Lexploria

Information Note on the Court’s case-law 96

April 2007

Vilho Eskelinen and Others v. Finland [GC] - 63235/00

Judgment 19.4.2007 [GC]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Dispute regarding police personnel’s entitlement to a special allowance: Article 6 applicable (new approach in cases involving civil servants)

Facts : The original applicants worked for a district police authority, five of them as police officers and one of them as an office assistant. Under a collective agreement of 1986, they were entitled to a special allowance for working in a remote area. When that allowance was withdrawn in 1988, they were given individual wage supplements to make up the difference. In 1990, after being moved to another duty station even further away from their homes, the applicants lost their individual wage supplements. They maintained, however, that the Provincial Police Command had promised them compensation. In 1991 the Ministry of Finance refused a request for authorisation to pay each applicant a monthly individual wage supplement of 500-700 Finnish marks (EUR 84-118). The applicants subsequently lodged an application for compensation, which was rejected. They appealed, asking for an oral hearing to prove, among other things, that they had been promised compensation. Their appeal was rejected on the ground that, at the relevant time, only the Ministry of Finance (and not the provincial police command) could authorise compensation. The court also found that no compensation had been awarded in other similar cases. The applicants appealed again, requesting an oral hearing and emphasising that allowances had been granted to other police personnel in similar circumstances. In 2000 the Supreme Administrative Court found that the applicants had no statutory right to the individual wage supplements and that it was unnecessary to hold a hearing, given that the alleged promises made by the provincial police command had no bearing on the case.

In 2006, a Chamber of the European Court relinquished jurisdiction in favour of the Grand Chamber.

Applicability of Article 6(1) – The Government questioned the applicability of Article 6 on two grounds. Firstly, the applicants had no “right” to the wage supplement in question. Secondly, under the Court’s case-law disputes concerning civil servants (such as police officers) and other staff serving in the police administration over their conditions of service were excluded from the ambit of Article 6. As to the first point, the Court concluded that the applicants could claim to have had a right on arguable grounds and that there was therefore no bar to the applicability of Article 6 in this respect. As to the second point, the Court recalled that, with a view to removing uncertainty in previous case-law in this area, in the judgment of Pellegrin v. France of 1999 it had introduced a functional criterion based on the nature of the employee’s duties and responsibilities. The Court had ruled that the only disputes excluded from the scope of Article 6(1) were those concerning public servants whose duties typified the specific activities of the public service in so far as the latter was acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities was provided by the armed forces and the police.

The present case, however, had highlighted that the application of the functional criterion could itself lead to anomalous results. At the material time the original applicants had been employed by the Ministry of the Interior. Five of them had been police officers, this entailing direct participation in the exercise of powers conferred by public law and the performance of duties designed to safeguard the general interests of the State. The functions of the office assistant had been purely administrative, without any decision-making competence or other exercise directly or indirectly of public power. Her functions had not been distinguishable from any other office assistant in public or private employment. On a strict application of the Pellegrin approach it would appear that the latter applicant would enjoy the guarantees of Article 6(1), whereas there was no doubt that the police officer applicants would not. This would be so irrespective of the fact that the dispute was identical for all the applicants.

Having reviewed the operation of the functional criterion introduced in Pellegrin , the Court concluded that it had not simplified the analysis of the applicability of Article 6 in proceedings to which a civil servant was a party or brought about a greater degree of certainty in this area. Pellegrin should be understood in the light of the earlier case-law as constituting a first step away from the previous principle that Article 6 did not apply to the civil service. It reflected the basic premise that certain civil servants, because of their functions, were bound by a special bond of trust and loyalty towards their employer. It was evident from the cases decided since, that in very many Contracting States access to a court was accorded to civil servants, allowing them to bring claims for salary and allowances, even in relation to dismissal or recruitment, on a similar basis to employees in the private sector. The domestic system, in such circumstances, perceived no conflict between the vital interests of the State and the right of the individual to protection.

The Court therefore decided to adopt a new approach in this area, according to which in order for the respondent State to be able to rely on the applicant’s status as a civil servant to exclude the application of Article 6, two conditions had to be fulfilled. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest. The mere fact that the applicant was in a sector or department which participated in the exercise of power conferred by public law was not in itself decisive. In order for the exclusion to be justified, it was not enough for the State to establish that the civil servant in question participated in the exercise of public power or that there existed a “special bond of trust and loyalty” between the civil servant and the State, as employer. The State would also have to show that the subject matter of the dispute in issue was related to the exercise of State power or that it had called into question the special bond. Thus, there could in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of relationship between the particular civil servant and the State in question. There would, in effect, be a presumption that Article 6 applied. It would be for the respondent Government to demonstrate, first, that a civil-servant applicant did not have a right of access to a court under national law and, second, that the exclusion of the rights under Article 6 for the civil servant was justified. In the case under review it was not disputed that the applicants had all had access to a court under national law.

Conclusion : Article 6(1) applicable (twelve votes to five).

Compliance with Article 6 – Reasonable time : The period to be taken into consideration for determining whether the reasonable time requirement had been complied with had started to run on the day the applicants lodged their application with the County Administrative Board, in March 1993, because they could not seize the County Administrative Court before receiving, on their rectification request, a decision which could be appealed against. The proceedings had ended with the Supreme Administrative Court’s decision of April 2000 and had therefore lasted over seven years. There had been delays in the proceedings before the County Administrative Board for which the European Court found no sufficient explanation.

Conclusion : violation (fourteen votes to three).

Lack of an oral hearing : As regards the applicants’ complaint that they had been denied an oral hearing, the Court noted that they had not been prevented from requesting an oral hearing, although it had been for the courts to decide whether a hearing was necessary. The administrative courts had given consideration to the request and provided reasons for not granting it. Since the applicants had been given ample opportunity to put forward their case in writing and to comment on the submissions of the other party, the requirements of fairness had been complied with and there had been no violation of Article 6 on account of the lack of an oral hearing.

Conclusion : no violation (unanimously).

Article 13 – The Court found that there had been no specific legal avenue whereby the applicants could have complained of the length of the proceedings in question with a view to expediting the determination of their dispute. There had therefore been a violation of Article 13 in that the applicants had no domestic remedy whereby they could enforce their right to a hearing within a reasonable time as guaranteed by Article 6.

Conclusion : violation (fifteen votes to two).

Article 1 of Protocol No. 1 alone or in conjunction with Article 14 – The applicants complained that the national authorities and courts had wrongfully applied the national law when refusing their claim. The Court recalled that for a claim to be regarded as an “asset” attracting the protection of Article 1 of Protocol No. 1 it had to have a sufficient basis in national law, for example where there was settled case‑law of the domestic courts confirming it. In the case under review it followed from the implementing instruction that the applicants had not had a legitimate expectation of receiving an individual wage supplement since, as a consequence of the change in duty station, their entitlement to the wage supplement had ceased. Nor was there under the domestic law any right to be compensated for commuting costs. As regards Article 14 of the Convention, there could be no room for its application unless the facts at issue fall within the ambit of one or more of them.

Conclusion : no violation (unanimously).

Article 41 – EUR 2,500 to each of the applicants in respect of non-pecuniary damage.

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