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You are here: BAILII >> Databases >> European Court of Human Rights >> NEIGEL v. FRANCE - 18725/91 [1997] ECHR 12 (17 March 1997) URL: http://www.bailii.org/eu/cases/ECHR/1997/12.html Cite as: [1997] ECHR 12, [2000] 30 EHRR 310, (2000) 30 EHRR 310, 30 EHRR 310 |
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In the case of Neigel v. France (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr A. Spielmann,
Mrs E. Palm,
Sir John Freeland,
Mr A.B. Baka,
Mr J. Makarczyk,
Mr D. Gotchev,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 27 September 1996 and on
21 January and 18 February 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 103/1995/609/697. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 8 December 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 18725/91) against the French Republic lodged with the Commission
under Article 25 (art. 25) by a French national, Miss Florence Neigel,
on 29 January 1991.
The Commission's request referred to Article 48 (art. 48) and
to the declaration whereby France recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46). The object of the
request was to obtain a decision as to whether the facts of the case
disclosed a breach by the respondent State of its obligations under
Article 6 para. 1 of the Convention (art. 6-1).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that she wished
to take part in the proceedings and designated the lawyer who would
represent her (Rule 30). Having originally been designated by the
initials F.N., the applicant subsequently agreed to the disclosure of
her identity.
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 4 (b)). On 21 February 1996, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr F. Gölcüklü, Mr A. Spielmann, Mrs E. Palm,
Mr F. Bigi, Mr A.B. Baka, Mr J. Makarczyk and Mr D. Gotchev (Article 43
in fine of the Convention and Rule 21 para. 5) (art. 43).
Subsequently, Sir John Freeland, substitute judge, replaced Mr Bigi,
who had died (Rule 22 para. 1).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the
French Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the registry received the applicant's memorial on 21 May and the
Government's memorial on 3 June 1996. The Delegate of the Commission
did not reply in writing.
5. On 12 July 1996 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions. The applicant's counsel lodged documents on 29 August
and 9 September 1996.
6. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
25 September 1996. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr J.-F. Dobelle, Deputy Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Mr J. Lapouzade, administrative court judge on
secondment to the Legal Affairs Department,
Ministry of Foreign Affairs, Adviser;
(b) for the Commission
Mr F. Martínez, Delegate;
(c) for the applicant
Ms G. Angla-Gré, of the Bayonne Bar, Counsel.
The Court heard addresses by Mr Martínez, Ms Angla-Gré and
Mr Dobelle, and also their replies to its questions.
AS TO THE FACTS
I. Circumstances of the case
7. On 4 July 1978 Miss Florence Neigel started working as an
auxiliary shorthand typist for Biarritz Town Council (département of
Pyrénées-Atlantiques). She was appointed as a trainee on 1 March 1979
and given a permanent post on 1 March 1980.
A. Leave of absence
8. In a decision of 21 February 1983 the mayor of Biarritz
("the mayor") granted a request by the applicant for one year's leave
of absence for personal reasons from 14 March 1983.
9. Miss Neigel applied for reinstatement with effect from
14 March 1984. On 25 November 1983 she was informed that her
application had been refused by the mayor.
On 17 December 1983 she sought renewal of her leave of absence
for one year. The mayor granted her application in a decision of
21 December 1983.
B. Refusal of reinstatement
10. On 7 December 1984 Miss Neigel applied for reinstatement on
14 March 1985. The mayor replied on 11 December 1984 as follows:
"...
As you are aware, reinstatement as of right is by way of
appointment to one of the first three posts falling vacant
where the leave of absence has not exceeded three years. The
essential requirement, however, is that there should be a
vacancy. As the posts of shorthand typist provided for in our
establishment table are filled by permanent staff, it is not
possible to reinstate you at present.
If the situation remains unchanged on 14 March 1985, you will
be technically reinstated and will be on leave of absence
without pay until another solution is found.
..."
11. On 4 March 1985 Miss Neigel reapplied to the mayor for
reinstatement. She argued that the regulations did not authorise him
to "technically reinstate" her or to grant her a further year's leave
of absence.
12. On 14 March 1985 the mayor ordered that Miss Neigel be
"technically" reinstated and continue to be "on leave of absence
without pay".
13. On 14 June 1985 the applicant wrote to the mayor challenging
the lawfulness of the measure taken and requesting her reinstatement
and payment in full of her salary from 14 March 1985.
The mayor replied on 20 June 1985 that reinstatement as of
right was by way of appointment to one of the first three posts falling
vacant and that in this instance only two appointments had been made
to the same grade as the applicant.
In a letter of 27 June 1985 Miss Neigel disputed the
information given by the mayor. On 28 November 1985 she made a further
application for reinstatement.
On 3 December 1985 the mayor told the applicant that if she
considered her situation (which, he said, was still the same) unlawful,
it was open to her to apply to the administrative court.
14. On 4 March 1986 Miss Neigel applied for reinstatement on
14 March 1986. On 5 March 1986 the mayor notified her of his refusal.
15. On 16 June 1986 the applicant sent the mayor the following
letter:
"...
Pursuant to your decision of 14 March 1985, you 'technically'
reinstated me and you are aware that this situation is
unlawful.
I therefore request
1. my actual reinstatement; and
2. compensation in an amount corresponding to the salary I
should have received since 14 March 1985.
If you refuse my request, I shall bring proceedings in the
administrative court to have the loss assessed in damages.
..."
On 23 June 1986 the mayor made the following reply:
"...
As there has been no change in the staff of your grade working
for the Council, I can only confirm what I said in my previous
letters.
I have no objection to your bringing this case before the
administrative court.
..."
C. The proceedings in the administrative courts
1. In the Pau Administrative Court
16. On 22 July 1986 Miss Neigel applied to the
Pau Administrative Court to have the mayor's decision confirming her
"technical reinstatement" and her "leave of absence without pay"
quashed and to obtain an order that he should pay her the salary she
should have received from 14 March 1985 onwards.
17. The mayor filed pleadings on 25 September and 18 November 1986
and on 13 January and 27 February 1987. The applicant did likewise on
3 November and 12 December 1986 and on 5 February 1987.
18. Following a hearing on 31 March, the court delivered the
following judgment on 7 April 1987:
"...
With regard to Miss Neigel's technical reinstatement:
On the conditions laid down by the mayor of Biarritz
Miss Neigel's reinstatement is a purely technical decision;
that being so, it is null and void. It is therefore necessary
to set aside the decision of 5 March 1986 in so far as it
upholds the applicant's technical reinstatement.
With regard to Miss Neigel's right to reinstatement:
Under Article L. 415-59 of the Municipalities Code as in force
when the impugned decision was taken, 'A member of staff
granted leave of absence at his own request shall be entitled
to reinstatement by appointment to one of the first three posts
falling vacant where the leave has not exceeded three years'...
...
The applicant claimed that three posts she was suitably
qualified for had fallen vacant and been filled during the
period when she was requesting reinstatement and that two posts
had been created. The mayor of Biarritz asserted that, on the
contrary, the posts provided for in the establishment table
were filled and that no permanent staff had been recruited
since 1 March 1985. That being so, the parties disagreed as to
the facts. It is therefore necessary to order that further
inquiries into the facts should be made, firstly to enable the
mayor of Biarritz to produce all the documents necessary to
determine the position since 14 March 1985 regarding
vacant posts and staff recruited in Miss Neigel's grade, and
secondly so that the total salary the applicant would have
received from 14 March 1985 onwards can be calculated.
..."
19. The applicant filed pleadings on 30 June, 20 August and
5 October 1987. The mayor did likewise on 17 July and 23 September.
20. Through a member of parliament Miss Neigel asked the ombudsman
to intervene and expedite the proceedings. The ombudsman replied on
22 October 1987 that judgment had been given on 20 October.
21. This judgment was served on the applicant on 10 November 1987.
The court rejected her remaining submissions on the following ground:
"...
It is clear from an examination of the case file, and in
particular of the table of posts of shorthand typist produced
by the mayor of Biarritz, that eight posts are provided for in
the budget, while seven posts are occupied by permanent staff,
a number that has not changed since 14 March 1985. All the
staff in question were taken on before 7 December 1984, when
Miss Neigel applied to be reinstated. The fact that the post
Miss Neigel occupied before she was granted leave of absence
is vacant has no bearing on the lawfulness of the contested
decision. Under these circumstances the applicant is not
justified in maintaining that the rights she derived from her
priority entitlement to be taken on again following her leave
of absence have been infringed. Miss Neigel therefore cannot
claim compensation corresponding to her total salary since
14 March 1985.
..."
2. In the Conseil d'Etat
22. On 18 May 1988 Miss Neigel appealed against the
Pau Administrative Court's two judgments to the Conseil d'Etat. She
filed a supplementary pleading on 19 September 1988.
23. In a letter of 23 February 1989 Miss Neigel enquired of the
secretary of the Third Section of the Judicial Division of the
Conseil d'Etat about the proceedings. The secretary replied on
15 March 1989:
"... the case file ... is currently in the hands of the lawyer
for Biarritz Town Council for inspection and has been since the
beginning of February, for two months.
As soon as he returns it, it will be sent to your lawyer for
your reply, for the same length of time.
As soon as the written proceedings in preparation of the case
for trial have been completed, I will submit your case file to
the presiding judge. It is nevertheless likely that this case
will not be heard until the end of the year at the earliest.
..."
24. Biarritz Town Council filed a pleading on 31 March 1989, to
which Miss Neigel replied on 25 October 1989.
25. In a letter of 27 November 1989 the applicant made further
enquiries of the secretary about the proceedings. The secretary
replied on 4 December 1989 that, as soon as the preparation of the case
for trial had been completed, he had submitted the case file to the
presiding judge of the Third Section, who had allocated it to a
reporting judge in September.
26. Biarritz Town Council filed a pleading on 12 February 1990.
27. On 20 February 1990 Miss Neigel sent the secretary a letter -
to which she received no reply - expressing her concern at the time it
was taking to deal with her case and asking if she should write to the
presiding judge to make him aware that her situation called for an
early judgment.
28. The applicant's mother wrote to the secretary on 10 April 1990.
She told him of the conflicting information her daughter had been given
on the telephone by the registry - the case file had apparently not yet
been transferred to the Government Commissioner (commissaire du
gouvernement) - and requested details of the proceedings and of what
further could be done to speed them up.
The applicant's mother wrote again as follows on 13 April 1990
after her daughter had received a copy of the latest pleading filed by
Biarritz Town Council:
"...
Given that preparation of the case for trial ended in
September 1989, [my daughter] cannot understand why the
opposing side should produce a further pleading and why this
should be admitted to the case file when it had been stated
that once the preparation of the case was terminated, no new
document could be added.
...
I suppose that if the rules are to be applied, it would be
simpler to withdraw this second pleading, which arrived undated
more than six months after termination of the preparation of
the case, and for only the evidence already in the file to be
submitted to the Government Commissioner appointed to study it.
..."
29. The Conseil d'Etat held a hearing on 4 January 1991 and gave
judgment on 21 January. It dismissed the appeal as follows:
"...
Firstly, under the ... provisions of Article L. 415-59 of the
Municipalities Code, the mayor was not bound to reinstate
Miss Neigel until the third vacancy arising after the end of
her leave of absence. It appears from the evidence that
between 14 March 1985 and 5 March 1986 only two vacancies arose
that Miss Neigel was suitably qualified to fill. ... the
mayor of Biarritz's decision of 5 March 1986 whereby he refused
Miss Neigel's application for reinstatement was therefore not
in breach of the provisions of Article L. 415-59 of the
Municipalities Code.
...
It is clear from all the foregoing that Miss Neigel is not
justified in maintaining that the Pau Administrative Court,
having ordered in a judgment of 7 April 1987 that further
inquiries into the facts should be made (a measure which,
contrary to what the applicant maintained, was not
obstructive), was wrong in its judgment of 20 October 1987 to
refuse her application to quash the decision of 5 March 1986.
..."
II. Relevant domestic law
30. The provisions of the Municipalities Code that were applicable
in the instant case - they were repealed by Law no. 84-53 of
26 January 1984 - were the following:
Article L. 415-49
"Leave of absence means that a member of staff is released from
performing his normal duties and that, for the duration of such
leave, his rights relating to promotion and retirement cease
to accrue.
..."
Article L. 415-50
"Leave of absence shall be ordered in a decision by the mayor,
either of his own motion or at the request of the person
concerned."
Article L. 415-54
"Leave of absence may be granted at the request of a member of
staff in the following circumstances only:
...
3. For personal reasons; in this case the leave may not
exceed one year but shall be renewable for a further year.
..."
Article L. 415-58
"A member of staff granted leave of absence at his own request
shall not be entitled to any remuneration.
..."
Article L. 415-59
"A member of staff granted leave of absence at his own request
shall be entitled to reinstatement by way of appointment to one
of the first three posts falling vacant where the leave has not
exceeded three years."
31. A civil servant whose dismissal has been quashed as being
unlawful is entitled to receive compensation for pecuniary damage,
calculated on the basis of the salary lost (Conseil d'Etat,
7 April 1933, Deberles, Rec. 439).
PROCEEDINGS BEFORE THE COMMISSION
32. Miss Neigel applied to the Commission on 29 January 1991. She
alleged a violation of Article 6 para. 1 of the Convention (art. 6-1)
on the ground that she had not had a "hearing within a reasonable time"
or a "fair hearing", and of Article 3 of the Convention (art. 3) and
Articles 2 para. 1 and 3 of Protocol No. 7 (P7-2-1, P7-3).
33. On 10 October 1994 the Commission declared the application
(no. 18725/91) admissible in so far as it related to the length of the
proceedings. In its report of 17 October 1995 (Article 31) (art. 31),
it expressed the opinion by nineteen votes to ten that there had been
a violation of Article 6 para. 1 (art. 6-1). The full text of the
Commission's opinion and of the two separate opinions contained in the
report is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-II), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
34. In her memorial the applicant requested the Court to
"hold that there has been a violation of Article 6 para. 1 of
the Convention (art. 6-1) in that judgment on [her] civil
rights and obligations was not given within a reasonable time
... as required by that provision (art. 6-1)".
35. The Government asked the Court to
"dismiss Miss Neigel's application because it is incompatible
ratione materiae with the provisions of Article 6 para. 1 of
the Convention (art. 6-1), or, in the alternative, because it
is ill-founded".
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION (art. 6-1)
36. Miss Neigel complained of the length of the proceedings for
reinstatement and for payment of salary that she had instituted against
Biarritz Town Council. She relied on Article 6 para. 1 of the
Convention (art. 6-1), which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
37. It is above all necessary to decide whether this provision
(art. 6-1) applies to the present case.
A. Whether there was a dispute (contestation) over a "right"
38. The Court reiterates that according to the principles
enunciated in its case-law (see, amongst other authorities and
mutatis mutandis, the Zander v. Sweden judgment of 25 November 1993,
Series A no. 279-B, p. 38, para. 22), it has first to ascertain whether
there was a dispute (contestation) over a "right" which can be said,
at least on arguable grounds, to be recognised under domestic law. The
dispute must be genuine and serious; it may relate not only to the
actual existence of a right but also to its scope and the manner of its
exercise; and, finally, the result of the proceedings must be directly
decisive for the right in question.
39. In the present case Article L. 415-59 of the Municipalities
Code entitled members of staff who had been granted leave of absence
to reinstatement, subject to certain conditions (see paragraph 30
above). Reinstatement was precisely what Miss Neigel was seeking
(see paragraphs 10-15 above). Moreover, the outcome of the proceedings
in the administrative courts (see paragraphs 16-29 above) - the
setting aside or the upholding of the mayor of Biarritz's decision
confirming the applicant's "leave of absence without pay" - was
directly decisive for her right to reinstatement. There was
accordingly a dispute (contestation) over a "right" within the meaning
of Article 6 para. 1 (art. 6-1). That point was not in fact contested.
It is therefore necessary to ascertain whether this right was
a "civil" one within the meaning of Article 6 para. 1 (art. 6-1).
B. Whether the applicant's right was a "civil" one
40. The applicant stressed that the proceedings complained of had
been concerned with the claims of an employee (herself) against her
employer (Biarritz Town Council) and had been brought to secure not
only reinstatement but also payment of her salary. The subject of the
proceedings had therefore been the recognition of a "private right".
41. In the Government's submission, disputes in civil-service
matters normally fell outside the scope of Article 6 para. 1
(art. 6-1). The only exception was where the dispute directly
concerned a pecuniary right and where "special powers of the
public authorities" were not in issue.
The dispute between Miss Neigel and Biarritz Town Council
related to the management of her career and had therefore had only
indirect pecuniary consequences for her. Besides, a refusal to
reinstate a civil servant on return from leave of absence did not
necessarily affect the person's financial position. Where such a
refusal was unlawful, the civil servant was entitled not to payment of
the salary itself but only to compensation for the pecuniary loss
caused by the unlawful deprivation of employment. Compensation could
be less than the salary and might not even be paid at all if the
applicant had received income from other employment during the relevant
period.
Moreover, civil servants' rights and obligations were governed
by the rules of the civil service, which could be altered unilaterally
by the public authorities. These rules distinguished civil servants
from employees governed by private law in being based on the notion of
"public service" and on the special rights of the employer as
public authority rather than on agreement.
The Government submitted that the complaint was incompatible
ratione materiae with the provisions of Article 6 para. 1 (art. 6-1).
42. The Commission observed that, besides her application for
reinstatement to her post, Miss Neigel had sought payment of the salary
she ought to have received since the end of the statutory period of her
leave of absence. The applicant's position was therefore no different
from that of an employee who was a party to a private-law contract of
employment, and the subject matter of the proceedings brought against
the town council was at least partly pecuniary in nature.
The Commission acknowledged that there were some posts in the
public service with responsibilities affecting matters of general
interest or entailing the exercise of public authority to which States
were entitled to make appointments at their discretion. In the instant
case, however, Miss Neigel was a shorthand typist at Biarritz Town Hall
and in that capacity had not exercised public authority. The right in
issue was a civil one and Article 6 para. 1 (art. 6-1) therefore
applied.
43. The Court observes that in the law of many member States of the
Council of Europe there is a basic distinction between civil servants
and employees governed by private law. This has led it to hold that
"disputes relating to the recruitment, careers and termination of
service of civil servants are as a general rule outside the scope of
Article 6 para. 1 (art. 6-1)" (see, as the most recent authority, the
Massa v. Italy judgment of 24 August 1993, Series A no. 265-B, p. 20,
para. 26).
In the Massa case (judgment cited above) the applicant applied
for a reversionary pension following the death of his wife, who had
been a headmistress. In the case of Francesco Lombardo v. Italy
(judgment of 26 November 1992, Series A no. 249-B) a carabiniere who
had been invalided out of the service because of disability and who
maintained that the disability was "due to his service" applied for an
"enhanced ordinary pension". The applicants' complaints related
neither to the "recruitment" nor to the "careers" of civil servants and
only indirectly to "termination of service" as they consisted in claims
for purely pecuniary rights arising in law after termination of
service. In those circumstances and in view of the fact that the
Italian State was not using "discretionary powers" in performing its
obligation to pay the pensions in issue and could be compared to an
employer who was a party to a contract of employment governed by
private law, the Court held that the applicants' claims were civil ones
within the meaning of Article 6 para. 1 (art. 6-1).
44. In the instant case Miss Neigel was essentially seeking
reinstatement to the permanent post of shorthand typist at
Biarritz Town Hall that she had held previously; this is clear not only
from the correspondence between her and the mayor of Biarritz
(see paragraphs 10-15 above) but also from the administrative court's
judgment of 20 October 1987 (see paragraph 21 above) and the
Conseil d'Etat's judgment of 21 January 1991 (see paragraph 29 above).
The dispute raised by her clearly related to her "recruitment", her
"career" and the "termination of [her] service". It therefore did not
concern a "civil" right within the meaning of Article 6 para. 1
(art. 6-1).
As to her claim for payment of the salary she would have
received if she had been reinstated, the Court notes that an award of
such compensation by the administrative court is directly dependent on
a prior finding that the refusal to reinstate was unlawful
(see paragraph 31 above).
Article 6 para. 1 (art. 6-1) therefore does not apply in the
instant case.
FOR THESE REASONS, THE COURT
Holds by eight votes to one that Article 6 para. 1 (art. 6-1)
does not apply in the instant case.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 17 March 1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the dissenting
opinion of Mrs Palm is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
DISSENTING OPINION OF JUDGE PALM
1. The applicant's case concerns her reinstatement in the
permanent post of shorthand typist at Biarritz Town Hall that she had
held previously. The majority has found Article 6 para. 1 (art. 6-1)
not applicable because the dispute in question related to her
"recruitment", her "career" and "the termination of [her] service" and
therefore did not concern a "civil" right within the meaning of
Article 6 para. 1 (art. 6-1). In so stating, they are merely referring
to a principle that the Court laid down earlier, inter alia in its
judgments in the Francesco Lombardo v. Italy and Massa v. Italy cases
(1), and which the majority now explain by the fact that "in the law
of many member States of the Council of Europe there is a basic
distinction between civil servants and employees governed by
private law" (paragraph 43 of the judgment).
_______________
1. Francesco Lombardo v. Italy judgment of 26 November 1992,
Series A no. 249-B, and Massa v. Italy judgment of 24 August 1993,
Series A no. 265-B.
_______________
Such sweeping, thin reasoning cannot, in my view, justify this
case-law, which has the effect of depriving all public servants
governed by public law who are involved in a dispute with their
"public" employer of the basic procedural safeguards in Article 6
para. 1 (art. 6-1).
2. It is clear from the Convention's drafting history that neither
the Convention nor its Protocols provide a right of access to the
public service. The reason why the Contracting States were not willing
to commit themselves to the recognition of a right of recruitment to
the civil service lies mainly in the difficulty that an
international court would have in setting a common standard in matters
of recruitment, as recruitment conditions differ considerably in the
Contracting States according to national traditions.
This does not mean that civil servants generally fall outside
the scope of the Convention. Indeed, the Court has stated, in its
Glasenapp v. Germany judgment of 28 August 1896 (Series A no. 104,
p. 26, para. 49), that "as a general rule the guarantees in the
Convention extend to civil servants". But it is clear that when access
to the civil service lies at the heart of the issue submitted to the
Court, it is not covered by the Convention (see the above-mentioned
Glasenapp judgment, paragraph 53).
3. In its previous judgments the Court seems to have used
alternatively the terms "public servants" and "civil servants" without
any analysis of the consequences for those different categories of
employees. In the present judgment the Court systematically uses
"civil servants". It is - to say the least - unclear whether the
judgment is to be understood as comprising all public servants or just
the limited group of "civil servants".
It is well known that in some States the employment of all
public servants employed by the State or by local authorities - from
government officials to street-sweepers - is governed by public law.
Such persons would, according to the present judgment, be deprived of
the safeguards in Article 6 (art. 6) in all disputes with their
employer. In other States a more limited group of public servants -
mostly high-ranking officials - are subject to public law whilst other
employees have private-law contracts. The rights of the latter
category will certainly be classified as being "civil" in character.
The fact that an employment is governed by public law does not
in itself prevent the right in issue from being classified as a
"civil" right. The Court has found in several cases that only the
character of the right is relevant (see, inter alia, the König
v. Germany judgment of 28 June 1978, Series A no. 27, p. 30, para. 90
in fine).
4. My view is that a dispute relating to a person's employment is
"civil" in nature and therefore, in principle, comes within the scope
of Article 6 para. 1 (art. 6-1). It follows from the foregoing that
as a general rule this also applies to civil servants.
Taking into consideration the general object and purpose of the
Convention and the reasons for excluding a right of access to the
civil service from the safeguards of the Convention, I find that this
exception must be interpreted in a restrictive manner. However, I
accept that where public servants have been appointed by the State in
the exercise of its discretionary powers, disputes relating to the
recruitment, careers and termination of their posts do not have a
"civil" character and therefore fall outside the scope of Article 6
para. 1 (art. 6-1). This will frequently be the case with
civil-servant posts in the public service which involve a certain
degree of responsibility or entail the exercise of public authority,
where - and when - appointment to the job in question depends on an
entirely discretionary assessment or evaluation. But there is no
reason to take the same approach to public servants whose job content
does not possess such a "public administration" profile.
5. In the present case it is not a question of access to a
civil-service post in the real sense. Miss Neigel already held a post
as a shorthand typist and sought to be reinstated in that post
according to rules laid down in the relevant legislation. There was
no evaluation of her qualifications. She was by law entitled to a post
within a certain period of time and she had a right to take the case
to the national courts. I can find no valid reason in such a case why
the national courts that tried the case should not fulfil the
requirements of Article 6 para. 1 (art. 6-1).
6. Furthermore, to limit the scope of Article 6 para. 1 (art. 6-1)
the way the majority does in the judgment will have the consequence
that public servants in the member States of the Council of Europe will
be unequally protected by the Convention, notwithstanding the
similarity of job content.
In my view, such a difference in respect of Article 6 para. 1
(art. 6-1) between public servants in the Contracting States is
unfortunate and unnecessary. The Court ought to give an autonomous
interpretation of the meaning of "civil service" for the purpose of
Article 6 para. 1 (art. 6-1) so that the same standards can be applied
to individuals holding equivalent or similar posts, independently of
the employment system in each member State, drawing, for example, on
the distinction which has been recognised by the Court of Justice of
the European Communities between, on the one hand, posts involving the
exercise of public authority and, on the other, posts that do not
belong to the category of public administration in the proper sense
(see, for example and mutatis mutandis, Case 473/93, Commission
v. Luxembourg, judgment of 2 July 1996).