CASE OF BEER AND REGAN v. GERMANY
No violation of Art. 6-1
Luzius Wildhaber;Paul Mahoney
10. Mr Karlheinz Beer is a German national, born in 1952 and resident in Darmstadt. MrPhilipRegan is a British national, born in 1960 and resident in London in the United Kingdom. 11. In 1982 the first applicant, a civil engineer by profession and employed by the French company S., was placed at the disposal of the European Space Agency to perform services at the European Space Operations Centre in Darmstadt. The first applicant’s contract was later taken over by the French company T. The second applicant, a systems programmer and employed by the Italian company T.I., was placed at the disposal of the European Space Agency to perform services at the European Space Operations Centre in Darmstadt in 1991. 12. The European Space Agency (“ESA”) with headquarters in Paris, formed out of the European Space Research Organisation (“ESRO”) and the European Organisation for the Development and Construction of Space Vehicle Launchers (“ELDO”), was established under the Convention for the Establishment of a European Space Agency (“ESA Convention”) of 30 May 1975 (United Nations Treaty Series 1983, vol. 1297, I – no. 21524). ESA runs the European Space Operations Centre (“ESOC”) as an independent operation in Darmstadt (Agreement concerning the European Space Operations Centre of 1967 – Official Gazette (Bundesgesetzblatt) II no. 3, 18.1.1969). 13. In October and November 1993 the applicants instituted proceedings before the Darmstadt Labour Court (Arbeitsgericht) against ESA, arguing that, pursuant to the German Provision of Labour (Temporary Staff) Act (Arbeitnehmerüberlassungsgesetz), they had acquired the status of employees of ESA. In his submissions, the second applicant indicated that, by letter of 27 September 1993, his employer T.I. had dismissed him. 14. In the respective labour court proceedings, ESA relied on its immunity from jurisdiction under Article XV § 2 of the ESA Convention and its Annex I. 15. On 21 March 1995 the Darmstadt Labour Court, following hearings, declared the applicants’ respective actions inadmissible. In both decisions, the Labour Court considered that ESA had validly relied on its immunity from jurisdiction. The Labour Court, referring to section 20(2) of the Courts Act (Gerichtsverfassungsgesetz), according to which immunity from jurisdiction could be provided for, inter alia, in international agreements, considered that ESA enjoyed such immunity under Article XV § 2 of the ESA Convention and its Annex I. In its reasoning, the Labour Court considered in particular that ESA had been established in 1975 as a new and independent international organisation. It therefore rejected the applicants’ argument that ESA was bound by Article 6 § 2 of the Agreement concerning ESOC, which had subjected the former ESRO to German jurisdiction in cases of disputes with its employees which were outside the competence of its Appeals Board. The Labour Court further recalled that the Federal Labour Court (Bundesarbeitsgericht), in a decision of 10 November 1993 in a similar case (file no. 7 AZR 600/92; see the Waite and Kennedy v. Germany judgment of 18 February 1999, to be published in the Court’s official reports, §§ 21-25), had found that the rules in question did not conflict with fundamental principles of German constitutional law. 16. In view of the decisions taken in the case of Mr Waite and Mr Kennedy, the applicants did not pursue the matter. 17. In the proceedings instituted by the second applicant against his dismissal by the company T.I. (see paragraph 13 above), a settlement had been reached in the Darmstadt Labour Court on 6 September 1994. According to this settlement, the second applicant’s employment with the company T.I. had terminated on 31 December 1993, and the company T.I. undertook to pay to the second applicant the sum of 22,000 marks (DEM) for loss of job. 18. Under the terms of an agreement concluded on 20 June 1995 with the first applicant, terminating his contract of employment on 30 June 1995, the company T. undertook to pay to the first applicant the sum of DEM 14,000 for lawyer’s fees incurred in labour court proceedings concerning his dismissal and DEM 305,000 for the loss of his job. 19. Section 1(1)(1) of the Provision of Labour (Temporary Staff) Act (Arbeitnehmerüberlassungsgesetz) provides that an employer who, on a commercial basis (gewerbsmäßig), intends to hire out his employees to third persons - hiring employers (Entleiher) - must obtain official permission. Section 1(9)(1) provides that contracts between the hirer-out (Verleiher) and the hiring employer and between the hirer-out and the employee hired out (Leiharbeitnehmer) are void if no official permission has been obtained as required by section1(1)(1). If the contract between a hirer-out and an employee hired out is void under section 1(9)(1), a contract between the hiring employer and the employee hired out is deemed to have been concluded (gilt als zustande gekommen) as from the envisaged start of employment (section1(10)(1)(1)). Section 1(10)(2) further provides for a claim in damages against the hirer-out in respect of any loss suffered as a consequence of having relied on the validity of the contract, except where the employee hired out was aware of the factor rendering the contract void. 20. Sections 18 to 20 of the German Courts Act (Gerichtsverfassungs-gesetz) regulate immunity from jurisdiction (Exterritorialität) in German court proceedings. Sections18 and19 concern the members of diplomatic and consular missions, and section 20(1) other representatives of States staying in Germany upon the invitation of the German Government. Section20(2) provides that other persons shall have immunity from jurisdiction according to the rules of general international law, or pursuant to international agreements or other legal rules. 21. The ESA Convention came into force on 30 October 1980, when ten States, members of ESRO or ELDO, had signed it and had deposited their instruments of ratification or acceptance. 22. The purpose of ESA is to provide for and to promote, for exclusively peaceful purposes, cooperation among European States in space research and technology and their space applications, with a view to their being used for scientific purposes and for operational space applications systems (Article II of the ESA Convention). For the execution of the programmes entrusted to it, the Agency shall maintain the internal capability required for the preparation and supervision of its tasks and, to this end, shall establish and operate such establishments and facilities as are required for its activities (Article VI § 1 (a)). 23. Article XV regulates the legal status, privileges and immunities of the Agency. According to paragraph 1, the Agency shall have legal personality. Paragraph 2 provides that the Agency, its staff members and experts, and the representatives of its member States, shall enjoy the legal capacity, privileges and immunities provided for in AnnexI. Agreements concerning the headquarters of the Agency and the establishments set up in accordance with Article VI shall be concluded between the Agency and the member States on whose territory the headquarters and the establishments are situated (Article VI § 3). 24. Article XVII concerns the arbitration procedure in case of disputes between two or more member States, or between any of them and ESA, concerning the interpretation or application of the ESA Convention or its annexes, and disputes arising out of damage caused by ESA, or involving any other responsibility of ESA (Article XXVI of Annex I), which are not settled by or through the Council. 25. Article XIX provides that on the date of entry into force of the ESA Convention the Agency shall take over all the rights and obligations of ESRO. 26. Annex I relates to the privileges and immunities of the Agency. 27. According to Article I of Annex I, the Agency shall have legal personality, in particular the capacity to contract, to acquire and to dispose of movable and immovable property, and to be a party to legal proceedings. 28. Pursuant to Article IV § 1 (a) of Annex I, the Agency shall have immunity from jurisdiction and execution, except to the extent that it shall, by decision of the Council, have expressly waived such immunity in a particular case; the Council has the duty to waive this immunity in all cases where reliance upon it would impede the course of justice and it can be waived without prejudicing the interests of the Agency. 29. Article XXV of Annex I provides for arbitration with regard to written contracts other than those concluded in accordance with the Staff Regulations. Moreover, any member State may submit to the International Arbitration Tribunal referred to in Article XVII of the ESA Convention any dispute, inter alia, arising out of damage caused by the Agency, or involving any other non-contractual responsibility of the Agency. According to ArticleXXVII of AnnexI, the Agency shall make suitable provision for the satisfactory settlement of disputes arising between the Agency and the Director General, staff members or experts in respect of their conditions of service. 30. Chapter VIII of the ESA Staff Regulations (Regulations 33 to 41) concerns disputes within ESA. As regards the competence of its Appeals Board, Regulation 33 provides as follows: “33.1 There shall be set up an Appeals Board, independent of the Agency, to hear disputes relating to any explicit or implicit decision taken by the Agency and arising between it and a staff member, a former staff member or persons entitled under him. 33.2 The Appeals Board shall rescind any decision against which there has been an appeal if the decision is contrary to the Staff Regulations; Rules or Instructions or to the claimant’s terms of appointment or vested rights; and if the claimant’s personal interests are affected. 33.3 The Appeals Board may also order the Agency to repair any damage suffered by the claimant as a result of the decision referred to in paragraph 2 above. 33.4 Should the Agency – or the claimant – maintain that execution of a rescinding decision would raise major difficulties the Appeals Board may, if it considers the argument valid, award compensation to the claimant for the damage he has suffered. 33.5 The Appeals Board shall also be competent in the case where a staff member wishes to sue another staff member and such action has been prevented by the Director General’s refusal to waive the immunity of the latter. 33.6 The Appeals Board shall also be competent to settle disputes concerning its jurisdiction, as defined in these Regulations, or any question of procedure.” 31. The Agreement was concluded between the Government of the Federal Republic of Germany and ESRO for the purpose of establishing a European Space Operations Centre, including the European Space Data Centre. Articles 1 to 4 of the Agreement concern the site for construction of the ESOC buildings and related matters. 32. Part III of the Agreement contains general provisions. Article 6 provides as follows: “1. Subject to the provisions of the Protocol on Privileges and Immunities of the Organisation and of any complementary Agreement between the Federal Republic of Germany and the Organisation according to Article 30 of that Protocol, the activities of the Organisation in the Federal Republic of Germany shall be governed by German law. If the terms of employment of a staff member of the Organisation are not governed by the Organisation’s staff regulations, then they shall be subject to German laws and regulations. 2. Disputes between the Organisation and such staff members of the Organisation in the Federal Republic of Germany who are not within the competence of the Organisation’s Appeals Board, shall be subject to German jurisdiction.”