AS TO THE ADMISSIBILITY OF
Application No. 26083/94
by Richard WAITE and Terry KENNEDY
against Germany
The European Commission of Human Rights sitting in private on
24 February 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 November 1994
by Richard WAITE and Terry KENNEDY against Germany and registered on
22 December 1994 under file No. 26083/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
3 November 1995 and the observations in reply submitted by the
applicant on 15 December 1995;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, born in 1946, is resident in Griesheim. The
second applicant, born in 1950, is resident in Darmstadt. Both
applicants are British nationals and systems programmers by profession.
In the proceedings before the Commission, they are represented by
MM. Feddersen, Laule, Scherzberg, Ohle, Hansen, Ewerwahn, lawyers
practising in Frankfurt/Main.
A. Particular circumstances of the case
The facts of the case, as presented by the parties, may be
summarised as follows.
In 1977 the applicants, employed by the company SPM, were placed
at the disposal of the European Space Agency to render services at the
European Space Operations Centre in Darmstadt.
The European Space Agency with headquarters in Paris, formed out
of the European Space Research Organisation and the European
Organisation for the Development and Construction of Space Vehicle
Launchers, was established under the Convention for the Establishment
of a European Space Agency of 30 May 1975. The European Space Agency
operates the European Space Operations Centre in Darmstadt.
In 1979 the applicants' contracts were taken over by CDP, a
limited company with seat in Dublin. In 1982 the applicants founded
Storepace, a limited company with seat in Manchester, which contracted
with CDP on the services to be rendered by the applicants for the
European Space Agency and the payment due. As from 1984 the European
Space Agency participated in the above contractual relations through
the Science System, one of its subsidiaries. Subsequently, the
applicants liquidated Storepace and replaced this company by Network
Consultants, a company with seat on the Jersey Island. These changes
in contractual relations had no bearing on the applicants' services at
the European Space Operations Centre.
By letter of 12 October 1990, CDP informed the applicants that
the cooperation with their company Network Consultants terminated on
31 December 1990, when the term of their contracts expired.
The applicants thereupon instituted proceedings before the
Darmstadt Labour Court (Arbeitsgericht) against the European Space
Agency, claiming that, pursuant to the German Provision of Labour Act
(Arbeitnehmerüberlassungsgesetz), they had acquired the status of
employees of the defendant organisation. The termination of their
contracts by the company CDP had no bearing on that labour relationship
with the defendant organisation.
In the labour court proceedings, the defendant organisation
relied on their immunity from jurisdiction under Article XV para. 2 of
the Convention for the Establishment of a European Space Agency and its
Annex I.
On 10 April 1991 the Darmstadt Labour Court, following a hearing,
declared the applicants' actions inadmissible. The Labour Court
considered that the defendant organisation had validly relied on its
immunity from jurisdiction.
In its reasoning, the Labour Court considered in particular that
the defendant organisation had been established in 1975 as a new and
independent international organisation. The defendant organisation was
therefore not bound by the rule of the legal regime governing the
former European Space Research Organisation which had subjected it to
German jurisdiction in cases of disputes with its employees which were
outside the competence of its Appeals Board. The Labour Court found
itself bound by the clear wording of the Convention and its Annex.
On 20 May 1992 the Frankfurt/Main Labour Court of Appeal
(Landesarbeitsgericht) dismissed the applicants' appeal. It admitted
an appeal on points of law (Revision) with the Federal Labour Court
(Bundesarbeitsgericht).
The Labour Court of Appeal, referring to SS. 18-20 of the Court
Organisation Act (Gerichtsverfassungsgesetz), considered that immunity
from jurisdiction meant that foreign States and members of diplomatic
missions, were generally not subject to German jurisdiction and that
no judicial action could be taken against them. According to S. 20
para. 2 of the Court Organisation Act, such immunity could be provided
for, inter alia, in international agreements. The defendant
organisation in principle enjoyed such immunity from jurisdiction under
Article XV para. 2 of the Convention on the Establishment of the
European Space Agency and its Annex I. Moreover, even assuming that
the European Space Research Organisation had previously waived immunity
as regards labour disputes outside the competence of its Appeals Board,
the defendant organisation was not bound thereby. In this respect, the
Labour Court of Appeal, referring to the reasoning of the first
instance decision, set out in detail that the defendant organisation
had been established as a new international organisation and not as a
mere legal successor to the European Space Research Organisation.
By letter of 16 September 1992 the Chairman of the Council of the
European Space Agency informed the applicants that the Council, at its
105th meeting of 15 and 16 December 1992, had decided not to waive the
immunity from jurisdiction in their case. This position was confirmed
in subsequent correspondence.
On 10 November 1993 the Federal Labour Court dismissed the
applicants' appeal on points of law.
The Federal Labour Court considered that immunity from
jurisdiction was an impediment to court proceedings, and that an action
against a defendant who had immunity from jurisdiction, and had not
waived this immunity, was inadmissible. According to S. 20 para. 2 of
the Court Organisation Act, German jurisdiction did not extend to
international organisations which were exempted in accordance with
international agreements. In this respect, the Federal Labour Court
noted that, pursuant to Article XV para. 2 of the Convention on the
Establishment of the European Space Agency, the defendant organisation
had the immunities provided for in Annex I of the said Convention, and
that it had not waived immunity under Article IV para. 1 (a) of the
Annex.
As regards the question of waiver, the Federal Labour Court found
that the rule of the legal regime governing the former European Space
Research Organisation, which had subjected it to German jurisdiction
in cases of disputes with its employees which were outside the
competence of its Appeals Board, did not apply in the applicants'
situation as they had not been employed by the defendant organisation,
but had worked for the defendant organisation on the basis of a
contract of employment with a third person. The questions whether the
rule in question amounted to a waiver of immunity and whether the
defendant organisation was bound by this rule could therefore be left
open.
Furthermore, the Federal Labour Court found no objections under
constitutional law. There was no violation of the right of recourse
to court under Article 19 para. 4 of the Basic Law (Grundgesetz), as
the acts of the defendant organisation, an international organisation,
could not be regarded as acts of a public authority within the meaning
of that provision.
Finally the Federal Labour Court considered that a rather wide
competence of international organisations to regulate staff matters was
not unusual under international law. The regulations on the immunity
of the defendant organisation did not conflict with fundamental
principles of the German Constitution. Employees of the defendant
organisations could bring either an appeal with the Appeals Board of
the organisation, or the labour contract had to provide for arbitration
in accordance with Article XXV of Annex I. In case of an unlawful
provision of labour not covered by the aforementioned regulation, the
employee concerned was not without any legal protection: the employee
could file an action against his or her employer. The question whether
the applicants could claim under public law that positive action be
taken by the German Government to use their influence to achieve a
waiver of immunity in the present case, or to bring the case to
international arbitration under Article XVIII of the Convention on the
Establishment of the European Space Agency, could not be determined by
labour court proceedings.
On 11 May 1994 the Federal Constitutional Court
(Bundesverfassungsgericht) refused to admit the applicants'
constitutional complaint (Verfassungsbeschwerde).
The Federal Constitutional Court found in particular that the
applicants' complaint did not raise a matter of general importance.
The alleged absence of rights resulted from the particular contracts
entered into by the applicants, who had not been directly employed by
an international organisation but had worked there on the order of a
third person.
Furthermore, the alleged violation of the applicants'
constitutional rights was not of special importance nor were the
applicants significantly affected. In this respect the Constitutional
Court noted the applicants' submissions according to which they had
suffered major disadvantages on the ground that the European
legislation on the provision of labour had been insufficient and that
the termination of their contracts had affected their earning capacity.
However, they had failed to show any disadvantages other than those
associated with any loss of work. In particular there is no indication
that they remained permanently unemployed and dependent upon social
welfare benefits.
B. Relevant law
a. Provision of Labour Act
According to S. 1 para. 1 of the Provision of Labour Act
(Arbeitnehmerüberlassungsgesetz), an employer, who, on a professional
basis (gewerbsmäßig), intends to hire out his employees, i.e. temporary
workers (Leiharbeitnehmer) to third persons, i.e. borrowing employers
(Entleiher), is subject to permission. S. 9 (1) provides that
contracts between the hirer out (Verleiher) and the borrowing employer
as well as between the hirer out and the temporary worker are void in
the absence of a permission within the meaning of S. 1. If the
contract between a hirer out and a temporary worker is void, pursuant
to S. 9 (1), a contract between the borrowing employer and the
temporary worker is assumed by law to have been concluded (gilt als
zustande gekommen) as from the envisaged start of employment (S. 10
para. 1). S. 10 para. 2 further provides for a compensation claim
against the hirer out in respect of any damage suffered as a
consequence of having relied on the validity of the contract, except
where the temporary worker was aware of the reasons rendering the
contract void.
b. Immunity from jurisdiction
SS. 18 to 20 of the German Court Organisation Act
(Gerichtsverfassungsgesetz) regulate the immunity from jurisdiction
(Extraterritorialität) in German court proceedings. SS. 18 and 19
concern the members of diplomatic and consular missions, and S. 20
para. 1 other representatives of 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.
c. The Convention for the Establishment of a European Space Agency
The European Space Agency with headquarters in Paris, formed out
of the European Space Research Organisation and the European
Organisation for the Development and Construction of Space Vehicle
Launchers, was established under the Convention for the Establishment
of a European Space Agency ("ESA Convention") of 30 May 1975, which
entered into force in 1980.
The purpose of the European Space Agency is to provide for and
to promote, for exclusively peaceful purposes, co-operation among
European States in space research and technology and their space
applications, with a view to their being used for scientific purposes
and for operational space applications systems (Article II). For the
execution of the programmes entrusted to it, the Agency shall maintain
the internal capability required for the preparation and supervision
of its tasks and, to this end, shall establish and operate such
establishments and facilities as are required for its activities
(Article VI para. 1 (a)).
Article XV regulates the legal status, privileges and immunities
of the Agency. According to paragraph 1, the Agency shall have legal
personality. Paragraph 2 provides that the Agency, its staff members
and experts, and the representatives of its Member States, shall enjoy
the legal capacity, privileges and immunities provided for in Annex I.
Agreements concerning the headquarters of the Agency and the
establishments set up in accordance with Article VI shall be concluded
between the Agency and the Member States on whose territory the
headquarters and the establishments are situated (paragraph 3).
Article XVII concerns the arbitration procedure in case of any
dispute between two or more Member States, or between any of them and
the Agency, concerning the interpretation or application of the ESA
Convention or its Annexes, and likewise any dispute referred to in
Article XXVI of Annex I, which is not settled by or through the
Council.
Annex I relates to the privileges and immunities of the Agency.
According to Article I of Annex I, the Agency shall have legal
personality, in particular the capacity to contract, to acquire and to
dispose of movable and immovable property, and to be a party to legal
proceedings.
Pursuant to Article IV para. 1 (a) of Annex I, the Agency shall
have immunity from jurisdiction and execution, except to the extent
that it shall, by decision of the Council, have expressly waived such
immunity in a particular case; the Council has the duty to waive this
immunity in all cases where reliance upon it would impede the course
of justice and it can be waived without prejudicing the interests of
the Agency.
Article XXV of Annex I provides for arbitration with regard to
written contracts other than those concluded in accordance with the
Staff Regulations. Moreover, any Member State may submit to the
International Arbitration Tribunal referred to in Article XVII of the
ESA Convention any dispute, inter alia, arising out of damage caused
by the Agency, or involving any other non-contractual responsibility
of the Agency. According to Article XXVII of Annex I, the Agency shall
make suitable provision for the satisfactory settlement of disputes
arising between the Agency and the Director General, staff members or
experts in respect of their conditions of service.
COMPLAINTS
The applicants complain under Article 6 para. 1 of the Convention
that they did not have a hearing by a court on the question of whether
a contractual relationship had existed between them and the European
Space Agency.
They submit, as a subsidiary consideration, that Germany when
participating in the negotiations for the establishment of the European
Space Agency as well as for the operation of the European Space
Operations Centre failed to ensure a system of efficient legal
protection covering all persons working for the European Space Agency.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 November and registered on
22 December 1994.
On 26 June 1995 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
3 November 1995, after an extension of the time-limit. The applicants
replied on 15 December 1995.
THE LAW
The applicants complain that they did not have a hearing by a
court on the question of whether a contractual relationship had existed
between them and the European Space Agency. They invoke Article 6
para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1), as far as relevant, provides as
follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing ... by an independent and
impartial tribunal established by law."
The respondent Government observe that the German courts granted
the European Space Agency immunity from the applicant's action in
accordance with the relevant provisions of the German Courts
Organisation Act. Referring to the case-law of the Convention organs,
they maintain that the right of access to court is subject to inherent
limitations which include the traditional and generally recognised
principle of parliamentary and diplomatic immunity and also the
immunity of international organisations. In this respect, they explain
that the immunity granted to international organisations corresponds,
like the state immunity, to the principle of the sovereign equality of
all states. An international organisation can only function
satisfactorily if its independence is ensured. The activities of
international organisations are so closely linked with their sovereign
purposes that even private acts cannot be entirely excluded from
immunity.
Moreover, the Government consider that sufficient legal
protection is provided for the applicants in that they could have
brought an action against the Irish company CDP, the other party to
their contracts, claiming compensation under S. 10 para. 2 of the
German Provision of Labour Act. The question of whether they acted in
good faith would have had to be clarified in the said court
proceedings.
As regards the applicants' subsidiary submission, the Government
argue non-exhaustion of domestic remedies to the extent that the
question of whether the German Government should have brought
proceedings before the International Arbitration Tribunal is concerned.
According to them, the applicants could have filed an administrative
court action, claiming that the German Government were obliged to
institute such proceedings in order to comply with their obligations
under Article 6 (Art. 6) of the Convention.
The applicants dispute the Government's views. They consider in
particular that it is not acceptable under Article 6 (Art. 6) that, in
a dispute against an international organisation, the access to an
independent tribunal is entirely excluded by the principle of immunity.
Moreover, the applicants consider that in lodging compensation claims
against CDP, they could not secure continuation of their work for the
European Space Agency.
The Commission finds that the principal issue before it is the
applicants' complaint that they were refused access to court with
regard to their action against the European Space Agency, claiming
their continued employment under the German Provision of Labour Act.
The Commission notes that the Government's argument of non-exhaustion
is limited to the applicants' subsidiary submission and the question
of proceedings before the International Arbitration Tribunal. The
Commission, therefore, finds no necessity to examine the Government's
objection.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and of fact
under the Convention, the determination of which should depend on an
examination of the merits of the application. The Commission
concludes, therefore, that the application is not manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring it inadmissible have been
established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy