DISSENTING OPINION OF MR G. RESS

JOINED BY MM  E. BUSUTTIL, A.S. GÖZÜBÜYÜK, A. WEITZEL,

J.-C. SOYER, C.L. ROZAKIS, L. LOUCAIDES, M.A. NOWICKI,

I. CABRAL BARRETO, B. CONFORTI, I. BÉKÉS, J. MUCHA, A. PERENIC,

E.A. ALKEMA and R. NICOLINI

1.   This case raises the important issue of relations of the System

of Protection of Human Rights under the ECHR to international

organisations. It raises in particular the question how far State

parties to the ECHR can by subsequent treaties grant immunities from

law suits to international organisations.

     To my great regret I am unable to follow the reasoning of the

majority that in this case the margin of appreciation to limit the

applicants' access to the court has not been exceeded. Quite the

contrary. The applicants did not find a labour court at their disposal

in Germany to determine the merits of their specific legal claims

arising  out of the German Provision of Labour Act (Arbeitnehmer-

überlassungsgesetz). Admitting that States may create international

organisations with specific competence and jurisdiction the States

cannot evade by these treaties their responsibility under the ECHR

which has created an objective European legal order. They must at least

provide "that within the organisation fundamental rights will receive

an equivalent protection "(No. 13258/87, X v. Germany, Dec. 9.2.90,

D.R. 64, p. 138). Immunities of international organisations, created

by subsequent treaties, cannot be considered as a kind of general

unwritten exception to the scope of application of the ECHR. There is

no inherent general exception under the ECHR to institutions of

international public law, which may as far as they are not of a

ius cogens nature be disposed of by the parties of the treaty.

Furthermore we have not here to decide on the rule of state immunity

or diplomatic or consular immunity or other forms of personal

immunities but only on immunities of international organisations

created after the coming into force of the ECHR. If States which are

members of the ECHR become members of such an international

organisation they must ensure that actions and other forms of legal

relations of these organisations do not violate the ECHR at least as

individuals under the jurisdiction of these States are concerned.

2.   Unlike the opinion of the majority I find that the ESA did not

provide a protection which would meet the requirement of Article 6

para. 1. Pursuant to the legal system established under Annex I to the

"ESA-Convention", the European Space Agency apart from the possibility

of waiving its immunity has resorted to various devices to settle

disputes with private parties.  Thus members of staff or experts may

have recourse to an Appeals Board in respect of their conditions of

service.  Arbitration is provided for in respect of disputes concerning

written contracts other than those concluded in accordance with the

Staff Regulations.  Moreover, any Member State may submit to the

International Arbitration Tribunal any dispute, inter alia, arising out

of damage caused by the Agency, or involving any other non-contractual

responsibility of the Agency.   Thus, in various private law disputes

involving the European Space Agency, judicial review may be obtained.

However, the applicants, asserting a right to employment under German

labour law, were not covered by these remedies.  The applicants'

interests did not, therefore, receive a legal protection within the

European Space Agency which could be regarded as equivalent to the

jurisdiction of the German labour courts or at least to the minimum of

a judicial review of their case.

     As regards any other remedies, I note that the Federal Labour

Court referred the applicants to the possibility of requesting the

German Government to bring the applicants' case before the

International Arbitration Tribunal.  Moreover, the Government addressed

the possibility of instituting administrative proceedings against the

German Government in order to enforce such proceedings.  However,

proceedings before the International Arbitration Tribunal, to which the

applicants would not be a party and which would not directly relate to

their claim under the German Provision of Labour Act, cannot be

regarded as an effective legal remedy, for the purposes of Article 6

para. 1.

     The applicants also had, as pointed out by the Government, a

possibility of bringing other legal proceedings, in pursuance of the

relevant provisions of the German Provision of Labour Act, against the

GDP company, the Irish partner in the chain of contractual relations

for hiring the applicants out to the European Space Agency.  Arguing

that their contract with the private company was null and void under

the Provision of Labour Act, they could have claimed compensation in

respect of any damages suffered as a consequence of having relied on

the validity of their contract.  However, such action against a company

seated abroad does not appear a practical solution to the applicants'

problems.  Above all, they could not, in such proceedings, have secured

the right asserted by them, namely an employment contract with the

European Space Agency as borrowing employer.  Accordingly, these

proceedings cannot be regarded as a substitute or the requirement of

access to court.

     It cannot be the essence of the guarantee of access to court, in

particular in labour law matters, to refer the individual to the

possibility of legal procedure abroad or to the possibility of a claim

to damages when he is seeking a judgment on the employment contract or

contractual relation. If this would have to be adopted as the essence

of the right to access to court that would amount to "a right to access

to a court in another contracting State and on another legal claim".

In my view this misconstrues Article 6 para. 1.

     I am aware that the applicants' situation was the direct

consequence of the particular nature of their claim for recognition of

a labour contract with the European Space Agency under the German

Provision of Labour Act, i.e. special legislation enacted for the

German labour market.  However, I find that the question as to whether

and to what extent domestic legislation of this kind can be held

against an international organisation, which regularly enacts its own

staff regulations, cannot be resolved in removing such matters from

judicial review.   In this connection, it must be borne in mind, as

stated in paragraph 70 of the Commission's Report, that the object of

the immunity from jurisdiction accorded to international organisations

is merely to save them from having to litigate unwillingly in national

courts.

     In the light of these considerations, it cannot be said that a

reasonable relationship of proportionality was achieved between the

effects of the rules on immunity accorded to the European Space Agency

on the applicants' interest to have their claim under the German

Provision of Labour Act determined by a court and the legitimate aim

pursued.  Consequently, in providing immunity from jurisdiction to the

European Space Agency, the national authorities exceeded their margin

of appreciation to limit the applicants' access to the courts under

Article 6 para. 1.

     It would have been possible that the German labour courts also

interpret the relevant provisions of the ESA-Convention as to the

effect to bring these in line with the requirements of Article 6. In

particular due regard could and should have been given to the trend in

international public law to restrict state immunity in labour disputes.

There is nothing that warrants a wider application in relation to

immunities of international organisations.

     In these circumstances, I consider that the limitation on the

applicants' opportunity to take legal proceedings against the European

Space Agency amounted to an unjustified denial of their "right to a

court" under Article 6 para. 1.