SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46483/99

by Guido PASTORE

against Italy

The European Court of Human Rights ( Second Section) sitting on 25 May 1999 as a Chamber composed of

Mr C. Rozakis , President ,

Mr M. Fischbach ,

Mr B. Conforti ,

Mr P. Lorenzen ,

Mrs M. Tsatsa-Nikolovska ,

Mr A.B. Baka ,

Mr E. Levits , Judges ,

with Mr E. Fribergh, 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 15 February 1999 by Guido PASTORE against Italy and registered on 4 March 1999 under file no. 46483/99;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1945 and currently residing in Rome.

He is represented before the Court by Mr Maurizio De Stefano, a lawyer practising in Rome.

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

The applicant is a member of the Mutual Fund I. (“ Cassa di previdenza e assistenza dei dipendenti della Intercontinentale assicurazioni S.p.A . ”). On 23 March 1998 this fund was incorporated in the Mutual Fund W. (“ Fondo pensione dei dipendenti del Gruppo Winterthur ”).

On 23 May 1998 the applicant introduced a claim before the Rome District Court. Assuming that the decision taken on 23 March 1998 was invalid, he requested the investigating judge to declare the stay of its execution.

In an order of 17 July 1998 the Rome investigating judge accepted the applicant’s claim.

On 31 July 1998 the Mutual Fund I. challenged this order before the Rome District Court. It alleged, inter alia , that as Rule 21 of the Fund’s internal Rules contained an arbitration clause, the matter fell outside the ordinary courts’ jurisdiction.

The applicant contested the Fund’s action, alleging that the latter’s conclusion was contrary to Articles 2, 3 and 24 of the Italian Constitution - guaranteeing the individuals’ fundamental rights, the principle of equality between citizens and the right to defend oneself in trial - and to Article 6 § 1 of the Convention.

In a decision of 25 August 1998 the District Court revoked the order of 17 July 1998. It recalled that a distinction should be drawn between “ordinary” and “extraordinary” arbitration clause (“ clausola di arbitrato rituale o irrituale ”). The first one was a substitute for the State’s jurisdiction, aimed at obtaining a decision replacing a judgment, while the latter was a private agreement by which the parties conferred to an arbitrator the power to settle a litigation between them. An interim measure, such as the stay of execution, could be adopted only when an “ordinary” arbitration clause was at issue. Having found that the clause contained in Rule 21 of the Fund’s internal Rules was an “extraordinary” one, the District Court declared that the action introduced by the applicant fell outside its jurisdiction ratione materiae . As the internal Rules had been freely accepted by the parties, the court considered that there was no appearance of a violation of the provisions invoked by the applicant.

This decision was final and not subject to any appeal. However, the Mutual Fund I. decided to convene a members’ assembly in order to take a new decision on the incorporation. According to the applicant, this was tantamount to an implicit acceptance of his complaints concerning the lawfulness of the decision of 23 March 1998. 

COMPLAINT

The applicant considers that the decision of 25 August 1998 had deprived him of his right of access to a court. He invokes Article 6 § 1 of the Convention.

THE LAW

The applicant considers that the decision of 25 August 1998 prevented him from obtaining the interim measure he had sought and therefore impaired the essence of his right of access to a court. He invokes Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“ In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal “.

The applicant observes that the difference between “ordinary” and “extraordinary” arbitration clause has no solid grounds in Italian law and that in a number of cases an interim measure was adopted even if an “extraordinary” clause was at issue. He alleges that given this background, his acceptance of the Fund’s internal Rules could not be interpreted as an unequivocal waiver of  his right to a tribunal.

The Court recalls that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, inter alia , the Edificaciones March Gallego S.A. v. Spain judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 290, § 33).

In signing the arbitration clause, the applicant waived his right to bring the disputes against the Mutual Fund I. before an ordinary court. A waiver of this kind, which is frequently encountered in the Contracting States’ domestic legal systems, has undeniable advantages for the individual concerned as well as for the administration of justice, and does not in principle offend against the Convention (see the Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 25, § 49). In particular, the right of access to court may be renounced in civil matters in favour of arbitration, provided this is done freely (see Eur. Comm. HR, N° 10881/84, Dec. 4.3.87, D.R. 51, pp. 83, 101).

In the present case, nothing suggest that the arbitration clause was imposed on the applicant under duress or constraint. The Court accordingly finds that there is no appearance of a violation of Article 6 § 1 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with paragraph 4 of this same provision.

For these reasons, unanimously, the Court

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis

Registrar President