AS TO THE ADMISSIBILITY OF
Application No. 26991/95
by Hendricus van der PEET
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 December 1994
by Hendricus van der PEET against Germany and registered on
6 April 1995 under file No. 26991/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been presented by the
applicants, may be summarised as follows.
The applicant, born in 1945, is a Dutch national and resident at
Eichenau. He is a patent examiner and a permanent member of staff of
the European Patent Office.
On 1 May 1990 the applicant applied for special leave in respect
of his absence for four days in April 1990, when he attended a hearing
in Dutch court proceedings. His request was dismissed by the President
of the European Patent Office on 11 May 1990.
On 25 June 1990 the applicant applied for special leave of four
days in order to attend a hearing in Dutch court proceedings on 5 July
1990. His request was dismissed by the President of the European
Patent Office on 28 June 1990.
On 26 July 1990 the applicant requested that he be graded A3,
step 8, as from 1 July 1990. He further requested compensation. His
requests were dismissed by the President of the European Patent Office
on 21 August 1990.
The applicant thereupon instituted proceedings before the Munich
Administrative Court (Verwaltungsgericht) against the European Patent
Office, claiming that the above decisions be quashed and the defendant
organisation be ordered to grant his respective requests.
In the administrative court proceedings, the defendant
organisation relied on their immunity from jurisdiction.
On 19 December 1990 the Munich Administrative Court, following
a hearing, declared the applicant's action inadmissible.
The Administrative Court, referring to SS. 18-20 of the Court
Organisation Act (Gerichtsverfassungsgesetz), considered that the
defendant organisation had validly relied on its immunity from
jurisdiction. The Court observed that, in accordance with the European
Patent Agreement and the Protocol on its Privileges and Immunities, the
European Patent Office was not subject to German jurisdiction in
respect of its official activities, including all administrative acts
affecting their permanent staff. In case of dispute regarding any act
adversely affecting them, staff members of the European Patent Office
are entitled to appeal to the Administrative Tribunal of the
International Labour Organisation, in accordance with the relevant
provisions of the European Patent Agreement and the Service
Regulations. Referring to the case-law of the Federal Constitutional
Court (Bundesverfassungsgericht), the Administrative Court further
observed that the legal protection afforded in the appeal proceedings
before the Administrative Tribunal of the International Labour
Organisation satisfied the minimum standards of fairness required by
the rule of law.
SS. 18 to 20 of the German Court Organisation Act
(Gerichtsverfassungsgesetz) regulate the immunity from jurisdiction
in German court proceedings.
SS. 18 and 19 concern the members of diplomatic and consular missions,
and S. 20 para. 1 representatives of other States staying in Germany
upon the invitation of the German Government.
S. 20 para. 2 provides that other persons have immunity from
jurisdiction according to the general rules of international law, e.g.
foreign States in the exercise of public authority, or according to
international agreements or other legal rules.
On 13 November 1991 the Bavarian Administrative Court of Appeal
(Bayerischer Verwaltungsgerichtshof) dismissed the applicant's appeal
(Berufung).
On 16 March 1992 the Administrative Court of Justice
(Bundesverwaltungsgericht) dismissed the applicant's request for leave
to appeal on points of law (Beschwerde gegen die Nichtzulassung der
Revision).
On 1 December 1994 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde).
COMPLAINTS
The applicant complains that the German administrative courts
refused to decide on the merits of his actions against the European
Patent Office. He considers that these decisions amount to
discrimination as compared to civil servants in the German civil
servants. He further complains that the Federal Constitutional Court
did not give reasons for its decision of 1 December 1994. He invokes
Articles 1, 3, 6, 10, 13 and 14 of the Convention.
THE LAW
1. The applicant complains about the German administrative court
decisions declaring his actions against the European Patent Office
inadmissible on the ground that the defendant organisation had immunity
from German jurisdiction, and also about the decision of the Federal
Constitutional Court.
With regard to the judicial decisions of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77 pp. 81, 88 and Eur.
Court H.R., Van de Hurk judgment of 19 April 1994, Series A no. 288,
p. 20, para. 61; Klaas judgment of 22 September 1993, Series A no. 269,
p. 17, para. 29).
At the outset, the Commission observes that it is in accordance
with international law that States confer immunities and privileges to
international bodies which are situated in their territory, and that
such a restriction of national sovereignty in order to facilitate the
working of an international body does not, in principle, give rise to
an issue under the Convention (No. 12516/85, Dec. 12.12.88, D.R. 58
p. 119).
Nevertheless the transfer of powers to an international organisation
is only compatible with the Convention provided that within that
organisation fundamental rights will receive an equivalent protection
(see No. 13258/87 M & Co v. FRG, Dec. 9.2.90, D.R.64, pp. 138, 145 and
No. 21090/92, Jan. 10, 1994, D.R.76A, pp. 125, 128). The Commission
notes that the European Patent Agreement refers any dispute about
administrative acts affecting members of the permanent staff to the
Administrative Tribunal of the ILO, a tribunal competent to protect the
rights of staff members.
Furthermore the Commission has considered whether the applicant's
complaint could raise an issue under Article 6 para. 1
(Art. 6-1) of the Convention which comprises the right of access to
court in respect of any claim relating to civil rights and obligations
(Eur. Court H.R., Golder judgment of 21 February 1975, Series A no. 18,
p. 18, para. 36).
As regards the question whether any of the applicant's civil
rights were at stake, the Commission notes that his actions before the
German administrative courts concerned decisions taken by the European
Patent Office in the exercise of its powers to decide on matters
concerning their personnel, namely requests for special leave as well
as a request for an upgrading.
The Commission recalls that disputes relating to the recruitment,
employment and retirement of civil servants are as a general rule
outside the scope of Article 6 para. 1 (Art. 6-1) (Eur. Court H.R.,
Glasenapp and Kosiek judgments of 28 August 1986, Series A no. 104, p.
26 para. 49, and no. 105, p. 20, para. 35; Francesco Lombardo judgment
of 26 November 1992, Series A no. 249-B, p. 26, para. 17; Massa
judgment of 24 August 1993, Series A no. 265-B, p. 20, para. 26).
Such considerations also apply to disputes relating to the
recruitment, employment and retirement of the permanent staff of
international organisations such as the European Patent Office which
are within the jurisdiction of the Administrative Tribunal of the
International Labour Organisation.
The Commission finds that the European Patent Office when
deciding on the applicant's requests exercised its powers in accordance
with the international instruments concerned, and could not be compared
with an employer who is a party to a contract of employment governed
by private law.
Consequently, the actions envisaged by the applicant did not
relate to any "civil right" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
2. As regards the above matter, the applicant further invokes
Articles 3, 10, 13 and 14 (Art. 3, 10, 13, 14) of the Convention.
However, insofar as the applicant's submissions in these respects have
been substantiated and are within its competence, the Commission finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention.
It follows that this part of the application is also inadmissible under
Article 27 (Art. 27).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy