Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 26083/94

Richard Waite and Terry Kennedy

against

Germany

REPORT OF THE COMMISSION

(adopted on 2 December 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-44) . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 16-34). . . . . . . . . . . . . . . . . . 3

B. Relevant law

(paras. 35-44). . . . . . . . . . . . . . . . . . 5

III. OPINION OF THE COMMISSION

(paras. 45-84) . . . . . . . . . . . . . . . . . . . . 8

A. Complaint declared admissible

(para. 45). . . . . . . . . . . . . . . . . . . . 8

B. Point at issue

(para. 46). . . . . . . . . . . . . . . . . . . . 8

C. Article 6 of the Convention

(paras. 47-83). . . . . . . . . . . . . . . . . . 8

CONCLUSION

(para. 84). . . . . . . . . . . . . . . . . . . 14

CONCURRING OPINION OF MR K. HERNDL. . . . . . . . . . . . . 15

DISSENTING OPINION OF MR G. RESS

JOINED BY MM E. BUSUTTIL, A.S. GÖZÜBÜYÜK, A. WEITZEL,

J.-C. SOYER, C.L. ROZAKIS, L. LOUCAIDES,

M.A. NOWICKI, I. CABRAL BARRETO, B. CONFORTI,

I. BÉKÉS, J. MUCHA, A. PERENIC, E.A. ALKEMA and R. NICOLINI 18

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 21

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 first applicant is a British national, born in 1946 and

resident in Griesheim. The second applicant is also a British

national, born in 1950 and resident in Darmstadt. They were

represented before the Commission by Mr. A. Meyer-Landrut.

3. The application is directed against Germany. The respondent

Government were represented by their Agent, Ms. H. Voelskow-Thies,

Ministerialdirigentin, of the Federal Ministry of Justice.

4. The case concerns the question whether the applicants were denied

access to a court for a determination of their dispute with the

European Space Agency, relating to an issue under German labour law.

The applicants invoke Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 24 November 1997 and registered

on 22 December 1994.

6. On 26 June 1995 the Commission decided, pursuant to Rule 48

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

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 3 November 1997,

after an extension of the time-limit fixed for this purpose. The

applicants replied on 15 December 1995.

8. On 24 February 1997 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 7 March 1997 and they were invited to submit such

further information or observations on the merits as they wished.

No such submissions were received.

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

accordance with Article 28 para. 1 (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

11. 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:

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

M.P. PELLONPÄÄ

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

MM R. NICOLINI

A. ARABADJIEV

12. The text of this Report was adopted on 2 December 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

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

Convention.

13. 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.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. 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

16. In 1977 the applicants, systems programmers by profession and

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.

17. 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 (United Nations Treaty Series

1983, Vol. 1297, I - No. 21524). The European Space Agency runs the

European Space Operations Centre as an independent operation with seat

in Darmstadt (Agreement concerning the European Space Operations Centre

(ESOC) of 1967 - Bundesgesetzblatt II No. 3, 18.1.1969).

18. In 1979 the applicants' contracts were taken over by CDP, a

limited company with its seat in Dublin. In 1982 the applicants

founded Storepace, a limited company with its 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 its seat on the Island Jersey. These

changes in contractual relations had no bearing on the applicants'

services at the European Space Operations Centre.

19. By letter of 12 October 1990, CDP informed the applicants that

the cooperation with their company Network Consultants would terminate

on 31 December 1990, when the term of their contracts expired.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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).

25. 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.

26. 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.

27. On 10 November 1993 the Federal Labour Court dismissed the

applicants' appeal on points of law.

28. 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.

29. 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.

30. 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.

31. 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 in

labour court proceedings.

32. On 11 May 1994 the Federal Constitutional Court

(Bundesverfassungsgericht) refused to admit the applicants'

constitutional complaint (Verfassungsbeschwerde).

33. 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.

34. 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

35. 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

36. SS. 18 to 20 of the German Court Organisation Act

(Gerichtsverfassungsgesetz) regulate immunity from jurisdiction

(Exterritorialität) 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

37. 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.

38. 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)).

39. 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).

40. 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.

41. Annex I relates to the privileges and immunities of the Agency.

42. 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.

43. 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.

44. 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.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

45. The Commission has declared admissible the applicants' complaint

that they did not have a fair hearing by a tribunal on the question of

whether a contractual relationship existed between them and the

European Space Agency.

B. Point at issue

46. Accordingly, the issue to be determined is whether there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. Article 6 (Art. 6) of the Convention

47. The applicants complain that they were denied access to a court

for a determination of their dispute with the European Space Agency,

relating to their claims under the German Provision of Labour Act.

They invoke Article 6 para. 1 (Art. 6-1) of the Convention.

48. 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."

a. Applicability of Article 6 para. 1 (Art. 6-1)

aa. Existence of a dispute over a right

49. For Article 6 para. 1 (Art. 6-1) under its "civil" head to be

applicable, there must be a "dispute" (contestation in the French text)

over a "right" which can be said, at least on arguable grounds, to be

recognised under domestic law. The dispute must be genuine and

serious; it may relate not only to the actual existence of a right but

also to its scope and the manner of its exercise; and, finally, the

result of the proceedings must be directly decisive for the right in

question (cf. Eur. Court HR, Neigel v. France judgment of

17 March 1997, para. 38, to be published in Reports of Judgments and

Decisions 1997).

50. The Commission notes that the applicants brought proceedings with

a German labour court against the European Space Agency, an

international organisation with seat in Paris, operating the European

Space Operations Centre in Darmstadt.

51. On a previous occasion, the Commission regarded a complaint about

the lack of access to a court in respect of a dispute with the Iran-

United States Claims Tribunal (The Hague) as being incompatible with

the provisions of the Convention. In this context, it considered that,

because of the immunity from suit before the Dutch courts under a

privileges and immunities agreement, the administrative decisions of

the Tribunal did not engage the responsibility of the Netherlands under

the Convention. The Commission observed that it was 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 did not give rise to an issue under

the Convention (No. 12516/85, Dec. 12.12.88, D.R. 58, p. 119).

52. In the present case, the applicants claimed before the German

labour courts a declaratory judgment on the existence of an employment

contract between them and the European Space Agency, pursuant to the

German Provision of Labour Act, as a result of their being hired out

for years to perform work for the European Space Agency in Germany.

The dispute at issue did not concern any decision taken by an

international body in the exercise of its powers which could not engage

the responsibility of Germany, but related to a right which had its

basis in German labour law.

53. The Commission further considers that the immunity from

jurisdiction, accorded to members of diplomatic or consular missions

of foreign States in the exercise of public functions or international

organisations such as the European Space Agency, does not exclude the

existence of substantive rights under domestic law and cannot be

regarded as delimiting the very substance of any such rights.

54. In this context, the Commission observes that, in any event, it

would not be consistent with the rule of law in a democratic society

or with the basic principle underlying Article 6 para. 1 (Art. 6-1) -

namely that civil claims must be capable of being submitted to a judge

for adjudication - if, for example, a State could, without restraint

or control by the Convention enforcement bodies, remove from the

jurisdiction of the courts a whole range of civil claims or confer

immunities from civil liability on large groups or categories of

persons (cf. Eur. Court HR, Fayed v. United Kingdom judgment of

21 September 1994, Series A no. 294-B, pp. 49-50, para. 65; see also

Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of

21 February 1990, Series A no. 172, p. 16, para. 36; No. 9310/89,

Dec. 16.7.86, D.R. 47, p. 5; No. 12816/87, Dec. 18.1.89, D.R. 59,

p. 186).

55. In the Commission's view, the rules on immunity from jurisdiction

of, inter alia, international organisations prevent claims concerning

substantive rights, which exist as such under German law, from being

raised and enforced against the privileged persons in German court

proceedings, unless they waive their immunity. In these circumstances,

it is merely a procedural bar preventing the possibilities of bringing

potential claims to court.

56. The labour court action brought by the applicants, therefore,

related to a dispute over a substantive right under German law.

bb. The civil nature of the right concerned

57. The Commission recalls that Article 6 para. 1 (Art. 6-1) applies

where the subject-matter of an action is "pecuniary" in nature and is

founded on an alleged infringement of rights which are likewise

pecuniary (cf. Eur. Court HR, Editions Périscope v. France judgment of

26 March 1992, Series A no. 234-B, p. 66, para. 40) or where its

outcome is "decisive for private rights and obligations" (cf. Eur.

Court HR, H. v. France judgment of 24 October 1989, Series A no. 162-A,

p. 20, para. 47).

58. Disputes relating to private law relations between employer and

employee generally are of a "civil" nature for the purposes of

Article 6 para. 1 (Art. 6-1) (cf. Eur. Court HR, Obermeier v. Austria

judgment of 28 June 1990, Series A no. 179, p. 21, para. 67).

59. It is true that the Convention does not secure a right of

recruitment to the civil service, and 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 HR, Glasenapp and Kosiek v. Germany judgments of 28 August

1986, Series A no. 104, p. 26 para. 49, and no. 105, p. 20, para. 35;

Francesco Lombardo v. Italy judgment of 26 November 1992, Series A

no. 249-B, p. 26, para. 17; Fusco v. Italy judgment of

2 September 1997, para. 20, 21, to be published in Reports of Judgments

and Decisions 1997).

60. However, notwithstanding similar public law features of the

international civil service, the present case does not concern a

question of recruitment and employment by the European Space Agency on

the basis of its Staff Regulations. Rather, the applicants asserted

a right to employment on the basis of the German Provision of Labour

Act. In this situation, the European Space Agency may be compared with

any other private person to whom services were rendered by an employee

on the order of another private employer, within the meaning of the

German Provision of Labour Act.

61. In these circumstances, the Commission finds that the action

brought by the applicants before the German labour courts concerned

their civil rights within the meaning of Article 6 para. 1 (Art. 6-1).

The applicability of Article 6 (Art. 6) to the present case is indeed

not disputed by the respondent Government.

b. Compliance with Article 6 para. 1 (Art. 6-1)

62. Article 6 para. 1 (Art. 6-1) secures to everyone the right to

have any claim relating to his civil rights and obligations brought

before a tribunal (Eur. Court HR, Golder v. United Kingdom judgment of

21 February 1975, Series A no. 18, p. 18, para. 36; Ashingdane v. the

United Kingdom judgment of 28 May 1985, Series A no. 93, pp. 24-25,

para. 57; Fayed judgment, op. cit.; Bellet v. France judgment of

4 December 1995, Series A no. 333-B, p. 41, para. 31).

63. The applicants consider that it is not acceptable under Article 6

(Art. 6) that, in a dispute against an international organisation, the

access to a tribunal is entirely excluded by the rules on immunity from

jurisdiction.

64. The Government argue that the principle of immunity of

international organisations constitutes an inherent limitation to

Article 6 para. 1 (Art. 6-1).

65. In the case-law of the Court (cf., as a recent authority,

Eur. Court HR, Bellet judgment, loc. cit.), the scope of the principle

of the right of access to a court has been clarified in the following

terms:

"(a) The right of access to the courts secured by Article 6

para. 1 (Art. 6-1) is not absolute but may be subject to

limitations; these are permitted by implication since the right

of access 'by its very nature calls for regulation by the State,

regulation which may vary in time and in place according to the

needs and resources of the community and of individuals'.

(b) In laying down such regulation, the Contracting States enjoy

a certain margin of appreciation, but the final decision as to

observance of the Convention's requirements rests with the Court.

It must be satisfied that the limitations applied do not restrict

or reduce the access left to the individual in such a way or to

such an extent that the very essence of the right is impaired.

(c) Furthermore, a limitation will not be compatible with

Article 6 para. 1 (Art. 6-1) if it does not pursue a legitimate

aim and if there is not a reasonable relationship of

proportionality between the means employed and the aim sought to

be achieved."

66. In the present case, the applicants had access to the German

labour courts and the Federal Constitutional Court, however, only to

be told that their actions were inadmissible on the ground of the

defendant organisation's immunity from jurisdiction. They did not,

therefore, achieve a determination of the merits of their claims.

67. The Commission recalls that the fact of having access to domestic

remedies, only to be told that one's actions are barred by operation

of law does not always satisfy the requirements of Article 6 para. 1

(Art. 6-1). The degree of access afforded by the national legislation

must also be sufficient to secure the individual's "right to a court",

having regard to the principle of the rule of law in a democratic

society (cf. Eur. Court HR, Bellet judgment, op. cit., p. 42,

para. 36).

68. The Government maintain that the permissible limitations to the

right of access to a court include the traditional and generally

recognised principle of state 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.

69. The Commission notes that SS. 18 to 20 of the German Court

Organisation Act confer immunity from jurisdiction on diplomatic

missions and consular representations, and on other persons 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. Pursuant to Article IV para. 1 (a) of Annex I

to the "ESA Convention" of 1975, the European Space 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.

70. As to the rationale of international immunities, the Commission

observes that the provision of privileges and immunities to

international organisations is an essential means of protection of

these organisations from unilateral interference by individual

governments. The constitutional instruments of inter-governmental

organisations elaborately define their decision-making processes, and

in particular the type and degree of influence each government is to

have in respect of the organisation. It is therefore considered

unacceptable for individual governments to be able, whether through

their executive, legislative or judicial organs, to require an inter-

governmental organisation to take certain actions by commands addressed

to the organisation itself or to any of its officials.

71. The Commission finds that the underlying aim of the system of

providing international immunities to international organisations is

to contribute to their proper functioning. The contested limitation

on the ability to take legal proceedings against the European Space

Agency therefore resulted from rules which pursued legitimate aims.

72. It remains to be determined whether in the circumstances of the

present case there was a reasonable relationship between the means

employed and the legitimate objectives pursued by the limitation in

question.

73. The Commission considers that States may transfer to

international organisations competences (cf. No. 13258/87,

Dec. 9.2.1990, D.R. 64, p. 138), and may also grant these organisations

immunity from jurisdiction, in particular in relation to the exercise

of those competences which are to be considered as public and not as

commercial (in the same sense as it is accepted for foreign states by

the distinction between acta iure imperii and acta iure gestionis,

cf. No. 24236/94, Dec. 4.12.95, D.R. 84-A, p. 84 with further

references) "provided that within that organisation fundamental rights

will receive an equivalent protection" (No. 13258/87, loc. cit.). This

is a special feature of the general principle that "if a State

contracts treaty obligations and subsequently concludes another

international agreement which disables it from performing its

obligations under the first treaty it will be answerable for any

resulting breach of its obligations under the earlier treaty"

(No. 235/56, Dec. 10.6.58, Yearbook 2, p. 256 (300), No. 13258/87,

op. cit., p. 138).

74. Viewed in the light of the foregoing considerations, the legal

impediment to bringing litigation before the German courts, namely the

immunity of the European Space Agency from German jurisdiction, is only

permissible under the Convention if there is an equivalent legal

protection. In this context, the Commission recalls that the object

and the purpose of the Convention as an instrument for the protection

of individual human beings requires that its provisions be interpreted

and applied so as to make its safeguards practical and effective

(cf. Eur. Court HR, Airey v. Ireland judgment of 9 October 1979,

Series A no. 32, p. 12, para. 24).

75. The applicants maintain that they did not have any other legal

possibility to establish their rights under German labour law. In

particular, in lodging compensation claims against the company CDP, the

company hiring them out to the European Space Agency, they could not

secure continuation of their work for the European Space Agency. This

is disputed by the Government.

76. The Commission considers that the problems posed by the

application of the rules on immunity from jurisdiction in the present

case have to be seen against the general arrangements made for

appropriately resolving private law disputes to which the European

Space Agency is a party. As stated above (see para. 70), the object

of this immunity is merely to save an international organisation from

having to litigate unwillingly in national courts.

77. The Commission notes that, pursuant to the legal system

established under Annex I to the "ESA-Convention", the European Space

Agency has resorted to various devices to settle disputes with private

parties. Thus members of staff or experts may have recourse to an

Appeals Board in respect of their conditions of service. Arbitration

is provided for in respect of disputes concerning written contracts

other than those concluded in accordance with the Staff Regulations.

Moreover, any Member State may submit to the International Arbitration

Tribunal any dispute, inter alia, arising out of damage caused by the

Agency, or involving any other non-contractual responsibility of the

Agency. The possibility of requesting the German Government to bring

the applicants' case before the International Arbitration Tribunal was

already mentioned by the Federal Labour Court, in its decision of

10 November 1993. Moreover, Article IV of the said Annex I obliges the

Council of the European Space Agency to waive its 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.

78. The Commission concludes from the foregoing that, in private law

disputes involving the European Space Agency, judicial or equivalent

review may be obtained, albeit in procedures adjusted to the special

features of an international organisation and therefore different from

the remedies available under domestic law.

79. It is true that the procedures under the legal regime of the

European Space Agency did not provide the applicants with a remedy to

argue before a court that an employment contract between them and the

European Space Agency was assumed by law to have been concluded,

pursuant to the German Provision of Labour Act. They did not,

therefore, receive a legal protection within the European Space Agency

which could be regarded as equivalent to the jurisdiction of the German

labour courts. Likewise, the possibility addressed by the Government,

namely to institute administrative proceedings against the German

Government in order to enforce proceedings before the International

Arbitration Tribunal would not have provided the direct relief sought

by the applicants.

80. However, the applicants' situation was the direct consequence of

the particular nature of their claim for recognition of a labour

contract with the European Space Agency under the German Provision of

Labour Act, i.e. special legislation enacted for the German labour

market. Litigation of this kind would bypass and could undermine the

employment policies of international organisations under their own

staff regulations. Bearing in mind that the aim of international

immunities, which are generally accorded to international

organisations, particularly by the States Parties to the Convention,

is to protect international organisations from unilateral interference

by individual governments, whether through their executive, legislative

or judicial organs (see above para. 70), the Commission cannot apply

the test of proportionality in such a way as to force an international

organisation to be a party to domestic litigation on a question of

employment governed by domestic law.

81. A further factor is to be taken into account. The applicants

had, as pointed out by the Government, a possibility of bringing legal

proceedings in Germany, in pursuance of the relevant provisions of the

German Provision of Labour Act, against the GDP company, the Irish

partner in the chain of contractual relations for hiring out the

applicants to the European Space Agency. Whilst not covering their

specific claims of employment, such proceedings could have been a means

enabling them to recover compensation for financial loss suffered as

a consequence of their legal situation, pursuant to the Provision of

Labour Act.

82. In the light of these considerations, the Commission finds that

the national authorities, in providing immunity from jurisdiction to

the European Space Agency, did not exceed their margin of appreciation

to limit the applicants' access to the courts under Article 6 para. 1

(Art. 6-1), either as regards the state of the applicable law or as

regards the effects of the application of that law in the present case.

Notwithstanding the applicants' special situation, a reasonable

relationship of proportionality can be said to have existed between the

rules on international immunity and the legitimate aims pursued.

83. In these circumstances, the Commission considers that the

limitation on the applicants' opportunity to take legal proceedings

against the European Space Agency did not amount to an unjustified

denial of their "right to a court" under Article 6 para. 1 (Art. 6-1).

CONCLUSION

84. The Commission concludes, by 17 votes to 15, that in the present

case there has been no violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

CONCURRING OPINION OF MR K. HERNDL

While I fully agree with the Commission's conclusion that there

was no violation of Article 6 para. 1 of the Convention and accept the

reasoning leading to that conclusion (paragraphs 83 to 90 of the

Report), I should like to elaborate a little further on some of the

legal issues involved in the present case.

1. The legal situation under international law

As a general rule international governmental organisations, in

particular those of a universal character, enjoy immunities on the

territory of their member States. Those immunities are laid down either

in the constitutional document of the respective organisation or in

special conventions which are binding on member States. The immunity

granted to international organisation is generally recognized and

should even be ensured under international custom (cf. Seidl-

Hohenveldern, Völkerrecht, 8th edition, 1994, margin No. 1498). In the

latter respect, Dominicé also affirms that at least as far as the

organisations of the UN system are concerned, there exists a customary

rule of international law concerning immunity from any national

jurisdiction (cf. Dominicé, l'Immunité de juridiction et d'exécution

des organisations internationales, Recueil des Cours,

tome 187, p. 220).

As the Commission rightly states, it is considered unacceptable

for individual governments to be able, whether through their executive,

legislative or judicial organs, to require an inter-governmental

organisation to take certain actions by command addressed to the

organisation or to any of its officials (cf. R. Bindschedler,

International Organizations, General Aspects; and P. Szasz,

International Organizations, Privileges and Immunities, in:

R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. II,

1992, pp. 1289, and pp. 1325 et seq.).

Only a corresponding rule of international law can ensure the

independence of an international organisation, protecting the

organisation as it were from unilateral interference by individual

governments.

In the case of ESA the constituent treaty, i.e. the Convention

for the Establishment of a European Space Agency of 30 May 1975,

provides for the organisation's immunity from (national) jurisdiction

and execution (Article XV read in conjunction with Annex I of the

Convention). These provisions are binding on all member States of the

Organisation, hence also on Germany.

2. The implication of this legal situation for German law

German law appears to be basically in line with this

international legal situation. The Courts Organisation Act, in

regulating the immunity from jurisdiction of internationally protected

persons, provides in its Section 20 that other persons (other than the

members of diplomatic or consular missions or representatives of other

States officially invited to Germany) have immunity from jurisdiction

according to the general rules of international law or according to

international agreements or other legal rules. This is exactly the case

with ESA.

Consequently, as ESA as a legal person does not come under German

jurisdiction, neither do the legal disputes of private persons with

ESA. It is legitimate to pose the question whether the European

Convention on Human Rights is at all applicable in respect of such

types of disputes for which the national courts do not have

jurisdiction under international law. Thus, as regards private law

disputes with ESA, the parties to such disputes might not fall under

German jurisdiction in the sense of Article 1 of the Convention,

because German jurisdiction over those kinds of disputes simply does

not exist under international law.

The situation can be regarded as similar to a situation where,

owing to the total lack of any link with the territorial jurisdiction,

courts have to decline to adjudicate a dispute as they have legally no

jurisdiction. It is in fact the State which lacks jurisdiction.

With this in mind, international organisations - and the report

refers to this fact in paragraph 44 - do make arrangements for the

legal settlement of their private law disputes outside the framework

of national courts. This has been done by ESA, and accordingly the

Commission found that, as a matter of principle, equivalent legal

protection does exist as regards private law claims against ESA.

3. The earlier jurisprudence of the Commission

It may serve as illustration to refer at this stage to the

Commission's decision in the analogous case of Spaans v. the

Netherlands (No. 12516/86, Dec. 12.12.88, D.R. 58 p. 119), where the

Commission considered exactly the above mentioned aspects.

In the case of Spaans v. the Netherlands which concerned the

immunity of the Iran-United States Claims Tribunal, an entity

established through international treaty, the respondent government

stressed that "the rule that the ... Tribunal in its capacity as a body

established under public international law enjoys certain immunities

and privileges ... is, in general terms, derived directly from the

generally accepted principles of international law (NB: not underlined

in the original)", the Netherlands Supreme Court upholding that view

by confirming that "an international organisation is, in principle, not

subject to the jurisdiction of the courts in the ... State concerning

disputes that have a direct connection with the fulfilment of the

organisation's tasks". Moreover the Commission rejected the application

as incompatible ratione personae, noting that "it is in accordance with

international law that States confer immunities and privileges to

international bodies ... The Commission does not consider that such a

restriction of national sovereignty in order to facilitate the working

of an international body gives rise to an issue under the Convention".

4. The results of the situation for the applicants

It must be recalled that there never existed a contractual

relationship, entered into by the applicants themselves, between ESA

and the applicants. They were employed by private companies (SPM, CDP,

T, T.I.) and at some stage two of the applicants even had set up their

own company to contract with these firms as to the services they would

render. At the end of their contracts - when their actual employers

informed them that the contract would not be continued following its

expiration (see para. 19 of the report) - they decided to put forward

claims against ESA. This was made possible only by the existence of a

particular and specific provision in German law concerning the hiring

out of employees (Provision of Labour Act). That act stipulates that

contracts between a hirer out and a borrowing employer, as well as

between the hirer and the temporary worker, require permission from a

German governmental authority (the Federal Employment Office),

otherwise they are void. As far as the granting of governmental

permission for such contracts is concerned, it must remain an open

question to what extent ESA - an international organisation and proper

subject of international law - could actually be subjected to such a

regime in respect of the service contracts which it concluded and which

were necessary for the fulfilment of it tasks. This issue was not, and

could not be, decided by the German courts for the simple reason that

ESA is not subject to German jurisdiction as explained. While the

applicants themselves do not deny that their alleged labour

relationship with ESA was "fictitious" (namely a "fiction" under German

law), they seem to have viewed ESA as the easiest target and sued ESA

although they admittedly had never entered into any legal relationship

with the organisation.

The applicants are, however, by no means barred from asserting

their claims in the courts against CDP (based in Ireland), T. (based

in France) or T.I. (based in Italy), their respective actual employers.

They failed to do so, mainly for the reason - as stated by themselves

- that any court action against their employer would not have afforded

them the possibility to ensure continuation of their work for ESA. What

they obviously wanted was to force ESA to continue a working

relationship which their own employers had terminated.

The present case illustrates very well the need of international

organisations to be protected through their immunity under

international law against abuse and possible unilateral interference.

The Commission recognizes this when it refers to the applicants'

situation as being "the direct consequence of the particular nature of

their claim for recognition of a labour contract with ESA under the

German Provision of Labour Act, i.e. special legislation enacted for

the German labour market. Litigation of this kind would bypass and

could undermine the employment policies of international organisations

under their own staff regulations" (para. 87 of the report).

5. Conclusion

a. ESA's immunity is founded in international law binding on

Germany.

b. German courts do not, therefore, have any jurisdiction over

private law disputes affecting ESA (unless a waiver would occur).

For such disputes ESA is obliged under its constituent treaty to

make suitable provision for settlement.

c. The applicants could have any time brought claims against

their actual (not their "fictitious") employers.

d. It cannot be maintained that in "providing" immunity from

jurisdiction to ESA, the national authorities exceeded their

margin of appreciation to limit the applicants' access to the

courts under Article 6 of the Convention. As a member State of

ESA, Germany did not "provide" immunity to ESA but is bound by

ESA's constituent treaty. Germany could otherwise not have become

a member of that organisation.

(Or. English)

DISSENTING OPINION OF MR G. RESS

JOINED BY MM E. BUSUTTIL, A.S. GÖZÜBÜYÜK, A. WEITZEL,

J.-C. SOYER, C.L. ROZAKIS, L. LOUCAIDES, M.A. NOWICKI,

I. CABRAL BARRETO, B. CONFORTI, I. BÉKÉS, J. MUCHA, A. PERENIC,

E.A. ALKEMA and R. NICOLINI

1. This case raises the important issue of relations of the System

of Protection of Human Rights under the ECHR to international

organisations. It raises in particular the question how far State

parties to the ECHR can by subsequent treaties grant immunities from

law suits to international organisations.

To my great regret I am unable to follow the reasoning of the

majority that in this case the margin of appreciation to limit the

applicants' access to the court has not been exceeded. Quite the

contrary. The applicants did not find a labour court at their disposal

in Germany to determine the merits of their specific legal claims

arising out of the German Provision of Labour Act (Arbeitnehmer-

überlassungsgesetz). Admitting that States may create international

organisations with specific competence and jurisdiction the States

cannot evade by these treaties their responsibility under the ECHR

which has created an objective European legal order. They must at least

provide "that within the organisation fundamental rights will receive

an equivalent protection "(No. 13258/87, X v. Germany, Dec. 9.2.90,

D.R. 64, p. 138). Immunities of international organisations, created

by subsequent treaties, cannot be considered as a kind of general

unwritten exception to the scope of application of the ECHR. There is

no inherent general exception under the ECHR to institutions of

international public law, which may as far as they are not of a

ius cogens nature be disposed of by the parties of the treaty.

Furthermore we have not here to decide on the rule of state immunity

or diplomatic or consular immunity or other forms of personal

immunities but only on immunities of international organisations

created after the coming into force of the ECHR. If States which are

members of the ECHR become members of such an international

organisation they must ensure that actions and other forms of legal

relations of these organisations do not violate the ECHR at least as

individuals under the jurisdiction of these States are concerned.

2. Unlike the opinion of the majority I find that the ESA did not

provide a protection which would meet the requirement of Article 6

para. 1. Pursuant to the legal system established under Annex I to the

"ESA-Convention", the European Space Agency apart from the possibility

of waiving its immunity has resorted to various devices to settle

disputes with private parties. Thus members of staff or experts may

have recourse to an Appeals Board in respect of their conditions of

service. Arbitration is provided for in respect of disputes concerning

written contracts other than those concluded in accordance with the

Staff Regulations. Moreover, any Member State may submit to the

International Arbitration Tribunal any dispute, inter alia, arising out

of damage caused by the Agency, or involving any other non-contractual

responsibility of the Agency. Thus, in various private law disputes

involving the European Space Agency, judicial review may be obtained.

However, the applicants, asserting a right to employment under German

labour law, were not covered by these remedies. The applicants'

interests did not, therefore, receive a legal protection within the

European Space Agency which could be regarded as equivalent to the

jurisdiction of the German labour courts or at least to the minimum of

a judicial review of their case.

As regards any other remedies, I note that the Federal Labour

Court referred the applicants to the possibility of requesting the

German Government to bring the applicants' case before the

International Arbitration Tribunal. Moreover, the Government addressed

the possibility of instituting administrative proceedings against the

German Government in order to enforce such proceedings. However,

proceedings before the International Arbitration Tribunal, to which the

applicants would not be a party and which would not directly relate to

their claim under the German Provision of Labour Act, cannot be

regarded as an effective legal remedy, for the purposes of Article 6

para. 1.

The applicants also had, as pointed out by the Government, a

possibility of bringing other legal proceedings, in pursuance of the

relevant provisions of the German Provision of Labour Act, against the

GDP company, the Irish partner in the chain of contractual relations

for hiring the applicants out to the European Space Agency. Arguing

that their contract with the private company was null and void under

the Provision of Labour Act, they could have claimed compensation in

respect of any damages suffered as a consequence of having relied on

the validity of their contract. However, such action against a company

seated abroad does not appear a practical solution to the applicants'

problems. Above all, they could not, in such proceedings, have secured

the right asserted by them, namely an employment contract with the

European Space Agency as borrowing employer. Accordingly, these

proceedings cannot be regarded as a substitute or the requirement of

access to court.

It cannot be the essence of the guarantee of access to court, in

particular in labour law matters, to refer the individual to the

possibility of legal procedure abroad or to the possibility of a claim

to damages when he is seeking a judgment on the employment contract or

contractual relation. If this would have to be adopted as the essence

of the right to access to court that would amount to "a right to access

to a court in another contracting State and on another legal claim".

In my view this misconstrues Article 6 para. 1.

I am aware that the applicants' situation was the direct

consequence of the particular nature of their claim for recognition of

a labour contract with the European Space Agency under the German

Provision of Labour Act, i.e. special legislation enacted for the

German labour market. However, I find that the question as to whether

and to what extent domestic legislation of this kind can be held

against an international organisation, which regularly enacts its own

staff regulations, cannot be resolved in removing such matters from

judicial review. In this connection, it must be borne in mind, as

stated in paragraph 70 of the Commission's Report, that the object of

the immunity from jurisdiction accorded to international organisations

is merely to save them from having to litigate unwillingly in national

courts.

In the light of these considerations, it cannot be said that a

reasonable relationship of proportionality was achieved between the

effects of the rules on immunity accorded to the European Space Agency

on the applicants' interest to have their claim under the German

Provision of Labour Act determined by a court and the legitimate aim

pursued. Consequently, in providing immunity from jurisdiction to the

European Space Agency, the national authorities exceeded their margin

of appreciation to limit the applicants' access to the courts under

Article 6 para. 1.

It would have been possible that the German labour courts also

interpret the relevant provisions of the ESA-Convention as to the

effect to bring these in line with the requirements of Article 6. In

particular due regard could and should have been given to the trend in

international public law to restrict state immunity in labour disputes.

There is nothing that warrants a wider application in relation to

immunities of international organisations.

In these circumstances, I consider that the limitation on the

applicants' opportunity to take legal proceedings against the European

Space Agency amounted to an unjustified denial of their "right to a

court" under Article 6 para. 1.

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WAITE AND KENNEDY v. GERMANY

WAITE AND KENNEDY v. GERMANY