FIFTH SECTION

DECISION

Application no. 19555/10 David COISSON against Germany

The European Court of Human Rights (Fifth Section), sitting on 29 January 2019 as a Committee composed of:

André Potocki, President, Angelika Nußberger, Mārtiņš Mits, judges, and Milan Blaško, Deputy Section Registrar ,

Having regard to the above application lodged on 9 April 2010,

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

1. The applicant, Mr David Coisson, is an Italian national who was born in 1974 and lives in Sovizzo. He was represented before the Court by Mr U.A. Weber, a lawyer practising in Berlin. The German Government (“the Government”) were represented by their Agent, Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection .

2. The applicant complained under Articles 6 § 1 and 13 of the Convention that he had no access to German courts.

3. On 22 September 2016 the application was communicated to the Government.

4. The Italian Government, after being informed about the application in view of the applicant ’ s nationality (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), did not wish to intervene.

A. The circumstances of the case

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

6. On 19 February 2008, the applicant applied to become a patent examiner with the European Patent Office (“the EPO”) in Munich and was invited on that same day to attend an initial interview. He passed the technical and linguistic tests and was referred to a private physician, Dr T., for a medical examination which took place on 10 March 2008. Following the examination, Dr T. prepared a medical report which essentially confirmed the applicant ’ s existing congenital heart defect and the surgical interventions that had been carried out. The report contained no other specific comments regarding the applicant ’ s fitness for the post for which he had applied at the EPO.

7. By means of a letter sent by ordinary mail dated 29 May 2008 and signed by the Human Resources Manager, Ms B.C., the applicant ’ s job application was rejected. The letter of 29 May 2008 stated that the applicant had not passed the medical examination. He was invited to contact Dr K., the Medical Adviser at the EPO, to learn about the medical grounds for this decision.

8. The applicant, who was living in the United Kingdom at that time, never received the letter.

9. On 3 June 2008, Ms B.C. called the applicant, told him that he had passed the technical and linguistic tests but not the medical examination and informed the applicant of the possibility of asking Dr K. to explain the medical grounds for the decision.

10. In an email sent to Ms B.C. on 23 June 2008, the applicant referred to the telephone call of 3 June 2008 and enquired about the explanation that he had not yet received from Dr K. He then wrote,

“I must admit that I was surprised to receive a negative answer since (...).

It was quite strange to receive a negative reply...”

11. On 19 August 2008, the applicant received a letter from Dr K. which contained medical records and a document dated 18 April 2008 signed by Dr K. On this document, headed “Result of medical examination before employment”; a box labelled “UNFIT” had been ticked.

12. In a telephone call on 4 September 2008, Dr K. told the applicant that, on account of his cardiological history, there was reason to assume that he would suffer early invalidity and that, for this reason, the EPO could not conclude a permanent contract of employment with him.

13. In an email dated 17 September 2008, Ms B.C. wrote the following to the applicant:

“The success in the initial medical examination is foreseen in our Service Regulations as a pre-condition to become a civil servant of the European Patent Office and is therefore part of your selection procedure. If a candidate fails in an interview or is found not to be fit for the job in the medical examination, he/she is not successful in the selection procedure and cannot receive a job offer. (...)

I regret your disappointment and wish you all the best for the future.”

14. On 17 October 2008, the applicant complained to the European Ombudsman about his rejection by the EPO. The complaint included the following statement concerning the question of whether the applicant had used all internal complaint possibilities:

“I was first told orally that I was considered not fit for the job on the 3rd of June. On the 4th of July I received a written confirmation that I was not fit for the job (without an actual justification of the decision). On the 4th of September I found out that it was to do with my heart condition but the doctor never explained me how I could complain or how I could ask for a second opinion on the matter. When I finally found out on the internet about the staff regulations it was already too late to file a complaint.”

15. In his reply of 5 November 2008, the European Ombudsman stated that he was competent only for complaints relating to the activities of the institutions and bodies of the European Union. This meant that he was not empowered to deal with the applicant ’ s complaint against the EPO, which was part of the European Patent Organisation, an independent international organisation. The Ombudsman went on to state that his office had contacted the EPO ’ s Internal Appeals Committee, which had replied that its appeal proceedings were open only to permanent employees of the EPO. The Ombudsman further informed the applicant that the EPO, in its reply to him, had cited judgment No. 2657 of the Administrative Tribunal of the International Labour Organization (ILO), delivered on 11 July 2007, in which the Tribunal had declined jurisdiction (see paragraph 20 below). The Ombudsman explicitly pointed out that this decision was delivered in a case which was similar to the applicant ’ s.

16. In response to a subsequent letter from the applicant, the Ombudsman stated in a letter dated 11 December 2008 that he had no power to take any further action with regard to the EPO; in particular, he was unable to intervene with its Internal Appeals Committee. He informed the applicant, upon his request, of the address of the EPO Internal Appeals Committee and the email address of Mr H., the EPO ’ s Director of Employment Law.

17. In a letter of 31 July 2009 to the President of the EPO, the applicant asked for information as to which stage he had reached in the job application process. He also requested a final reasoned decision on his application in the event that it had been rejected. The applicant also asked that his letter be treated as an internal appeal in the event of his not receiving a reply by 1 September 2009.

18. The EPO replied to this letter by registered mail on 30 September 2009. In its reply, the EPO pointed out that the final decision requested by the applicant had already been commun icated to him on 29 May 2008. A copy of the letter of 29 May 2008 was annexed to the EPO ’ s reply. Moreover, the decision had been explained to him in telephone calls – with Ms B.C. on 3 June 2008 and Dr K. on 4 September 2008 – and in Ms B.C. ’ s email of 17 September 2008. The EPO went on to explain that the applicant ’ s letter could not be treated as an internal appeal since he had not at any time been an employee of the EPO and had only ever been a job applicant. The case-law of the ILO Administrative Tribunal confirmed this position. An appeal to the EPO would also already be time-barred, since the applicant had not communicated with the EPO for almost a year. For that reason, even if the applicant ’ s letter could be regarded as an internal appeal, it would be rejected as “irreceivable” and unfounded. A complaint could, on the other hand, have been lodged with the ILO Administrative Tribunal but here, too, the time limit of 90 days starting on 29 May 2008, the date of the rejection letter, had already expired. Even if the time limit were deemed to have run from the date of the last contact made by the EPO, that is to say Ms B.C. ’ s email of 17 September 2008, the deadline would now have passed. Moreover, the ILO Administrative Tribunal, which was the final instance in employment disputes between the EPO and its employees, had found that the decision as to whether a candidate met the physical requirements of a post was not within the scope of its competence.

19. On 10 October 2009 the applicant received the letter of the EPO of 30 September 2009.

B. Relevant domestic and international law and practice

20. The relevant domestic and international law and practice have been outlined in the Court ’ s decision in the case of Klausecker v. Germany ((dec.), no. 415/07 , §§ 29-40, 6 January 2015). In that decision the Court also summarised the judgment dated 11 July 2007 of the Administrative Tribunal of the ILO (no. 2657, 103rd session) and of the decision of the Federal Constitutional Court (file no. 2 BvR 2093/05), in which both courts held that complaints by external candidates concerning refusal of employment by the EPO did not fall unde r their jurisdiction (ibid., §§ 12 ‑ 20).

COMPLAINTS

21. The applicant complained under Articles 6 § 1 and 13 of the Convention that he had no access to German courts to complain about the discriminatory rejection of his job application, even though no equivalent protection of his rights was provided by the internal regulations of, and the proceedings at, the EPO.

22. Articles 6 § 1 and 13 of the Convention read, as far as relevant, as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

THE LAW

23. The Government submitted that the application was inadmissible for being lodged after the six-month time-limit prescribed in Article 35 § 1 of the Convention had passed. The Government accepted that no domestic remedies, including a constitutional complaint, had been at the applicant ’ s disposal to complain about the rejection of his job application by the EPO. Therefore, the date the applicant first had – or should have had – knowledge of the measure in question was the date when the six months had started to run. The Government argued that the applicant had been informed about the rejection by letter of 29 May 2008. Even assuming that his assertion that he had never received that letter was true, he had been informed that his job application had been unsuccessful by telephone. The applicant ’ s email of 23 June 2008 proved that on that day, at the latest, he had been aware of the fact that his job application had been unsuccessful. Consequently the application, filed on 9 April 2010, had been lodged out of time and was therefore inadmissible.

24. The applicant argued that the letter dated 29 May 2008 had been communicated to him for the first time as an annex to the letter of 30 September 2009, which he received on 10 October 2009. The prior informal communication between the applicant and employees of the EPO could not be considered as having started the six-month period. Neither the emails nor the telephone calls had constituted a formal and final decision by the EPO, inter alia, because they had included no information concerning the applicant ’ s right to appeal against the decision. Therefore, 10 October 2009 was the date when the applicant had obtained knowledge of the rejection of his job application and his application of 9 April 2010 was lodged inside the time-limit set by Article 35 § 1 of the Convention.

25. The Court reiterates that the six-month time-limit under Article 35 § 1 marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, §§ 156-157, ECHR 2009).

26. Turning to the facts of the present case, the Court notes that both parties agree that it was clear from the outset that no effective domestic remedy was available to the applicant to complain about the allegedly discriminatory rejection of his job application by the EPO. Having regard to the EPO ’ s immunity from jurisdiction of the German (labour) courts within the scope of its official activities and it ’ s findings in the case of Klausecker (cited above, §§ 65-66) the Court sees no ground to reach a different conclusion.

27. The Court therefore has to determine on which date the applicant had knowledge of the rejection of his job application. In that regard it observes that the letter of 29 May 2008 only reached the applicant as an annex to the EPO ’ s letter of 30 September 2009. However, it also observes that the applicant was, prior to that date, informed that his application had been unsuccessful by Ms B.C. of the EPO. On 4 September 2008 the reasons which the applicant considered discriminatory were explained to him by Dr K. and on 17 September 2008 Ms B.C. confirmed again, this time via email, that passing the medical examination was a prerequisite for employment at the EPO. The Court concludes that at the latest on that day – 17 September 2008 – the applicant had obtained all relevant information since he was not only informed about the negative outcome of the application procedure but also about the reasons for it, which formed the basis of the applicant ’ s complaint against the rejection.

28. The Court considers that the argumentation of the applicant that this ‘ informal communication ’ should not be considered a final decision is without merits, in particular because there are no indications in national or international law that rejections of job applications have to – as claimed by the applicant – include information about appeal procedures.

29. The Court also notes that the applicant ’ s statement in his complaint to the European Ombudsman of 17 October 2008 (see paragraph 14 above) shows that he had knowledge of the finality of the decision.

30. Even assuming that the applicant had no knowledge that there were no complaint procedures available to him at the EPO or before the Administrative Tribunal of the ILO, he obtained this information through the response of the European Ombudsman on 5 November 2008.

31. The Court concludes that the applicant had knowledge of the rejection at the latest on 17 September 2008 and of the lack of an EPO internal complaint procedure on 5 November 2008. Therefore, the six ‑ month time-limit ended in any case at the latest on 5 May 2009. His application to the Court lodged on 9 April 2010 has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 February 2019 .

Milan Blaško André Potocki Deputy Registrar President