CEDH · CASELAW;REPORTS;ENG — 15 décembre 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }      Application No. 11761/85             Karl OBERMEIER         against         AUSTRIA                 REPORT OF THE COMMISSION     (adopted on 15 December 1988)         TABLE OF CONTENTS                                                               Page   I.       INTRODUCTION (paras. 1 - 19) .........................    1           A.       The application (paras. 2 - 5) ...............    1           B.       The proceedings (paras. 6 - 14) ..............    1           C.       The present Report (paras. 15 - 19) ..........    2     II.      ESTABLISHMENT OF THE FACTS (paras. 20 - 118) .........    4           A.       The particular circumstances of the case                 (paras. 20 - 90) .............................    4                 1) Previous litigation (paras. 20 - 22) ......    4                 2) The applicant's suspension from employment                 (paras. 23 - 25) .............................    4                 3) The first round of the Labour Court                 proceedings concerning the applicant's                 suspension (paras. 26 - 31) ..................    5                 4) The applicant's first dismissal and the                 administrative proceedings concerning prior                 consent to this dismissal (paras. 32 - 48) ...    6                 5) The second round of the Labour Court                 proceedings concerning the applicant's                 suspension (paras. 49 - 54) ..................   10                 6) The administrative proceedings concerning                 retroactive consent to the applicant's first                 dismissal (paras. 55 - 64) ...................   11                 7) The third round of the Labour Court                 proceedings concerning the applicant's                 suspension (paras. 65 - 72) ..................   12                 8) The Labour Court proceedings concerning                 the applicant's first and second dismissals                 (paras. 73 - 85) .............................   14                 9) The fourth round of the Labour Court                 proceedings concerning the applicant's                 suspension (paras. 86 - 90) ..................   17           B.       Relevant domestic law and practice                 (paras. 91 - 118) ............................   18                 1) Substantive law (paras. 91 - 103) .........   18                    a) Law of contracts (paras. 91 - 98) ......   18                    b) Industrial relations (paras. 99 - 101) .   19                    c) Special protection of disabled persons                       (paras. 102 - 103) .....................   22                 2) Procedural law (paras. 104 - 118) .........   23                    a) Administrative proceedings                       (paras. 104 - 108) .....................   23                    b) Judicial proceedings                       (paras. 109 - 118) .....................   24           III.     SUBMISSIONS OF THE PARTIES (paras. 119 - 172) ........   28           A.       The applicant (paras. 119 - 149) .............   28                 1) Applicability of Article 6 para. 1 of the                    Convention (para. 119) ....................   28                 2) Length of proceedings (paras. 120 - 132) ..   28                 3) Access to court (paras. 133 - 146) ........   30                 4) Discrimination (paras. 147 - 149) .........   33           B.       The Government (paras. 150 - 172) ............   34                 1) Applicability of Article 6 para. 1 of the                    Convention (paras. 150 - 152) .............   34                 2) Length of proceedings (paras. 153 - 161) ..   35                 3) Access to court (paras. 162 - 171) ........   36                 4) Discrimination (para. 172) ................   38     IV.      OPINION OF THE COMMISSION (paras. 173 - 240) .........   39           A.       Points at issue (para. 173) ..................   39           B.       Applicability of Article 6 para. 1                 (paras. 174 - 176) ...........................   39           C.       Access to court (paras. 177 - 196) ...........   40                 Conclusion (para. 196) .......................   44           D.       Length of Proceedings                 (paras. 197 - 232) ...........................   44                 1) The relevant period (paras. 198 - 201) ....   44                 2) Criteria for assessing whether the length                    of the proceedings was reasonable                    (paras. 202 - 204) ........................   45                 3) The complexity of the case                    (paras. 205 - 213) ........................   45                 4) The conduct of the applicant                    (paras. 214 - 219) ........................   47                 5) The manner in which the proceedings were                    conducted by the judicial authorities                    (paras. 220 - 231) ........................   48                 Conclusion (para. 232) .......................   50           E.       Article 13 of the Convention                 (paras. 233 - 235) ...........................   51                 Conclusion (para. 235) .......................   51           F.       Article 14 of the Convention                 (paras. 236 - 239) ...........................   51                 Conclusion (para. 239) .......................   52           G.       Recapitulation (para. 240) ...................   52   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ................   53   APPENDIX II      :   DECISION ON THE ADMISSIBILITY .............   55   APPENDIX III     :   DECISION ON APPLICATION NO. 10247/83 ......   74   I.    INTRODUCTION       1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application   2.       The applicant is an Austrian citizen born in 1926 who resides in Linz.   In the proceedings before the Commission he has submitted his case himself.   3.       The application is directed against the Republic of Austria whose Government were represented by their Agent, Ambassador Dr. Helmut Türk, Head of the International Law Department of the Federal Ministry of Foreign Affairs.   4.       The applicant's complaints relate to labour court proceedings on his suspension from employment.   He complains, in particular, under Article 6 para. 1 of the Convention that in these proceedings his civil rights were not determined within a reasonable time and that his access to court was interfered with in that the courts considered themselves bound by administrative decisions consenting to his dismissal and, following his dismissal, found that he had no longer any legal interest in the determination of the suspension case.   5.       The applicant also invokes his right to an effective domestic remedy under Article 13 and claims that he has been discriminated against, as a disabled person, contrary to Article 14 of the Convention.     B.       The proceedings   6.       The application was introduced on 24 September and registered on 27 September 1985.   7.       On 12 March 1986 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the application to the respondent Government and to invite them to present before 30 May 1986 their observations in writing on the admissibility and merits of the application.   At the Government's request the time-limit was subsequently extended until 22 August 1986.   8.       The Government submitted their observations on 21 August 1986 and the applicant replied on 9 October 1986.   9.       On 4 March 1987 the Commission decided in accordance with Rule 42 para. 3 (b) of the Rules of Procedure to invite the parties to submit further observations orally at a hearing.   10.      At the hearing on 10 July 1987 the parties were represented as follows:   -        The Government by their Agent, Ambassador Dr.   Helmut Türk,         Dr.   Sabine Bernegger of the Federal Chancellery's         Constitutional Law Department, and Dr.   Irene Gartner of         the Federal Ministry of Justice, Advisers.   -        The applicant appeared in person, assisted by his wife,         Mrs.   Obermeier, as adviser.   11.      Following the hearing, the Commission declared the application admissible.   The text of this decision was approved on 15 October 1987 and communicated to the parties on 19 November 1987.   They were invited to submit additional observations on the merits before 8 January 1988.   12.      The applicant submitted observations on 7 January and the Government on 14 January 1988.   13.      The applicant, of his own initiative, submitted further observations on 10 February and 12 June 1988.   14.      After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.       The present Report   15.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:           MM.   J.A. FROWEIN, Acting President              S. TRECHSEL              F. ERMACORA              A. WEITZEL              H.G. SCHERMERS              H. DANELIUS              H. VANDENBERGHE         Sir   Basil HALL         MM.   F. MARTINEZ              C.L. ROZAKIS         Mrs.   J. LIDDY   16.      The text of this Report was adopted on 15 December 1988 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   17.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   18.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II. The Commission's decision of 12 March 1986, by which it rejected the applicant's previous Application No. 10247/83 relating partly to the same facts, is reproduced at Appendix III.   19.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS     A.       The particular circumstances of the case           1) Previous litigation   20.      The applicant was employed by a private insurance company ("the company") as the director of their regional branch office for Upper Austria.   He was also entrusted with the administration of the company's building in which the branch office was situated.   For many years the relations between the applicant and the company were very satisfactory.   21.      However, in 1974 a dispute arose as to the termination of the applicant's functions as property administrator.   In this dispute the Labour Court (Arbeitsgericht) of Vienna held its first hearing on 9 March 1978.   The applicant's claim was allowed by the Labour Court on 23 October 1979, but upon appeal (Berufung) by the company the Regional Civil Court of Vienna (Landesgericht für Zivilrechtssachen) on 30 October 1980 referred the matter back to the Labour Court.   Upon the applicant's further appeal (Rekurs) the Supreme Court (Oberster Gerichtshof) on 22 September 1981 quashed this decision, directing the Regional Court to reject the applicant's claim without taking further evidence.   The Regional Court did so on 17 December 1981.   Upon the applicant's appeal the Supreme Court finally rejected his claim on 18 May 1982.   22.      The applicant subsequently complained to the Commission that these proceedings were unfair and contrary to Article 6 para. 1 of the Convention (Application No. 10247/83).   This application was declared inadmissible on 12 March 1986 (cf.   Appendix III at p. 74).           2) The applicant's suspension from employment   23.      In connection with the above litigation, the company suspended the applicant from his duties as director of the regional office on the day following the first hearing before the Labour Court, i.e. on 10 March 1978.   The company took the view that such suspension was possible at any time without giving reasons.   24.      The applicant contested this opinion and asked for the institution of disciplinary proceedings against himself.   This was however refused.   Subsequently, certain attempts were made to settle the case, inter alia, through the mediation of Mr.   D, who was the husband of the company's head of personnel and the chairman of the applicant's trade union.   He was later appointed Federal Minister of Social Affairs (Bundesminister für soziale Verwaltung).   However, these attempts failed.   25.      Eventually the applicant challenged his suspension by an action which he lodged with the Labour Court of Linz on 9 March 1981, claiming, in particular, that the suspension was unjustified because it was in reality a sanction for his having sued the company in court. The applicant sought in the first place a declaratory judgment (Feststellungsklage) that the suspension was invalid, subsidiarily a judgment for performance (Leistungsklage) ordering the company to revoke the suspension.               3) The first round of the Labour Court proceedings            concerning the applicant's suspension     26.      On 23 April 1981 the Labour Court of Linz rejected the applicant's claims.   It held that a right of an employee to actual employment (Recht eines Arbeitnehmers auf Beschäftigung) was guaranteed only under special conditions (e.g. where specific regulations existed for the particular profession, or where the employment pursued training purposes etc.).   Even in the case of an unjustified dismissal the law did not provide for a right to reinstatement, but only for a right to continued payment of the salary and to compensation.   Therefore the suspension was a discretionary decision of the employer which did not involve ethical disapproval and could not as such be challenged under the law.   If the employee considered such a suspension as an interference with his right to a good reputation he could only seek compensation for his real damage and lost earnings.   Section 32 of the collective agreement for insurance employees expressly distinguished between disciplinary sanctions and non-disciplinary suspension without loss of salary.   For these reasons, it was not necessary to examine the question whether the reasons advanced by the company, in particular the institution of judicial proceedings by the applicant against the company, were sufficient to justify his suspension.   The applicant lodged an appeal (Berufung) against the above decision.   On 14 July 1981 he received a notice of dismissal from the company (cf. para. 32 below).   27.      On 25 November 1981 the Regional Labour Court of Linz (Landesgericht als Berufungsgericht in arbeitsgerichtlichen Rechtsstreitigkeiten) dismissed the applicant's appeal against the Labour Court's decision insofar as he had sought a declaratory judgment, but allowed it insofar as the Labour Court had rejected the claim for the revocation of the suspension.   In this latter respect it referred the case back to the Labour Court of first instance, directing it to determine whether there were reasons which justified the applicant's suspension under Section 32 of the collective agreement for insurance employees.   28.      As regards the refusal of a declaratory judgment, the Regional Court referred to Section 228 of the Code of Civil Procedure (Zivilprozessordnung) according to which a declaratory judgment was only possible as regards the existence or non-existence of a legal relationship (Rechtsverhältnis) as such, but not as regards the validity of a particular legal act (Rechtshandlung) such as the suspension of an employee.   29.      As regards the claim for the revocation of the suspension, the Regional Court observed that the applicant's employment contract was based on the collective agreement for insurance employees (cf. para. 94 et seq. below), which formed an integral part of this contract insofar as nothing else was provided therein.   Section 32 of the collective agreement allowed the suspension of an employee only under certain specific conditions.   They had to be proven by the company. By failing to examine whether such conditions had existed in the applicant's case the Labour Court had violated its procedural duties and its proceedings should be completed in this respect (Section 486 para. 3 of the Code of Civil Procedure).   30.      The Regional Court further held that suspension without justifying reasons under the collective agreement amounted to a breach of contract by the company.   The applicant was entitled to claim, first of all, fulfilment of the contract.   The Labour Court had wrongly refused to examine the issue of the suspension as such.   The Regional Labour Court added in this context that the fact that the applicant had taken lawsuits against the company was not in itself a sufficient ground to justify his suspension.   An employee could not be prevented from pursuing alleged legal claims before the courts.   31.      Upon the company's further appeal this decision was confirmed by the Supreme Court on 30 March 1982.   The Supreme Court agreed with the Regional Labour Court that the company was required to give reasons for the applicant's suspension.   It also shared the Regional Court's view that the mere fact that the applicant had brought lawsuits against the company was not sufficient to justify the suspension.   It was necessary to examine whether in connection with the bringing of lawsuits the applicant had shown a behaviour which objectively justified the taking of preventive measures such as a suspension under Section 32 of the collective agreement.   The case was therefore referred back to the Labour Court of first instance.           4) The applicant's first dismissal and the administrative            proceedings concerning prior consent to this dismissal   32.      Shortly after the introduction of the applicant's above action with the Labour Court of Linz, the company, on 14 July 1981, dismissed the applicant in the form of a so-called "administrative retirement" (administrative Pensionierung) under Section 33 para. 9 of the collective agreement (cf. para. 96 below).   In the company's view the conditions of this provision were met since the applicant had reached the age of 55 in January 1981 and the company's works council (Betriebsrat) had declared its consent.   33.      As the applicant had been recognised on 21 May 1980 as a disabled person ("begünstigter Invalide") within the meaning of the Disabled Persons (Employment) Act (Invalideneinstellungsgesetz), his dismissal also required the previous consent of the Disabled Persons Board (Invalidenausschuss) in accordance with Section 8 para. 2 of that Act (cf. para. 103 below).   The company sought the Board's consent to the intended dismissal by an application of 8 May 1981 which was granted by the Board on 8 July 1981.   34.      The Board observed that Section 8 para. 2 of the Disabled Persons (Employment) Act did not contain any guidelines as to the conditions for the authority's consent to the dismissal.   Therefore the decision was a matter of the authority's discretion which it must exercise according to the law ("im Sinne des Gesetzes"), i.e. having regard to the justified interest of the employer in the dismissal and the special need for the employee's protection from the social point of view.   In this context it was necessary to examine in the light of all circumstances whether it was more justified to expect the employer to continue the employment, or the employee to lose his job.   35.      The Board noted the company's submissions according to which there were no doubts concerning the applicant's professional qualification, but personal reasons which made him unbearable for the company.   The applicant's lawsuits against the company and the   unfounded allegations which he had made against the company in this context had undermined the relationship of trust between the parties. For some time the applicant himself had tried to secure an early retirement at the age of 55, but this had been refused by the company on the basis of the collective agreement which provided for retirement at the age of 60 only.   In view of the pending litigation both the local works council in Linz and the central works council in Vienna shared the company's conclusion that the applicant's "administrative retirement" was the only solution.   36.      In the light of the evidence, the Board found that a dispute had arisen between the company and the applicant which had culminated in his suspension by the company and the institution of lawsuits by the applicant.   The applicant was also on bad terms with the works councils in Linz and Vienna which had not raised objections against his dismissal and had even declared that it was impossible to consider his reinstatement as director of the regional branch office. Settlement negotiations between the company, the works councils and the applicant, in which the trade union had also been involved, had not produced any results.   In the circumstances the interest of the employer in terminating the contract was by far the most important consideration, because it was apparently not possibile to reach even a partial settlement of the various disputes and accordingly the relationship of trust between the parties was so seriously undermined that the company could not reasonably be expected to continue to employ the applicant as the director of its regional branch office.   37.      The social need to protect the applicant did not outweigh the company's interest because in the case of an "administrative retirement" he was entitled to a compensation (Abfertigung) of AS 800,000 and a monthly pension of AS 27,000 to be paid by the company (Firmenpension) until his 65th year of age (to be increased in accordance with the development of salaries under the collective agreement), plus a yearly compensation of some AS 20,000 in respect of commission for insurance contracts negotiated by the applicant.   The Board also noted the applicant's maintenance obligations for his wife and two children.   38.      On the basis of the Board's consent, the company on 14 July 1981 gave notice of termination of his contract to the applicant with effect from 31 March 1982.   39.      However, the applicant appealed against the Board's decision, claiming that the Board had failed to investigate the case and instead had based its decision on the one-sided submissions of the company. He further referred to the important financial disadvantages which he would suffer as a consequence of his dismissal and which, in his view, justified the conclusion that his interest must prevail over that of the company.   40.      On 16 October 1981 the Provincial Governor (Landeshauptmann) of Upper Austria rejected the applicant's appeal.   He confirmed the view of the Disabled Persons Board that the decision on the consent to the dismissal was at the discretion of the authority.   The discretion was limited in that, having regard to Section 8 para. 3 of the Disabled Persons (Employment) Act, the disabled employee's protection against dismissal could not go beyond the protection afforded to the members of the works council (cf.   Administrative Court decision No. 5037/1959).   A disabled person thus could be dismissed on grounds   which did not justify the dismissal of a member of the works council, having regard to the latter's specific functions.   By contrast, the protection afforded to a disabled person was of an individual nature, in particular he could not be dismissed on the very ground of his disablement.   It was the purpose of the Disabled Persons (Employment) Act to prevent arbitrary dismissals by the employer by balancing the interests of the parties concerned, i.e. the employer's interest in terminating the employment and the interest of the disabled employee in social protection.   41.      In the present case a number of disputes had arisen, beginning with the termination of the applicant's functions as property administrator in 1974.   These disputes had reached a climax in 1978 when the applicant's employment had been suspended.   Subsequent settlement negotiations had had no results.   Three actions had been brought by the applicant against the company (i.e. his action against the termination of the administration of the company's building (cf. para. 21 above), his action against his suspension from employment (cf. para. 25 above), and an action concerning the amount of commission due to the applicant for insurance contracts negotiated by him (cf. para. 69 below)) and one action by the company against the applicant (because he had refused to pay back a loan).   The applicant had also sued his trade union (for failure to grant him legal assistance in the actions against the company) and the works council (for refusal to allow his participation in certain meetings).   None of the cases had been finally decided because the applicant, in principle, pursued every litigation up to the last instance.   The various court files had been consulted as far as necessary, but it did not appear necessary to hear witnesses as the Provincial Governor could not decide the various disputes pending before the courts.   In any event it appeared from the files that the applicant's prospects of success were not good.   42.      The applicant's disablement had been of no relevance in the relations between the parties.   The applicant had worked in a very satisfactory way for the company despite his disablement and did not claim that the dismissal was due to his disablement.   He had applied to be recognised as a disabled person only in 1980, long after his suspension, apparently in order to enjoy better protection against the employer.   Nevertheless, it was now necessary to weigh his interests against those of the company.   43.      It was not appropriate to adjourn the proceedings pending the outcome of the various court proceedings as requested by the applicant as, in any event, the parties had fundamentally different views concerning the applicant's duties of employment.   A settlement had not been possible despite attempts made during several years in direct negotiations between the company and the applicant, through the mediation of the works council and finally through the mediation of the present Federal Minister of Social Affairs.   44.      It was understandable that an employee in a leading position was unbearable for the company if he insisted on pursuing his alleged claims by lawsuits up to the last instance, rejected any settlement proposals which even the works council considered as generous and acceptable, and consistently upheld his view that he alone was right while all other institutions, such as the company's management, the trade union, the courts and the administrative authorities were wrong.   The Provincial Governor did not accept the applicant's argument that, with an attitude such as the company's, any employer could get rid of a disabled employee by rejecting his legitimate claims and compelling him to pursue these claims through the courts.   The applicant himself had failed to react to the readiness for settlement and compromise which the company had shown for years and had rejected the intensive settlement efforts of the trade union.   It was clear from the file that the company had not suspended the applicant, a qualified employee who had done a lot for the firm, in a light or rash manner and without reasons.   45.      As regards the social protection of the applicant, the Provincial Governor noted that he had completed his 55th year of age in January 1981 and that he had maintenance obligations for his wife and two children who pursued university studies.   He further noted the applicant's financial position after the dismissal as determined by the authority of first instance (para. 37 above).   The applicant's argument that his income would be considerably below that which he would perceive if the employment continued was not correct.   In 1980 the applicant had had a monthly net income of some AS 48,000, in 1981 it would be some AS 50,000.   Taking into account the compensation of AS 880,000 payable in case of dismissal, the monthly income would be some AS 49,000 until 30 September 1983, thereafter he would receive a pension of AS 27,000.   The applicant had not contested these figures. Even taking into account that after 30 September 1983 the applicant would have a net income below that of an active employee, this did not amount to a considerable deterioration of his standard of living.   It could not be said that the financial disadvantage was such that it substantially interfered with the applicant's interests.   Even if he was prevented from seeking alternative employment (Konkurrenzverbot), the applicant would not be compelled to live below his standard of education and social status.   A social hardship did not exist merely because of a low income.   The provisions of the Disabled Persons (Employment) Act did not guarantee an employee in a leading position a life of luxury.   Renouncing luxury was no social hardship.   The maintenance obligations for children pursuing university studies could not be taken into account as it was possible to obtain State subsidies for that purpose.   It was irrelevant that the applicant would be entitled to a compensation also if he reached the normal retirement age, because the decisive criterion was the situation at the time of dismissal.   46.      The weighing of interests showed that the relationship between the company and the applicant had been seriously disturbed for years, and this not without the applicant's fault;   therefore the company could not be expected to continue the applicant's employment.   In view of the financial situation of the applicant after his dismissal there was no social need to protect him.   47.      The applicant then lodged a complaint with the Administrative Court (Verwaltungsgerichtshof) which was rejected on 9 March 1983. The Administrative Court found essentially that the reason for the applicant's dismissal had not been his invalidity, and that the authorities had not overstepped the limits of their discretionary powers by finding that there were objective reasons for the applicant's dismissal as he had rejected all offers to settle the dispute with his employers.   In view of the pension to which the applicant was entitled no social hardship arose for him.   The   Administrative Court finally considered that no procedural principles had been violated in the administrative proceedings, in particular as regards the applicant's right to be granted access to the file.   48.      The applicant subsequently challenged the Administrative Court's proceedings in his application No. 10247/83 which was rejected by the Commission on 12 March 1986 (cf.   Appendix III at p. 74).           5) The second round of the Labour Court proceedings            concerning the applicant's suspension   49.      Simultaneously with the above administrative proceedings concerning the consent to the applicant's dismissal under the Disabled Persons (Employment) Act, the Labour Courts proceeded with the second round of the proceedings concerning the applicant's suspension from employment, which had become necessary following the Supreme Court's decision of 30 March 1982 (cf. para. 31 above).   50.      In these proceedings, the company now invoked the applicant's dismissal, claiming that in these circumstances he lacked a legal interest in the revocation of the suspension.   The applicant contested the validity of the dismissal inter alia on the ground that it had been pronounced before the consent necessary under the Disabled Persons (Employment) Act had become final.   He also referred to the proceedings before the Administrative Court (cf. para. 47 above), which at that time were still pending.   51.      In its decision of 9 December 1982, the Labour Court of Linz rejected the applicant's action for lack of legal interest (mangels Rechtschutzinteresses).   It found that the dismissal was valid because it had been pronounced with the consent of the competent administrative authorities and because the Administrative Court proceedings had no suspensive effect.   52.      This decision was confirmed on 11 May 1983 by the Regional Labour Court of Linz which noted that the applicant's appeal to the Administrative Court had in the meantime been rejected.   53.      On 16 August 1983, the applicant appealed further to the Supreme Court which on 23 October 1984 reversed the above decisions of the Labour Courts.   It found - contrary to its own earlier case-law - that the consent of the competent authority must have become final (rechtskräftig) before the dismissal of a disabled person such as the applicant could be pronounced by his employer.   It also stated that the applicant's case did not come within the scope of the provision in Section 8 para. 2 of the Disabled Persons (Employment) Act according to which a handicapped person may exceptionally be dismissed without prior consent of the authority, in which case the consent may be sought retroactively.   The applicant's dismissal was therefore invalid and his claim relating to his suspension could not be rejected on the ground that he lacked a legal interest because of this dismissal.   54.      The Supreme Court therefore again referred the case back to the Labour Court of first instance, directing it to deal with the applicant's suspension.           6) The administrative proceedings concerning            retroactive consent to the applicant's first dismissal   55.      Following the Supreme Court's above decision the company on 21 December 1984, as a matter of precaution, addressed a new notice of dismissal to the applicant with effect from 30 June 1985.   The local works council in Linz declared its consent to this dismissal on 21 December 1984.   56.      On 9 January 1985 the company further applied for the retroactive consent of the Disabled Persons Board to the applicant's dismissal pronounced on 14 July 1981, basing itself on Section 8 para. 2 of the Disabled Persons (Employment) Act according to which such retroactive consent can be sought in exceptional cases.   It claimed that the Supreme Court's decision had not been foreseeable, and that there was therefore an exceptional case within the meaning of that provision.   57.      The applicant relied on the Supreme Court's decision that this provision did not apply.   He further submitted that the employers' application was inadmissible on the ground of res judicata.   58.      By a decision of 14 March 1985, the Board refused to grant retroactive consent to the dismissal on 31 March 1982, but stated at the same time that the earlier consent continued to produce effect for any future notice of dismissal.   Insofar as the application sought to reopen the issues discussed in the earlier proceedings, it was therefore struck by res judicata.   59.      Both parties appealed, and on 17 June 1985 the Provincial Governor of Upper Austria allowed their appeals.   60.      The company's appeal against the refusal of retroactive consent was allowed on the ground that the administrative authority was not bound by the opinion of the Supreme Court that the provision in Section 8 para. 2 concerning retroactive consent was inapplicable. The Provincial Governor considered that the company had acted in conformity with the law as it was applied at the relevant time when it gave notice to the applicant without awaiting the final effect of the administrative decision.   The Supreme Court's change of jurisprudence had not been foreseeable and constituted an exceptional case within the meaning of Section 8 para. 2, in particular as the company had acted in good faith and would suffer unfair disadvantages if the dismissal at the original date was considered as ineffective.   It would have to pay the applicant's full salary without his having worked for the company.   61.      The applicant's appeal concerning the Board's findings as to the continued effect of the earlier consent was also allowed.   The Provincial Governor noted that the company had not applied for the authorities' consent to the dismissal pronounced on 21 December 1984 and therefore there was no reason to invoke res judicata in this respect.   He agreed with the Disabled Persons Board that the previous decisions continued to produce effect if the same case of dismissal was concerned.   However, if there was a new case of dismissal, the proceedings would have to be repeated.   62.      On 23 July 1985, the applicant appealed against this decision to the Constitutional Court (Verfassungsgerichtshof), invoking his right to a decision by the competent judge under Article 83 para. 2 of the Federal Constitution (Bundes-Verfassungsgesetz).   This provision had allegedly been violated by the Provincial Governor in that he had given a new decision on the merits by declaring his retroactive consent to the dismissal instead of rejecting the company's application on the ground of res judicata as required by Section 68 of the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz).   In the alternative the applicant requested the Constitutional Court to refer the question of the alleged violation of provisions of the Code of General Administrative Procedure to the Administrative Court.   63.      On 25 November 1985, the Constitutional Court decided, in conformity with Article 144 para. 2 of the Federal Constitution as amended in 1984 (Fed.   Law Gazette No. 196/1984), to refrain from dealing with the case as it did not raise specific questions of constitutional law.   Any violation of the right to a decision by the competent judge could only result from an error of ordinary law, a matter which could be decided by the Administrative Court to which the case was accordingly referred.   64.      On 21 May 1986 the Administrative Court allowed the applicant's appeal finding that retroactive consent to the dismissal of a disabled person could only be granted in very exceptional cases, i.e. cases at the borderline of justified protection against dismissal, characterised b