CEDH · CASELAW;REPORTS;ENG — 2 décembre 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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 28934/95                   Karlheinz Beer and Philip Regan                               against                               Germany                      REPORT OF THE COMMISSION                    (adopted on 2 December 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . .   1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . .   1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . .   1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . .   2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-30) . . . . . . . . . . . . . . . . . . . .   3        A.    The particular circumstances of the case           (paras. 16-20). . . . . . . . . . . . . . . . . .   3        B.    Relevant law           (paras. 21-30). . . . . . . . . . . . . . . . . .   3   III. OPINION OF THE COMMISSION      (paras. 31-70) . . . . . . . . . . . . . . . . . . . .   6        A.    Complaint declared admissible           (para. 31). . . . . . . . . . . . . . . . . . . .   6        B.    Point at issue           (para. 32). . . . . . . . . . . . . . . . . . . .   6        C.    Article 6 of the Convention           (paras. 33-69). . . . . . . . . . . . . . . . . .   6             CONCLUSION           (para. 70). . . . . . . . . . . . . . . . . . .    12   CONCURRING OPINION OF MR K. HERNDL. . . . . . . . . . . . . 13   DISSENTING OPINION OF MR G. RESS JOINED BY MM   E. BUSUTTIL, A.S. GÖZÜBÜYÜK, A. WEITZEL, J.-C. SOYER, C.L. ROZAKIS, L. LOUCAIDES, M.A. NOWICKI, I. CABRAL BARRETO, B. CONFORTI, I. BÉKÉS, J. MUCHA, A. PERENIC, E.A. ALKEMA and R. NICOLINI 16   APPENDIX:       DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 19   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 first applicant is a German national, born in 1952 and resident in Darmstadt.   The second applicant is a British national, born in 1960 and resident in London in the United Kingdom.   3.    The application is directed against Germany. The respondent Government were represented by their Agent, Ms. H. Voelskow-Thies, Ministerialdirigentin, of the Federal Ministry of Justice.   4.    The case concerns the question whether the applicants were denied access to a court for a determination of their dispute with the European Space Agency, relating to an issue under German labour law. The applicants invoke Article 6 para. 1 of the Convention.   B.    The proceedings   5.    The application was introduced on 13 September 1995 and registered on 17 October 1995.   6.    On 26 June 1995 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 16 February 1996. The applicants replied on 3 April 1996.   8.    On 24 February 1997 the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 10 March 1997 and they were invited to submit such further information or observations on the merits as they wished. The applicants submitted observations on 14 April 1997 to which the Government replied on 21 May 1997.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (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   11.   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:             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                M.P. PELLONPÄÄ                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           MM    R. NICOLINI                A. ARABADJIEV   12.   The text of this Report was adopted on 2 December 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   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.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   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   16.   In 1982 the first applicant, a civil engineer by profession and employed by the French company S., was placed at the disposal of the European Space Agency to render services at the European Space Operations Centre in Darmstadt.   The first applicant's contract was later taken over by the company T., which also has its seat in France. The second applicant, a systems programmer and employed by the Italian company T.I., was placed at the disposal of the European Space Agency to render services at the European Space Operations Centre in Darmstadt in 1991.   17.   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.   18.   In October and November 1993 the applicants 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.   In his submissions, the second applicant indicated that, by letter of 27 September 1993, his employer T.I. had dismissed him.   19.   In the respective 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.   20.   On 21 March 1995 the Darmstadt Labour Court, following hearings, declared the applicants' respective actions inadmissible.   In both decisions, the Labour Court considered that the defendant organisation had validly relied on its immunity from jurisdiction.   The Labour Court, in this respect, relied on S. 20 para. 2 of the Court Organisation Act (Gerichtsverfassungsgesetz), according to which immunity from jurisdiction could be provided for, inter alia, in international agreements.   The defendant organisation enjoyed such immunity under Article XV para. 2 of the Convention on the Establishment of the European Space Agency and its Annex I.   The Labour Court further recalled that the Federal Labour Court (Bundesarbeits-gericht), in a decision of 10 November 1993 in a similar case, had found that the rules in question could not be objected to from a constitutional point of view.   B.    Relevant law   a.    Provision of Labour Act   21.   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   22.   SS. 18 to 20 of the German Court Organisation Act (Gerichtsverfassungsgesetz) regulate immunity from jurisdiction (Exterritorialität) 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   23.   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.   24.   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)).   25.   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).   26.   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.   27.   Annex I relates to the privileges and immunities of the Agency.   28.   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.   29.   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.   30.   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.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   31.   The Commission has declared admissible the applicants' complaint that they did not have a fair hearing by a tribunal on the question of whether a contractual relationship existed between them and the European Space Agency.   B.    Point at issue   32.   Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.    Article 6 (Art. 6) of the Convention   33.    The applicants complain that they were denied access to a court for a determination of their dispute with the European Space Agency, relating to their claims under the German Provision of Labour Act. They invoke Article 6 para. 1 (Art. 6-1) of the Convention.   34.   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."   a.    Applicability of Article 6 para. 1 (Art. 6-1)   aa.   Existence of a dispute over a right   35.   For Article 6 para. 1 (Art. 6-1) under its "civil" head to be applicable, there must be a "dispute" (contestation in the French text) over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law.    The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question (cf. Eur. Court HR, Neigel v. France judgment of 17 March 1997, para. 38, to be published in Reports of Judgments and Decisions 1997).   36.   The Commission notes that the applicants brought proceedings with a German labour court against the European Space Agency, an international organisation with seat in Paris, operating the European Space Operations Centre in Darmstadt.   37.   On a previous occasion, the Commission regarded a complaint about the lack of access to a court in respect of a dispute with the Iran- United States Claims Tribunal (The Hague) as being incompatible with the provisions of the Convention.   In this context, it considered that, because of the immunity from suit before the Dutch courts under a privileges and immunities agreement, the administrative decisions of the Tribunal did not engage the responsibility of the Netherlands under the Convention.   The Commission observed that it was in accordance with international law that States confer immunities and privileges to international bodies which are situated in their territory, and that such a restriction of national sovereignty in order to facilitate the working of an international body did not give rise to an issue under the Convention (No. 12516/85, Dec. 12.12.88, D.R. 58, p. 119).   38.   In the present case, the applicants claimed before the German labour courts a declaratory judgment on the existence of an employment contract between them and the European Space Agency, pursuant to the German Provision of Labour Act, as a result of their being hired out for years to perform work for the European Space Agency in Germany. The dispute at issue did not concern any decision taken by an international body in the exercise of its powers which could not engage the responsibility of Germany, but related to a right which had its basis in German labour law.   39.   The Commission further considers that the immunity from jurisdiction, accorded to members of diplomatic or consular missions of foreign States in the exercise of public functions or international organisations such as the European Space Agency,   does not exclude the existence of substantive rights under domestic law and cannot be regarded as delimiting the very substance of any such rights.   40.   In this context, the Commission observes that, in any event, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 para. 1 (Art. 6-1) - namely that civil claims must be capable of being submitted to a judge for adjudication - if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons (cf. Eur. Court HR, Fayed v. United Kingdom judgment of 21 September 1994, Series A no. 294-B, pp. 49-50, para. 65; see also Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 16, para. 36; No. 9310/89, Dec. 16.7.86, D.R. 47, p. 5; No. 12816/87, Dec. 18.1.89, D.R. 59, p. 186).   41.   In the Commission's view, the rules on immunity from jurisdiction of, inter alia, international organisations prevent claims concerning substantive rights, which exist as such under German law, from being raised and enforced against the privileged persons in German court proceedings, unless they waive their immunity.   In these circumstances, it is merely a procedural bar preventing the possibilities of bringing potential claims to court.   42.   The labour court action brought by the applicants, therefore, related to a dispute over a substantive right under German law.   bb.   The civil nature of the right concerned   43.   The Commission recalls that Article 6 para. 1 (Art. 6-1) applies where the subject-matter of an action is "pecuniary" in nature and is founded on an alleged infringement of rights which are likewise pecuniary (cf. Eur. Court HR, Editions Périscope v. France judgment of 26 March 1992, Series A no. 234-B, p. 66, para. 40) or where its outcome is "decisive for private rights and obligations" (cf. Eur. Court HR, H. v. France judgment of 24 October 1989, Series A no. 162-A, p. 20, para. 47).   44.   Disputes relating to private law relations between employer and employee generally are of a "civil" nature for the purposes of Article 6 para. 1 (Art. 6-1) (cf. Eur. Court HR, Obermeier v. Austria judgment of 28 June 1990, Series A no. 179, p. 21, para. 67).   45.   It is true that the Convention does not secure a right of recruitment to the civil service, and disputes relating to the recruitment, employment and retirement of civil servants are as a general rule outside the scope of Article 6 para. 1 (Art. 6-1) (Eur. Court HR, Glasenapp and Kosiek v. Germany judgments of 28 August 1986, Series A no. 104, p. 26 para. 49, and no. 105, p. 20, para. 35; Francesco Lombardo v. Italy judgment of 26 November 1992, Series A no. 249-B, p. 26, para. 17; Fusco v. Italy judgment of 2 September 1997, para. 20, 21, to be published in Reports of Judgments and Decisions 1997).   46.   However, notwithstanding similar public law features of the international civil service, the present case does not concern a question of recruitment and employment by the European Space Agency on the basis of its Staff Regulations.   Rather, the applicants asserted a right to employment on the basis of the German Provision of Labour Act.   In this situation, the European Space Agency may be compared with any other private person to whom services were rendered by an employee on the order of another private employer, within the meaning of the German Provision of Labour Act.   47.   In these circumstances, the Commission finds that the action brought by the applicants before the German labour courts concerned their civil rights within the meaning of Article 6 para. 1 (Art. 6-1). The applicability of Article 6 (Art. 6) to the present case is indeed not disputed by the respondent Government.   b.    Compliance with Article 6 para. 1 (Art. 6-1)   48.   Article 6 para. 1 (Art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a tribunal (Eur. Court HR, Golder v. United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, para. 36; Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, pp. 24-25, para. 57; Fayed judgment, op. cit.; Bellet v. France judgment of 4 December 1995, Series A no. 333-B, p. 41, para. 31).   49.   The applicants consider that it is not acceptable under Article 6 (Art. 6) that, in a dispute against an international organisation, the access to a tribunal is entirely excluded by the rules on immunity from jurisdiction.   50.   The Government argue that the principle of immunity of international organisations constitutes an inherent limitation to Article 6 para. 1 (Art. 6-1).   51.   In the case-law of the Court (cf., as a recent authority, Eur. Court HR, Bellet judgment, loc. cit.), the scope of the principle of the right of access to a court has been clarified in the following terms:        "(a) The right of access to the courts secured by      Article 6 para. 1 (Art. 6-1) is not absolute but may be subject      to limitations; these are permitted by implication since the      right of access 'by its very nature calls for regulation by the      State, regulation which may vary in time and in place according      to the needs and resources of the community and of individuals'.        (b)   In laying down such regulation, the Contracting States enjoy      a certain margin of appreciation, but the final decision as to      observance of the Convention's requirements rests with the Court.      It must be satisfied that the limitations applied do not restrict      or reduce the access left to the individual in such a way or to      such an extent that the very essence of the right is impaired.        (c)   Furthermore, a limitation will not be compatible with      Article 6 para. 1 (Art. 6-1) if it does not pursue a legitimate      aim and if there is not a reasonable relationship of      proportionality between the means employed and the aim sought to      be achieved."   52.   In the present case, the applicants had access to the Darmstadt Labour Court, however, only to be told that their actions were inadmissible on the ground of the defendant organisation's immunity from jurisdiction.   They did not, therefore, achieve a determination of the merits of their claims.   53.   The Commission recalls that the fact of having access to domestic remedies, only to be told that one's actions are barred by operation of law does not always satisfy the requirements of Article 6 para. 1 (Art. 6-1).   The degree of access afforded by the national legislation must also be sufficient to secure the individual's "right to a court", having regard to the principle of the rule of law in a democratic society (cf. Eur. Court HR, Bellet judgment, op. cit., p. 42, para. 36).   54.   The Government maintain that the permissible limitations to the right of access to a court include the traditional and generally recognised principle of 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.   In their view, national legislation such as the Provision of Labour Act cannot result in a temporary worker obtaining the status of a member of an international organisation's permanent staff.   55.   The Commission notes that SS. 18 to 20 of the German Court Organisation Act confer immunity from jurisdiction on diplomatic missions and consular representations, and on other persons 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.   Pursuant to Article IV para. 1 (a) of Annex I to the "ESA Convention" of 1975, the European Space 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.   56.   As to the rationale of international immunities, the Commission observes that the provision of privileges and immunities to international organisations is an essential means of protection these organisations from unilateral interference by individual governments. The constitutional instruments of inter-governmental organisations elaborately define their decision-making processes, and in particular the type and degree of influence each government is to have in respect of the organisation.   It is therefore considered unacceptable for individual governments to be able, whether through their executive, legislative or judicial organs, to require an inter-governmental organisation to take certain actions by commands addressed to the organisation itself or to any of its officials (cf. R. L. Bindschedler, International Organizations, General Aspects, and P. C. Szasz, International Organizations, Privileges and Immunities, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Volume II (1992), pp. 1289 et seq., at p. 1307, and pp. 1325 et seq., at p. 1326, respectively).   57.   The Commission finds that the underlying aim of the system of providing international immunities to international organisations is to contribute to their proper functioning.   The contested limitation on the ability to take legal proceedings against the European Space Agency therefore resulted from rules which pursued legitimate aims.   58.   It remains to be determined whether in the circumstances of the present case there was a reasonable relationship between the means employed and the legitimate objectives pursued by the limitation in question. 59.   The Commission considers that States may transfer to international organisations competences (cf. No. 13258/87, Dec. 9.2.1990, D.R. 64, p. 138), and may also grant these organisations immunity from jurisdiction, in particular in relation to the exercise of those competences which are to be considered as public and not as commercial (in the same sense as it is accepted for foreign states by the distinction between acta iure imperii and acta iure gestionis, cf. No. 24236/94, Dec. 4.12.95, D.R. 84-A, p. 84 with further references) "provided that within that organisation fundamental rights will receive an equivalent protection" (No. 13258/87, loc. cit.).   This is a special feature of the general principle that "if a State contracts treaty obligations and subsequently concludes another international agreement which disables it from performing its obligations under the first treaty it will be answerable for any resulting breach of its obligations under the earlier treaty" (No. 235/56, Dec. 10.6.58, Yearbook 2, p. 256 (300), No. 13258/87, op. cit., p. 138).   60.   Viewed in the light of the foregoing considerations, the legal impediment to bringing litigation before the German courts, namely the immunity of the European Space Agency from German jurisdiction, is only permissible under the Convention if there is an equivalent legal protection.   In this context, the Commission recalls that the object and the purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (cf. Eur. Court HR, Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 12, para. 24).   61.    The applicants maintain that they did not have any other appropriate legal possibility to establish their rights under German labour law.   62.   The Commission considers that the problems posed by the application of the rules on immunity from jurisdiction in the present case have to be seen against the general arrangements made for appropriately resolving private law disputes to which the European Space Agency is a party.   As stated above (see para. 56), the object of this immunity is merely to save an international organisation from having to litigate unwillingly in national courts.   63.   The Commission notes that, pursuant to the legal system established under Annex I to the "ESA-Convention", the European Space Agency has resorted to various devices to settle disputes with private parties.   Thus members of staff or experts may have recourse to an Appeals Board in respect of their conditions of service.   Arbitration is provided for in respect of disputes concerning written contracts other than those concluded in accordance with the Staff Regulations. Moreover, any Member State may submit to the International Arbitration Tribunal any dispute, inter alia, arising out of damage caused by the Agency, or involving any other non-contractual responsibility of the Agency.   The possibility of requesting the German Government to bring the applicants' case before the International Arbitration Tribunal was already mentioned by the Federal Labour Court, in its decision of 10 November 1993.   Moreover, Article IV of the said Annex I obliges the Council of the European Space Agency to waive its 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.   64.   The Commission concludes from the foregoing that, in private law disputes involving the European Space Agency, judicial or equivalent review may be obtained, albeit in procedures adjusted to the special features of an international organisation and therefore different from the remedies available under domestic law.   65.   It is true that the procedures under the legal regime of the European Space Agency did not provide the applicants with a remedy to argue before a court that an employment contract between them and the European Space Agency was assumed by law to have been concluded, pursuant to the German Provision of Labour Act.   They did not, therefore, receive a legal protection within the European Space Agency which could be regarded as equivalent to the jurisdiction of the German labour courts.   66.   However, the applicants' situation was the direct consequence of the particular nature of their claim for recognition of a labour contract with the European Space Agency under the German Provision of Labour Act, i.e. special legislation enacted for the German labour market.   Litigation of this kind would bypass and could undermine the employment policies of international organisations under their own staff regulations.   Bearing in mind that the aim of international immunities, which are generally accorded to international organisations, particularly by the States Parties to the Convention, is to protect international organisations from unilateral interference by individual governments, whether through their executive, legislative or judicial organs (see above para. 56), the Commission cannot apply the test of proportionality in such a way as to force an international organisation to be a party to domestic litigation on a question of employment governed by domestic law.   67.   As regards the second applicant, a further factor is to be taken into account.   Following his dismissal, the second applicant had, as pointed out by the Government, a possibility of bringing legal proceedings in Germany, in pursuance of the relevant provisions of the German Provision of Labour Act, against the T.I. company, the Italian partner in the chain of contractual relations for hiring him out to the European Space Agency.   Whilst not covering his claim of employment, such proceedings could have been a means enabling him to recover compensation for financial loss suffered as a consequence of his legal situation, pursuant to the Provision of Labour Act.   68.   In the light of these considerations, the Commission finds that the national authorities, in providing immunity from jurisdiction to the European Space Agency, did not exceed their margin of appreciation to limit the applicants' access to the courts under Article 6 para. 1 (Art. 6-1), either as regards the state of the applicable law or as regards the effects of the application of that law in the present case. Notwithstanding the applicants' special situation, a reasonable relationship of proportionality can be said to have existed between the rules on international immunity and the legitimate aims pursued.   69.   In these circumstances, the Commission considers that the limitation on the applicants' opportunity to take legal proceedings against the European Space Agency did not amount to an unjustified denial of their "right to a court" under Article 6 para. 1 (Art. 6-1).        CONCLUSION   70.   The Commission concludes, by 17 votes to 15, that in the present case there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.           M. de SALVIA                         S. TRECHSEL       Deputy Secretary                         President       to the Commission                    of the Commission                                                    (Or. English)                 CONCURRING OPINION OF MR K. HERNDL        While I fully agree with the Commission's conclusion that there was no violation of Article 6 para. 1 of the Convention and accept the reasoning leading to that conclusion (paragraphs 83 to 90 of the Report), I should like to elaborate a little further on some of the legal issues involved in the present case.   1.    The legal situation under international law        As a general rule international governmental organisations, in particular those of a universal character, enjoy immunities on the territory of their member States. Those immunities are laid down either in the constitutional document of the respective organisation or in special conventions which are binding on member States. The immunity granted to international organisation is generally recognized and should even be ensured under international custom (cf. Seidl- Hohenveldern, Völkerrecht, 8th edition, 1994, margin No. 1498). In the latter respect, Dominicé also affirms that at least as far as the organisations of the UN system are concerned, there exists a customary rule of international law concerning immunity from any national jurisdiction (cf. Dominicé, l'Immunité de juridiction et d'exécution des organisations internationales, Recueil des Cours, tome 187, p. 220).        As the Commission rightly states, it is considered unacceptable for individual governments to be able, whether through their executive, legislative or judicial organs, to require an inter-governmental organisation to take certain actions by command addressed to the organisation or to any of its officials (cf. R. Bindschedler, International Organizations, General Aspects; and P. Szasz, International Organizations, Privileges and Immunities, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. II, 1992, pp. 1289, and pp. 1325 et seq.).        Only a corresponding rule of international law can ensure the independence of an international organisation, protecting the organisation as it were from unilateral interference by individual governments.        In the case of ESA the constituent treaty, i.e. the Convention for the Establishment of a European Space Agency of 30 May 1975, provides for the organisation's immunity from (national) jurisdiction and execution (Article XV read in conjunction with Annex I of the Convention). These provisions are binding on all member States of the Organisation, hence also on Germany.   2.    The implication of this legal situation for German law        German law appears to be basically in line with this international legal situation. The Courts Organisation Act, in regulating the immunity from jurisdiction of internationally protected persons, provides in its Section 20 that other persons (other than the members of diplomatic or consular missions or representatives of other States officially invited to Germany) have immunity from jurisdiction according to the general rules of international law or according to international agreements or other legal rules. This is exactly the case with ESA.      Consequently, as ESA as a legal person does not come under German jurisdiction, neither do the legal disputes of private persons with ESA. It is legitimate to pose the question whether the European Convention on Human Rights is at all applicable in respect of such types of disputes for which the national courts do not have jurisdiction under international law. Thus, as regards private law disputes with ESA, the parties to such disputes might not fall under German jurisdiction in the sense of Article 1 of the Convention, because German jurisdiction over those kinds of disputes simply does not exist under international law.        The situation can be regarded as similar to a situation where, owing to the total lack of any link with the territorial jurisdiction, courts have to decline to adjudicate a dispute as they have legally no jurisdiction. It is in fact the State which lacks jurisdiction.        With this in mind, international organisations - and the report refers to this fact in paragraph 44 - do make arrangements for the legal settlement of their private law disputes outside the framework of national courts. This has been done by ESA, and accordingly the Commission found that, as a matter of principle, equivalent legal protection does exist as regards private law claims against ESA.   3.    The earlier jurisprudence of the Commission        It may serve as illustration to refer at this stage to the Commission's decision in the analogous case of Spaans v. the Netherlands (No. 12516/86, Dec. 12.12.88, D.R. 58 p. 119), where the Commission considered exactly the above mentioned aspects.        In the case of Spaans v. the Netherlands which concerned the immunity of the Iran-United States Claims Tribunal, an entity established through international treaty, the respondent government stressed that "the rule that the ... Tribunal in its capacity as a body established under public international law enjoys certain immunities and privileges ... is, in general terms, derived directly from the generally accepted principles of international law (NB: not underlined in the original)", the Netherlands Supreme Court upholding that view by confirming that "an international organisation is, in principle, not subject to the jurisdiction of the courts in the ... State concerning disputes that have a direct connection with the fulfilment of the organisation's tasks". Moreover the Commission rejected the application as incompatible ratione personae, noting that "it is in accordance with international law that States confer immunities and privileges to international bodies ... The Commission does not consider that such a restriction of national sovereignty in order to facilitate the working of an international body gives rise to an issue under the Convention".   4.    The results of the situation for the applicants        It must be recalled that there never existed a contractual relationship, entered into by the applicants themselves, between ESA and the applicants. They were employed by private companies (SPM, CDP, T, T.I.) and at some stage two of the applicants even had set up their own company to contract with these firms as to the services they would render. At the end of their contracts - when their actual employers informed them that the contract would not be continued following its expiration (see para. 19 of the report) - they decided to put forward claims against ESA. This was made possible only by the existence of a particular and specific provision in German law concerning the hiring out of employees (Provision of Labour Act). That act stipulates that contracts between a hirer out and a borrowing employer, as well as between the hirer and the temporary worker, require permission from a German governmental authority (the Federal Employment Office), otherwise they are void. As far as the granting of governmental permission for such contracts is concerned, it must remain an open question to what extent ESA - an international organisation and proper subject of international law - could actually be subjected to such a regime in respect of the service contracts which it concluded and which were necessary for the fulfilment of it tasks. This issue was not, and could not be, decided by the German courts for the simple reason that ESA is not subject to German jurisdiction as explained