THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27633/95 by Helga STADLER against Austria

The European Court of Human Rights ( Third Section ) sitting on 6 January 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr P. KÅ«ris, 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 21 February 1995 by Helga Stadler against Austria and registered on 15 June 1995 under file no. 27633/95;

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

Having regard to the Commission’s decision of 10 April 1997 to communicate the complaint concerning the length of the proceedings on the applicant’s claim for an allowance and to declare inadmissible the remainder of the application;

Having regard to the observations submitted by the respondent Government on 24 July 1997 and the observations in reply submitted by the applicant on 20 October 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1946 and living in Maria Enzersdorf . She is a civil servant in the Ministry for Agriculture and Forestry ( Bundesministerium für Land- und Forstwirtschaft ).

A. Particular circumstances of the case

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

From 1984 onwards the applicant was the deputy head of the department for internal auditing ( Interne Revision ) in the Ministry for Agriculture and Forestry. From 1 April 1989 to 31 March 1990 S., the head of the department, was on temporary leave and seconded to the Court of Audit ( Rechnungshof ). Initially, the applicant replaced him.

On 16 May 1989 the applicant filed a request with the Ministry of Agriculture and Forestry for an extended extra duties allowance ( Verwendungszulage ) to compensate for her additional work load and responsibility as acting head of the department.

On 27 June 1989 M. was appointed as provisional head of the department for internal auditing. This appointment was made public in August 1989.

On 21 September 1989 the responsible civil servant in the Ministry of Agriculture and Forestry qualified the applicant’s request as one for a simple extra duties allowance ( Verwendungsabgeltung ) and transmitted this request for approval to the Federal Chancellor’s Office ( Bundeskanzleramt ).

On 18 December 1989 the Ministry for Agriculture and Forestry, in a summary decision ( Dienstrechtsmandat ), granted the applicant a simple extra duties allowance for the period from 1 April 1989 until 30 June 1989.

On 3 January 1990 the applicant filed objections ( Vorstellung ) against the summary decision. She submitted that M., head of the department for external auditing, had been appointed as provisional head of the department for internal auditing on 29 June 1989. This appointment was only effective as of 28 August 1989. As she had not been officially removed from her position as acting head of the department, she continued to occupy that position after M’s appointment. Consequently, she was entitled to an extended extra duties allowance after 30 June 1989. Though the calculation of the allowance had to be altered after M. had started to work on 30 August, the allowance could not be cancelled completely. She requested the re-calculation of her "simple extra duties allowance (extended extra duties allowance)".

By letter of 14 February 1990 the Ministry of Agriculture and Forestry informed the applicant that it intended to grant her a simple extra duties allowance for the period from 1 April 1989 until 31 August 1989. It stated that the appointment of M. as provisional head of the department for internal auditing was effective as of 30 August 1989. Therefore the applicant’s function as acting head of the department had ended on 30 August 1989.

On 19 May 1990 the applicant commented on the Ministry’s letter of 14 February 1990. She repeated that she was still acting head of the department for internal auditing, contested that M. had been validly appointed and raised doubts about the compatibility of M.’s functions. She claimed a simple extra duties allowance for the whole replacement period, namely from 1 April 1989 until 31 March 1990.

On 14 February 1991 the Ministry for Agriculture and Forestry granted the applicant a simple extra duties allowance for the period from 1 April 1989 until 31 August 1989 and dismissed her request for an allowance for the period from 1 September 1989 until 31 March 1990. The Ministry found that the applicant had actually been in charge of the department as substitute to the head from 1 April 1989 until 30 August 1989. For this period she was therefore entitled to a simple extra duties allowance.

On 4 April 1991 the applicant, represented by counsel, filed a complaint with the Administrative Court . She submitted that the former head of the department had decided to stay permanently with the Court of Audit. The post of the head of the department was therefore vacant. As she had never been removed from her functions as actual head of the department, and as someone was needed in the department who did not exercise any incompatible functions, she was still the provisional head of the department. Since only the abstract scope of her responsibilities was decisive for the allowance, she had a right to a simple extra duties allowance until 31 January 1991, on which date she had been seconded to the Office of the Parliament ( Parlamentsdirektion ).

On 14 September 1994 the Administrative Court dismissed the complaint. Referring to the provisions of Section 30a §§ 1 (3) and 5 of the Salaries Act ( Gehaltsgesetz ), it found that the only issue to be determined was whether or not the applicant had been entitled to a simple extra duties allowance. She had not complained to the Administrative Court that she had been entitled to an extended extra duties allowance and the case-file did not show that she had been entitled to such an allowance.

B. Relevant domestic law

Section 30 a §§ 1 and 5 of the Salaries Act ( Gehaltsgesetz ), insofar as relevant, reads as follows:

"(1) A civil servant is entitled to an extra duties allowance which has to be taken into account when assessing his pension claim, if he permanently ...

3. has a considerable level of responsibility for the accomplishment of tasks of general administration and if this level of responsibility exceeds the one which is normally connected with a position in an equal grade.

(5) If the civil servant does not permanently perform the duties mentioned in para. 1, but does so for at least a period of one month, he is entitled to an extra duties allowance, which shall not be taken into account when assessing his pension claim ..."

COMPLAINT

The applicant’s complains under Article 6 § 1 of the Convention about the length of the proceedings in the determination of her claim for an extra duties allowance.

PROCEDURE

The application was introduced on 21 February 1995 and registered on 15 June 1995.

On 10 April 1997 the European Commission of Human Rights decided to comm u nicate the applicant’s complaint concerning the length of the procedure to the respondent Go v ernment and to declare inadmissible the applicant’s other complaints.

The Government’s written observations were submitted on 24 July 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 20 October 1997.

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

The applicant complains under Article 6 § 1 of the Convention about the length of the pr o ceedings in the determination of her claim for an extra duties allowance.

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 the dispute between the applicant and the Austrian authorities related to the question whether the applicant continued to hold a certain senior position and was thus entitled to an extra duties allowance. Therefore the dispute only r e lated to her career. To such subject matters, however, Article 6 is not applic a ble.

The applicant submits that the dispute did not concern her career, but pecuniary claims related to the senior position she had held. In the applicant’s view the issue of the present proceedings was to establish whether she had a right to maintain that position and whether she was entitled to the ensuing allowance. It is of particular importance that no discrimination against civil servants because of their professional status be permitted, in particular against those who exercise duties of control and auditing, as they run the risk of discrimination and persecution by the State if they do their job properly. Article 6 of the Convention therefore a p plies to the present case.

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, inclu d ing those posts in State Ministries where the duties of the post involve the exercise of State authority, such as the preparation of legal acts, the implementation of such acts, monitoring of their application and the supervision of subordinate bodies (op. cit., § 40).

The Court notes that in the present case the applicant was a public servant e m ployed as deputy head of the department for internal auditing in the Ministry for Agriculture and Forestry. Thus, she had monitoring as well as supervisory functions within a State Ministry. 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. Furthermore, the Court considers that  despite the fact that an extended extra duties allo w ance has to be taken into account when assessing the pension claim under S.30 a of the Salaries Act  the present dispute cannot be regarded as a dispute concerning pensions, the applicant not yet having retired and therefore not yet having broken the special bond b e tween her and the authorities (op. cit., § 67). It follows that Article 6 § 1 of the Convention is not applicable to the proceedings at i s sue.

The Court concludes, therefore, that the applicant’s complaint is incompatible rat i one materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, by a majority,

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé N. Bratza Registrar              President