CONCURRING OPINION OF JUDGE PEKKANEN

I have voted for the applicability of Article 6 § 1 of the Convention in the present case for the reasons set out in my dissenting opinion 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 today’s date).

DISSENTING OPINION OF JUDGE BERNHARDT, JOINED BY JUDGE BAKA

In eighteen cases against Italy which have been decided by the same Chamber at the same time, the Court has found Article 6 § 1 of the Convention applicable in four cases and non-applicable in the remaining fourteen cases.

All cases are concerned with claims brought by civil servants against public or administrative authorities, and they all had financial implications. The Court implicitly takes as its starting-point the general principle stated in its case-law that where a claimed entitlement, including a purely pecuniary one, discloses features of both public and private law, Article 6 § 1 will be applicable if the latter are predominant (see, for example, the Feldbrugge v. the Netherlands judgment of 29 May 1986, Series A no. 99, pp. 13–16, §§ 30–40, and the Deumeland v. Germany judgment of the same date, Series A no. 100, pp. 22–25, §§ 60–74, where the asserted pecuniary claims were for social-security benefits). The reason for the distinction drawn between the four cases in which Article 6 is found to be applicable and those in which it is not is held by the Court to reside in the essentially pecuniary and economic character of the asserted right. I am not convinced by this distinction, and I consider Article 6 of the Convention inapplicable in all eighteen cases, including the present one. To my mind, a proper and adequate delimitation can only be found if in principle all disputes concerning the conditions of employment in the civil service are deemed to fall outside the ambit of Article 6 of the Convention. Such a result is in my view compatible with the existing case-law of the Court.

In its recent judgment in the case of Neigel v. France, the Court observed that “in the law of many member States of the Council of Europe there is a basic distinction between civil servants and employees governed by private law”; and that this had led it in previous judgments 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” (17 March 1997, Reports of Judgments and Decisions 1997-II, pp. 410–11, § 43, and the authorities cited there). The dispute raised by the applicant in the Neigel case – over a refusal to reinstate her to a permanent post in the French civil service – related, so the Court found, to her “recruitment”, her “career” and the “termination of [her] service”. Accordingly, despite the fact that her entitlement to reinstatement was not conditioned by the exercise of discretionary power by the French State, the dispute did not concern a “civil” right within the meaning of Article 6 § 1. Her accompanying pecuniary claim for payment of salary did not attract the application of Article 6 § 1 because its successful outcome was directly dependent on a finding of unlawfulness as regards the refusal to reinstate her (ibid., p. 411, § 44).

As I see it, the phrase “recruitment, careers and termination of service” is to be read as a whole, covering the employment relationship between a civil servant and the State from its inception to its termination. It would be artificial to hold, for example, that pecuniary claims dependent on “career” moves in the narrow sense, such as promotion, transfer and reinstatement, should be outside the scope of Article 6 § 1, whereas those dependent on other aspects of the rules governing remuneration under the employment relationship should not. I fail to perceive how in the latter category the features of private law are predominant if they are not in the former category. In my view, in both categories the features of public law are predominant precisely because of “the basic distinction between civil servants and employees governed by private law”.

It is true that claims for payment of civil-service pensions have been held by the Court to concern “civil” rights within the meaning of Article 6 § 1 (see the Francesco Lombardo v. Italy judgment of 26 November 1992, Series A no. 249-B, and the Massa v. Italy judgment of 24 August 1993, Series A no. 265-B). However, as pointed out in the Neigel judgment, the applicants in these cases were asserting “claims for purely pecuniary rights arising in law after termination of service” (emphasis added) and “the Italian State was not using ‘discretionary powers’ in performing its obligation to pay the pensions in issue and could be compared to an employer who was a party to a contract of employment governed by private law” (loc. cit., pp. 410–11, § 43). In such circumstances, the features of private law, taken together and cumulatively, will confer on an entitlement to a civil-service pension the character of a “civil” right within the meaning of Article 6 § 1.

The undoubted pecuniary character of Mr Nicodemo’s claim for the difference in remuneration, with damages, and the absence of the exercise of discretionary powers by the Italian State are therefore insufficient on their own to warrant the conclusion that the right in issue was a “civil” one for the purposes of Article 6 § 1 of the Convention.

In summary , Article 6 § 1 of the Convention is , in my view , not applicable in this case.

DISSENTING OPINION OF JUDGE MIFSUD BONNICI

I think that the case before the Italian administrative court concerns, in the first place, the question whether the applicant is entitled, according to Italian administrative law, to force the Calabria Regional Council to implement its decision to give him a permanent contract of employment instead of the fixed-term one which he enjoyed. If and when he is successful, he will be entitled to “the difference in remuneration and damages for the delay” (see paragraph 8 of the judgment).

It follows that the dispute in this case relates to the problem of a person’s recruitment to the civil service, and as such it is outside the scope of Article 6 § 1 of the Convention for the reasons set out in the other judgments in this group of cases. In addition, and perhaps more strongly so, I am also of the opinion that matters of this kind are not amenable to a fit and proper judicial assessment.

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

[2] Notes by the Registrar

. The case is numbered 39/1996/658/844. 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 B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4] . 26/1996/645/830; 27/1996/646/831; 28/1996/647/832; 29/1996/648/833; 30/1996/649/834; 31/1996/650/835; 32/1996/651/836; 33/1996/652/837; 34/1996/653/838; 35/1996/654/839; 36/1996/655/840; 37/1996/656/841; 38/1996/657/842-843; 40/1996/659/845; 41/1996/660/846; 42/1996/661/847 and 43/1996/662/848.

[5] . 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 - 1997), but a copy of the Commission’s report is available from the registry.