DISSENTING OPINION OF JUDGE PALM

1.   The applicant ’ s case concerns her reinstatement in the permanent post of shorthand typist at Biarritz Town Hall that she had held previously. The majority has found Article 6 para. 1 (art. 6-1) not applicable because the dispute in question related to her "recruitment", her "career" and "the termination of [her] service" and therefore did not concern a "civil" right within the meaning of Article 6 para. 1 (art. 6-1). In so stating, they are merely referring to a principle that the Court laid down earlier, inter alia in its judgments in the Francesco Lombardo v. Italy and Massa v. Italy cases [4] , and which the majority now explain by the fact that "in the law of many member States of the Council of Europe there is a basic distinction between civil servants and employees governed by private law" (paragraph 43 of the judgment).

Such sweeping, thin reasoning cannot, in my view, justify this case-law, which has the effect of depriving all public servants governed by public law who are involved in a dispute with their "public" employer of the basic procedural safeguards in Article 6 para. 1 (art. 6-1).

2.   It is clear from the Convention ’ s drafting history that neither the Convention nor its Protocols provide a right of access to the public service. The reason why the Contracting States were not willing to commit themselves to the recognition of a right of recruitment to the civil service lies mainly in the difficulty that an international court would have in setting a common standard in matters of recruitment, as recruitment conditions differ considerably in the Contracting States according to national traditions.   

This does not mean that civil servants generally fall outside the scope of the Convention. Indeed, the Court has stated, in its Glasenapp v. Germany judgment of 28 August 1896 (Series A no. 104, p. 26, para. 49), that "as a general rule the guarantees in the Convention extend to civil servants". But it is clear that when access to the civil service lies at the heart of the issue submitted to the Court, it is not covered by the Convention (see the above-mentioned Glasenapp judgment, paragraph 53).

3.   In its previous judgments the Court seems to have used alternatively the terms "public servants" and "civil servants" without any analysis of the consequences for those different categories of employees. In the present judgment the Court systematically uses "civil servants". It is - to say the least - unclear whether the judgment is to be understood as comprising all public servants or just the limited group of "civil servants".   

It is well known that in some States the employment of all public servants employed by the State or by local authorities - from government officials to street-sweepers - is governed by public law. Such persons would, according to the present judgment, be deprived of the safeguards in Article 6 (art. 6) in all disputes with their employer. In other States a more limited group of public servants - mostly high-ranking officials - are subject to public law whilst other employees have private-law contracts. The rights of the latter category will certainly be classified as being "civil" in character.   

The fact that an employment is governed by public law does not in itself prevent the right in issue from being classified as a "civil" right. The Court has found in several cases that only the character of the right is relevant (see, inter alia, the König v. Germany judgment of 28 June 1978, Series A no. 27, p. 30, para. 90 in fine).

4.   My view is that a dispute relating to a person ’ s employment is "civil" in nature and therefore, in principle, comes within the scope of Article 6 para. 1 (art. 6-1). It follows from the foregoing that as a general rule this also applies to civil servants.   

Taking into consideration the general object and purpose of the Convention and the reasons for excluding a right of access to the civil service from the safeguards of the Convention, I find that this exception must be interpreted in a restrictive manner. However, I accept that where public servants have been appointed by the State in the exercise of its discretionary powers, disputes relating to the recruitment, careers and termination of their posts do not have a "civil" character and therefore fall outside the scope of Article 6 para. 1 (art. 6-1). This will frequently be the case with civil-servant posts in the public service which involve a certain degree of responsibility or entail the exercise of public authority, where - and when - appointment to the job in question depends on an entirely discretionary assessment or evaluation. But there is no reason to take the same approach to public servants whose job content does not possess such a "public administration" profile.

5.   In the present case it is not a question of access to a civil-service post in the real sense. Miss Neigel already held a post as a shorthand typist and sought to be reinstated in that post according to rules laid down in the relevant legislation. There was no evaluation of her qualifications. She was by law entitled to a post within a certain period of time and she had a right to take the case to the national courts. I can find no valid reason in such a case why the national courts that tried the case should not fulfil the requirements of Article 6 para. 1 (art. 6-1).

6.   Furthermore, to limit the scope of Article 6 para. 1 (art. 6-1) the way the majority does in the judgment will have the consequence that public servants in the member States of the Council of Europe will be unequally protected by the Convention, notwithstanding the similarity of job content.   

In my view, such a difference in respect of Article 6 para. 1 (art. 6-1) between public servants in the Contracting States is unfortunate and unnecessary. The Court ought to give an autonomous interpretation of the meaning of "civil service" for the purpose of Article 6 para. 1 (art. 6-1) so that the same standards can be applied to individuals holding equivalent or similar posts, independently of the employment system in each member State, drawing, for example, on the distinction which has been recognised by the Court of Justice of the European Communities between, on the one hand, posts involving the exercise of public authority and, on the other, posts that do not belong to the category of public administration in the proper sense (see, for example and mutatis mutandis, Case 473/93, Commission v. Luxembourg, judgment of 2 July 1996).

[1] The case is numbered 103/1995/609/697. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997-II), but a copy of the Commission's report is obtainable from the registry.

[4] Francesco Lombardo v. Italy judgment of 26 November 1992, Series A no. 249-B, and Massa v. Italy judgment of 24 August 1993, Series A no. 265-B.