DISSENTING OPINION OF JUDGE CASADEVALL, JOINED BY JUDGE Lōhmus

( Translation )

1. I do not agree with the majority’s conclusion that Article 6 § 1 of the Convention does not apply in this case.

2. My dissent is strengthened by the judgment’s thin reasoning, set out in paragraph 37. In order to reach the conclusion that the right in question was not a civil one and that Article 6 § 1 is not applicable, the Court does no more than list the proceedings brought by the applicant (which concerned not only his being sent on leave and his reinstatement at Paul Eluard Lower Secondary School at Evry but also payment of his salary) and state that the disputes related “essentially” to the applicant’s having been sent on compulsory leave, thereby implying that the financial consequences were only secondary.

3. I do not contest that it is clear from the Court’s case-law that the Convention does not provide for a right of access to the civil service and that issues relating to the “careers” of civil servants – who in most member States of the Council of Europe are subject to public law – are outside the scope of Article 6 § 1, but I do think that this principle should be construed strictly. From the moment that a dispute concerns a person’s employment or the remuneration due to him in respect of it, it falls by nature within the “civil” domain and comes within the scope of Article 6 § 1, whether the person concerned is a civil servant or not.

In the case of Francesco Lombardo v. Italy the Court held: “Notwithstanding the public law aspects pointed out by the Government, what is concerned here is essentially an obligation on the State to pay a pension to a public servant in accordance with the legislation in force. In performing this obligation the State is not using discretionary powers and may be compared, in this respect, with an employer who is a party to a contract of employment governed by private law. Consequently, the right of a carabiniere to receive an ‘enhanced ordinary pension’ if he fulfils the necessary conditions of injury and disability is to be regarded as a ‘civil right’ within the meaning of Article 6 § 1, which is therefore applicable in the present case.” (Judgment of 26 November 1992, Series A no. 249-B, pp. 26–27, § 17)

In the instant case Mr Huber’s claims were for payment of his salary and were essentially economic in nature; they therefore related to a civil right recognised in domestic law. Article 6 § 1 was therefore applicable.

4. My misgivings are not caused solely by the result of applying the case-law to Mr Huber’s case. I observe that the principle leads to discrimination between the employees of the public service both within a given State and at European level, the concept of “civil servant” varying from one Council of Europe member State to another. Depending on the method and conditions of their recruitment and appointment and according as they are subject to public law or private law in the State to which they belong, some employees will possibly be protected by Article 6 § 1 (contract staff and other employees in the public service who do not have the status of civil servant) and others not (civil servants in the strict sense).

To remedy that state of affairs, the Court should at the very least give an autonomous interpretation of the concepts of “civil servant” and “civil service” which underlie the case-law. In that respect I concur in Judge Palm’s opinion in the case of Neigel v. France [5] .

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 160/1996/779/980. 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.

[3] . 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.

[4] . 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.

[5] 1 . Judgment of 17 March 1997, Reports of Judgment and Decisions 1997-II, dissenting opinion, pp. 413–15.