CONCURRING OPINION OF JUDGE PEKKANEN

1. I voted in favour of the view that Article 6 § 1 of the Convention was applicable in this case, for the reasons set out in my dissenting opinions in the cases of Spurio, Gallo, Zilaghe, Laghi, Viero, Orlandini, Ryllo, Soldani, Fusco, Di Luca and Saluzzi, Pizzi, Scarfò, Argento and Trombetta v. Italy (see the Court’s judgments of 2 September 1997, Reports of Judgments and Decisions 1997-V) and in the case of Huber v. France (judgment of 19 February 1998, Reports 1998-I).

2. As I had the opportunity to state in those cases, the term “civil servant” has been used by the Court in a manner which suggests that it covers all the administrative officials in State or local-authority service who are not employed under a contract governed by private law. A civil servant is, according to the Court’s case-law, protected by Article 6 § 1 only if the dispute concerns, not his or her recruitment, career or termination of service, but, for instance, a purely economic entitlement. In addition, it is a requisite for the applicability of Article 6 § 1 that the discretionary powers of the administrative authority in question should not be in issue. In my opinion, that approach gives rise to drawbacks on two counts.

Firstly, it covers all civil servants without distinction, irrespective of their position in the hierarchy or the type of duties performed. However, States have an understandable and an acceptable interest in deciding such issues, without being subject to judicial control, only in respect of senior officials who exercise public authority.

Secondly, this approach had the result that the civil servants of several member States were unequally protected by the Convention inasmuch as those who were governed by public law were partly deprived of the safeguards in Article 6 while some of their colleagues, employed under private law, enjoyed them, notwithstanding the similarity of their duties.

3. In my opinion, a distinction should be drawn between those civil servants who exercise public authority and those who do not. Such a distinction has been recognised by the Court of Justice of the European Communities (see, for example and mutatis mutandis , case no. 473/93, Commission v. Luxembourg, judgment of 2 July 1996). In the instant case the applicant was a Post Office employee – not exercising public authority – who had sought extended sick-leave and eventually had recourse to the courts, as he was entitled to do under French law. Depriving him of the procedural safeguards enshrined in Article 6 solely on the basis that he was a civil servant would scarcely have been compatible with any conception of fairness and would have been discriminatory vis-à-vis all other potential litigants to whom the same courts are required to afford those safeguards.

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 Benkessiouer case raises once again the problem of the substantive scope of the European Convention.

The reasons given in my dissenting opinion in the Couez v. France judgment of 24 August 1998, Reports of Judgments and Decisions 1998-V, apply, in particular, to paragraphs 29 and 30 of the present judgment (which correspond to paragraphs 24 and 25 of the Couez judgment).

Mr Benkessiouer’s case concerned the arrangements for granting extended sick-leave, the examination of such a case being dependent on the interpretation of the Civil Service Code, on the terms of supervision by the authorities and on the interpretation given by the administrative courts and the appropriate authorities.

The consequences of the decision concerning salary did not mean that the dispute concerned an essentially economic right (see paragraph 30).

Discretionary rights of the authorities were therefore not in issue.

The reasoning I set out in my dissenting opinion in the Couez case therefore applies to this case and my conclusion is the same.

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 a matter for the member States by signing and ratifying a Protocol to the Convention.

[1] Notes by the Registrar

. The case is numbered 95 / 1997 / 879 / 1091 . 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. 94/1997/878/1090.

[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.