DISSENTING OPINION OF JUDGE PEKKANEN

1. I regret that I cannot agree with the majority of the Court as regards the applicability of Article 6 of the Convention in the present case. I have previously expressed my view in my dissenting opinions in the cases of Spurio, Gallo, Zilaghe, Laghi, Viero, Orlandi, 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). Judge Palm had already expressed the same view, based on somewhat different reasoning, in her dissenting opinion in the case of Neigel v. France (see the Court’s judgment of 17 March 1997, Reports 1997-II). My intention had been to refer to Judge Palm’s opinion in the above-mentioned Italian cases, but that reference was by mistake omitted.

2. According to the case-law of the Court, Article 6 § 1 is applicable in disputes where the private-law features predominate over the public-law features (see, for example, the Feldbrugge v. the Netherlands judgment of 29 May 1986, Series A no. 99, p. 16, § 40). In the above-mentioned Italian cases the public-law features were considered by the majority to predominate mainly because in the law of many European States a distinction is drawn between civil servants and employees governed by private law. This difference has led the Court to hold that “disputes relating to the recruitment, careers and termination of service of civil servants are as a general rule outside the scope of Article 6 § 1” (see, for instance, paragraph 18 of the judgment in the Spurio case cited above).

This does not, however, mean that civil servants generally fall outside the scope of the Convention. Indeed, as the Court stated in its judgment of 28 August 1986 in the case of Glasenapp v. Germany (Series A no. 104, p. 26, § 49), “as a general rule the guarantees in the Convention extend to civil servants”. On the other hand, when access to the civil service lies at the heart of the issue submitted to the Court, the facts complained of are not covered by the Convention (ibid., p. 27, § 53).

A civil servant is, accordingly, 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 (see paragraph 18 of the judgment in the Spurio case cited above).

The term “civil servant” is used in the present judgment, as in the judgments in the above-mentioned Italian cases, without any definition. Accordingly, it must be deemed to cover all administrative officials in the service of the State or local authorities who are not employed under a private-law contract.             

This conclusion entails two problems.

Firstly, the duties of the civil servant in question are not taken into account. The rule covers all civil servants from the lowest office cleaner with only menial duties to the highest officials who have, for instance, the power to exercise public authority. In my opinion there are adequate reasons to exclude from the protection of Article 6 § 1 only those civil servants who belong to the latter group. States have an understandable and acceptable interest in deciding on their recruitment, careers and termination of service without being subject to judicial control.

Secondly, there are States where employees performing public services are covered partly by public-law and partly by private-law contracts, though their duties are the same. According to this Court’s case-law, all those employees of the State who are governed by public law would be partly deprived of the safeguards in Article 6 while their colleagues employed under private law would enjoy the benefit of that protection. The civil servants in several European States would thus be unequally protected by the Convention, notwithstanding the similarity of their duties.

3. The Court ought to proceed on the basis of an autonomous interpretation of the notion of “civil service” for the purposes of Article 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. 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).

4. In the present case the duties of the civil servant in question did not involve the exercise of public authority. I therefore find Article 6 § 1 to be applicable.