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Title:Waite and Kennedy v. Germany
Application No:26083/94
Referred by:Commission
Date of reference by Commission:16-03-1998
Date of reference by State:
Date of Judgment:18-02-1999
Articles:6-1Conclusion:No violation of article 6-1

Waite and Kennedy (Germany) and Beer and Regan (Germany). 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 Labour Court against the ESA, arguing that, pursuant to the German Provision of Labour (Temporary Staff) Act, 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 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 and the Federal Labour Court confirmed that immunity from jurisdiction was an impediment to court proceedings. The Federal Constitutional Court declined to accept their appeal for adjudication. 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).

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. 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, 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 co-operation 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, since the applicants had claimed the existence of 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) would thwart the proper functioning of international organisations and run counter to the current trend towards extending and strengthening international co-operation. 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. There had been no violation.

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Last Modified: 13-01-2014 16:18:19 (Documentation SIM)