Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28934/95

by Karlheinz BEER and Philip REGAN

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 13 September 1995

by Karlheinz BEER and Philip REGAN against Germany and registered on

17 October 1995 under file No. 28934/95;

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

15 February 1996 and the observations in reply submitted by the

applicant on 3 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, born in 1952, is a German national and

resident in Darmstadt. He is an engineer by profession. The second

applicant, born in 1960, is a British national and resident in

Strathclyde in the United Kingdom. He is a systems programmer by

profession.

A. Particular circumstances of the cases

The facts of the case, as presented by the parties, may be

summarised as follows.

In 1982 the first applicant, employed by the company S., was

placed at the disposal of the European Space Agency to render services

at the European Space Operations Centre in Darmstadt. The first

applicant's contract was later taken over by the company T., which has

its seat in France. The second applicant, employed by the Italian

company T.I., was placed at the disposal of the European Space Agency

to render services at the European Space Operations Centre in Darmstadt

in 1991.

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 October and November 1993 the applicants 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. In his

submissions, the second applicant indicated that, by letter of 27

September 1993, his employer T.I. had dismissed him.

In the respective 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 21 March 1995 the Darmstadt Labour Court, following hearings,

declared the applicants' respective actions inadmissible. In both

decisions, the Labour Court considered that the defendant organisation

had validly relied on its immunity from jurisdiction. The Labour

Court, in this respect, relied on S. 20 para. 2 of the Court

Organisation Act (Gerichtsverfassungsgesetz), according to which

immunity from jurisdiction could be provided for, inter alia, in

international agreements. The defendant organisation enjoyed such

immunity under Article XV para. 2 of the Convention on the

Establishment of the European Space Agency and its Annex I. The Labour

Court further recalled that the Federal Labour Court (Bundesarbeits-

gericht), in a decision of 10 November 1993 in a similar case, had

found that the rules in question could not be objected to from a

constitutional point of view.

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 implied in law (gilt als zustande gekommen) as from

the envisaged start of employment (S. 10 para. 1).

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.

As regards the question of exhaustion of domestic remedies, as

required by Article 26 of the Convention, they submit that, having

regard to the established case-law of the German courts on the matter,

any further appeals could not prove to be effective.

The applicants submit that they could not have lodged an appeal

with the Appeals Board of the European Space Agency as such a

possibility was limited to the staff of this organisation. Moreover,

they could not have relied on an arbitration procedure, which

presupposed a contractual relationship and not a merely fictitious

contract.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 September and registered on

17 October 1995.

On 27 November 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

15 February 1996. The applicants replied on 3 April 1996.

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."

1. The respondent Government raise doubts as to whether the

applicants exhausted the domestic remedies available to them under

German law, as required by Article 26 (Art. 26) of the Convention. As

regards the fact that the applicants did not lodge any further appeal

against the Darmstadt Labour Court decision of 21 March 1995, the

Government accept that, following negative decisions rendered by the

Federal Labour Court and the Federal Constitutional Court

(Bundesverfassungs-gericht) in a similar case, such remedies would not

have offered any prospect of success. However, in their view, the

applicants could have brought proceedings before the German

administrative courts requesting that, in order to comply with Article

6 para. 1 (Art. 6-1) of the Convention, Germany should bring

international arbitration proceedings, on behalf of the applicants,

pursuant to Article XVII of the ESA Convention.

The applicants disagree with the Government's objection.

Under Article 26 (Art. 26) of the Convention, the Commission may

only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law, and within a period of six months from the date on which the final

decision was taken.

Under Article 26 (Art. 26) of the Convention normal recourse

should be had by an applicant to remedies which are available and

sufficient to afford redress in respect of the breaches alleged. The

existence of the remedies in question must be sufficiently certain not

only in theory but also in practice, failing which they will lack the

requisite accessibility and effectiveness (cf. Eur. Court HR, Akdivar

v. Turkey judgment of 16 September 1996, para. 66, to be published in

the Reports of Judgments and Decisions for 1996). In this context, it

has been recognised that Article 26 (Art. 26) must be applied with some

degree of flexibility and without excessive formalism; it is essential

to have regard to the particular circumstances of each individual case

(cf. Akdivar judgment, op. cit., para. 69).

The Commission notes that the Darmstadt Labour Court, in its

decision of 21 March 1995, referred to the existing case-law of the

Federal Labour Court on the legal issue in question. The Government

pointed out that the position of the German labour courts had been

confirmed by the Federal Constitutional Court; and they have in essence

accepted that, in this situation, any further appeal would have had no

prospect of success. The Commission accordingly considers that, in the

circumstances of the present case, the applicants did not have any

effective remedy, within the meaning of Article 26 (Art. 26), before

the German labour courts.

Furthermore, the Commission notes that the Government did not

cite a single instance in which a plaintiff had instituted

administrative court proceedings, invoking Article 6 para. 1

(Art. 6-1) of the Convention, with a view to obliging the German

Government to institute an international arbitration procedure on their

behalf. Moreover, the Government failed to show that in the context

of the arbitration procedure under the ESA agreement, any rights under

the German Provision of Labour Act could have been invoked. In any

event, the Commission considers that Article 26 (Art. 26) requires an

applicant to have recourse to those remedies available at the domestic

level which in themselves are sufficient to redress the situation

complained about. Any court action with a view to having another

international procedure instituted for the purpose of deciding an issue

arising under the Convention, as suggested by the respondent

Government, cannot be regarded as an available and sufficient remedy

that the applicants ought to have exhausted.

It follows that the applicants' complaint under Article 6 para. 1

(Art. 6-1) cannot be rejected for non-exhaustion of domestic remedies

under Article 27 para. 3 (Art. 27-3) of the Convention.

2. The respondent Government further observe that the Labour Court

granted the European Space Agency immunity from the applicants' 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, like the state immunity, the immunity granted to international

organisations corresponds 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. Following his dismissal,

the second applicant could have brought an action against the Italian

company T.I., the other party to his employment contract, claiming

compensation under S. 10 para. 2 of the German Provision of Labour Act.

The question of whether he acted in good faith would have had to be

clarified in the said court proceedings. The first applicant, still

employed by the company T. and working for the ESA, could also bring

proceedings under the Provision of Labour Act against the French

company T., though, as the Government admit, any such procedure would

have no prospect of success. However, the Government submit that the

Convention only guarantees the right of access to a court and not a

favourable outcome of any envisaged action. In this context, the

Government state that, in any event, the applicants' action against the

ESA would have probably remained unsuccessful. In their view, national

legislation such as the Provision of Labour Act cannot result in a

temporary worker obtaining the status of a member of an international

organisation's permanent staff.

The applicants consider 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.

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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BEER AND REGAN v. GERMANY

BEER AND REGAN v. GERMANY

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