Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26991/95

by Hendricus van der PEET

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 December 1994

by Hendricus van der PEET against Germany and registered on

6 April 1995 under file No. 26991/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been presented by the

applicants, may be summarised as follows.

The applicant, born in 1945, is a Dutch national and resident at

Eichenau. He is a patent examiner and a permanent member of staff of

the European Patent Office.

On 1 May 1990 the applicant applied for special leave in respect

of his absence for four days in April 1990, when he attended a hearing

in Dutch court proceedings. His request was dismissed by the President

of the European Patent Office on 11 May 1990.

On 25 June 1990 the applicant applied for special leave of four

days in order to attend a hearing in Dutch court proceedings on 5 July

1990. His request was dismissed by the President of the European

Patent Office on 28 June 1990.

On 26 July 1990 the applicant requested that he be graded A3,

step 8, as from 1 July 1990. He further requested compensation. His

requests were dismissed by the President of the European Patent Office

on 21 August 1990.

The applicant thereupon instituted proceedings before the Munich

Administrative Court (Verwaltungsgericht) against the European Patent

Office, claiming that the above decisions be quashed and the defendant

organisation be ordered to grant his respective requests.

In the administrative court proceedings, the defendant

organisation relied on their immunity from jurisdiction.

On 19 December 1990 the Munich Administrative Court, following

a hearing, declared the applicant's action inadmissible.

The Administrative Court, referring to SS. 18-20 of the Court

Organisation Act (Gerichtsverfassungsgesetz), considered that the

defendant organisation had validly relied on its immunity from

jurisdiction. The Court observed that, in accordance with the European

Patent Agreement and the Protocol on its Privileges and Immunities, the

European Patent Office was not subject to German jurisdiction in

respect of its official activities, including all administrative acts

affecting their permanent staff. In case of dispute regarding any act

adversely affecting them, staff members of the European Patent Office

are entitled to appeal to the Administrative Tribunal of the

International Labour Organisation, in accordance with the relevant

provisions of the European Patent Agreement and the Service

Regulations. Referring to the case-law of the Federal Constitutional

Court (Bundesverfassungsgericht), the Administrative Court further

observed that the legal protection afforded in the appeal proceedings

before the Administrative Tribunal of the International Labour

Organisation satisfied the minimum standards of fairness required by

the rule of law.

SS. 18 to 20 of the German Court Organisation Act

(Gerichtsverfassungsgesetz) regulate the immunity from jurisdiction

in German court proceedings.

SS. 18 and 19 concern the members of diplomatic and consular missions,

and S. 20 para. 1 representatives of other 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.

On 13 November 1991 the Bavarian Administrative Court of Appeal

(Bayerischer Verwaltungsgerichtshof) dismissed the applicant's appeal

(Berufung).

On 16 March 1992 the Administrative Court of Justice

(Bundesverwaltungsgericht) dismissed the applicant's request for leave

to appeal on points of law (Beschwerde gegen die Nichtzulassung der

Revision).

On 1 December 1994 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde).

COMPLAINTS

The applicant complains that the German administrative courts

refused to decide on the merits of his actions against the European

Patent Office. He considers that these decisions amount to

discrimination as compared to civil servants in the German civil

servants. He further complains that the Federal Constitutional Court

did not give reasons for its decision of 1 December 1994. He invokes

Articles 1, 3, 6, 10, 13 and 14 of the Convention.

THE LAW

1. The applicant complains about the German administrative court

decisions declaring his actions against the European Patent Office

inadmissible on the ground that the defendant organisation had immunity

from German jurisdiction, and also about the decision of the Federal

Constitutional Court.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties to the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77 pp. 81, 88 and Eur.

Court H.R., Van de Hurk judgment of 19 April 1994, Series A no. 288,

p. 20, para. 61; Klaas judgment of 22 September 1993, Series A no. 269,

p. 17, para. 29).

At the outset, the Commission observes that it is 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 does not, in principle, give rise to

an issue under the Convention (No. 12516/85, Dec. 12.12.88, D.R. 58

p. 119).

Nevertheless the transfer of powers to an international organisation

is only compatible with the Convention provided that within that

organisation fundamental rights will receive an equivalent protection

(see No. 13258/87 M & Co v. FRG, Dec. 9.2.90, D.R.64, pp. 138, 145 and

No. 21090/92, Jan. 10, 1994, D.R.76A, pp. 125, 128). The Commission

notes that the European Patent Agreement refers any dispute about

administrative acts affecting members of the permanent staff to the

Administrative Tribunal of the ILO, a tribunal competent to protect the

rights of staff members.

Furthermore the Commission has considered whether the applicant's

complaint could raise an issue under Article 6 para. 1

(Art. 6-1) of the Convention which comprises the right of access to

court in respect of any claim relating to civil rights and obligations

(Eur. Court H.R., Golder judgment of 21 February 1975, Series A no. 18,

p. 18, para. 36).

As regards the question whether any of the applicant's civil

rights were at stake, the Commission notes that his actions before the

German administrative courts concerned decisions taken by the European

Patent Office in the exercise of its powers to decide on matters

concerning their personnel, namely requests for special leave as well

as a request for an upgrading.

The Commission recalls that 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 H.R.,

Glasenapp and Kosiek judgments of 28 August 1986, Series A no. 104, p.

26 para. 49, and no. 105, p. 20, para. 35; Francesco Lombardo judgment

of 26 November 1992, Series A no. 249-B, p. 26, para. 17; Massa

judgment of 24 August 1993, Series A no. 265-B, p. 20, para. 26).

Such considerations also apply to disputes relating to the

recruitment, employment and retirement of the permanent staff of

international organisations such as the European Patent Office which

are within the jurisdiction of the Administrative Tribunal of the

International Labour Organisation.

The Commission finds that the European Patent Office when

deciding on the applicant's requests exercised its powers in accordance

with the international instruments concerned, and could not be compared

with an employer who is a party to a contract of employment governed

by private law.

Consequently, the actions envisaged by the applicant did not

relate to any "civil right" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

2. As regards the above matter, the applicant further invokes

Articles 3, 10, 13 and 14 (Art. 3, 10, 13, 14) of the Convention.

However, insofar as the applicant's submissions in these respects have

been substantiated and are within its competence, the Commission finds

that they do not disclose any appearance of a violation of the rights

and freedoms set out in the Convention.

It follows that this part of the application is also inadmissible under

Article 27 (Art. 27).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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VAN DER PEET v. GERMANY

VAN DER PEET v. GERMANY

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