JOINT CONCURRING OPINION OF JUDGES TULKENS, MARUSTE AND FURA-SANDSTRÖM

(Translation)

Our concurring opinion concerns only the issue of the applicability of Article 6 § 1 of the Convention to the dispute which, in this case, was between the applicant and the State. While the Chamber, in its decision of 13 January 2004 ( Martinie v. France (dec.), no. 58675/00, ECHR 2004-II), based its decision mainly on the special nature of the dispute between the applicant and the State, the Grand Chamber judgment is confined – very classically – to examining the applicant’s post and the nature of the functions and responsibilities attached to it (see paragraph 30 of the present judgment).

1. Without calling into question the judgment in Pellegrin of 8 December 1999 ([GC], no. 28541/95, ECHR 1999-VIII), we think that the reasoning adopted by the Chamber could have been developed by the Grand Chamber which would then have made a useful contribution to the interpretation of that judgment and the case-law that has followed on from it. From that point of view, the following points appear to us to be relevant.

In order to solve the difficulties raised by the previous case-law and put an end to the uncertainty surrounding the application of the guarantees of Article 6 § 1 to disputes between a State and its servants, the Court considered in Pellegrin that disputes between the authorities and the public servants in their employ – whether established or employed under contract – were excluded from the scope of Article 6 § 1 if the post in question “entail[ed] – in the light of the nature of the duties and responsibilities appertaining to it – direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities” ( Pellegrin , § 66). The Court specified, however, that “[i]n so doing, [it would] have regard, for guidance, to the categories of activities and posts listed by the European Commission in its communication of 18 March 1988 and by the Court of Justice of the European Communities” (ibid.), in the context of an interpretation of Article 48 of the EEC Treaty on the freedom of movement for workers within the Community. That provision entails “the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work” (Article 48 § 2) and includes, among other things, the right – subject to certain limitations – “to accept offers of employment actually made” (Article 48 § 3). Since Article 48 § 4 specifies that these provisions are not applicable “to employment in the public service”, the Court of Justice of the European Communities has held that this derogation applies only to jobs which meet the above criterion, that is to say those that involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities (see Pellegrin , §§ 37-41, to which § 66 cross-refers).

The wording of Pellegrin and the references to Article 48 of the EEC Treaty and the position adopted by the European Commission and the Luxembourg Court show that the criterion of “participation in the exercise of powers conferred by public law” was established by the Court in order to determine whether a dispute relating to the employment – recruitment, career or termination of service – of a public servant, whether established or employed under contract, falls outside the scope of the “civil” head of Article 6 § 1. This was, moreover, the subject of the domestic proceedings in issue in Pellegrin (which mainly concerned an application to have set aside a decision of the Ministry of Cooperation and Development, by whom the applicant was employed, terminating his contract and removing his name from the list of the Ministry’s establishment) and in Frydlender v. France ([GC], no. 30979/96, ECHR 2000-VII), in which the Grand Chamber of the Court endorsed the decision in Pellegrin (the domestic proceedings mainly concerned applications to have set aside decisions of the Ministry of the Economy and Finance, which was the applicant’s employer, not to renew his contract).

Where a dispute concerns the recruitment, career or termination of service of public service employees called upon to participate in the exercise of powers conferred by public law, the “rights and obligations” in question are necessarily and directly part of the “special bond of trust and loyalty” that the State has a legitimate interest in requiring of these servants; that is why the “rights” or “obligations” in question have a distinctly “public” aspect rather than a “civil” one for the purposes of Article 6 § 1 of the Convention (see Pellegrin , § 65). It cannot be assumed, however, that all other disputes between public servants and the administrative authority employing them necessarily concern “rights” or “obligations” relating to a relationship of that type. In other cases, in judging whether or not a “civil” right is in issue, the features of private law and public law present in the case have to be weighed against each other, in accordance with the general method established by the Court; this is all the more necessary since, as the Court stressed in Pellegrin (§ 64), the exceptions to the safeguards offered by Article 6 § 1 have to be interpreted restrictively. It should be observed, moreover, mutatis mutandis , that on retirement employees break the special bond between themselves and the authorities, and then – as acknowledged in Pellegrin – find themselves in a “situation exactly comparable to that of employees under private law in that the special relationship of trust and loyalty binding them to the State has ceased to exist” (§ 67, in fine ).

In the present case the applicant appealed to the Court of Audit against a judgment of a regional audit office levying a surcharge against him. The Court of Audit had to consider whether the regional audit office had correctly found that the applicant had negligently caused a loss to the Lycée René-Cassin in Bayonne by failing to carry out all the checks that he was required to undertake as the school’s accountant, and was accordingly financially liable to make good the deficit from his own assets. Although the surcharge, which was the subject of the dispute in this case, related to the functions entrusted to the applicant as a public accountant, it was not intended to bear any relation to his career as such and was, clearly, totally unrelated to his recruitment or termination of his service. It could therefore reasonably have been argued that the criterion known as “participation in the exercise of powers conferred by public law”, established in Pellegrin , was irrelevant here.

2. On a more general level, the fact is that the Court is more and more frequently confronted with the question of the scope or, more specifically, the limits or frontiers of the judgment in Pellegrin .

In this case the issue that needs to be determined is whether any dispute between a public servant and the authorities employing him or her falls outside the scope of Article 6 where the post involves “direct or indirect participation in the exercise of powers conferred by public law” or only disputes relating to the post of the person concerned. Thus, for example, in the former case a policeman or police officer who is in litigation with the authority employing him on grounds of the insalubrious condition of his official residence could not, on account of his status, rely on Article 6 § 1 to claim a right of access to a tribunal. Nor, for example, could a soldier who has obtained judgment awarding him a transport allowance rely on Article 6 § 1 to seek enforcement of it, on account of his status as a soldier. Taken out of context, a literal interpretation of Pellegrin , which refers to “no disputes between administrative authorities and employees who occupy posts involving participation in the exercise of powers conferred by public law” (§ 67), might well lead to results that are unreasonable and contrary to the purpose and aim of the Convention.

In other cases it needs to be determined, for the purposes of applying Article 6, whether the post typifies the specific activities of the public service . As Judge Caflisch observed in a concurring opinion, in which he was joined by Judge Bîrsan, in Strungariu v. Romania (no. 23878/02, 29 September 2005), the distinction proposed by the Court’s new case-law between duties which participate and those which do not participate in the exercise of powers conferred by public law “is not that easy to apply in all situations” (see point 9). Moreover, the Court does not always agree to exclude automatically members of the police or the armed forces whose activities are, however, presented in Pellegrin (§ 66) as “manifest example[s]” of the exercise of powers conferred by public law, and, in Zisis v. Greece ((dec.), no. 77658/01, 17 June 2004), it joined the examination of the objection to the merits.

We therefore think that, sooner or later, the Court will again be required to consider the scope of application of Article 6 of the Convention. The application Eskelinen and Others v. Finland may give it the opportunity to do so in the sphere of the civil service. For our part, we think that the raison d’être and justifications for the exclusion of certain categories of public servants from the guarantees of a fair trial should now be fundamentally reviewed in the light of Article 47 of the Charter of Fundamental Rights of the European Union, which provides: “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.”