DISSENTING OPINION OF JUDGE PETTITI JOINED BY JUDGE GÖLCÜKLÜ

( Translation )

I voted with the minority in favour of the view that Article 6 of the Convention did not apply. The Couez case raised once again the problem of the substantive scope of the European Convention.

In its case-law the Court has clearly stated that the civil service and contentious matters rising under the rules governing the civil service are not within the ambit of the Convention.

The member States are free to adopt a civil service code, the oldest model for which is that of French public law.

As an exception, the Court accepts that Article 6 is applicable where what is in issue is economic matters that are wholly severable from disputes concerning the rules, career criteria and special arrangements etc. and are not merely incidental to the main question before the Court concerning the rules of service (see the Neigel v. France judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II, and the Huber v. France judgment of 19 February 1998, Reports 1998-I).

Another exception is the one concerning exercise of freedom of belief or expression (see the Vogt v. Germany judgment of 26 September 1995, Series A no. 323).

In the instant case, however, there was a dispute over the refusal to grant Mr Couez extended sick-leave and regard as being due to a work-related accident his sick-leave of 8 April 1990, his transfer to the administrative staff, his compulsory leave of absence and his retirement on grounds of invalidity with the legal and financial consequences resulting from the rules of service.

Those questions were connected with career development up to “termination of service”. The dispute was not an essentially economic one.

The nature of the dispute was determined by the decision in domestic law to refuse to grant extended sick-leave and to regard absences from work because of illness as being due to a work-related accident (which gave rise to the dispute). Those issues could only be decided by interpreting and applying the Civil Service Code and following administrative case-law. The case considered by the Court in the Cazenave de la Roche v. France judgment of 9 June 1998, Reports 1998-III, was quite different.

The State’s special rights in this field are the quid pro quo of the considerable advantages enjoyed by civil servants in comparison with private-sector employees (in particular, job security, limited liability, and retirement arrangements). Mr Couez was a civil servant who contributed to the performance of the State’s functions. Since it was held that his absence from work because of illness was not due to a work-related accident, he

could not claim all the welfare benefits that went with that work. His unfitness for active police duties made it necessary to transfer him and send him on leave of absence and subsequently led to the decision to retire him on grounds of invalidity, a logical consequence of the rules. In its judgment of 31 May 1995 the Administrative Court quashed the decisions of 10 July 1992 and 4 September 1992 in so far as they kept Mr Couez on compulsory leave of absence from 25 January 1992 and the decision of 24 January 1992 whereby he had been retired on grounds of invalidity.

All these elements of the dispute and the case are directly problems of applying the rules of service and cannot be equated with economic issues comparable to those in private-sector disputes or separable from the national courts’ assessment of the merits as regards the application of the (national) Civil Service Code.

The argument in paragraph 25 that, unlike the position in the Neigel and Huber cases, reinstatement was not in issue in the instant case does not seem to me to be relevant.

The non-applicability of Article 6 to the Civil Service Code is not restricted to questions of access or reinstatement but also covers legal issues specific to the civil service such as work-related accidents and rules on leave of absence and retirement, which are directly career factors within the civil service.

Speculating on the allowances which the applicant could have claimed if it had been recognised that he had sustained a work-related accident (see paragraph 25 of the judgment) is not a valid reason for departing from the Neigel and Huber case-law, or else it amounts to determining the merits of the case in the place of the national courts, although administrative procedure satisfies the rules on the protection of litigants.

It is obvious that disputes of this kind necessarily have pecuniary or incidentally economic consequences if the plaintiff’s claim is refused, but the same is true of civil disputes that are not serious and they do not suffice to satisfy the criteria of “civil rights and obligations”.

In my view, the judgment errs in noting in paragraph 25 differences between the Neigel, Huber and Couez cases, as what was in issue in all three was the application of the rules and their effects on career and career misfortunes.

To hold that recognition of a work-related accident would have enabled the applicant to be paid his full salary is an inappropriate argument since the problem was precisely that of judging, in the context of the rules and the administrative jurisdiction, whether or not there had been a work-related accident.

If the authority competent in domestic law decides that there has not been a work-related accident, it remains open to the person concerned to bring proceedings in a civil court under the ordinary law.

Contrary to what is stated in paragraph 25, the dispute did indeed put in issue the authorities’ special rights, but the latter are not discretionary in French law: they are the corollary of privileges granted to civil servants by the Civil Service Code.

Since the Chamber did not refer the case to the Grand Chamber, the settled case-law cited in paragraph 24 must, in my view, be considered as still representing the prevailing trend of the European Court of Human Rights’ case-law.

The general principles governing the Civil Service Code and the European Convention were analysed in detail in the Le Calvez v. France judgment of 29 July 1998, Reports 1998-V.

Reference should be made to that as complementing this opinion.

Certainly it might be desirable for European law on the subject to be unified in the future, but such a reform is for the member States to achieve by signing and ratifying a Protocol to the Convention.

[1] Notes by the Registrar

. The case is numbered 94 / 1997 / 878 / 1090 . 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 of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[1] 1. Case no. 95/1997/879/1091.

[3] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.