Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11334/85

by G. G.m.b.H.

against Austria

The European Commission of Human Rights sitting in private

on 7 January 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 December 1984

by G. G.m.b.H. against Austria and registered on 7 January 1985

under file No. 11334/85;

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

Rules of Procedure of the Commission;

Having examined the case file;

Having regard to:

- the Commission's decision of 9 November 1987 to give notice of

the application to the respondent Government and to invite the parties

to submit observations in writing on its admissibility and merits;

- the Government's observations of 17 February 1988 and the

applicant company's reply of 23 March 1988;

- the Commission's decision of 10 March 1989 to invite the

parties to submit further observations in the light of the

Commission's report of 15 December 1988 on Application No. 11761/85,

Obermeier v. Austria;

- the supplementary observations submitted by the Government on

27 April and by the applicant company on 28 April 1989;

- the Commission's decision of 10 July 1989 to adjourn the case

pending the Court's judgment in the Obermeier case;

- the further supplementary observations submitted in the light

of the Obermeier judgment of 28 June 1990 (Eur. Court H.R. Series A

no. 179) by the applicant company on 16 September and by the

Government on 17 September 1990;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a limited liability company, registered in

Vienna. It is represented by Mr. Barazon and Ms. Birnbaum, both

lawyers practising in Vienna.

All persons working for the applicant company, with the

exception of one, Ms. J.K., are serving under a leasing contract with

the X. Company Ltd. This company has its office at the same address as

the applicant company and all its staff are in fact working for the

latter. A works council (Betriebsrat) is established only at the

X. Company.

By letter dated 14 August 1981, the applicant company gave

notice to Ms. J.K. of the termination of her employment contract with

effect from 30 September 1981. It did not inform the X. Company's

works council. At that time, Ms. J.K. did not bring her case before

the Labour Court.

On 7 December 1981 the works council applied to the

Conciliation Board (Einigungsamt) for declaring the X. Company and the

applicant company an organisational unit (organisatorische Einheit)

within the meaning of Section 34 of the Industrial Relations Act

(Arbeitsverfassungsgesetz).

The Conciliation Board granted the works council's application

on 18 January 1982.

Thereupon, on 17 June 1982, Ms. J.K. filed an action with the

Vienna Labour Court (Arbeitsgericht) against the applicant company.

She claimed that her employment had not been validly terminated in

1981 since the X. Company's works council had not been duly informed.

After conducting a hearing, the Vienna Labour Court declared by

judgment of 3 August 1982 that the notice of 14 August 1981 was

invalid, because the works council had not been informed. The

Court concluded from the evidence that the two companies were an

organisational unit and, in addition, considered itself bound by

the decision of the Conciliation Board.

The applicant company appealed to the Vienna Regional Labour

Court (Landesgericht als Berufungsgericht in arbeitsgerichtlichen

Rechtsstreitigkeiten). It complained that contrary to an earlier case

decided by the Administrative Court (Verwaltungsgerichtshof) the

decision of the Conciliation Board had wrongly been found to have

retroactive effect and that the evidence had not been taken and

evaluated correctly. The appeal (Berufung) was rejected on

9 December 1982.

The Regional Labour Court held that it was bound by the

decision of the Conciliation Board, notwithstanding the fact that the

applicant company had in the meantime challenged that decision before

the Constitutional Court (Verfassungsgerichtshof). The Regional Labour

Court did not approve the approach of the Labour Court which had taken

evidence on this question and had drawn its own conclusions therefrom.

As regards the scope of the Conciliation Board's decision the Regional

Labour Court held that it had retroactive effect because of its

declaratory nature (Feststellungsbescheid). The case where the

Administrative Court had denied a retroactive effect was based on

different facts and could not be compared with the present case. The

Court furthermore held that the Conciliation Board's decision affected

the relationship between the applicant company and Ms. J.K., although

the latter had not been a party to the Conciliation Board's proceedings.

Therefore Ms. J.K. could invoke that decision and seek a judicial

determination that her dismissal was invalid.

The applicant company's further appeal on points of law

(Revision) to the Supreme Court (Oberster Gerichtshof) was rejected

on 22 May 1984. The Supreme Court held that the existence of an

organisational unit at the time of the Conciliation Board's decision

had been established with binding effect. It observed that the

applicant company had not claimed that the situation had been

different at the time of the applicant's dismissal. Therefore there

was no need to consider the issue of retroactivity or the implications

of the Conciliation Board's decision for Ms. J.K.'s employment

contract.

On 7 December 1983 the Constitutional Court dismissed the

applicant company's complaints against the Conciliation Board's

decision. It held that the Conciliation Board had determined the

question whether an organisational unit existed according to the

applicable law, and therefore the applicant company's right to a

decision by the competent judge had not been violated. Nor had the

proceedings been unfair and contrary to Article 6 of the Convention

because the applicant company had in fact been heard. The effects of

the Conciliation Board's decision in the area of labour law were not

to be examined in this case. In any event the applicable provision

(Section 34 of the Industrial Relations Act) did not raise doubts as

to its compatibility with the constitutional right to property.

At the applicant company's request, the case was referred to

the Administrative Court which rejected its complaints on

15 January 1986. Like the Constitutional Court it held that the

applicant company's right to be heard had not been violated. It

furthermore considered that the decision had been taken in full

conformity with Section 34 of the Industrial Relations Act.

COMPLAINTS

1. The applicant company alleges breaches of Article 6

paras. 1 and 3, Article 14 of the Convention and Article 1 of

Protocol No. 1.

2. Under Article 6 para. 1 it submits

- that no "independent tribunal" has determined its civil

rights concerning the preliminary issue, because the courts considered

themselves bound by the decision of the Conciliation Board;

- that the Regional Labour Court showed partiality, because

it took a decision which differed from that taken in a similar case;

- that it did not have a "fair hearing" because the Regional

Labour Court did not conduct new proceedings as required by the

applicable law and because the Supreme Court did not consider its

substantial arguments and limited its decision to an irrelevant side

issue.

3. Under Article 6 paras. 1 and 3 (d) of the Convention the

company complains that the courts did not take the evidence as

requested.

4. The applicant company also alleges a violation of Article 1

of Protocol No. 1. By their retroactive effect the judgments wrongly

obliged the applicant company to pay Ms. J.K. arrears of salary in the

amount of more than AS 800,000.-.

5. Finally, the company complains under Article 14 of the

Convention that, as an employer, it suffered disadvantages compared

with employees.

PROCEEDINGS

The application was introduced on 10 December 1984 and

registered on 7 January 1985.

On 9 November 1987 the Commission decided that, in accordance

with Rule 42 para. 2 (b) of its Rules of Procedure, notice should be

given of the application to the respondent Government and that they

should be invited to submit observations in writing on the

admissibility and merits before 12 February 1988.

The Government submitted their observations on 17 February 1988

and the applicant company replied thereto on 23 March 1988.

On 10 March 1989 the Commission invited the parties to submit

before 28 April 1989 supplementary observations in writing in the

light of the Commission's Report of 15 December 1988 concerning

Application No. 11761/85, Obermeier v. Austria.

The applicant company submitted supplementary observations

on 27 and the Government on 28 April 1989.

On 10 July 1989 the Comission decided to adjourn the case

pending the decision of the European Court of Human Rights in the

Obermeier case. The Court gave its judgment on 28 June 1990 (Series A

no. 179).

On 4 July 1990 the parties were invited to submit before 17

September 1990 further supplementary observations in the light of this

judgment. The applicant company did so on 16 September and the

Government on 17 September 1990.

THE LAW

1. The applicant company complains of the Labour Court

proceedings brought against it by Ms. J.K. concerning the termination

of her employment contract. It invokes Article 6 paras. 1 (Art. 6-1)

and 3 (Art. 6-3) of the Convention.

Article 6 para. 1 (Art. 6-1), first sentence provides:

"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."

The Commission finds that the court proceedings complained of,

relating to the employment contract between the applicant company and

Ms. J.K., affected the determination of the applicant company's civil

rights and obligations within the meaning of Article 6 para. 1 of the

Convention. Article 6 para. 3 (Art. 6-3), which the company also

invokes, is not applicable because the company was not "charged with a

criminal offence".

2. Under Article 6 para. 1 (Art. 6-1) the applicant company

complains that its civil rights were not determined by an "independent

tribunal" in that the Labour Courts considered themselves bound by an

administrative decision, namely the decision of the Conciliation Board

according to which the enterprises of the applicant company and the X.

Company formed an organisational unit within the meaning of Section 34

of the Industrial Relations Act.

The applicant company claims that the Conciliation Board's

decision by which the Labour Courts considered themselves bound

involved a determination of its civil rights which was neither

reviewed by the Labour Courts nor subject to a sufficiently wide

judicial review by the Administrative Court.

The Government deny that the Conciliation Board's decision

concerned a determination of the applicant company's civil rights,

being a decision on a matter of industrial relations which had only

remote consequences for the applicant company's civil rights. Even if

the decision could be regarded as involving a direct determination of

the applicant company's civil rights, the Administrative Court's

review of this decision was sufficiently wide in scope. The

Administrative Court could review not only the lawfulness of the

decision, but also questions relevant for the establishment of the

facts, since in the present case the administrative authority did not

enjoy such wide discretionary powers as in the Obermeier case (Eur.

Court H.R. judgment of 28 June 1990, Series A no. 179).

In the light of the parties' observations, the Commission

considers that the applicant company's above complaint raises complex

and difficult questions as to the interpretation of Article 6 para. 1

(Art. 6-1) of the Convention. The applicant company's above complaint

therefore cannot at this stage be declared manifestly ill-founded

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

Convention, but requires examination as to its merits, no other ground

of inadmissibility having been established.

3. The applicant company further complains under Article 6

para. 1 (Art. 6-1) that the Regional Labour Court showed partiality in

that it took a different decision from that adopted by the

Administrative Court in a similar case. However, having regard to the

reasons of the Regional Labour Court's decision, the Commission finds

that no particular grounds have been shown to assume that the judges

of the Court were biased against the applicant company. This part of

the application is therefore manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention.

4. The applicant company finally complains under Article 6

para. 1 (Art. 6-1) that the proceedings were unfair in that certain

requests for evidence were rejected, and because the Supreme Court

allegedly failed to deal with essential arguments submitted by the

applicant company. However, these complaints have not been

substantiated. The applicant company has failed to show that relevant

evidence or submissions were disregarded in an unfair manner. It

follows that this part of the application, too, is manifestly

ill-founded.

5. The applicant company invokes Article 1 of Protocol No. 1

(P1-1) claiming that, as a consequence of the above court decisions,

there has been an unjustified interference with its property rights.

However, the Commission notes that these decisions only concerned a

finding that an employment contract was not to be regarded as validly

terminated. Although this finding had financial repercussions

for the applicant company, the relevant court decisions did not

themselves involve any interference with its property rights.

Moreover, the guarantee of peaceful enjoyment of possessions as

stipulated in Article 1 of Protocol No. 1 (P1-1) only protects existing

property rights, but does not, in principle, affect the courts' power

to adjudicate claims raised in litigation between private parties (cf.

mutatis mutandis, No. 1420/62, Dec. 18.12.63, Coll. 13, p. 91;

No. 11460/85, Brigandi v. Italy, Comm. Report 6.12.89, paras. 67-69;

No. 11491/85, Zanghi v. Italy, Comm. Report 9.12.89, paras. 39-41;

No. 11634/85, Santilli v. Italy, Comm. Report 6.11.89, paras. 50-53).

The Commission therefore considers that Article 1 of Protocol No. 1

(P1-1) is not applicable in the present case, and that this part of the

application must accordingly be rejected under Article 27 para. 2

(Art. 27-2) as being incompatible, ratione materiae, with the

provisions of the Convention.

6. The applicant company finally invokes Article 14 (Art. 14) of

the Convention, claiming that it was discriminated against as an

employer in comparison to an employee. However, Article 14 (Art. 14)

applies only to discrimination in the enjoyment of one of the rights

guaranteed in the other Articles of the Convention. The only other

provision which could possibly be relevant in the present case in

connection with Article 14 is Article 6 para. 1 (Art. 14+6-1),

Article 1 of Protocol No. 1 (P1-1) having been found to be

inapplicable. The company's above complaint therefore can only be

considered insofar as it involves an allegation of unjustified

differential treatment as regards the procedural rights of employers

and employees.

However, the Commission finds that, in this respect, there is

no substantially different treatment of these two groups of persons.

In particular, there is no appearance that employers are in a worse

position than employees as regards the court's assumption of a binding

effect of administrative decisions. If the Conciliation Board, in the

present case, had taken a decision favourable to the applicant company

and had denied the existence of an organisational unit, that decision

would have been considered as binding by the courts in exactly the

same way as the actual decision. It follows that there is no

discrimination between employers and employees regarding their

procedural rights under Article 6 (Art. 6) of the Convention.

Accordingly this part of the application is again manifestly

ill-founded.

For these reasons, the Commission unanimously

1. DECLARES ADMISSIBLE, without prejudging the merits of the

case, the applicant company's complaint that with regard to

the determination of the preliminary issue decided by the

Conciliation Board it did not enjoy the guarantees of a

judicial procedure in conformity with Article 6 para. 1

(Art. 6-1) of the Convention;

2. DECLARES the remainder of the application INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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