THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28962/95 by Rudolf PREDOTA against Austria

The European Court of Human Rights ( Third Section ) sitting on 18 January 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mrs F. Tulkens, Mr W. Fuhrmann , Mr K. Jungwiert, Mr K. Traja, Mr M. Ugrekhelidze, judges ,

and Mrs S. Dollé , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 May 1995 by Rudolf Predota against Austria and registered on 21 October 1995 under file no. 28962/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 3 November 1997 and the observations in reply submitted by the applicant on 12 June 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1944 and living in Vienna .

He is represented before the Court by Mr. A. Bammer , a lawyer practising in V i enna .

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as fo l lows.

Since 1975 the applicant has been an irremovable ( unkündbar ) employee of the Austrian Federal Railways ( Österreichische Bundesbahnen ) and worked originally as a train conductor ( Zugsbegleiter ). On 27 November 1985 he was elected staff representative ( Ver ­ trauensmann ) for the list " Eisenbahner aktiv ". The applicant was very active in this position and, in particular, he demanded the use of clean sheets for conductors who had to stay overnight in the trains. He made several proposals of this kind to the internal proposals department ( betriebliches Vorschlagswesen ) and complained that the existing pricing system of train tickets was confusing. His superiors did not take up these proposals or complaints.

As of 10 November 1987 the applicant was transferred from his post as conductor and worked instead as a switch cleaner ( Weichenreiniger ).

On 27 September 1988 the applicant distributed leaflets with the following contents at the Vienna Southern Railway Station ( Wiener Südbahnhof ).

"These are the ways of the railways! Withdrawn from the service, because I made criticisms:

Very often our railways are of no use, stairs too high, connections bad (often there are none), uncomfortable (ugly) waiting rooms, stations too far from the towns, trains not suitable for handicapped people and so on...

Prices too high; rates too complicated; soon nobody will understand.

Practical personnel are diminishing; useless bureaucracy is increasing.

Showing off instead of comfort and the clients feel angry.

(Political) party posts paralyse ideas; practical and friendly co-operation becomes more and more meaningless.

I am looking for brave journalists, associations, individuals. I can offer solutions and stories!

Remark: During 15 years of service I had no culpable accident, no problems with drunkenness, no troubles with travellers, and otherwise caused no harm.

How you can help me:

Tell me about problems, complaints, ideas. Inform me of groups, associations, events. Send this leaflet to newspapers, etc.

My aim:

Simple, practical, comfortable railways, that are locally constructed, with conductors and station stewards."

The applicant distributed this leaflet during his spare time in several halls of the railway station to employees of the Austrian Federal Railways.

Subsequently an Austrian periodical contacted the applicant and asked him whether it was true that he had to clean switches. The applicant confirmed this and also confirmed that he worked at the Vienna Eastern Railway Station ( Ostbahnhof ). On 7 October 1988 a photographer at the periodical took pictures of the applicant cleaning the switches and afterwards he was interviewed. On 13 October 1988 an article was published in the periodical W. with the headline:

"Since a top conductor pointed out grievances within his beloved railways, he was demoted: now he lubricates switches.... How a conductor was thrown off the train".

After the publication of this article the applicant wrote a letter to the publisher which was published in the same periodical on 3 November 1988:

"I would like to thank you very much for the article about my problems. It has thereby become easier to achieve my aim to fight for simply practical railways. Although I have been threatened repeatedly with disciplinary proceedings, I will try to carry through my demand that conductors can sleep in clean sheets during overnight stays, that the price regulations become simpler and easier to understand and that the railways get cheaper for the customers. I will keep the W. informed about my activities."

Thereupon disciplinary proceedings were instituted before the Railway’s Disciplinary Committee ( Disziplinarkammer ) against the applicant.

On 5 December 1988 the Disciplinary Committee found that the applicant had infringed the Disciplinary Regulations of the Railways ( Disziplinarordnung ) in that he had distributed leaflets in public which were likely to harm the reputation of the Austrian Federal Railways and its employees, that he had taken a journalist in dangerous circumstances to the area of the switches, and that he had discussed internal matters in a letter to the publisher of a magazine. Under Sections 18 and 26 of the Regulations, an employee of the Federal Railways has to respect and pursue the interests of the service, refrain from disparaging his superiors, must keep confidential all issues relating to the service and must not publish in the media or otherwise matters relating to his service without prior authorisation. The Disciplinary Committee ordered the applicant’s dismissal as a disciplinary sanction.

On 30 January 1989 the Superior Disciplinary Committee ( Disziplinaroberkammer ) confirmed the applicant’s dismissal on disciplinary grounds.

On 27 July 1989 the applicant filed an action for the annulment of his dismissal with the Vienna Labour Court ( Arbeitsgericht ). He requested the court to declare that his employment contract was still valid, that the Federal Railways had to re-employ him under the previous conditions and had to pay the outstanding salary. The applicant submitted that he was a staff representative and therefore could not be dismissed without the prior consent of a court.

Subsequently court hearings took place on 25 September 1989, 23 November 1989, 23 April 1990 and 18 June 1990. At the hearing of 23 November 1989, the court decided to obtain expert evidence on the question whether the applicant had full capacity to act. The expert reports which answered this question in the affirmative were submitted on 29 January 1990 and 21 February 1990.

In a court hearing which took place on 27 August 1990, the parties concluded a friendly settlement. The next day, however, the applicant revoked the settlement.

In the subsequent hearing on 12 November 1990, the court suspended the proceedings pending the decision of the Supreme Court ( Oberster Gerichtshof ) in a similar case dealing with the question of whether the Disciplinary Regulations of the Federal Railways were applicable to employment relations within the Federal Railways. The Labour Court considered this decision relevant because the applicant’s dismissal would not have been lawful if the Supreme Court rejected the applicability of the Disciplinary Regulations. The Federal Railways undertook to inform the applicant about the outcome of those proceedings. The present proceedings were only to be continued upon the request of one of the parties. The parties waived their right to appeal against this decision.

By letter of 14 March 1991, the Federal Railways informed the Labour Court about the Supreme Court’s findings in the parallel proceedings. The applicant received this information on 26 March 1991. In its decision of 24 October 1990 the Supreme Court had found that the employment relationship between an employee and the Federal Railways was of a private nature and that the Disciplinary Regulations were part of the employment contract. The matter was remitted to the Court of Appeal in that case.

On 22 May 1992 the applicant requested the continuation of the proceedings instituted by him. On 10 September 1992 a further court hearing took place.

On 3 November 1992 the Labour Court dismissed the applicant’s action on the ground that his claims had become time-barred. It found that the applicant had not requested the continuation of the proceedings in time after 14 March 1991. It was irrelevant that the final decision in the parallel case had been taken on 28 August 1991. On the same day the applicant appealed against this judgment and on 4 January 1993 the defendant company submitted its observations.

On 17 March 1993 the Court of Appeal ( Oberlandesgericht ) granted the applicant’s appeal, quashed the above decision and remitted the case to the Labour Court . It found that the Labour Court ’s decision to suspend the proceedings pending the outcome of other proceedings had not been formulated with sufficient precision, so that the applicant may have had the impression that the relevant event was the final termination of those other proceedings and not the judgment of the Supreme Court. The applicant could not therefore be blamed for not having requested the continuation of the proceedings earlier.

On 25 November 1993, after further court hearings on 27 May 1993 and 8 November 1993, the Labour Court dismissed the applicant’s action. The Labour Court stated that the Conditions of Employment Act ( Arbeitsverfassungsgesetz ), providing special protection for members of the works council ( Betriebsrat ) against their dismissal, did not apply to employees of the Federal Railways. The Labour Court found that the mere distribution of leaflets to employees did not constitute a breach of professional duties. However, in the present case the contents of the leaflet which the applicant had distributed constituted a breach of the professional duty of loyalty, because it was written in a polemical and unobjective manner and, in particular, contained an incitement to other employees to breach their professional duty not to disseminate the company’s internal matters to the public. Furthermore, the applicant had contributed to the publication of an article by a magazine, in which the defendant company had been criticised in a polemical manner. He had not only tolerated the publication of this article but had also approved of it in a letter to the publisher. The applicant’s conduct therefore constituted a serious breach of his professional duty of loyalty vis-à-vis his employer and justified his dismissal.

On 14 February 1994 the applicant appealed. He criticised the assessment of evidence and submitted that the Labour Court had based its finding that the dismissal was justified on grounds which had not been invoked in the disciplinary decision. He also complained that his freedom of expression was restricted on the ground that he was an employee of the Federal Railways.

On 18 May 1994 the Court of Appeal dismissed the appeal. It found that the Labour Court had correctly assessed the evidence taken. Furthermore, the Labour Court had correctly taken into account the published article and the applicant’s letter to the editor, as the disciplinary decision dismissing the applicant also related to those events. In any case, the applicant’s conduct constituted a violation of his professional duties, a fact which he himself had never denied. Although an employee’s freedom of expression must not be unduly restricted by the employer, the expression of opinion must nevertheless not impair the employer’s justified interests. This was especially true in the case of the Federal Railways, since its reputation as a company offering a public service easily suffered from unjustified criticism, in particular when voiced by a company employee.

On 10 October 1994 the applicant lodged an appeal on points of law ( Revision ) with the Supreme Court in which he complained, inter alia , about a restriction on his freedom of expression.

On 11 January 1995 the Supreme Court dismissed the applicant’s appeal. It found that the dismissal was justified by the applicant’s conduct, which constituted a breach of his professional duties. As regards the applicant’s complaint that his freedom of expression was restricted, the Court found that the right to freedom of expression has its limits where the legitimate interests of others are impaired. It was beyond any doubt that the unqualified, disparaging statements made by the applicant in the leaflets impaired the legitimate interests of the Federal Railways.

B. Relevant domestic law

According to the constant case-law of the Constitutional Court (Collection of the Decisions of the Constitutional Court = VfSlg . 3140/1957, 4519/1963, 6125/1970, 8132/1977, 12092/1989) and the Supreme Court (Collection of the Judgments and Decisions of the Labour Courts and the Supreme Court in Labour Law Matters = Arb . 7539, Arb . 7795, Arb . 9310, 9 Ob A 104/88, 9 Ob A 320/89, 9 Ob A 270/90), the relationship between the Federal Railways and their employees is governed by private law. It is basically an employment contract ( Dienstvertrag ) under Section 1151 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ). There exist various regulations issued by the Federal Railways concerning the service, remuneration, pensions and disciplinary proceedings. These regulations, although some of them are published in the Federal Gazette, are not administrative acts but general contract schemes which define the contractual relationship ( Vertragsschablonen ). By accepting the employment contract, an employee also accepts these regulations as a part of it.

In performing the duties under the contract, an employee is subject to instructions from the employer, which specify the manner in which the duties must be performed. Employment contracts may also provide a possibility for the employer to impose disciplinary sanctions. This element must be explicitly mentioned in the contract.

Employment contracts may provide that their termination ( Kündigung ) is not subject to the general rules of the Civil Code (Sections 1159-1160), but may further restrict the right of the parties to give notice, i.e. by requiring specific or important reasons. This possibility does not impair the parties’ right to terminate the contract without notice for important reasons under Section 1162 of the Civil Code, i.e. dismissal ( Entlassung ) or notice to quit ( Austritt ). Important reasons for a dismissal are, inter alia , breaches of the obligations under the employment contract, in particular a breach of the duty of loyalty ( Treuepflichtverletzung ). A breach of the duty of loyalty may include inciting other employees to breach their professional duties, the unfavourable public presentation of employment conditions or other deficiencies in the economic undertaking, or supplying information to the press which runs counter to the economic interests of the employer (see Rummel , ABGB Kommentar , Vienna 1990, Section 1162, Marginal Notes 113, 128, 131 with references to the case-law of the labour courts).

As regards disciplinary proceedings provided for in labour contracts ( betriebliche Disziplinarerkenntnisse ), the Supreme Court in a leading decision (18 September 1980, 4 Ob 67/79, Collection of the Judgments of the Supreme Court in Civil Law Matters = SZ 53/119 = Arb . 9893) found that the ordinary civil courts (labour courts) are competent to decide on disputes relating to disciplinary measures taken by the internal bodies of business undertakings ( Unternehmen ). The courts have to examine whether such disciplinary measures are in conformity with the law and the specific employment contract. They are in no way bound by the decision taken by the disciplinary body, but must verify the facts on which the disciplinary body has based its decision, and determine whether those facts constitute a breach of the employee’s contractual duties. It might be helpful for businesses to have internal disciplinary procedures, but they would have no influence on the subsequent court decisions, since such internal procedures necessarily lack the guarantees of ordinary court proceedings. Internal disciplinary bodies have no powers corresponding to those of the ordinary courts since they cannot compel witnesses to appear or tell the truth under oath.

COMPLAINTS

1. The applicant complains that the disciplinary proceedings against him were unfair because the Disciplinary Committee failed to make the necessary investigations and had wrongly assessed the evidence. Furthermore, the charges laid at the disciplinary proceedings were not confirmed by the Labour Court . The applicant invokes Articles 6 and 7 of the Convention.

2. He further complains under Article 6 § 1 of the Convention about the Labour Court ’s judgment and the alleged unfairness of the proceedings leading thereto. He submits that the Labour Court failed to take necessary evidence and wrongly assessed the evidence before it. Moreover, he complains about the length of the proceedings.

3. Finally, the applicant complains that his dismissal violated his freedom of expression ensured by Article 10 of the Convention. He submits that in his position as a staff representative he had the right to inform his colleagues about his demotion from his post as a train conductor. He also invokes Article 8 of the Convention.

PROCEDURE

The application was introduced on 25 May 1995 and regi s tered on 21 October 1995.

On 26 May 1997 the European Commission of Human Rights decided to commun i cate the application to the respondent Government.

The Government’s written observations were submitted on 3 November 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 12 June 1998.

On 12 December 1997 the Commission granted the applicant legal aid.

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

THE LAW

1. The applicant complains about the unfairness of the disciplinary proceedings and invokes Articles 6 § 1 and 7 of the Convention.

Article 6 § 1 of the Convention, insofar as relevant, reads as follows:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... "

Article 7 of the Convention prohibits retroactive criminal laws and penalties.

The Government submit that the Republic of Austria cannot be held responsible for the activities of the persons acting on behalf of the Federal Railways as it had no legal or actual possibility to influence the disciplinary proceedings and because there was sufficient subsequent judicial control. Moreover, despite the fact that the Federal Railways’ personnel was employed on a contractual basis, the legal position of its employees was comparable to that of civil servants because their conditions of employment were similar. Since disputes relating to the recruitment, career and termination of the service of civil servants do not involve the determination of civil rights and obligations within the meaning of Article 6 of the Convention, Article 6 was not applicable to the proceedings at issue.

This is disputed by the applicant. In his view Article 6 § 1 of the Convention was appl i cable to the disciplinary proceedings leading to his dismissal as, being employed under contract by the Federal Railways, he could not be considered a civil se r vant.

The Court observes that the Federal Railways are owned by the Austrian State However, they are not a branch of government and do not exercise public authority. For the purposes of the prese nt case their role was that of a private employer. Thus, the disciplinary proceedings leading to the applicant’s dismissal were not conducted by a body exercising public power but were internal to the applicant’s work place for the purpose of establishing whether or not he should be dismissed. The decision taken merely constituted a declaration by the applicant’s employer to terminate a labour contract without notice, and it was the task of the ordinary courts to establish whether there existed important reasons justifying the dismissal. In this respect the Court recalls that an individual cannot complain of the actions of a private person or body as such (see no. 47033/99, Dec. 22.6.99, Third Chamber).

This part of the application is therefore incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4.

2. The applicant further complains under Article 6 § 1 of the Convention about the judgment taken by the Labour Court and the unfairness of the proceedings leading thereto.

The Government submit that, for the aforementioned reasons, Article 6 of the Convention was not applicable to the Labour Court proceedings. In any event, the proceedings cannot be regarded as unfair.

The applicant submits that Article 6 applied to the court proceedings. He further claims that the Labour Court failed to take necessary evidence and wrongly assessed the evidence before it. Moreover, the court did not examine his dismissal exclusively on the basis of the grounds invoked in the disciplinary decision, but examined the various possible legal reasons for a dismissal. In his view, this was unfair.

As to the applicability of Article 6 to the present case, the Court recalls that disputes between administrative authorities and their employees who occupy posts involving participation in the exercise of powers conferred by public law do not attract the guarantees of Article 6 § 1 (see the Pellegrin v. France judgment of 8 December 1999, § 67). There can be no doubt that the applicant’s professional duties in his employment with the Federal Railways did not involve the exercise of public powers. Article 6 § 1 therefore applies to the proceedings at issue.

As regards the applicant’s complaint about the judgment of the Labour Court , the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and insofar as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way in which it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (cf. the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, to be published in Reports of Judgments and Decisions 1999).

As regards the applicant’s complaint that the Labour Court incorrectly assessed the evidence before it, the Court recalls that it is for the national courts to assess the evidence before them (see mutatis mutandis the Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, § 89).

As regards the applicant’s complaint that the Labour Court failed to take necessary evidence, the Court observes that the applicant did not specify what additional evidence should have been taken by the Labour Court , and that in his appeal he did not argue that the Labour Court had refused to take evidence he had requested.

The Court finds no indication that the applicant, represented by counsel, could not properly argue his case or that the proceedings were otherwise unfair. In the circumstances of the present case, it cannot conclude that the applicant’s action was arbitrarily dismissed. Accordingly, there is no appearance of a violation of the applicant’s right to a fair hearing under Article 6 § 1 of the Convention

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicant also complains under Article 6 § 1 of the Convention about the length of the Labour Court proceedings.

The Government submit that the case was very complex on account of the large number of the applicant’s submissions. The Government further argue that the delays in the proceedings were attributable to the applicant. In particular, he failed to request properly the continuation of the proceedings after they had been suspended in 1990. The proceedings for which the applicant’s case was suspended finished in 1991, whereas the applicant filed his request for the continuation of his case in May 1992 only. In view of the complexity of the case, the length of the proceedings was reasonable within the meaning of Article 6 § 1.

In the applicant’s view the proceedings lasted unreasonably long. As regards the Government’s criticism of his conduct, he submits that delay was caused by the defendant which, when the case was suspended, undertook to inform the applicant once the parallel proceedings were terminated by a final judgment. However it did not do so, and was therefore responsible for a considerable delay. Because of this failure, the Labour Court dismissed his claim as being time-barred and it was then necessary to have this decision amended on appeal, which involved further delay.

The Court finds that the period to be taken into account started on 27 July 1989, when the applicant filed his action, and ended on 11 January 1995, when the Supreme Court dismissed the applicant’s appeal on points of law. The proceedings therefore lasted more than five years and five months.

The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case, namely its complexity, the conduct of the applicant and the conduct of the judicial authorities. An overall assessment of the circumstances of the specific case is required (cf. the Ficara v. Italy judgment of 19 February 1991, Series A no. 196-A, p. 9, § 17).

The Court finds that the applicant’s case was rather complex, as it involved, inter alia , the issue of the precise legal status of the disciplinary regulations of the Federal Railways, an issue which, in a parallel case, had been brought before the Supreme Court. The Court further observes that, at second and third instances, the Austrian courts dealt expeditiously with the applicant’s case, as the Court of Appeal and the Supreme Court gave their respective judgments within three months of being seized.

As regards the proceedings at first instance, the Court notes that they were suspended by the Labour Court , with the explicit consent of the parties, pending the Supreme Court’s decision in another case which had repercussions on the legal issues to be determined in the applicant’s action. This interruption in the proceedings lasted from 12 November 1990 until 22 May 1992, i.e. a period of one year and a half. Thereupon, the Labour Court , on 3 November 1992, dismissed the applicant’s action because it considered that he had not requested the continuation of the proceedings in time. The Court notes that the applicant had not been informed of the final judgment in the parallel set of proceedings. Moreover, the Court of Appeal, on 17 March 1993, quashed the Labour Court ’s decision as it found that the applicant could not be blamed for not having requested the continuation of the proceedings earlier. However, the applicant had been informed of the Supreme Court’s findings in the parallel case as early as 21 March 1991. The applicant was thus not prevented from applying earlier for the continuation of the proceedings, which would certainly have reduced their length.

Furthermore, the Court notes that the Labour Court held ten hearings in the applicant’s case. These hearings were partly necessary for preparing the friendly settlement which the applicant first concluded and then revoked, and partly for taking extensive evidence, which had been requested by the applicant. These hearings took place at regular two month intervals, a period which does not appear objectionable. Only on one occasion was the interval between the court hearings somewhat longer, namely between the hearings of 27 May 1993 and 8 November 1993. However, this element alone is not in itself sufficient to raise a serious issue as regards the reasonableness of the length of the present proceedings.

Having regard to these particular circumstances, and after considering the proceedings as a whole, the Court finds that there is no appearance of a violation of the applicant’s rights under Article 6 § 1 of the Convention to a hearing within a reasonable time.              It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. Lastly, the applicant complains that his dismissal violated his right to freedom of expression, ensured by Article 10 of the Convention. He submits that in his position as a staff representative he had the right to inform his colleagues about his demotion from his position as a train conductor. He also invokes Article 8 of the Convention, which guarantees the right to respect, inter alia , for private and family life.

The Government submit that the applicant’s dismissal did not engage its responsibility. Although the Federal Railways were owned by the State, the latter had neither the legal nor the actual possibility to influence the course of the internal proceedings in the present case. In any event the confirmation of the dismissal by the courts was justified under Article 10 § 2 of the Convention. The measure was prescribed by law as it was based on the Federal Railways’ Service Regulations which were part of the applicant’s employment contract. It pursued a legitimate aim, namely to protect the rights of others, i.e. the Federal Railways as the applicant’s employer, competing with other transport companies, and it was necessary in a democratic society as it was part of the applicant’s duties as an employee to show a certain consideration for his employer. The statements made by the applicant were damaging to the Federal Railways’ interests and unnecessarily harsh.

The applicant submits that the State was responsible under the Convention for all its acts regardless of whether the field of action was within the public sphere or the private sector of the economy. There was an interference with his freedom of expression as his dismissal was based on statements he had made. As regards compliance with Article 10, the applicant submits that the consequences of a breach of his duty of loyalty were imprecisely stated. Furthermore, the protection of the interests of the Federal Railways, operating a monopoly, could not be considered a legitimate aim under Article 10 § 2 of the Convention. The Federal Railways have always been subject to public discussion  sometimes harsh. Thus, the applicant’s dismissal had not been necessary, particularly having regard to the other possible disciplinary measures.

The Court finds that this complaint falls to be examined under Article 10 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema ente r prises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are pr e scribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The Court recalls that Article 10 of the Convention can only be violated if there has been a State interference with the applicant’s rights under the Convention (No. 12242/86, Dec. 6.9.89, D.R. 62, p. 151, at p. 159).

In the present case the applicant’s employer, the Federal Railways, are owned by the Austrian State . However, they are not a branch of government and do not exercise public authority. The employment relationship between the applicant and the Federal Railways was governed by private law, namely the relevant provisions of the Civil Code and the contract concluded by the parties thereunder. Moreover, disputes between the Federal Railways as employer and its employees are subject to the jurisdiction of the Labour Courts which can review in every respect the actions taken by the employer. The Court therefore finds that the decision of the Federal Railways to dismiss the applicant does not, in itself, entail the responsibility of the respondent Government (No. 12242/86, Dec. 6.9.89, D.R. 62, p. 151, at p. 159). However, the upholding of that decision by the Labour Court, relying on the applicant’s statements to justify the dismissal, did interfere with the applicant’s freedom of expression guaranteed by Article 10 § 1 of the Convention. The question therefore arises whether that interference was in accordance with the law and necessary in a democratic society, i.e. proportionate in the pursuit of a legitimate aim envisaged by the second paragraph of Article 10.

The applicant’s dismissal from his employment was based on Section 1162 of the Civil Code, which provides that a contract of employment may be terminated without notice for important reasons. Such reasons, according to the Labour Court ’s case-law, may include a breach of loyalty by the employee. In the present case the Austrian courts found that the applicant’s conduct, the distribution of his leaflet, its content and his letter to the editor of a magazine in which he criticised the services and performance of his employer in disparaging terms, constituted a breach of his professional duty of loyalty. The Court finds that the applicant’s dismissal was in accordance with the law, within the meaning of Article 10 § 2 of the Convention.

The Court is satisfied that Austrian law as interpreted by the Austrian courts, takes account of the necessity to secure an employee’s freedom of expression against unreasonable demands of loyalty by his employer (see No. 12242/86, Dec. 6.9.89, D.R. 62, p. 151 at p. 161). The Court observes that the applicant did not contribute to a discussion on issues of interest to the general public but harshly and publicly criticised the services and performance of his employer in terms which were likely to harm the latter’s reputation in the eyes of its customers. It does not appear that the Austrian courts, refusing in such circumstances to annul the applicant’s dismissal, failed to protect him against compulsion in matters of freedom of expression which would strike at the very substance of this freedom.

Accordingly, having regard to the circumstances of the case as a whole, the Court finds that the interference with the applicant’s freedom of expression under Article 10 § 1 of the Convention was necessary in a democratic society and proportionate to the aim of protecting the reputation or the rights of others, namely those of the applicant’s employer.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza Registrar President