THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39564/98 by G. K. against Austria

The European Court of Human Rights ( Third Section ), sitting on 14 March 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. KÅ«ris, Mr W. Fuhrmann, Mrs H.S. Greve, Mr K. Traja, judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 27 November 1997 and registered on 29 January 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1955 and residing in Vienna. At the material time the applicant was a civil servant in the Federal Ministry for Foreign Affairs serving as a member of the diplomatic corps. Since 1993 the applicant is retired.

The facts of the case, as submitted by the parties, may be summarised as follows.

From 1988 to 1990 t he applicant was assigned to the Austrian embassy in New Delhi as “Legation Councillor”, i.e. a diplomat who may be called upon to represent the Ambassador. In 1991, after having returned to Vienna, he applied for a hardship allowance ( Erschwernis ­ zulage ) for the time of his service in New Delhi which was granted to him on 28 May 1997 by the Austrian Administrative Court ( Verwaltungsgerichtshof ). His requests to have the case reopened were rejected on 29 December 1997.

COMPLAINTS

The applicant complains that the amount of the allowance awarded to him is inadequate. He alleges that the members of the Administrative Court were not impartial or independent, that the hearing was unfair and that the proceedings were unduly lengthy. He invokes Articles 4, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.

PROCEDURE

The application was introduced on 27 November 1997 and registered on 29 January 1998.

On 21 October 1998 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 7 January 1999. The applicant replied on 25 February 1999.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains that the amount of the allowance awarded to him is inadequate. He alleges that the members of the Administrative Court were not impartial or independent, that the hearing was unfair and that the proceedings were unduly lengthy. He invokes Articles 4, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.

1. Article 6 § 1, insofar as relevant reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time ... .”

The Court will first examine the applicability of Article 6 to the pr e sent case.

The Government submit that Article 6 is not applicable to the impugned proceedings as the Administrative Court’s decision merely dealt with procedural issues and, in the matter of granting a hardship allowance, the public law element prevailed in any event. This is contested by the applicant.

The Court recalls that in the Pellegrin v France judgment of 8 December 1999 it adopted a new functional criterion based on the nature of the employee’s duties and r e sponsibilities in order to determine the applicability of Article 6 § 1 to disputes between civil servants and their employer. It found as fo l lows:

“65. The Court notes that in each country’s public-service sector certain posts involve responsibilities in the general interest or participation in the exercise of powers conferred by public law. The holders of such posts thus wield a portion of the State’s sovereign power. The State therefore has a legitimate interest in requiring of these servants a special bond of trust and loyalty. On the other hand, in respect of other posts which do not have this “public administration” aspect, there is no such interest.

66. The Court therefore rules that the only disputes excluded from the scope of Article 6 § 1 of the Convention are those which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depository of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities is provided by the armed forces and the police. In practice, the Court will ascertain, in each case, whether the applicant’s post entails – in the light of the nature of the duties and responsibilities appertaining to it – direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. In so doing, the Court will have regard, for guidance, to the categories of activities and posts listed by the European Commission in its communication of 18 March 1988 and by the Court of Justice of the European Communities (see paragraphs 37 to 41 above).

67. Accordingly, no disputes between administrative authorities and employees who occupy posts involving participation in the exercise of powers conferred by public law attract the application of Article 6 § 1 since the Court intends to establish a functional criterion (see paragraph 64 above). Disputes concerning pensions all come within the ambit of Article 6 § 1 because on retirement employees break the special bond between themselves and the authorities; they, and a fortiori those entitled through them, then find themselves in a situation exactly comparable to that of employees under private law in that the special relationship of trust and loyalty binding them to the State has ceased to exist and the employee can no longer wield a portion of the State’s sovereign power (see paragraph 65 above).”

In applying this criterion the Court first observes that the aforementioned list of the European Commission mentions specific functions of the State and similar bodies such as the diplomatic corps (op. cit., § 40).

The Court notes that in the present case the applicant was a civil servant in the Ministry for Foreign Affairs serving as a member of the diplomatic corps in the Austrian Embassy in New Delhi. This post clearly involved direct participation in the exercise of powers co n ferred by public law and duties designed to safeguard the general interests of the State. It follows that Article 6 § 1 of the Convention is not applicable to the proceedings at i s sue.

The Court concludes, therefore, that this part of the application is incompatible rat i one materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

2. Insofar as the applicant also complains under Articles 4, 8 and 13 of the Convention and Article 1 of Protocol No. 1, the Court has examined these complaints as they have been submitted by the applicant. In the light of all the material in its possession, and insofar as the matters complained of are within the competence, the Court finds, however, that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention and its Protocols.

It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza Registrar President