PEREZ v. GERMANY
Inadmissible
Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicant, Ms Amalia Perez, is a Spanish national, who was born in 1950 and lives in Madrid. She was represented before the Court by Mr E.P. Flaherty, a lawyer practising in Geneva. 2. The German Government (“the Government”) were represented by two of their Agents, Mr H.-J. Behrens and Mrs K. Behr, of the Federal Ministry of Justice. 3. The Government of the Kingdom of Spain, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), did not indicate that they wished to exercise that right. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant is a former staff member of the United Nations (the “UN” or the “Organisation”). She joined the United Nations Development Programme (the “UNDP”) in New York in 1970. She was promoted several times and, in 1998, moved to the United Nations Volunteer Programme (the “UNV”), Headquarters Administration, in Bonn, Germany. UNV is represented worldwide through the offices of the UNDP. The applicant served as a senior manager with UNV and resided in Germany. 6. Until 1999 the applicant’s professional performance had consistently been rated by consecutive supervisors in her annual appraisal reports as exceeding or fully satisfying the requirements of her respective job. However, in 1999, as well as in 2000 and 2001, a new supervisor found that she had not met the performance expectations. 7. As a consequence of the negative appraisal reports the applicant was included in the 2002/2003 UNV reassignment exercise with a view to her redeployment. By a letter of 8 July 2002, she was informed by the UNV human resources department that she had not been selected for any post within the scope of the reassignment exercise and was given a time-limit of several months to search herself for an alternative placement in the UNDP or elsewhere in the Organisation. 8. On 17 July 2002 the applicant filed a rebuttal for an internal administrative review of the negative appraisal reports for the years 1999, 2000 and 2001 with a rebuttal panel (the “Rebuttal Panel”) composed of UNDP staff members jointly selected by the staff council and management. 9. On 1 November 2002 UNDP management decided that the applicant should be placed on annual leave during the period from 1 November to 4 December 2002. As the applicant was unable to find a post within the Organisation and following fruitless attempts by UNDP to agree on possible conditions for a termination of the applicant’s employment contract, she was given formal notice of termination by a letter dated 3 December 2002; her dismissal was to be effective as of 4 March 2003. The termination was reasoned with intended staff reduction and suppression of posts. 10. On 20 January 2003 the applicant requested an administrative review of the decision to dismiss her with the UN Secretary-General (the “Secretary-General”) and asked to suspend her dismissal. 11. On 31 January 2003 the Secretary-General, following the recommendation by the UN Joint Appeals Board (the “JAB”) of 29 January 2003, granted the applicant’s request for a suspension of her dismissal pending completion of the rebuttal process in relation to her appraisal reports, which had commenced on 22 January 2003. 12. On 10 June 2003 the Rebuttal Panel issued its report and concluded that the applicant’s performance ratings be maintained for the years 1999 and 2001 but found that it was not in a position to reach a final conclusion with respect to the rating for 2000 due to management’s failure to provide the relevant documentation. 13. On 29 August 2003 the Secretary-General, contrary to a recommendation by the JAB dated 27 August 2003, decided not to accept a further request by the applicant to suspend her dismissal. 14. The applicant’s employment ended on 31 August 2003. 15. On 7 March 2003 the applicant, represented by counsel, had lodged an appeal with the JAB challenging the decision to terminate her permanent appointment as well as the decision to place her on annual leave during the period from 1 November to 4 December 2002. 16. In its report on the merits of the applicant’s appeal dated 28 February 2005, the JAB found that following the applicant’s dismissal UNV management had immediately hired a staff member under a temporary assistance contract to perform the applicant’s functions and that her post had thus in reality not been suppressed but in fact had been reclassified to a higher grade. The JAB noted that it had not been established that UNDP management had taken action to assist the applicant to improve her work performance from 1999 onward. It further held that while the applicant had been placed in the reassignment exercise for 2002/2003, UNDP management had failed to make sufficient efforts to actively assist her in finding alternative employment within the Organisation. As regards the decision to place the applicant on annual leave from 1 November to 4 December 2002, the JAB noted that even though the applicant’s rebuttal process regarding her appraisal reports had been pending since 17 July 2002, the case had not yet been assigned to a Rebuttal Panel at the time she was placed on annual leave in November 2002. It had been only on 22 January 2003 and only after the applicant had applied for suspension of her dismissal, that the Organisation acknowledged that the rebuttal process had been delayed and started the rebuttal proceedings. In the JAB’s opinion it had therefore not been in accordance with the applicable staff rules to penalise the applicant by having to use her annual leave balance in November 2002. 17. The JAB recommended that the applicant be granted monetary compensation equivalent to six months’ net base salary for the delay in the rebuttal process as well as for the failure on the part of the Organisation to make a reasonable effort to find a suitable alternative post for her. It also recommended that annual leave wrongfully charged for the period of 1 November to 4 December 2002 be credited to her leave balance. 18. On 3 August 2005 the applicant was informed of the Secretary-General’s decision to credit her with her annual leave for the period from 1 November to 4 December 2002 and to grant her compensation in an amount of three months’ net base salary instead of the six months recommended by the JAB. 19. On 5 July 2005 counsel for the applicant lodged an appeal with the United Nations Administrative Tribunal (the “UNAT”) against the Secretary-General of the UN, requesting the tribunal to find, inter alia, that she be reinstated and awarded full compensation for losses incurred since termination of her employment on 31 August 2003, such as social security and other benefits, as well as punitive damages. 20. By a letter to the UNAT of 25 May 2007, the applicant further asked to be granted access to certain documents submitted by UNDP in the proceedings before the Rebuttal Panel and referred to by the latter in its report of 10 June 2003 but which she had allegedly never had an opportunity to examine. 21. The UNAT rendered its judgment on 28 September 2007 (No. 1345) following a written procedure. It pointed out that while the applicant’s rebuttal had been filed on 17 July 2002, the internal rebuttal proceedings had only commenced on 22 January 2003 following the applicant’s request of 20 January 2003 to suspend her dismissal and had ended on 10 June 2003. The proceedings had thus taken eleven months, a delay that, as acknowledged by the Organisation, was unacceptable. The UNAT further endorsed the JAB’s finding that the UNDP administration had failed to make every bona fide effort to secure a new post for the applicant. It ordered the Organisation to pay the applicant further compensation in the amount of three months’ net base salary in addition to the compensation she had already received and rejected the remainder of the applicant’s pleas. The applicant’s request for access to the aforementioned specific documents was not granted by the UNAT. 22. The United Nations were founded in 1945 and currently have 193 Member States. Germany was admitted to membership in the United Nations on 18 September 1973. The United Nations Development Programme (UNDP) and the United Nations Volunteers Programme (UNV) are subsidiary organs of the UN established by the Organisation’s General Assembly. 23. Pursuant to Article 105 § 1 of the Charter of the United Nations the Organisation shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes. 24. The Convention on the Privileges and Immunities of the United Nations (the “General Convention”) of 13 February 1946, to which Germany has been a party since 5 November 1980, provides: “Article II Section 2. The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity ... Article VIII Section 29. The United Nations shall make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party; ...” 25. The General Convention is complemented by the Agreement between the UN and the Federal Republic of Germany concerning the headquarters of the UNV (the “Headquarters Agreement”) of 10 November 1995, which stipulates in its Article 4 that the General Convention shall apply to the UNV. In addition, it contains in its Article 9 § 1 and Article 26 § 1 (a) provisions similar to sections 2 and 29 (a) of the General Convention respectively. 26. Under the UN internal appeals system in force at the time of the dispute at issue, UN staff members who considered that a decision by the UN administration had violated the terms of their employment could seek an administrative review of such decision by the UN Secretary-General. If the Secretary-General did not reply within the allotted time-limit as stipulated in the relevant regulations or if his reply was unfavourable, the staff member could submit an appeal to the Joint Appeals Board (the “JAB”). The JAB, composed of three staff members, following an examination of the case, made a non-binding recommendation to the Secretary-General who took the final decision on the appeal. 27. The Secretary-General’s final decisions could then be challenged before the United Nations Administrative Tribunal (the “UNAT”). The UNAT was established in 1950 by the General Assembly, for the purpose of resolving employment-related disputes between United Nations staff and the Organisation. 28. The judges of the UNAT, who had to possess judicial experience in the field of administrative law, were appointed by the General Assembly for four years and could be reappointed once. No member of the UNAT could be dismissed by the General Assembly unless the other members were of the unanimous opinion that he or she was unsuited for further service (Article 3 of the UNAT’s Statute, adopted by the General Assembly by resolution 351 A (IV) on 24 November 1949 and as applicable at the time of the dispute at issue). 29. As to the proceedings before the UNAT, each written statement and additional document submitted to the UNAT at the request of its president was to be communicated to the other parties, unless at the request of one of the parties and with the consent of the other parties, the UNAT decided otherwise (see Article 10 of the Rules of the Administrative Tribunal of the United Nations adopted by the Tribunal on 7 June 1950, as amended and applicable at the time of the dispute at issue). An applicant could present his case before the Tribunal in person, in either the written or oral proceedings. He could also designate a staff member of the United Nations to represent him, or could be represented by counsel authorized to practice in any country a member of the organization concerned (Article 13 of the Rules of the UNAT). Oral proceedings were to be held if the presiding member so decided or if either party so requested and the presiding member agreed (see Article 15 § 1 of the Rules of the UNAT). 30. If the Tribunal found that an application was well-founded, it had to order the rescinding of the decision contested. At the same time, it had to fix the amount of compensation to be paid to the applicant for the injury sustained should the Secretary-General decide, in the interests of the UN, that the applicant should be compensated without further action being taken in his or her case. Such compensation should, as a rule, not exceed the equivalent of two years’ net base salary of the applicant (see Article 10 § 1 of the Statute). 31. In January 2006 the UN Secretary-General established the Redesign Panel on the United Nations system of administration of justice (the “Redesign Panel”) in reply to a request by the UN General Assembly expressed in its resolution 59/283 to establish a panel of external, independent experts to review and possibly redesign the system of administration of justice at the United Nations. The Redesign Panel issued its report on 28 July 2006. The relevant parts of the report read as follows: “Summary ... The Redesign Panel found that the United Nations internal justice system is outmoded, dysfunctional and ineffective and that it lacks independence ... II. Overview 5. The Redesign Panel found that the administration of justice in the United Nations is neither professional nor independent. The system of administration of justice as it currently stands is extremely slow, underresourced, inefficient and, thus, ultimately ineffective. It fails to meet many basic standards of due process established in international human rights instruments ... 9. ... establishing a professional system of internal justice is essential if the United Nations is to avoid the double standard – which currently exists – where the standards of justice that are now generally recognized internationally and that the Organization pursues in its programmatic activities are not met within the Secretariat or the funds and programmes themselves. These international standards include the right to a competent, independent and impartial tribunal in the determination of a person’s rights, the right to appeal and the right to legal representation. 10. ... Hearings, too, are a clear requirement in international standards whenever there are disputed issues of fact. ... V. The Formal system 71. A number of the difficulties within the formal justice system stem from the Statute and the jurisprudence of UNAT. By article 10.1 of its Statute, UNAT may order specific performance. However, it is required at the same time to fix compensation (normally limited to two years’ net base salary), which the Secretary- General may decide to pay as an alternative if that is considered to be in the interests of the Organization. The power of the Secretary-General to choose between specific performance and the payment of limited compensation can, and sometimes does, result in inadequate compensation, particularly in cases of wrongful termination or non-renewal of contract. A system that cannot guarantee adequate compensation or other appropriate remedy is fundamentally flawed. More significantly, a system that does not have authority to finally determine rights and appropriate remedies is inconsistent with the rule of law. 72. The decisions of UNAT are not always consistent, and its jurisprudence is not well developed. In particular, it does not have a coherent jurisprudence as to the duties of an international organization to its staff. Thus, there is a widespread view, which is largely correct, that the formal justice system affords little, if any, protection of individual rights, such as the right to a safe and secure workplace or the right to be treated fairly and without discrimination. VI. Legal representation 100. The Panel of Counsel, which was formally established in 1984 and which has the responsibility to provide legal assistance and representation to United Nations staff members in proceedings within the internal justice system, is extremely underresourced and is not professionalized. ... 106. The Redesign Panel notes that legal assistance to the management of the Organization is undertaken not by volunteers without legal training, but by a cadre of professional lawyers in the Department of Management and the Office of Legal Affairs. This disparity in legal resources available to the management and staff members has created an egregious inequality of arms in the internal justice system.” 32. In 2007, based on the recommendations of the Redesign Panel and acting on a proposal by the Secretary-General, the General Assembly decided to introduce a new system for handling internal disputes and disciplinary matters in the United Nations. The new two-tier judicial system with a United Nations Dispute Tribunal and a United Nations Appeals Tribunal became operational on 1 July 2009. 33. The Federal Constitutional Court has jurisdiction to deal with constitutional complaints which concern acts of a “public authority” (see Article 93 § 1 no. 4 (a) of the Basic Law). Under the Federal Constitutional Court’s well-established case-law, this comprises not only acts of German public authorities, but also acts of supranational organisations which concern the beneficiaries of fundamental rights in Germany (see, for instance, Federal Constitutional Court, file no. 2 BvR 2134, 2159/92, judgment of 12 October 1993, Collection of the decisions of the Federal Constitutional Court (BVerfGE), vol. 89, pp. 155 ss., 174 s. (Maastricht judgment); file no. 2 BvR 1458/03, decision of 3 July 2006, § 12 (of the internet version)). 34. However, the Federal Constitutional Court only exercises its jurisdiction over supranational acts of international organisations under the condition that the complainant sufficiently substantiated that the level of protection of fundamental rights by the international organisation was generally and manifestly below the level required by the Constitution (see, for instance, Federal Constitutional Court, file no. 2 BvR 197/83, decision of 22 October 1986, BVerfGE, vol. 73, pp. 339 ss., 387 (Solange II); file no. 2 BvL 1/97, decision of 7 June 2000, BVerfGE, vol. 102, pp. 147 ss., 164; file no. 2 BvR 2368/99, decision of 4 April, §§ 9 ss.; file no. 2 BvR 1458/03, decision of 3 July 2006, § 21). 35. The Federal Constitutional Court’s decision of 28 November 2005 (file no. 2 BvR 1751/03) concerned the decision of the European Patent Office not to admit the applicant as a representative before that Office as he had not passed the ability test. 36. The Federal Constitutional Court declined to consider the applicant’s constitutional complaint. It found that the complaint was directed against an act of a “public authority” as the decision at issue had a direct effect on a beneficiary of fundamental rights in the German legal order. 37. However, the level of protection of fundamental rights guaranteed by the European Patent Convention satisfied the requirements which had to be met under the Basic Law in case of a transfer of sovereign powers. The applicant had failed to substantiate sufficiently that the level of human rights protection under the European Patent Convention in respect of admissions as a representative was generally and manifestly below the level required by the Constitution. The same applied if a duty of protection on the part of the State was assumed as the applicant would also have been obliged to demonstrate that there was a structural lack of legal protection which the Federal Government should have addressed. The Federal Constitutional Court therefore did not exercise its jurisdiction. 38. The Federal Constitutional Court’s decision of 22 June 2006 (file no. 2 BvR 2093/05 – the impugned decision in the case of Klausecker v. Germany, no. 415/07) concerned the European Patent Office’s decision not to recruit the applicant. 39. The Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the European Patent Office’s decision. It found that the complaint, in which the applicant had argued, in particular, that his constitutional right of access to court had been breached, was inadmissible. A constitutional complaint only lay against acts of a “public authority” and the applicant had failed to demonstrate that such an act was at issue in his case. 40. The Federal Constitutional Court confirmed that the European Patent Organisation had immunity from the jurisdiction of the domestic courts within the scope of its official activities under the European Patent Convention. It further reiterated that acts of a “public authority” were not only acts of German State authorities. The term also covered acts of supranational authorities, such as the European Patent Organisation and its executive organ, the European Patent Office, which had an impact on the beneficiaries of fundamental rights in Germany. 41. However, the decision of the President of the European Patent Office here at issue could not be qualified as an act which had an impact on the beneficiaries of fundamental rights in Germany because it did not have any external legal effects within the German legal order. Measures relating to the relationship between the international organisation and its staff or candidates for posts, as a rule, only concerned the internal sphere of the organisation. This conclusion was not altered by the fact that the applicant was a German national living in Germany who, had he been employed, would have worked in Germany. The court conceded that the applicant’s recruitment would have been an act of a supranational nature which, changing his legal status, would have had a concrete effect within the German legal order. The refusal to employ him did not, however, have such an effect. The Federal Constitutional Court’s jurisdiction did not extend to such internal measures. 42. The Federal Constitutional Court further found that in view of the inadmissibility of the applicant’s constitutional complaint, it did not have to decide the question whether the level of protection in respect of staff issues within the European Patent Organisation complied with the standards set by the Basic Law, which had to be observed in the event of a transfer of sovereign powers. 43. The Federal Constitutional Court’s decision of 3 July 2006 (file no. 2 BvR 1458/03) concerned the temporary denial of access of the complainants, staff members of the European Patent Office, to the internal e-mail system of that organisation. 44. The Federal Constitutional Court dismissed the complaint as inadmissible as it had not been shown that it concerned an act of a “public authority”. It stressed that such acts included acts of supranational organisations to which Germany had transferred sovereign powers and which had direct legal effects within the German legal order, that is, which altered the legal position of individuals within it. However, the impugned measure did not alter the complainants’ position in the German legal order. It further spoke against the existence of an act of a “public authority” that the European Patent Office enjoyed immunity from jurisdiction in respect of employment-law disputes. 45. Furthermore, as the Federal Constitutional Court had previously found (it referred to its decision of 28 November 2005, file no. 2 BvR 1751/03, see paragraphs 35-37 above), there could be a duty of protection incumbent on the State (Schutzpflichtenansatz) where the internal sphere of an international organisation was affected. In that sphere, legal protection could only be granted if the German legislature and the Federal Government used means that were suitable for ensuring that any conditions within the intergovernmental organisation which were contrary to fundamental rights were removed. The failure of the German State authorities to take action in connection with the final decision on the impugned act would then constitute an act of a “public authority”. 46. The complainants had, however, failed to make any submissions in this respect. Just as in the sphere of an organisation’s supranational powers, it was necessary for complainants to claim in a substantiated manner that there was a structural deficiency in legal protection within the organisation. The Federal Constitutional Court further noted that it had previously confirmed that the system of fundamental rights protection within the European Patent Convention and in the proceedings before the Administrative Tribunal of the International Labour Organisation generally complied with the standards of the Constitution.