  In the second round of the proceedings an examination as

to the compliance with labour legislation was moreover superfluous in

view of the finding that there was no valid dismissal under the

Disabled Persons (Employment) Act.  Apart from the invalidity of the

dismissal under the latter Act, the applicant essentially claimed the

invalidity of the dismissal under Section 105 para. 2, sub-para. 2 of

the Industrial Relations Act.  The Disabled Persons (Employment) Act,

however, excludes disabled persons from the benefit of this provision,

and therefore this claim was inappropriate.

 

169.    In the proceedings on the suspension the Court could have

dealt with any question concerning the justification of the dismissal

under labour law in the form of a decision on a preliminary issue.  If

the applicant had challenged the justification under labour law in the

dismissal proceedings, it would have been up to the Court in those

proceedings to decide on the matter as a main question.  An

interruption of the suspension proceedings pending the dismissal

 

proceedings would have been possible although not mandatory under

Section 190 of the Code of Civil Procedure.  The reasons why no

decision to interrupt the proceedings was taken in the third round of

proceedings were explained by the Linz Labour Court in its decision of

30 January 1985 (cf. para. 69 above).  The applicant had objected to an

interruption to avoid further delays in the proceedings.

 

170.    The judgment of the Linz Labour Court of 14 August 1985

concerning the validity of the dismissal would only have been of

relevance in the suspension proceedings if it had become final before

the Regional Court's hearing in that case.  The Regional Court would

then have been bound in the suspension proceedings by the judgment

rendered on the validity of the dismissal instead of making its own

independent assessment of this preliminary question.  However, the

Regional Court's judgment in the suspension case was passed already on

31 July 1985, i.e. before the first instance judgment in the dismissal

proceedings.  Therefore the action by which the applicant challenged

his dismissal was of no relevance in the suspension proceedings,

except for the possibility which would have existed as from the date

of the introduction of that action to interrupt the suspension

proceedings.  In any event the result in both proceedings was the

same, i.e. each time the Courts considered themselves bound by the

retroactive consent given to the dismissal by the Provincial Governor

on 17 June 1985, thus making the dismissal valid.  The subsequent

quashing of the Provincial Governor's decision by the Administrative

Court's judgment of 21 May 1986 led to the reopening of both Labour

Court proceedings.  However, the reopened suspension proceedings were

subsequently interrupted pending the outcome of the dismissal case.

 

171.    The Government finally observe that in the administrative

proceedings, by the results of which the Labour Courts considered

themselves bound, the competent authorities were only called upon to

apply the Disabled Persons (Employment) Act and not to examine the

question of the lawfulness of the applicant's dismissal in its entirety.

 

        4) Discrimination

 

172.    The Government submit that, generally, the employer's right to

give notice is not restricted by a requirement of administrative

consent.  The employer can dismiss by a unilateral private law

declaration addressed to the employee who has certain possibilities of

challenging the dismissal only after it has been pronounced (cf., in

particular, Section 105 of the Industrial Relations Act which assigns

an important function to the works council).  However, a different

regime exists for disabled employees.  Under the Disabled Persons

(Employment) Act the employer cannot validly give notice of dismissal

to them without the prior consent of the competent administrative

authority.  This means there exists a general prohibition to dismiss

disabled employees.  It is true that the Disabled Persons Board enjoys

a measure of discretion in deciding on derogations, but the discretion

must be exercised in accordance with the aim and purpose of the

legislation and this is controlled by the Administrative Court which

has developed a pertinent case-law since 1954.  In view of the fact

that the regime introduced for disabled persons is generally more

favourable, it cannot be said that it is discriminating.

 

IV.   OPINION OF THE COMMISSION

 

 

A.      Points at issue

 

173.    The following points are at issue in the present case:

 

        a) whether Article 6 para. 1 (Art. 6-1) of the Convention applies to

the court proceedings concerning the applicant's suspension;

 

        b) whether there has been a violation of Article 6 para. 1 (Art. 6-1)

in that the applicant was not granted access to court as required by this

provision;

 

        c) whether there has been a violation of Article 6 para. 1 (Art. 6-1)

in that the applicant's civil rights were not determined within a reasonable

time as required by this provision;

 

        d) whether the applicant's right under Article 13 (Art. 13) of the

Convention to have an effective remedy before a national authority was

respected;

 

        e) whether the applicant has been discriminated against,

contrary to Article 14 (Art. 14) of the Convention.

 

 

B.      Applicability of Article 6 para. 1 (Art. 6-1)

 

174.    The first sentence of Artice 6 para. 1 (Art. 6-1) of the Convention

reads as follows:

 

"     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."

 

175.    The Government contest that this provision applies to the

court proceedings concerning the applicant's suspension (para. 152

above).

 

176.    However, in its decision on the admissibility of this

application the Commission has already found that Article 6 para. 1 (Art. 6-1)

applies to these proceedings.  It stated as follows (cf.  Appendix II at p.

70):

 

        "Even if the applicant did not have a right to work

under the applicable Austrian law but only a contractual

duty to work which his employers suspended by a disciplinary

or other measure covered by a collective agreement, the

litigation still concerned the private law relationships

between the applicant and his employers, and thus the

determination of his 'civil rights and obligations' within

the meaning of Article 6 para. 1 (Art. 6-1).  It follows that this

provision is applicable to the proceedings."

 

C.      Access to court

 

177.    The applicant complains that his civil rights were not

determined by an independent and impartial tribunal as required by

Article 6 para. 1 (Art. 6-1) of the Convention insofar as the competent Labour

Courts considered themselves bound by administrative decisions taken

under the Disabled Persons (Employment) Act.

 

178.    The present case concerns exclusively the Labour Court

proceedings by which the applicant sought to challenge his suspension

from employment.   In these proceedings, unlike in the parallel Labour

Court proceedings concerning his dismissal, the impugned binding

effect of administrative decisions did not concern the main issue, but

only the question of the applicant's legal interest.  In fact, the

validity of the applicant's dismissal was regarded as an essential

preliminary issue in this respect.

 

179.    The applicant submits that it was unjustified to make the

decision in the suspension case dependent on this preliminary issue.

The Commission accepts that the applicant could have a legitimate

interest in the determination of the lawfulness of his suspension

irrespective of whether or not he was subsequently dismissed by his

employer.  However, the fact that his claim for the revocation of the

suspension was made dependent on this preliminary question is not

unreasonable and does not in itself constitute an unjustified

restriction of the applicant's right of access to court as implied

by Article 6 para. 1 of the Convention.  It is true that the

applicant's action was declared inadmissible insofar as he had sought

a declaratory judgment to the effect that his suspension was unlawful

(cf. paras. 27 - 28 above), but the applicant could have brought an

action for compensation regarding the damage caused to him by his

allegedly unlawful suspension.  In this case the question of dismissal

would not have been relevant.

 

180.    In determining the above preliminary issue the Labour Courts

considered themselves bound by administrative decisions taken under

the Disabled Persons (Employment) Act.  In this respect, the

Commission stated the following in its decision on the admissibility of

the present application (cf.  Appendix II at p. 72):

 

        "The Commission considers that there could

under special circumstances be an issue under Article 6

para. 1 (Art. 6-1) if a court, in reaching its decision on a civil

right, was prevented by law from investigating an essential

preliminary question and if it were instead bound by the

decision of an administrative authority which did not fulfil

the requirements of a tribunal in the sense of Article 6 (Art. 6)

(cf. mutatis mutandis, No. 7287/85, Dec. 3.3.78, D.R. 13

p. 27).  For in such a case it could be said that, to the

extent that the court was bound by the administrative decision,

there was an interference with the right of access to court,

which is implied in Article 6 para. 1 (Art. 6-1) of the Convention (cf.

Eur.  Court H.R., Golder judgment of 21 February 1975, Series A

no. 18, paras. 26 - 35)."

 

181.    As such, the question of the validity of a dismissal is a

question of civil rights which therefore requires to be determined

by an independent and impartial tribunal in a procedure which is in

conformity with Article 6 para. 1 of the Convention.

 

182.    If civil rights issues of this kind arise as a preliminary

question in judicial proceedings concerning the determination of other

civil rights, they must, in principle, also be determined in a procedure

fulfilling the requirements of Article 6 para. 1 (Art. 6-1). It is not

necessary that this procedure takes place before the court which has to

determine the main issue;  that court may be required to obtain the decision of

another competent court or, if a judicial decision already exists, it may be

required to regard that decision as binding.  However, if an administrative

authority has previously taken a decision concerning the civil rights issue in

question this fact cannot be sufficient to dispense the courts from an

independent examination of that issue.  A binding effect of administrative

decisions on the courts is only acceptable where these administrative decisions

do not encroach on the courts' legitimate functions in the area of the

determination of civil rights.

 

183.    It is mainly in this respect that the parties disagree.  In the

applicant's view his civil rights concerning the validity of his

dismissal were, in substance, determined by the administrative

decisions taken under the Disabled Persons (Employment) Act and the

Labour Courts' function was limited to ratifying those administrative

decisions which they simply regarded as binding (cf. paras. 135 et

seq.).  The Government claim that the administrative decisions under

the Disabled Persons (Employment) Act did not decisively determine the

applicant's civil rights regarding his dismissal and the determination

of this issue was, in principle, entrusted to the Labour Courts which

could consider many other questions apart from the administrative

consent to the dismissal (cf. paras. 167 et seq.).

 

184.    The Commission recalls its decision of 12 March 1986 on the

admissibility of the applicant's previous application No. 10247/83

where it held that the administrative proceedings under the Disabled

Persons (Employment) Act did not come within the scope of Article 6 para. 1

(Art. 6-1).  It considered that these proceedings concerned primarily the

relations between the relevant administrative authority and the employer while

the decision on dismissal rested ultimately with the employer.  It further

noted that the dismissal pronounced with the authority's consent could

subsequently be challenged in the Labour Courts and that the applicant had made

use of this possibility. In these circumstances, the Commission concluded

(Appendix III, at p. 89):

 

        "that, even if it is admitted that the procedure in

question may have affected rights and obligations deriving

from the relations between the applicant and his employer,

it cannot be considered in any way to have decisively

determined civil rights and obligations within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention."

 

185.    The Commission adopted this decision before receiving detailed

information on the subsequent Labour Court proceedings.  It is true

that at the time of the Commission's decision some decisions had been

taken in those proceedings, in particular the Labour Court's decision

in the dismissal case of 14 August 1985 (cf. para. 74) and the

Regional Labour Court's decision in the suspension case of 31 July 1985

(cf. para. 68).  Both were based on the binding effect of the

administrative decisions on the courts.  However, the final decision

 

in the suspension case was still outstanding.  It was taken shortly

after the Commission's decision on 15 July 1986 and confirmed the

Regional Labour Court's view concerning the binding effect of the

administrative decisions (cf. para. 71).

 

186.    In the light of the information now before the Commission it

appears that the question of the substantive justification of the

applicant's dismissal was in fact examined only in the administrative

proceedings under the Disabled Persons (Employment) Act.  The relevant

proceedings were not limited to ascertaining whether or not there was

a link between the applicant's disablement and his dismissal.  They

also dealt at length with other issues including, in particular, the

questions of the conformity of the dismissal with the provisions of

the applicable collective agreement and of the social justification

of the dismissal having regard to the respective interests of the

employer and the applicant (cf. above paras. 34 et seq.).

 

187.    The same questions were not examined again in the judicial

proceedings before the Labour Courts.  It is true that these Courts

could have dealt with a number of further questions, mainly of a

formal nature, as submitted by the Government (cf. para. 167).

However, most of these questions might not have been relevant in the

applicant's case and therefore were not pleaded by the parties (cf.

para. 168).  The only question of interest here is whether in the

Labour Court proceedings the applicant could have effectively pleaded

that, despite the administrative authority's consent, the dismissal

was unlawful or unjustified.  The Government submit that this was the

case as the applicant could have pleaded that the dismissal infringed

contractual clauses, the applicable collective agreement, the Private

Employees Act or the Civil Code (e.g. as being contra bonos mores).

The applicant claims that these possibilities did not exist, in

particular that it is inconceivable that a court would regard as

contra bonos mores a dismissal pronounced with the consent of the

competent administrative authority.

 

188.    As in the relevant Labour Court proceedings the applicant

apparently did not put forward any arguments of the kind described by

the Government, the Commission is unable to ascertain what would have

been the reaction of the Courts to such arguments.  It notes, however,

that in their decisions the Courts did not make the least allusion to

a possible relevance of such arguments and to a failure on the part of

the applicant to raise them.  Rather, the Courts seem to have

considered it as sufficient for the validity of the applicant's

dismissal, without any further considerations under the applicable

labour law, that the competent administrative authority had declared

its consent to the dismissal.  The relevant administrative decision

was immediately and unconditionally regarded as binding, both in the

Labour Court proceedings concerning the applicant's dismissal and in

those concerning his suspension from employment.

 

189.    As regards the latter proceedings, which are at issue here,

the Commission further notes that - prior to the reopening of the

proceedings in 1987 - no reference was made to the parallel Labour

Court proceedings concerning the dismissal, although in those

proceedings the civil rights question of the validity of the

dismissal was the main issue (cf. paras. 73 et seq.).  If any

questions apart from those considered in the administrative decision

could have been relevant in those proceedings, it would have been

impossible to disregard them in the suspension case where the same

 

issue was a preliminary question.  The Regional Labour Court and the

Supreme Court, when basing their decisions on that question

exclusively on the binding effect of the administrative decision,

must therefore have assumed that there was nothing left for the

decision of the Labour Courts once the administrative consent had

been given.

 

190.    This finding is supported by the reasoning of the relevant

judicial decisions.  Thus the Supreme Court, in its decision of

15 July 1986, stated that the application of the Disabled Persons

(Employment) Act was the exclusive task of the administrative

authorities which in this respect were not bound by the views earlier

expressed by the Supreme Court, while their decisions were binding on

the courts which could not review these decisions, but were required

to base their own decisions on them "without any further examination"

(cf. para. 71 above).  In its decisions taken on 15 July 1987 in the

subsequent reopening proceedings (cf. para. 117) the Supreme Court

characterised the situation as one where the binding effect of the

administrative decision was the result of legislation which had

compulsorily transferred the jurisdiction on the matter from the

courts to an administrative authority ("wenn der Gesetzgeber die

Entscheidung einer Vorfrage dem Gericht zwingend abgenommen und auf

die Verwaltungsbehörde übertragen hat").  It thus stated that the

decision on the preliminary question had been transferred from the

courts to an administrative authority.

 

191.    This approach was not abandoned when the suspension case

was adjourned pending the outcome of the parallel Labour Court

proceedings concerning the second dismissal.  The decision of

19 November 1987 to adjourn (cf. para. 89) was not based on the ground

that there were additional questions as to the justification of this

dismissal under labour law which required to be determined.  The only

question at issue in the parallel proceedings was whether or not the

binding effect of the relevant administrative decision (i.e. the

Disabled Persons Board's decision of 8 July 1981 which, in the

meantime, had become final) was continuing (cf. paras. 78, 79 and 83).

The suspension case was adjourned only for considerations of

procedural economy, i.e. in order to prevent this difficult question

being examined twice.

 

192.    The further adjournment on 23 September 1988 (cf. para. 90)

concerned the question of the works council's consent under the

collective agreement (cf. paras. 84 - 85), which is not directly

related to the binding effect of administrative decisions.  However,

even in this respect it appears to have been the opinion of the Labour

Courts in the previous proceedings that the question of the works

council's consent must be seen as an element of the proceedings under

the Disabled Persons (Employment) Act and not as a separate question

of labour law (cf. in particular the Supreme Court's decision of

29 June 1988, para. 82 above).

 

193.    It follows that throughout the proceedings the Labour Courts

left the determination of the applicant's civil rights concerning the

legal justification of his dismissal to the administrative authorities

competent to apply the Disabled Persons (Employment) Act.  By

considering themselves bound by those authorities' decisions and

refusing any further examination of this question they deprived the

applicant of his right to have the said question determined by an

independent and impartial tribunal.

 

194.    The fact that the administrative decisions concerned were

subject to review by the Constitutional Court and the Administrative

Court does not remedy this situation.  The Commission has already held

that the ultimate review of administrative decisions concerning civil

rights by those Courts is not sufficient for the purposes of Article 6

para. 1 (Art. 6-1) of the Convention (cf.  No. 9273/81, Ettl and Others v.

Austria, Comm.  Report 3.7.85, paras. 79 et seq.).  Moreover, in the

present case, the Labour Courts considered themselves bound by an

administrative decision before it had been controlled by the

Administrative Court.  In fact there was no co-ordination between the

Administrative Court proceedings and the Labour Court proceedings

concerned with a view to ensuring a full and effective judicial

examination of all relevant questions of labour law concerning the

applicant's dismissal.

 

195.    As this question was also the decisive preliminary issue in

the proceedings concerning the applicant's suspension, in which the

courts - being bound by the above administrative decisions - denied

the applicant's legal interest and therefore refused to give a

decision on the merits, the applicant was deprived of effective access

to court also in these proceedings.

 

        Conclusion

 

196.    The Commission concludes, by a unanimous vote, that there has

been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the

applicant was not granted access to court as required by this

provision.

 

 

D.      Length of proceedings

 

197.    The applicant claims that in the Labour Court proceedings

concerning his suspension from employment his civil rights and

obligations were not determined within a reasonable time, as required by

Article 6 para. 1 (Art. 6-1).  The Government submit that the length of these

proceedings is not unreasonable.  The Commission has already found that the

applicant had no access to court concerning his main complaint.  Nevertheless

his right to have his civil rights determined within a reasonable time can well

have been violated by this very procedure since it took more than six years

until it became clear that the courts would not examine the merits.

 

        1) The relevant period

 

198.    The Commission notes that the applicant has been involved

in several judicial and administrative proceedings concerning his

relations with his employers.  The present case concerns exclusively

the Labour Court proceedings by which he sought to challenge his

suspension from employment which the company had pronounced on

10 March 1978.  The various other proceedings in which the applicant

was simultaneously involved, in particular those concerning his

subsequent dismissal, are not directly at issue here.  However,

insofar as they influenced the development of the suspension case,

their impact must be duly considered by the Commission (cf. mutatis

mutandis, Eur.  Court H.R., Lechner and Hess judgment of 23 April 1987,

Series A no. 118, p. 16, para. 39).

 

199.    The Labour Court proceedings concerning the suspension were

instituted by the applicant on 9 March 1981.  They are still pending.

It is true that after three rounds of proceedings the Supreme Court

rejected the applicant's action by a final decision on 15 July 1986.

However, this decision was based on the binding effect of an

administrative decision which had been quashed by the Administrative

Court on 21 May 1986, and therefore the proceedings were reopened by

a new decision of the Supreme Court on 15 July 1987.

 

200.    Following the Supreme Court's decision of 15 July 1986,

there was a period of seven days during which no proceedings were

pending concerning the applicant's suspension and which therefore

cannot be taken into account for the determination of the relevant

period under Article 6 para. 1 (Art. 6-1) of the Convention.  However, on

22 July 1986 the applicant requested the reopening of the proceedings

in view of the Administrative Court's judgment of 21 May 1986, and as

this request finally succeeded, the proceedings following this request

must be counted as part of the relevant period (cf.  Eur.  Court H.R.

Poiss judgment of 23 April 1987, Series A no. 117, p. 103 para. 53).

The reopened proceedings after 15 July 1987 also fall within the scope of

Article 6 para. 1 (Art. 6-1) since they concern the same issue as the previous

case (cf.  Application No. 9816/82, Poiss v.  Austria, Comm.  Report 24.1.1986,

paras. 88 et seq.).  The case as a whole must therefore be considered as one

continuing set of proceedings.

 

201.    The proceedings thus have lasted seven years and nine months

without having led to a final decision on the merits.

 

        2) Criteria for assessing whether the length of

           the proceedings was reasonable

 

202.    The reasonableness of the length of proceedings has to be

assessed in each case according to the particular circumstances and

having regard to the criteria enunciated in the case-law of the

European Court of Human Rights (see Eur.  Court H.R., Zimmermann and

Steiner judgment of 13 July 1983, Series A no. 66, p. 11, para. 24).

 

203.    In this context the Court has regard, inter alia, to the

complexity of the factual or legal issues raised by the case, to the

conduct of the applicant and the competent authorities and to what was

at stake for the former; in addition, only delays attributable to the

State may justify a finding of a failure to comply with the

"reasonable time" requirement (see, inter alia, Eur.  Court H.R., König

judgment of 28 June 1978, Series A no. 27, pp. 34-40, paras. 99,

102-105 and 107-111; Buchholz judgment of 6 May 1981, Series A no. 42,

pp. 15-16, para. 49).

 

204.    The Commission adopts the same approach in the present case in

assessing the duration of the proceedings before the Austrian courts.

 

        3) The complexity of the case

 

205.    The Government claim that the case was particularly complex

(cf. para. 154 above).  The applicant denies its complexity (cf.

para. 129 above).

 

206.    The Commission observes that the principal issue to be decided

by the Labour Courts was clearly defined by the Regional Court's

decision of 25 November 1981 (cf. paras. 29 - 30 above) and by the

Supreme Court decision of 30 March 1982 (cf. para. 31 above) as

the question whether the applicant had behaved in a manner which

 

justified his suspension from employment under Section 32 of the

applicable collective agreement.  While the assessment of the relevant

facts may have presented some difficulties, the legal issue was in

no way complex.  Any legal difficulties which might have existed

concerning the main issue were resolved by the above two decisions.

 

207.    The various elements to which the Government refer as having

created the particular complexity of the case do not concern the

above issue, but the conditions for the exercise of the courts'

jurisdiction in relation to that issue.  They have been considered

above in the examination as to whether there has been an unjustified

interference with the applicant's right of access to court (cf.

paras. 177 et seq.).

 

208.    In connection with the length of the proceedings the

Commission notes that the Austrian Courts, in applying the legal

provisions and principles circumscribing their jurisdiction, concluded

that only an action for performance was admissible in the applicant's

case, and that in this context the question of the applicant's

continued employment was an essential preliminary issue: only if the

applicant was still validly employed could he have a legal interest in

having his suspension from employment revoked by the employer.  This

view was maintained by the Courts throughout the various stages of the

proceedings.

 

209.    The legal necessity to consider the preliminary issue of the

applicant's legal interest made the case somewhat more complex, but

does not in itself suffice to explain the length of the proceedings,

which is rather due to the fact that in the course of the proceedings

the basis for the determination of the above preliminary issue

constantly changed.  This was mainly the consequence of the various

measures taken by the company in order to dismiss the applicant, and

of the complicated proceedings which were conducted in this respect,

but also of the change of the Supreme Court's case-law.

 

210.    Altogether, the preliminary issue of the applicant's continued

employment was judged differently no less than five times in the

course of the proceedings:  His first dismissal was originally

regarded as valid on the basis of the administrative decision of first

instance by which the Disabled Persons Board had declared its consent.

It was declared invalid by the Supreme Court decision of 23 October 1984

because it had been pronounced before the Disabled Persons Board's

decision had become final.  It was again regarded as valid after the

company had secured the Provincial Governor's retroactive consent.

After the quashing of this decision by the Administrative Court the

first dismissal was declared invalid for the second time.  The company

had in the meantime pronounced a second dismissal which the Labour

Court of Linz in its decision of 15 September 1987 also regarded as

invalid while the Linz Court of Appeal in its decision of 15 March 1988

and the Supreme Court in its decision of 29 June 1988 considered it as

valid.  Further proceedings concerning the validity of the second

dismissal are now pending while the proceedings concerning the

applicant's suspension from employment remain adjourned.

 

211.    The Commission recognises the complexity of the preliminary

issue because of the changing circumstances.  They made it difficult

for the competent courts to deal with the matter in an appropriate

way.  However, it cannot be overlooked that the difficulties which

arose in this respect are in the last analysis due to the

unsatisfactory state of the law, in particular the extremely

 

complicated legal system which in Austria applies to the dismissal

of disabled persons.  The conditions and effects of the required

administrative consent to such a dismissal are apparently not

regulated with sufficient precision, thus creating legal uncertainty

both for the parties and for the authorities which have to apply the

law.

 

212.    The State is responsible for its legal system as a whole.  It

cannot invoke the complexity of a case as a circumstance justifying an

extraordinary length of the proceedings if this is caused by a very

complicated legal system and resultant legal uncertainties.  Even less

can it invoke a complexity resulting from such circumstances if it

only relates to a preliminary question.

 

213.    The Commission therefore finds that the difficulties which

arose in the context of the determination of the preliminary question

of the applicant's continued employment, and thus of his legal

interest in the determination of the main issue in the suspension

case, were admittedly of a complex nature, but that this is not

sufficient to justify the extreme length of the proceedings.

 

        4) The conduct of the applicant

 

214.    The Commission considers that, in view of the great importance

which the applicant could reasonably attach to the matter of his

suspension, he cannot be blamed for having consistently pursued all

remedies available to him to preserve the Labour Courts' jurisdiction

concerning this matter.  He was entitled to the determination of his

civil rights and obligations in this matter within a reasonable time

by a final decision as to the merits (cf.  Application No. 9616/81,

Erkner and Hofauer v.  Austria, Comm.  Report, 24.1.1986, p. 22, para. 94).

 

215.    In order to obtain such a decision he had to comply with the

formal conditions which the domestic law requires to be met.  The main

obstacle was the preliminary issue of legal interest which the

opposite party contested.  His numerous remedies were mainly a

reaction to the various measures taken by that party and the

subsequent administrative and judicial decisions concerning these

measures which affected the question of his legal interest in the

suspension case.  Thus the remedies in question were necessary to

preserve the Labour Courts' jurisdiction concerning that matter.

 

216.    The said remedies were also generally successful.  At least as

regards the first dismissal it has been finally found to be invalid.

The proceedings concerning the second dismissal are still pending

before the courts, the applicant having filed a new action contesting

its validity.  Although his previous action was finally rejected by

the Supreme Court decision of 29 June 1988, it cannot be said that the

applicant's remedies which led to this decision were manifestly

unreasonable.

 

217.    The only remedies of the applicant which, apart from this

action, were not successful were his appeals against the Disabled

Persons Board's decision of 8 July 1981 (cf. paras. 33 et seq.) and

the constitutional complaint against the Provincial Governor's

decision of 17 June 1985 (cf. para. 62 above).  The former did not in

any way affect the length of the Labour Court proceedings which were

conducted simultaneously on the basis of the assumption that the

Disabled Persons Board's decision of first instance was binding (cf.

paras. 49 et seq. above).  Therefore, it is not necessary to examine

whether or not the applicant's appeals against the Board's

 

decision were unreasonable.  Even if they had not been pursued to the

Administrative Court it must be assumed that the second round of the

Labour Court proceedings in the suspension case would have developed

in the same way.  Only at Supreme Court level could the earlier

jurisprudence concerning the binding effect of the first instance

administrative decision be reversed.

 

218.    It can be left open whether the constitutional complaint

against the Provincial Governor's decision concerning retroactive

consent (cf. para. 62 above) was an unnecessary remedy.  In any

event it was determined within a period of four months (23 July -

25 November 1985) and therefore did not cause any significant delay.

Moreover, the third round of the Labour Court proceedings was

conducted simultaneously and therefore was not held up by the

constitutional complaint proceedings.  Furthermore, the applicant had

requested the adjournment of the Labour Court proceedings pending his

appeals to the courts of public law against the Provincial Governor's

decision (cf. para. 67 above), but this request was rejected by the

Regional Labour Court on 31 July 1985 (cf. para. 68 above).

 

219.    While it is true that the determination of his many

remedies needed time, the applicant only used them to protect his

legitimate interests.  The Commission thus finds that the applicant

is not responsible for any of the delays which have occurred in the

course of the proceedings.

 

        5) The manner in which the proceedings were

           conducted by the judicial authorities

 

220.    The Courts must have been aware of what was at stake for the

applicant and the opposite party.  In general, labour disputes which

concern issues of essential importance for a person's professional

status require determination with special expediency (cf.  No. 7360/76,

Zand v.  Austria, Comm.  Report 12.10.78, para. 86;  Eur.  Court H.R.,

Buchholz judgment of 6 May 1981, Series A no. 42, p. 16 para. 50 and

p. 17. para. 52).  This is also recognised in the Austrian legislation

(cf.  Section 39 para. 1 of the Labour and Social Courts Act, para. 111

above).

 

221.    The importance of the case was not diminished by the fact that

the applicant's suspension dated three years back when the proceedings

were first brought before the courts.  The length of time that the

suspension had already lasted aggravated the situation.

 

222.    The parties agree that the various remedies were determined

without undue delay.  The Commission notes that a certain delay

occurred in the second round of the proceedings at Supreme Court

level.  The applicant's appeal against the Regional Labour Court's

decision of 11 May 1983, which was brought on 16 August 1983, was not

determined by the Supreme Court until 23 October 1984, i.e. more

than fourteen months after its introduction and more than seventeen

months after the previous decision.  The Government explains this

delay by the fact that the Supreme Court, in its decision of

23 October 1984, reversed its long-standing case-law and that this

required a particularly thorough consideration of the matter.  The

Commission accepts the strength of this argument, but finds that the

period needed by the Supreme Court for the determination of the appeal

nevertheless appears long having regard to the important interests

which were at stake for the applicant, the already considerable length

of the proceedings and the foreseeability of further proceedings if

the appeal was allowed.

 

223.    After the Supreme Court's above decision, the proceedings were

again conducted with the required speed by the Labour Court (decision

of 30 January 1985) and the Regional Labour Court (decision of

31 July 1985).  Also the Supreme Court proceedings in the third round

were not excessively long considering the fact that the applicant's

appeal was brought on 7 October 1985 and that the Supreme Court needed

less than ten months to determine this appeal on 31 July 1986.

 

224.    However, having regard to the interaction with the parallel

administrative proceedings concerning retroactive consent to the

applicant's dismissal, two decisions of the Courts during this phase

of the proceedings had grave repercussions on the further development

of the case:  the Regional Labour Court's decision of 31 July 1985

to refuse adjournment of the proceedings pending the outcome of the

applicant's complaints to the Constitutional Court and the

Administrative Court (cf. para. 68 above), and the Supreme Court's

decision of 15 July 1986 to reject the applicant's action on the basis

of the binding effect of the Provincial Governor's decision although

that decision had in the meantime been quashed by the Administrative

Court (cf. para. 71 above).

 

225.    The Commission considers that the applicant's request to

adjourn the proceedings at this stage was not unreasonable.  In fact

he could rely on the Supreme Court's earlier decision of 23 October 1984

where it had already been stated that the conditions for retroactive

consent were not met (cf. para. 53).  It could be expected that the

Administrative Court would give serious consideration to the Supreme

Court's arguments in this respect.  Also the administrative

authorities' views on the issue were divided as retroactive consent

had been refused in first instance and had been granted by the

Provincial Governor only on the company's appeal.  The company

had requested an adjournment in first instance (cf. para. 66 above)

which the Labour Court had rejected apparently because it considered

there were no prospects for the grant of retroactive consent.  In

these circumstances the Commission considers it as unjustified that

the Regional Labour Court subsequently simply relied on the Provincial

Governor's decision as if it was the final word on the matter.

 

226.    Although a decision to adjourn would inevitably have led to a

certain prolongation of the proceedings, it would in the Commission's

opinion have been in line with the principle of procedural economy as

it would have avoided any necessity to reconsider the matter in case

the Administrative Court did not confirm the Provincial Governor's

views.  The necessity to do that if the Administrative Court decided

in the applicant's favour was clearly foreseeable.  On the other hand,

the parties probably would not have pursued the Labour Court

proceedings if the Administrative Court had confirmed the Provincial

Governor's decision.  In any event they could not subsequently have

complained of the prolongation of the proceedings as they had both

requested an adjournment.

 

227.    In its decision of 15 July 1986, the Supreme Court relied on

the binding effect of the Provincial Governor's decision although that

decision had, in the meantime, been quashed by the Administrative

Court on 21 May 1986.  The Supreme Court must have known that the

applicant had challenged the Provincial Governor's decision before the

Administrative Court.  It could have verified that that Court had

already decided that case.

 

228.    In the Austrian legal system it was for the Regional Labour

Court to submit the complete file to the Supreme Court.  The applicant

could not make any further submissions to the Supreme Court after he

had filed his formal grounds of appeal (cf. para. 118 above).  It

appears that there was no effective co-ordination of the parallel

Administrative Court and Supreme Court proceedings at issue.  The

Commission considers that the respondent State must be held

responsible for the shortcomings of its legal system in this respect.

 

229.    Further complicated remedies became necessary after the

Supreme Court's decision of 15 July 1986.  The Regional Labour Court

took its decision concerning the applicant's request for a reopening

of the proceedings on 15 October 1986, i.e. three months after the

Supreme Court's decision.  The Supreme Court needed nine months to

decide on the applicant's appeal on 15 July 1987.  Four months later,

on 19 November 1987, the Court of Appeal again considered the case and

decided to adjourn it pending the outcome of the parallel dismissal

proceedings.  More than one year has elapsed since that date during

which period the dismissal case has progressed:  The Court of Appeal

took a decision in this case on 15 March 1988, i.e. six months after

the first instance decision of 15 September 1987.  The further appeal

proceedings before the Supreme Court lasted about three months until

29 June 1988.  A hearing was held on the applicant's new action on

15 July 1988, two weeks after it had been filed, and the Regional Court

took a decision in this case on 23 September 1988, less than three

months after its introduction.

 

230.    The applicant submits that the adjournment of the suspension

proceedings on 19 November 1987 was unjustified and necessarily

led to further delay.  However, the Commission is satisfied that this

decision was based on sound considerations of procedural economy as

the issue of the validity of the applicant's second dismissal arises

in both cases.  It is reasonable to first determine it on the merits

in the dismissal case before resuming the suspension case, in which

the same question is a preliminary issue.  The same considerations

apply to the further adjournment of the proceedings on 23 September 1988.

 

231.    Notwithstanding the fact that, with few exceptions, each of

the many remedies taken in this case has been determined within a

reasonably short period, the Commission nevertheless considers that

the length of the proceedings as a whole exceeded the "reasonable

time" requirement and that the respondent State is responsible for

this.  In particular, due to the complicated legal system, the

preliminary question of the applicant's legal interest was considered

during a disproportionate length of time on the basis of constantly

changing circumstances and the actual decisions taken in this context

were such that they further contributed to the prolongation of the

proceedings for lack of appropriate co-ordination with the parallel

proceedings under the Disabled Persons (Employment) Act.

 

        Conclusion

 

232.    The Commission concludes, by a unanimous vote, that there

has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that

the applicant's civil rights and obligations were not determined

within a reasonable time as required by this provision.

 

 

E.      Article 13 (Art. 13) of the Convention

 

233.    The applicant complains of the absence of an effective

remedy because his legal interest in the determination of the

suspension case was repeatedly denied.  He invokes Article 13 (Art. 13) of the

Convention which provides as follows:

 

        "Everyone whose rights and freedoms as set forth in this

        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."

 

234.    However, Article 13 (Art. 13), as a more general guarantee, is not

applicable in cases where the more specific guarantees of Article 6 (Art. 6)

apply, Article 6 (Art. 6) being the lex specialis in relation to Article 13

(Art. 13).  Its requirements are less strict and accordingly absorbed by

Article 6 (Art. 6). The Commission here refers to the constant case-law of the

Convention organs (e.g.  Eur.  Court H.R., Silver and Others judgment of 25

March 1983, Series A no. 61, p. 41 para. 110; W v. the United Kingdom, Comm.

Report 15.10.85, paras. 130-132 and Eur.  Court H.R. judgment of 8 July 1987,

Series A no. 121, p. 36 paras. 85-86; Pudas v.  Sweden, Comm.  Report 4.12.85,

para. 59, and Eur.  Court H.R., judgment of 27 October 1987, Series A no.

125-A, p. 17 para. 43).

 

        Conclusion

 

235.    The Commission concludes, by a unanimous vote, that no

separate issue arises under Article 13 (Art. 13) of the Convention.

 

 

F.      Article 14 (Art. 14) of the Convention

 

236.    The applicant finally complains that he was discriminated

against as a disabled person because this group is allegedly less

effectively protected against unjustified dismissals than other

employees.  In this respect he invokes Article 14 (Art. 14) of the Convention

which reads as follows:

 

"The enjoyment of the rights and freedoms set forth in

this Convention shall be secured without discrimination

on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social

origin, association with a national minority, property,

birth or other status."

 

237.    The Commission recalls that Article 14 (Art. 14) of the Convention

is only applicable in cases where discrimination is alleged in

relation to the enjoyment of rights guaranteed by the Convention.  A

right not to be dismissed is not as such guaranteed in the Convention

and accordingly there is no room for an examination whether or not the

rules of substantive law regulating the dismissal of disabled persons

involve a discriminatory element.  The Commission can only examine

the procedural aspect, namely whether or not as a disabled person the

applicant has been discriminated against in the enjoyment of his rights under

Article 6 para. 1 (Art. 6-1) of the Convention, i.e. whether he was

unjustifiably treated differently from other categories of employees in the

determination of his civil rights.

 

238.    However, having found a violation of Article 6 para. 1 (Art. 6-1) of

the Convention on the ground that the applicant was not granted access to court

as required by this provision (cf. para. 196 above), the Commission does not

find it necessary to examine the case also under Article 14 (Art. 14) of the

Convention.

 

        Conclusion

 

239.    The Commission concludes, by a unanimous vote, that it is not necessary

to examine the applicant's complaints under Article 14 (Art. 14) of the

Convention.

 

 

G.      Recapitulation

 

240.    The Commission concludes

 

        - by a unanimous vote, that there has been a violation of

Article 6 para. 1 (Art. 6-1) of the Convention in that the applicant was not

granted access to court as required by this provision (cf. para. 196

above);

 

        - by a unanimous vote, that there has been a violation of

Article 6 para. 1 (Art. 6-1) of the Convention in that the applicant's civil

rights and obligations were not determined within a reasonable time as

required by this provision (cf. para. 232 above);

 

        - by a unanimous vote, that no separate issue arises under

Article 13 (Art. 13) of the Convention (cf. para. 235 above);

 

        - by a unanimous vote, that it is not necessary to examine the

applicant's complaints under Article 14 (Art. 14) of the Convention (cf. para.

239 above).

 

 

 

 

 

Secretary to the Commission             Acting President of the Commission

 

 

 

 

       (H.C. KRÜGER)                              (J.A. FROWEIN)

 

 

 

 

 

 

&_APPENDIX I&S

 

 

HISTORY OF PROCEEDINGS

 

 

Date                            Item

 

______________________________________________________________________

 

 

24 September 1985               Introduction of the application

 

27 September 1985               Registration of the application

 

 

Examination of Admissibility

 

12 March 1986                   Commission's deliberations and

                                decision to invite the Government

                                to submit observations in writing

                                before 30 May 1986

 

6 June 1986                    Extension of time-limit until

                                1 August 1986

 

21 July 1986                    Further extension of time-limit

                                until 22 August 1986

 

21 August 1986                  Government's observations

 

9 October 1986                 Applicant's observations

 

4 March 1987                   Commission's further deliberations

                                and decision to invite the parties

                                to a oral hearing

 

10 July 1987                    Hearing on admissibility and

                                merits, Commission's deliberations

                                and decision to declare the

                                application admissible

 

15 October 1987                 Commission approves text of decision

                                on admissibility

 

 

Examination of the merits

 

19 November 1987                Decision on admissibility communicated

                                to the parties who are invited to

                                submit observations on the merits

                                before 8 January 1988

 

7 January 1988                 Applicant's observations on the merits

 

14 January 1988                 Government's observations on the merits

 

 

 

 

 

 

 

 

Date                            Item

 

______________________________________________________________________

 

 

10 February 1988                Further submissions of the applicant

 

5 March 1988                   Consideration of state of proceedings

 

12 June 1988                    Further submissions of the applicant

 

9 July 1988                    Consideration of state of proceedings

 

30 September 1988               Further submissions of the applicant

 

7 October 1988                 Further submissions of the applicant

 

6 December 1988                Commission's deliberations on the

                                merits and final votes

 

15 December 1988               Adoption of the Report

 

Full & Egal Universal Law Academy