JOINT DISSENTING OPINION OF JUDGES TULKENS, fischbach, casadevall and thomassen

( Translation )

The Court has decided that Article 6 is not applicable in the present case and that the applicant is accordingly not entitled to have the dispute between himself and the administrative authorities, which has lasted more than nine years, heard “within a reasonable time”.

As the judgment notes, the Court’s case-law on this question has evolved and it has successively adopted a number of different criteria which can be applied to bring the civil service within the scope of Article 6 of the Convention or to exclude it therefrom. In the present case the Court has abandoned the criterion of the economic object of the dispute in favour of a new criterion, namely “participation in the exercise of powers conferred by public law”, based on the nature of the official’s duties and responsibilities.

We share the majority’s desire to “put an end to the uncertainty which surrounds application of the guarantees of Article 6 § 1 [of the Convention] to disputes between States and their servants” (paragraph 61). We also agree with the majority’s view, which is consistent with the Court’s case-law, that the question whether the applicable legal provisions in domestic law form part of public or private law is not decisive (paragraph 62). With regard to such an important matter as access to a court, a difference in the level of legal protection as between those who have the status of civil servants and other persons recruited under a contract of employment who nonetheless frequently perform the same duties under equivalent or similar conditions is difficult to justify and may be arbitrary for the purposes of Article 14 of the Convention in particular. We therefore concur with the majority in emphasising that it is important to ensure equal treatment among public servants, whatever the nature of the legal relation between them and the administrative authorities (paragraph 63).

Subject to the above reservations, we cannot however concur in the reasoning adopted by the majority, or in the conclusion it leads to, for the following reasons.

1. In general, the rights enshrined in the Convention, including the guarantees set forth in Article 6, should be broadly construed, so that any interpretation that would have the effect of limiting them requires objective reasoning of considerable weight. Moreover, the judgment rightly makes that point in paragraph 64, where the Court affirms that it “must adopt a restrictive interpretation, in accordance with the object and purpose of the Convention, of the exceptions to the safeguards afforded by Article 6 § 1”, but in the present case it nevertheless heads off in a quite different direction.

2. For the purposes of applying Article 6 § 1 of the Convention, the Court is going down the road of an autonomous interpretation of the term “civil service” (paragraph 63). Paradoxically, the result will be that “no disputes between administrative authorities and employees who occupy posts involving participation in the exercise of powers conferred by public law attract the application of Article 6 § 1” (paragraph 67).

The new criterion therefore deprives a whole category of persons, those whose duties involve participation in the exercise of powers conferred by public law, of a fundamental safeguard in a State governed by the rule of law, namely the right of access to a court and to a fair hearing. But introducing this exclusion does not form part of the Court’s task. The Convention makes no mention of “civil servants”, even as a term with an autonomous meaning, with a view to depriving them of their right of access to a court.

Moreover, whereas the distinction between civil servants exercising authority and civil servants employed in an administrative capacity, which is drawn in particular in the case-law of the Court of Justice of the European Communities, founded on Article 48(4) of the EEC Treaty, is relevant in the Community’s legal order where it governs exceptions to free movement of persons, it loses most of its relevance where it is a matter of determining what procedural safeguards these two categories should be respectively entitled to. We fail to discern the relation between the criterion used by the Court and the conclusion it seeks to derive from it, except that, over and above any distinction between the private sector and the public sector, the criterion used will create a new type of discrimination between public-sector workers, depending on whether or not they exercise powers conferred by public law.

3. The criterion used by the majority, namely participation in the exercise of powers conferred by public law, is based largely on the reference to a “special bond of trust and loyalty” (paragraph 65). First of all, we do not see how the existence of such a bond can be a sufficiently weighty argument for the purposes of determining the scope of Article 6 since there may be a similar bond in other employment relationships. Why, for example, would it be right for a policeman not to be protected by Article 6 when an employee of a private security service, with the same duties of maintaining order, would be protected? Secondly, we do not understand why someone who participates in the exercise of powers conferred by public law, and who, under domestic law, has access to an independent tribunal in connection with disputes concerning employment, is not entitled to a judicial decision within a reasonable time. Lastly, although loyalty is relevant above all where it is a matter of appointment to or dismissal from the most sensitive public duties, we fail to see why loyalty should make a difference where it is a matter of disputes over salary or other payments.

4. Introduction of the criterion of participation in the exercise of powers conferred by public law does not avoid the risk of arbitrariness and creates a new zone of uncertainty. The present case provides a remarkable illustration of that.

Firstly, if the Court had applied in the present case its case-law on the economic nature of disputes, the applicant would have been protected by the safeguards set forth in Article 6 of the Convention. The object of the claim he submitted to the French courts was economic and the outcome of the proceedings affected economic rights. It was therefore undoubtedly a civil right within the meaning of Article 6 of the Convention and it must accordingly be acknowledged that the applicant has had bad luck...

On the other hand, the task which the judgment sets for the Court, namely to “ascertain, in each case, whether the applicant’s post entails – 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” (paragraph 66), is in practice problematic; in the present case it is significant, moreover, that the judgment does not go beyond the very general statement that the tasks assigned to the applicant “gave him considerable responsibilities in the field of the State’s public finances, which is, par excellence , a sphere in which States exercise sovereign power” (paragraph 70).

Lastly, whereas, for application of the new criterion, the judgment states: “the Court will have regard, for guidance, to the categories of activities and posts listed by the European Commission in its communication of 18 March 1988” (paragraph 66), that approach does not seem to have been followed in the present case. While the European Commission considers that posts in State Ministries involve direct or indirect participation in the exercise of powers conferred by public law, in the present case the judgment merely mentions, as we have just seen, the applicant’s “considerable responsibilities”. Would the question of the applicability of Article 6 have been framed differently if the applicant, as an employee of the Ministry of Cooperation, had not had such responsibilities?

5. We therefore take the view that the problem should be approached from a different angle, in a manner more consistent with both the spirit and the letter of Article 6 of the Convention.

Article 1 of the Convention requires the rights and freedoms defined in it to be secured to “everyone”. The travaux préparatoires on Article 6 of the Convention do not provide a decisive argument as to whether there should be a restrictive or narrow interpretation of the concept “civil rights and obligations”, equating them with private rights and obligations, whereby a whole category of persons, namely members of the civil service, would be excluded from the safeguards it lays down.

Since Article 6 of the Convention expressly provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”, we consider that that provision applies to all disputes that are decisive for a person’s legal position, even if he or she is a civil servant. We can see no valid reason for depriving persons in the public service of the legal protection which is regarded for other workers as a safeguard so essential as to constitute a fundamental right. Salaries, dismissals or transfers are matters which may have a profound influence over people’s lives, including persons working in the public service.

6. The main reason for the exclusion of civil service disputes from the scope of Article 6, which was to a large extent prompted by a State-centred outlook, was to preserve the public authorities’ ius imperii , which was supposedly in danger of being undermined by judicialisation of related disputes. But that justification has now largely lost its significance. Of their own accord most member States have “judicialised” civil service disputes, if not entirely then at least for the most part. To avoid discrimination between the subjects of law the procedural safeguards afforded on that account to civil servants must logically be the same as those applicable to other types of dispute, which incontestably fall within the scope of Article 6. Since the Convention acts as a benchmark, it would be surprising if the institutions charged with its supervision afforded fewer safeguards than the domestic courts.

7. In the present case the decision by the administrative authorities to remove the applicant’s name from the list of participants in the technical cooperation programmes, with the result that his contract was terminated, was decisive for his legal position. The dispute he raised obviously concerned a civil right. If he had been employed in the private sector, the proceedings he sought to bring would have been subject to the requirements of a fair trial, guaranteed by Article 6 of the Convention. Why should it be otherwise because he was working for the State? The applicant lost his job and his remuneration. He was entitled to expect that the courts, to which he had been able to submit his case, would deal with it and reach a decision within a reasonable time.

[1] 1-2. Note by the Registry. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[2] 1. Now Article 39 of the Treaty of Amsterdam, signed on 2 October 1997, which amended the Treaty on the European Union, the treaties instituting the European Communities and certain related instruments.

[3] . Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.