Lexploria

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

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WAITE AND KENNEDY v. GERMANY

WAITE AND KENNEDY v. GERMANY

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