CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 24 février 1997

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 26083/94                       by Richard WAITE and Terry KENNEDY                       against Germany          The European Commission of Human Rights sitting in private on 24 February 1997, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 24 November 1994 by Richard WAITE and Terry KENNEDY against Germany and registered on 22 December 1994 under file No. 26083/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      3 November 1995 and the observations in reply submitted by the      applicant on 15 December 1995;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant, born in 1946, is resident in Griesheim.   The second applicant, born in 1950, is resident in Darmstadt.   Both applicants are British nationals and systems programmers by profession. In the proceedings before the Commission, they are represented by MM. Feddersen, Laule, Scherzberg, Ohle, Hansen, Ewerwahn, lawyers practising in Frankfurt/Main.   A.    Particular circumstances of the case        The facts of the case, as presented by the parties, may be summarised as follows.        In 1977 the applicants, employed by the company SPM, were placed at the disposal of the European Space Agency to render services at the European Space Operations Centre in Darmstadt.        The European Space Agency with headquarters in Paris, formed out of the European Space Research Organisation and the European Organisation for the Development and Construction of Space Vehicle Launchers, was established under the Convention for the Establishment of a European Space Agency of 30 May 1975.   The European Space Agency operates the European Space Operations Centre in Darmstadt.        In 1979 the applicants' contracts were taken over by CDP, a limited company with seat in Dublin.   In 1982 the applicants founded Storepace, a limited company with seat in Manchester, which contracted with CDP on the services to be rendered by the applicants for the European Space Agency and the payment due.   As from 1984 the European Space Agency participated in the above contractual relations through the Science System, one of its subsidiaries.   Subsequently, the applicants liquidated Storepace and replaced this company by Network Consultants, a company with seat on the Jersey Island.   These changes in contractual relations had no bearing on the applicants' services at the European Space Operations Centre.        By letter of 12 October 1990, CDP informed the applicants that the cooperation with their company Network Consultants terminated on 31 December 1990, when the term of their contracts expired.        The applicants thereupon instituted proceedings before the Darmstadt Labour Court (Arbeitsgericht) against the European Space Agency, claiming that, pursuant to the German Provision of Labour Act (Arbeitnehmerüberlassungsgesetz), they had acquired the status of employees of the defendant organisation.   The termination of their contracts by the company CDP had no bearing on that labour relationship with the defendant organisation.        In the labour court proceedings, the defendant organisation relied on their immunity from jurisdiction under Article XV para. 2 of the Convention for the Establishment of a European Space Agency and its Annex I.        On 10 April 1991 the Darmstadt Labour Court, following a hearing, declared the applicants' actions inadmissible.   The Labour Court considered that the defendant organisation had validly relied on its immunity from jurisdiction.        In its reasoning, the Labour Court considered in particular that the defendant organisation had been established in 1975 as a new and independent international organisation.   The defendant organisation was therefore not bound by the rule of the legal regime governing the former European Space Research Organisation which had subjected it to German jurisdiction in cases of disputes with its employees which were outside the competence of its Appeals Board.   The Labour Court found itself bound by the clear wording of the Convention and its Annex.        On 20 May 1992 the Frankfurt/Main Labour Court of Appeal (Landesarbeitsgericht) dismissed the applicants' appeal.   It admitted an appeal on points of law (Revision) with the Federal Labour Court (Bundesarbeitsgericht).        The Labour Court of Appeal, referring to SS. 18-20 of the Court Organisation Act (Gerichtsverfassungsgesetz), considered that immunity from jurisdiction meant that foreign States and members of diplomatic missions, were generally not subject to German jurisdiction and that no judicial action could be taken against them.   According to S. 20 para. 2 of the Court Organisation Act, such immunity could be provided for, inter alia, in international agreements.   The defendant organisation in principle enjoyed such immunity from jurisdiction under Article XV para. 2 of the Convention on the Establishment of the European Space Agency and its Annex I.   Moreover, even assuming that the European Space Research Organisation had previously waived immunity as regards labour disputes outside the competence of its Appeals Board, the defendant organisation was not bound thereby.   In this respect, the Labour Court of Appeal, referring to the reasoning of the first instance decision, set out in detail that the defendant organisation had been established as a new international organisation and not as a mere legal successor to the European Space Research Organisation.        By letter of 16 September 1992 the Chairman of the Council of the European Space Agency informed the applicants that the Council, at its 105th meeting of 15 and 16 December 1992, had decided not to waive the immunity from jurisdiction in their case.   This position was confirmed in subsequent correspondence.        On 10 November 1993 the Federal Labour Court dismissed the applicants' appeal on points of law.        The Federal Labour Court considered that immunity from jurisdiction was an impediment to court proceedings, and that an action against a defendant who had immunity from jurisdiction, and had not waived this immunity, was inadmissible.   According to S. 20 para. 2 of the Court Organisation Act, German jurisdiction did not extend to international organisations which were exempted in accordance with international agreements.   In this respect, the Federal Labour Court noted that, pursuant to Article XV para. 2 of the Convention on the Establishment of the European Space Agency, the defendant organisation had the immunities provided for in Annex I of the said Convention, and that it had not waived immunity under Article IV para. 1 (a) of the Annex.        As regards the question of waiver, the Federal Labour Court found that the rule of the legal regime governing the former European Space Research Organisation, which had subjected it to German jurisdiction in cases of disputes with its employees which were outside the competence of its Appeals Board, did not apply in the applicants' situation as they had not been employed by the defendant organisation, but had worked for the defendant organisation on the basis of a contract of employment with a third person.   The questions whether the rule in question amounted to a waiver of immunity and whether the defendant organisation was bound by this rule could therefore be left open.        Furthermore, the Federal Labour Court found no objections under constitutional law.   There was no violation of the right of recourse to court under Article 19 para. 4 of the Basic Law (Grundgesetz), as the acts of the defendant organisation, an international organisation, could not be regarded as acts of a public authority within the meaning of that provision.        Finally the Federal Labour Court considered that a rather wide competence of international organisations to regulate staff matters was not unusual under international law.   The regulations on the immunity of the defendant organisation did not conflict with fundamental principles of the German Constitution.   Employees of the defendant organisations could bring either an appeal with the Appeals Board of the organisation, or the labour contract had to provide for arbitration in accordance with Article XXV of Annex I.   In case of an unlawful provision of labour not covered by the aforementioned regulation, the employee concerned was not without any legal protection: the employee could file an action against his or her employer.   The question whether the applicants could claim under public law that positive action be taken by the German Government to use their influence to achieve a waiver of immunity in the present case, or to bring the case to international arbitration under Article XVIII of the Convention on the Establishment of the European Space Agency, could not be determined by labour court proceedings.        On 11 May 1994 the Federal Constitutional Court (Bundesverfassungsgericht) refused to admit the applicants' constitutional complaint (Verfassungsbeschwerde).        The Federal Constitutional Court found in particular that the applicants' complaint did not raise a matter of general importance. The alleged absence of rights resulted from the particular contracts entered into by the applicants, who had not been directly employed by an international organisation but had worked there on the order of a third person.        Furthermore, the alleged violation of the applicants' constitutional rights was not of special importance nor were the applicants significantly affected.   In this respect the Constitutional Court noted the applicants' submissions according to which they had suffered major disadvantages on the ground that the European legislation on the provision of labour had been insufficient and that the termination of their contracts had affected their earning capacity. However, they had failed to show any disadvantages other than those associated with any loss of work.   In particular there is no indication that they remained permanently unemployed and dependent upon social welfare benefits.   B.    Relevant law   a.    Provision of Labour Act        According to S. 1 para. 1 of the Provision of Labour Act (Arbeitnehmerüberlassungsgesetz), an employer, who, on a professional basis (gewerbsmäßig), intends to hire out his employees, i.e. temporary workers (Leiharbeitnehmer) to third persons, i.e. borrowing employers (Entleiher), is subject to permission.   S. 9 (1) provides that contracts between the hirer out (Verleiher) and the borrowing employer as well as between the hirer out and the temporary worker are void in the absence of a permission within the meaning of S. 1.   If the contract between a hirer out and a temporary worker is void, pursuant to S. 9 (1), a contract between the borrowing employer and the temporary worker is assumed by law to have been concluded (gilt als zustande gekommen) as from the envisaged start of employment (S. 10 para. 1).   S. 10 para. 2 further provides for a compensation claim against the hirer out in respect of any damage suffered as a consequence of having relied on the validity of the contract, except where the temporary worker was aware of the reasons rendering the contract void.   b.    Immunity from jurisdiction        SS. 18 to 20 of the German Court Organisation Act (Gerichtsverfassungsgesetz) regulate the immunity from jurisdiction (Extraterritorialität) in German court proceedings.   SS. 18 and 19 concern the members of diplomatic and consular missions, and S. 20 para. 1 other representatives of States staying in Germany upon the invitation of the German Government.   S. 20 para. 2 provides that other persons have immunity from jurisdiction according to the general rules of international law, e.g. foreign States in the exercise of public authority, or according to international agreements or other legal rules.   c.    The Convention for the Establishment of a European Space Agency        The European Space Agency with headquarters in Paris, formed out of the European Space Research Organisation and the European Organisation for the Development and Construction of Space Vehicle Launchers, was established under the Convention for the Establishment of a European Space Agency ("ESA Convention") of 30 May 1975, which entered into force in 1980.        The purpose of the European Space Agency is to provide for and to promote, for exclusively peaceful purposes, co-operation among European States in space research and technology and their space applications, with a view to their being used for scientific purposes and for operational space applications systems (Article II).   For the execution of the programmes entrusted to it, the Agency shall maintain the internal capability required for the preparation and supervision of its tasks and, to this end, shall establish and operate such establishments and facilities as are required for its activities (Article VI para. 1 (a)).        Article XV regulates the legal status, privileges and immunities of the Agency.   According to paragraph 1, the Agency shall have legal personality.   Paragraph 2 provides that the Agency, its staff members and experts, and the representatives of its Member States, shall enjoy the legal capacity, privileges and immunities provided for in Annex I. Agreements concerning the headquarters of the Agency and the establishments set up in accordance with Article VI shall be concluded between the Agency and the Member States on whose territory the headquarters and the establishments are situated (paragraph 3).        Article XVII concerns the arbitration procedure in case of any dispute between two or more Member States, or between any of them and the Agency, concerning the interpretation or application of the ESA Convention or its Annexes, and likewise any dispute referred to in Article XXVI of Annex I, which is not settled by or through the Council.        Annex I relates to the privileges and immunities of the Agency.        According to Article I of Annex I, the Agency shall have legal personality, in particular the capacity to contract, to acquire and to dispose of movable and immovable property, and to be a party to legal proceedings.        Pursuant to Article IV para. 1 (a) of Annex I, the Agency shall have immunity from jurisdiction and execution, except to the extent that it shall, by decision of the Council, have expressly waived such immunity in a particular case; the Council has the duty to waive this immunity in all cases where reliance upon it would impede the course of justice and it can be waived without prejudicing the interests of the Agency.        Article XXV of Annex I provides for arbitration with regard to written contracts other than those concluded in accordance with the Staff Regulations.   Moreover, any Member State may submit to the International Arbitration Tribunal referred to in Article XVII of the ESA Convention any dispute, inter alia, arising out of damage caused by the Agency, or involving any other non-contractual responsibility of the Agency.   According to Article XXVII of Annex I, the Agency shall make suitable provision for the satisfactory settlement of disputes arising between the Agency and the Director General, staff members or experts in respect of their conditions of service.   COMPLAINTS        The applicants complain under Article 6 para. 1 of the Convention that they did not have a hearing by a court on the question of whether a contractual relationship had existed between them and the European Space Agency.        They submit, as a subsidiary consideration, that Germany when participating in the negotiations for the establishment of the European Space Agency as well as for the operation of the European Space Operations Centre failed to ensure a system of efficient legal protection covering all persons working for the European Space Agency.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 24 November and registered on 22 December 1994.        On 26 June 1995 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 3 November 1995, after an extension of the time-limit.   The applicants replied on 15 December 1995.   THE LAW        The applicants complain that they did not have a hearing by a court on the question of whether a contractual relationship had existed between them and the European Space Agency.   They invoke Article 6 para. 1 (Art. 6-1) of the Convention.        Article 6 para. 1 (Art. 6-1), as far as relevant, provides as follows:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a ... hearing ... by an independent and      impartial tribunal established by law."        The respondent Government observe that the German courts granted the European Space Agency immunity from the applicant's action in accordance with the relevant provisions of the German Courts Organisation Act.   Referring to the case-law of the Convention organs, they maintain that the right of access to court is subject to inherent limitations which include the traditional and generally recognised principle of parliamentary and diplomatic immunity and also the immunity of international organisations.   In this respect, they explain that the immunity granted to international organisations corresponds, like the state immunity, to the principle of the sovereign equality of all states.   An international organisation can only function satisfactorily if its independence is ensured.   The activities of international organisations are so closely linked with their sovereign purposes that even private acts cannot be entirely excluded from immunity.        Moreover, the Government consider that sufficient legal protection is provided for the applicants in that they could have brought an action against the Irish company CDP, the other party to their contracts, claiming compensation under S. 10 para. 2 of the German Provision of Labour Act.   The question of whether they acted in good faith would have had to be clarified in the said court proceedings.        As regards the applicants' subsidiary submission, the Government argue non-exhaustion of domestic remedies to the extent that the question of whether the German Government should have brought proceedings before the International Arbitration Tribunal is concerned. According to them, the applicants could have filed an administrative court action, claiming that the German Government were obliged to institute such proceedings in order to comply with their obligations under Article 6 (Art. 6) of the Convention.        The applicants dispute the Government's views.   They consider in particular that it is not acceptable under Article 6 (Art. 6) that, in a dispute against an international organisation, the access to an independent tribunal is entirely excluded by the principle of immunity. Moreover, the applicants consider that in lodging compensation claims against CDP, they could not secure continuation of their work for the European Space Agency.        The Commission finds that the principal issue before it is the applicants' complaint that they were refused access to court with regard to their action against the European Space Agency, claiming their continued employment under the German Provision of Labour Act. The Commission notes that the Government's argument of non-exhaustion is limited to the applicants' subsidiary submission and the question of proceedings before the International Arbitration Tribunal.   The Commission, therefore, finds no necessity to examine the Government's objection.        The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application.   The Commission concludes, therefore, that the application is not manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.      For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.             H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission