CEDH · PRESS;GCJUDGMENTS;ENG — 18 février 1999

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GERMANY and BEER AND REGAN v. GERMANY       In judgments delivered at Strasbourg on 18 February 1999 in the cases of Waite and Kennedy v. Germany (application no. 26083/94) and Beer and Regan v. Germany (application no. 28934/95), the European Court of Human Rights held unanimously that there had been no violation of Article 6 § 1 (right of access to a tribunal) of the European Convention on Human Rights.   1.   Principal facts   Mr Richard Waite is a British national, who was born in 1946 and lives in Griesheim. Mr Terry Kennedy is also a British national. He was born in 1950 and lives in Darmstadt.   Mr Karlheinz Beer is a German national, who was born in 1952 and lives in Darmstadt.   MrPhilipRegan, a British national, was born in 1960 and lives in London in the United Kingdom.     All the applicants, employed by foreign companies, were placed at the disposal of the European Space Agency to perform services at the European Space Operations Centre in Darmstadt. When their contracts were not renewed they instituted proceedings before the Darmstadt Labour Court ( Arbeitsgericht ) against the ESA, arguing that, pursuant to the German Provision of Labour (Temporary Staff) Act ( Arbeitnehmerüberlassungsgesetz ), they had acquired the status of employees of the ESA. In these proceedings, the ESA relied on its immunity from jurisdiction under Article XV (2) of the ESA Convention and its Annex   I. The Labour Court declared the actions inadmissible, considering that the ESA had validly relied on its immunity from jurisdiction. Section 20(2) of the Courts Act ( Gerichtsverfassungsgesetz ) provides that persons shall have immunity from jurisdiction according to the rules of general international law, or pursuant to international agreements or other legal rules     In the case of Mr Waite and Mr Kennedy, the Frankfurt/Main Labour Appeals Court ( Landesarbeitsgericht ) and the Federal Labour Court ( Bundesarbeitsgericht ) confirmed that immunity from jurisdiction was an impediment to court proceedings.     The Federal Constitutional Court ( Bundesverfassungsgericht ) declined to accept their appeal for adjudication.   2.   Procedure and composition of the Court     Application nos. 26083/94 and 28934/95 were lodged with the European Commission of Human Rights on 24 November 1994 and 13 September 1995, respectively. Having declared the applications admissible, the Commission adopted two reports on 2   December 1997 in which it expressed the opinion that there had been no violation of Article   6 § 1 of the Convention (seventeen votes to fifteen). The Commission referred the case to the Court on 16 March 1998.     Under the transitional provisions of Protocol No. 11 to the Convention, the case was transmitted to the Grand Chamber of the new European Court of Human Rights on the entry into force of the Protocol, on 1 November 1998.     Judgment was given by a Grand Chamber of 17 judges, composed as follows:   Luzius W ildhaber (Suisse) President , Elisabeth P alm   (Swedish), Luigi Ferrari Bravo   (Italian ), Lucius Caflisch   (Swiss), Jean-Paul Costa   (French), Willi Fuhrmann   (Austrian), Karel Jungwiert   ( Czech ), Marc Fischbach   (Luxemburger), Boštjan Zupančič   (Slovenian), Nina Vajić   (Croatian), John Hedigan   (Irish ), Wilhelmina T homassen   ( Dutch), Margarita Tsatsa-Nikolovska   (FYROMacedonia), Tudor Pantiru   (Moldovan), Egils Levits (Latvian), Kristaq Traja (Albanaian) , judges , Eckhart Klein , ad hoc judge ,   and also of   Paul Mahoney , Deputy Registrar .   3.   Summary of the judgment [1]     Complaint     The applicants contended that they had not had a fair hearing by a tribunal on the question of whether, pursuant to the German Provision of Labour (Temporary Staff) Act, a contractual relationship existed between them and the ESA. They alleged that there had been a violation of Article   6 § 1 of the Convention.     Decision of the Court     The Court reiterated the principle that Article   6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect only (Golder v. the United Kingdom judgment of 21   February 1975, Series A no.18).     The Court noted that the applicants’ action against ESA had been declared inadmissible and that the proceedings before the German labour courts had concentrated on the question of whether or not ESA could validly rely on its immunity from jurisdiction.       The     Court considered that the reasons advanced by the German labour courts to give effect to the immunity from jurisdiction of the ESA could not be regarded as arbitrary. It next examined whether access limited to a preliminary issue was sufficient to secure the applicants’ “right to a court”, in the light of the principles established in its case-law (Fayed v. the United Kingdom judgment of 21   September 1994, Series A no. 294), in particular the need for such restricted access to pursue a legitimate aim and for there to be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.     According to the Court, the rule of immunity from jurisdiction, which the German courts applied to the ESA, had a legitimate objective. In this respect, it noted that the attribution of privileges and immunities to international organisations was an essential means of ensuring the proper functioning of such organisations free from unilateral interference by individual governments.     In turning to the issue of proportionality, the Court considered that where States established international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attributed to these organisations certain competences and accord them immunities, there might be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution.     For the Court, a material factor in determining whether granting ESA immunity from German jurisdiction was permissible was whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention. It was the opinion of the Court that, s ince the applicants had claimed the existence an employment relationship with ESA, they could and should have had recourse to the ESA Appeals Board, which is “independent of the Agency”, has jurisdiction “to hear disputes relating to any explicit or implicit decision taken by the Agency and arising between it and a staff member” (Regulation   33.1 of the ESA Staff Regulations). The Court had further regard to the possibility open to temporary workers to seek redress from the firms that had employed them and hired them out.     The Court concluded that the test of proportionality could not be applied in such a way as to compel an international organisation to submit itself to national litigation in relation to employment conditions prescribed under national labour law. Such an interpretation of Article 6 § 1 of the Convention would thwart the proper functioning of international organisations and run counter to the current trend towards extending and strengthening international cooperation.     In view of all these circumstances, the Court found that, in giving effect to the immunity from jurisdiction of ESA, the German courts did not exceed their margin of appreciation.           Subject to his duty of discretion, the Registrar is responsible under the Rules of Court for replying to requests for information concerning the work of the Court, and in particular to enquiries from the press.     Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contact: Roderick Liddell Telephone: (0)3 88 41 24 92; fax: (0)3 88 41 27 91 1.     This summary by the Registry does not bind the Court.