Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 23085/93

Ilse Baumgartner and Others

against

Austria

REPORT OF THE COMMISSION

(adopted on 16 October 1996)

TABLE OF CONTENTS

Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . .1

PART I : STATEMENT OF THE FACTS. . . . . . . . . . . . . . .3

PART II : SOLUTION REACHED. . . . . . . . . . . . . . . . . . . . . 4

ANNEX : LIST OF APPLICANTS . . . . . . . . . . . . . . . . . . . . 6

INTRODUCTION

1. This Report relates to the application introduced under

Article 25 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms by Ilse Baumgarnter and Others against

Austria on 16 August 1993. It was registered on 14 December 1993 under

file No. 23085/93.

2. The applicants were represented by Dr. G. Grießer, a lawyer

practising in Vienna.

3. The Government of Austria were represented by their Agent,

Ambassador F. Cede, Head of the International Law Department at the

Federal Ministry of Foreign Affairs.

4. On 16 January 1996 the Commission (First Chamber) declared the

application admissible insofar as it concerns the applicants'

complaint that they were not heard as regards the permission to

terminate their contracts of employment under SS. 20 b and c of the

Composition of Creditors Act which was given to their employer by the

Vienna Commercial Court. It then proceeded to carry out its task under

Article 28 para. 1 of the Convention which provides as follows:

"In the event of the Commission accepting a petition referred to

it:

a. it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an examination

of the petition and, if need be, an investigation, for the

effective conduct of which the States concerned shall furnish all

necessary facilities, after an exchange of views with the

Commission;

b. it shall at the same time place itself at the disposal of

the parties concerned with a view to securing a friendly

settlement of the matter on the basis of respect for Human Rights

as defined in this Convention."

5. The Commission (First Chamber) found that the parties had reached

a friendly settlement of the case and on 16 October 1996 it adopted

this Report, which, in accordance with Article 28 para. 2 of the

Convention, is confined to a brief statement of the facts and of the

solution reached.

6. The following members were present when the Report was adopted:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

PART I

STATEMENT OF THE FACTS

The applicants, whose names are annexed to this report, were at

the relevant time employees of a limited company with seat in Vienna.

7. In the context of composition with creditors proceedings, the

employer company requested the Vienna Commercial Court (Handelsgericht)

for permission to terminate the contracts of employment of sixty-eight

employees, including the applicants, under SS. 20 b and c of the

Composition with Creditors Act (Ausgleichsordnung). These provisions,

in the version which was in force at the time of the relevant facts,

allowed the court, without being obliged to hear the persons concerned,

to grant a debtor permission to terminate contracts of employment. The

debtor had to respect the period of notice (Kündigungsfrist) provided

for in a law or in collective agreement, but, according to court

practice was not bound by the date for termination of contracts

(Kündigungstermin) as prescribed in S. 20 of the Employees Act

(Angestelltengesetz).

8. On 22 February 1993 the Vienna Commercial Court, without hearing

the applicants, granted their employer company permission to terminate

their contracts of employment in accordance with SS. 20 b and c of the

Composition with Creditors Act.

9. On 15 March 1993 the employer company, in pursuance of the

Court's permission and in accordance with the periods of notice

provided for by law, gave the applicants notice of the termination of

their contracts of employment which became effective on 26 April,

15 May, 15 June, 15 July or 15 August 1993 respectively. If S. 20 of

the Employees Act had been applicable, twenty of the applicants could

have only been dismissed 15 days later, eleven applicants only 45 days

later, three applicants 64 days later and seven applicants only 75 days

later.

10. On 23 March 1993 the Vienna Commercial Court rejected the appeal

lodged by the applicants against its decision of 22 February 1993. It

noted that according to SS. 20 b para. 2 of the Composition with

Creditors Act no remedy was available against the permission to

terminate contracts of employment.

11. Before the Commission, the applicants complained under Article 6

of the Convention that they were not heard by the Vienna Commercial

Court prior to its decision of 22 February 1993. They considered that

this decision directly affected their civil rights in that their claims

relating to their employment were reduced. In particular they

complained that their employer could terminate their contracts of

employment prematurely. Further, the applicants complained under

Article 4 of the Convention.

PART II

SOLUTION REACHED

12. Following the decision on the admissibility of the application,

the Commission (First Chamber) placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 para. 1 (b) of the Convention and invited the parties

to submit any proposals they wished to make.

13. In accordance with the usual practice, the Chamber Secretary,

acting on the Commission's instructions, contacted the parties to

explore the possibilities of reaching a friendly settlement.

14. By letters of 27 June 1996 and 23 July 1996, respectively, the

applicants and the respondent Government informed the Commission that

they had agreed on the terms of a friendly settlement, and submitted

the following declaration.

"Statements of the parties with a view to a friendly settlement

With reference to Article 28 para. 1 (b) of the European

Convention for the Protection of Human Rights and Fundamental Freedoms,

the parties in the proceedings concerning Application No. 23085/93,

lodged by Ilse Baumgartner and Others, declare with a view to a

friendly settlement, reached with the assistance of the European

Commission of Human Rights, as follows:

1. The Government of the Republic of Austria will pay to the

applicants a sum amounting to altogether AS 450,000 as

compensation in respect of any possible claims relating to the

present application. This sum is composed of an amount of

AS 10,000 for each of the forty-one applicants and an amount of

AS 40,000 in respect of the counsel's fees and expenses incurred

in the proceedings before the Commission.

This amount will be paid to the applicant's counsel,

Mr. G. Grießer in Vienna.

2. The applicants declare their application settled.

3. The applicants waive any further claims against the

Republic of Austria relating to the present application."

"Erklärungen der Parteien zur gütlichen Regelung

In der Beschwerdesache Nr. 23085/93 der Frau Ilse Baumgartner und

anderer einigen sich die Parteien under Bezugnahme auf Artikel 28

Abs. 1 lit b der Europäischen Konvention zum Schutze der Menschenrechte

und Grundfreiheiten und unter Mitwirkung der Europäischen Kommission

für Menschenrechte auf die nachstehende gütliche Regelung:

1. Die österreichische Regierung zahlt den Beschwerdeführern

als Ausgleich für sämtliche etwaige Ansprüche im Zusammenhang mit

der vorliegenden Beschwerde einen Gesamtbetrag von öS 450,000.

Dieser Betrag setzt sich zusammen aus einem Betrag von öS 10,000

für jeden der einundvierzig Beschwerdeführer und einem Betrag von

öS 40,000 hinsichtlich der Gebühren und Auslagen, die im Rahmen

des Verfahrens vor der Kommission entstanden sind.

Dieser Betrag wird an den Verfahrensbevollmächtigten der

Beschwerdeführer Herrn Rechtsanwalt Dr. Georg Griesser in Wien

überwiesen.

2. Die Beschwerdeführer erklären ihre oben genannte Beschwerde

als erledigt.

3. Die Beschwerdeführer verzichten auf die Geltendmachung

allfälliger weiterer Forderungen gegen die Republik Österreich

im Zusammenhang mit dem der Beschwerde zugrundeliegenden

Sachverhalt."

15. At its session on 16 October 1996, the Commission noted that the

parties had reached an agreement regarding the terms of a settlement.

It further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

16. For these reasons, the Commission adopted the present Report.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

A N N E X

The applicants are:

1. Ilse BAUMGARTNER, born in 1944, resident in Altenberg

2. Gerhard BECAN, born in 1942, resident in Vienna

3. Helmut BLIEM, born in 1940, resident in Vienna

4. Franz BRAUNSTEINER, born in 1967, resident in Vienna

5. Beatrix BRAZDA, born in 1947, resident in Vienna

6. Gabriele BURGER, born in 1962, resident in Weikersdorf

7. Christian FELLNER, born in 1965, resident in Vienna

8. Ernst HACKENBERGER, born in 1958, resident in Vienna

9. Ernst HEGER, born in 1942, resident in Vienna

10. Gertrude HOFER, born in 1951, resident in Vienna

11. Robert HORAK, born in 1939, resident in Deutsch-Wagram

12. Silvia HRUSCHKA, born in 1952, resident in Vienna

13. Snezana JORGIC, born in 1961, resident in Vienna

14. Gerhard KATOLICZKI, born in 1951, resident in Vienna

15. Angela KLEER (married: Mikula), born in 1971, resident in

Vienna

16. Walter KOMENDA, born in 1942, resident in Vienna

17. Gerhard KOMENDA, born in 1961, resident in Vienna

18. Helmut KRAMER, born in 1940, resident in Pischeldorf

19. Manfred KRAMMER, born in 1950, resident in Vienna

20. Thomas LACKNER, born in 1969, resident in Vienna

21. Claudia LEHNER, born in 1974, resident in Sierndorf

22. Michaela MEITZ, born in 1960, resident in Vienna

23. Irena MENZL, born in 1944, resident in Vienna

24. Rosanda MIDL, born in 1956, resident in Vienna

25. Elfriede RAUCH, born in 1940, resident in Vienna

26. Heinrich REIMER, born in 1943, resident in Vienna

27. Helmut RIENER, born in 1941, resident in Breitenfurt

28. Martin ROLENZ, born in 1942, resident in Vienna

29. Maria ROTHMAYER, born in 1948, resident in Vienna

30. Angela SCHWARZ, born in 1947, resident in Atzenbrugg

31. Elisabeth SCHWEINHAMMER, born in 1962, resident in Vienna

32. Annemarie SEJKA, born in 1948, resident in Vienna

33. Ernst SMAHA, born in 1945, resident in Vienna

34. Robert SOBOTKA, born in 1968, resident in Vienna

35. Wolfgang TESCH, born in 1959, resident in Viehofen

36. Elisabeth VLADAR, born in 1943, resident in Vienna

37. Manfred WACLAWIK, born in 1962, resident in Vienna

38. Monika WAGNER, born in 1957, resident in Vienna

39. Ernst WIDHALM, born in 1956, resident in Eschenbach

40. Sonja WRULICH (married: Wrulich-Zimmel), born in 1958,

resident in Vienna

41. Andreas WYTEK, born in 1965, resident in Vienna

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BAUMGARTNER and Others v. AUSTRIA

BAUMGARTNER and Others v. AUSTRIA

LEXI