CASE OF FRYDLENDER v. FRANCE
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
Elisabeth Palm
7. In July 1972 the applicant was engaged as an official employed under an individual contract (agent contractuel) by the Economic Development Department of the Ministry for Economic Affairs. Under a contract of 29 September 1977 he was sent to Athens to work as a technical adviser. Following an amendment of 30 August 1984 to the contract of 29 September 1977, he was posted to New York with effect from 25 June 1984 to head an autonomous section of the Economic Development Department. Under the authority of the chief commercial adviser of the New York office, who was himself responsible to the chief commercial adviser at the French embassy in Washington, to whom the agricultural attaché was also answerable, he was placed in charge of the wines, beers and spirits sector, where he had dealings with exporters and importers and, in particular, the SOPEXA company (Société pour l'expansion des ventes des produits alimentaires et agricoles). 8. In accordance with Decree no. 69-697 of 18 June 1969 on the general terms and conditions of service of persons working overseas for the State under individual contracts, the applicant was employed on a series of thirty-month contracts which were to be automatically renewed unless expressly terminated. The State could terminate any contract on three months' notice for, inter alia, inadequate performance. 9. In a letter dated 10 December 1985, which was served on the applicant on 27 December 1985, the Minister for Economic Affairs informed the applicant that, owing to his inadequate performance, he did not intend to renew his contract when it expired on 13 April 1986. In a letter dated 9 January 1986, served on the applicant on 21 January 1986, the Minister informed him of his final decision not to renew the contract, on the ground that, among other matters, the applicant had shown a marked lack of initiative towards importers. 10. By letters of 28 February, 3 March and 13 June 1986, the applicant lodged three applications for judicial review of this decision with the Paris Administrative Court. The first sought to have the Minister's first letter of 10 December 1985, which was in the nature of a preliminary to a final decision, set aside. The second was aimed at having the final decision to dismiss the applicant, contained in the letter of 9 January 1986, quashed. The third challenged the lawfulness of the appointment of the applicant's replacement. 11. In a judgment of 6 January 1989 the Paris Administrative Court, having joined all three applications, dismissed them. 12. On 24 October 1989 the applicant gave notice of an appeal to the Conseil d'Etat on points of law. He lodged a statement of the grounds of appeal on 23 February 1990. In a judgment of 10 May 1995, which was served on the applicant on 26 October 1995, the Conseil d'Etat dismissed the appeal, holding, inter alia, that it had been lawful for the Minister to dismiss the applicant on the ground of inadequate performance. 13. According to Article 1 of Decree no. 50-446 of 19 April 1950 laying down regulations governing the terms and conditions of service specific to economic development personnel, “the civil servants of the economic development offices overseas constitute a body of staff responsible to the Minister for Economic Affairs. In the performance of their duties they shall be attached to either a diplomatic delegation or a consulate ...” Article 3 of the decree provides that they are to act as delegates of the Minister for Economic Affairs in respect of all matters relating to France's foreign trade. In particular, they are responsible for studying all problems having a bearing on the French economy, supplying information to the various French administrative authorities and assisting with the preparation, negotiation and execution of commercial treaties and agreements. They must also participate in various surveys or special projects and in all economic events organised or run by the various ministries or official groups, defend the country's general economic interests and on that account provide direct assistance, in overseas markets, to French businessmen, industrialists and agricultural producers. The Overseas Economic Development Department has an establishment of 128 staff. Commercial attachés second class are recruited from among graduates of the National College of Administration (ENA); commercial advisers of the various classes may in addition be recruited from the State civil service. All commercial advisers and attachés are posted abroad by order of the Minister for Economic Affairs, made after the agreement of the Minister for Foreign Affairs has been obtained. 14. In addition, by Law no. 50-340 of 27 March 1950, five posts of agricultural attaché have been created. Agricultural attachés are responsible to the head of the relevant economic development office. Their duties are described in Article 3 of Decree no. 56-1242 of 3 December 1956: they study, from the technical point of view, problems affecting French agricultural development, particularly by seeking outlets in the local market for imports of French agricultural produce, and act as advisers during the preparation of negotiations on international commercial agreements and their application, assisting the head of office in his relations with the public administrative authorities dealing with foreign trade matters. 15. The general terms and conditions of service of persons of French nationality working overseas for the State or State public administrative bodies under individual contracts are laid down by Decree no. 69-697 of 18 June 1969. The provisions of the decree are not applicable to technical assistance or cooperation staff placed at the disposal of foreign States. The different types of post are defined in orders made by the ministries concerned. They may be filled either by non-established employees or by established civil servants. 16. The relevant provisions of the decree are worded as follows: “Persons to whom Article 1 applies shall sign a contract of service. The contract, which must refer to the provisions of this decree, shall specify its duration, the date on which it is to take effect, the staff member's category, grade and duties, the appropriate residence allowance group, the country of the posting and, where applicable, the family allowance group.” “Where the staff member was recruited in the country of the posting, the contract must be for a period of at least three years. Where the staff member was recruited in France or in a foreign country other than the country of the posting, the contract must be for at least thirty months plus the length of his or her official home leave entitlement. ... A contract does not become final until expiration of the period of probation or training which the staff member may be required to complete immediately after signature of the contract in the country of recruitment. The contract may be terminated by either party without restriction or notice at any time during this traineeship period or on its expiry.” “The contract shall be terminated: 1. when it expires, save that it will be deemed to have been tacitly renewed for a period equivalent to its original length unless terminated either by the State or by the member of staff at least three months before the date on which it is due to expire. Refusal to renew the contract or to sign a new contract shall be deemed a resignation. Such a refusal on the part of the State shall be deemed a dismissal, save where a new contract is signed within six months of the expiry of the previous one; 2. at any time if terminated by the State on three months' prior notice where the grounds for the termination are redundancy or inadequate performance; [or] in the case of dismissal on disciplinary grounds.” 17. Article 48(4) of the Treaty of 25 March 1957 instituting the European Economic Community (“the EEC Treaty”) provides for a derogation from the principle of freedom of movement for workers within the Community in respect of “employment in the public service”. The Court of Justice of the European Communities has developed a restrictive interpretation of this derogation. In its judgment of 17 December 1980 in the case of Commission v. Belgium (C-149/79, ECR 3881) it decided that the derogation concerned only posts which involved direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities, and which thus presumed on the part of those occupying them the existence of a special relationship of allegiance to the State and a reciprocity of rights and duties which formed the foundation of the bond of nationality. 18. The European Commission, to which the EEC Treaty assigned responsibility for ensuring the correct application of Community rules, noted that a large number of posts likely to be caught by the derogation had in reality no bearing on the exercise of powers conferred by public law or protection of the general interests of the State. 19. In a communication of 18 March 1988 it set itself the task of listing separately those activities which were covered by the derogation and those which were not. It thus established two distinct categories of activities according to whether or not they involved “direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State”. 20. These categories were defined as follows: “Exclusion of specific activities in the national public service [from freedom of movement for workers] On the basis of current Court of Justice rulings, and bearing in mind the present conditions for establishing the single market, the Commission considers that the derogation in Article 48(4) covers specific functions of the State and similar bodies such as the armed forces, the police and other forces for the maintenance of order, the judiciary, the tax authorities and the diplomatic corps. This derogation is also seen as covering posts in State Ministries, regional government authorities, local authorities and other similar bodies, central banks and other public bodies, where the duties of the post involve the exercise of State authority, such as the preparation of legal acts, the implementation of such acts, monitoring of their application and supervision of subordinate bodies ... Activities concerned by action in the public service sector The Commission considers that the functions involved in certain forms of public employment are for the most part sufficiently remote from the specific activities of the public service as defined by the Court of Justice that they would only in very rare cases be covered by the exception in Article 48(4) of the Treaty. The Commission proposes therefore to implement its action in the following areas by order of priority: – bodies responsible for administering commercial services (e.g. public transport, electricity and gas supply, airline and shipping companies, posts and telecommunications, radio and television companies), – public health care services, – teaching in State educational establishments, – research for non-military purposes in public establishments. Each of these activities also exists in the private sector, to which Article 48(4) does not apply, or may be exercised in the public sector without the imposition of nationality requirements ...”