CASE OF KOOTTUMMEL v. AUSTRIA
Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed
Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant who was born in India lives in Lustenau. She runs an Indian restaurant with Ayurvedic cuisine in Lustenau. 6. On 1 October 2004 she lodged a request with the Dornbirn Labour Market Service (Arbeitsmarktservice – LMS) for the grant of an employment permit for an Ayurvedic chef from the South of India as a key worker (Schlüsselarbeitskraft). 7. On 2 November 2004 the Dornbirn LMS refused the request in accordance with section 2(5) of the Aliens' Employment Act (Ausländerbeschäftigungsgesetz). It found that the chef did not fulfil the conditions to be a key worker as defined in section 2(5). 8. The applicant appealed against the refusal to the Vorarlberg LMS on 17 November 2004. She maintained in substance that the authority had failed to assess properly the evidence. 9. On 15 February 2005 the Vorarlberg LMS dismissed the applicant's appeal. It held that the submitted documents did not sufficiently prove her contention that the proposed chef fulfilled the conditions required to be a key worker or that the requested employment would secure existing jobs or create new jobs, as required by section 2(5) of the Aliens' Employment Act. His professional skills could not be seen as specific and extraordinary since any chef could with further training obtain a certificate in Ayurvedic cuisine. 10. The applicant filed a complaint with the Administrative Court on 31 March 2005 and requested an oral hearing. In her appeal the applicant maintained that the authorities had failed to assess the evidence properly and give appropriate reasons. Had they done so they should have concluded that the person to be employed qualified as a key worker. On 7 June 2005 the Voralberg LMS submitted its comments. 11. On 24 April 2006 the Administrative Court dismissed the applicant's complaint. In accordance with section 39(2) of the Administrative Court Act (Verwaltungsgerichtshofgesetz) it also dismissed the applicant's request for an oral hearing as it found that it would not be likely to contribute to the clarification of the case. The decision was served on the applicant's counsel on 6 June 2006. 12. The Employment of Foreigners Act (Ausländerbeschäftigungs-gesetz) regulates a foreigner's access to the Austrian labour market. Section 2 (5) of this act, as in force at the relevant time, reads as follows: “(5) Key workers are foreigners who have particular training or specific know- how and professional experience which are requested on the domestic labour market and who would receive for their employment a monthly gross salary of at least 60% of the maximum contribution level under Section 108 para. 3 of the General Social Security Act. Moreover, at least one of the following conditions must be fulfilled: 1. the intended employment goes beyond the interest of the employing company and is of specific relevance for the region or the sector of the labour market concerned or 2. the intended employment fosters the creation of new employments and ensures the protection of existing employments or 3. the foreigner has a crucial influence on the management of the company (executive managerial post) or 4. the intended employment leads to a transfer of capital investment to Austria or 5. the foreigner is a university or polytechnics graduate or holds a certificate proving that he has accomplished a specially recognised training.” Further relevant provisions of that act can be found in the judgments in the cases of Jurisic and Collegium Mehrerau v. Austria (no. 62539/00, 27 July 2007) and Coorplan-Jenni GmbH and Hascic v. Austria (no. 10523/02, 27 July 2006). 13. Section 39(1) of the Administrative Court Act requires the Administrative Court to hold a hearing after its preliminary investigation of the case where the complainant has requested a hearing within the time-limit. Section 39(2) (6) provides, however, that, notwithstanding such a request, the Administrative Court may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings that an oral hearing would not be likely to contribute to the clarification of the case and that the lack of a hearing would not be in breach of Article 6 of the Convention.