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Case Law 63235/00 (19/04/2007)

Type: Judgment

Authority: European Authorities: European Court of human rights

Date: 04/19/2007

Subject: The applicants complained under Article 6 § 1 about the excessive length of the proceedings and the lack of an oral hearing. They further complained under Article 1 of Protocol No. 1 that they had lost their entitlement to a special allowance and had received no compensation. Under Article 14, they maintained that they were treated differently from other police personnel. They also relied on Article 13 (right to an effective remedy). In the relevant international low and practice, the Court recalled (paragraphs 29, 30) the Article 47 of the Charter of Fundamental Rights of the European Union, on the right to an effective remedy and a fair trial and the Explanations Relating to the Charter of Fundamental Rights integrated in the Final Act of the Treaty establishing a Constitution for Europe. They do not have equal authority as the Charter. However, they are a "valuable tool of interpretation intended to clarify the provisions of the Charter". However, the Court would observe (paragraphs 60) that the scope of applicability of judicial control in EU law is wide. If an individual can rely on a material right guaranteed by community law, his or her status as a holder of public power does not render the requirements of judicial control inapplicable. Moreover, the broad scope of the effective judicial control has been emphasised by the Luxembourg Court's reference to both Articles 6 and 13 of the Convention (see the Marguerite Johnston case, cited above, and the case of Panayotova and Others v Minister voor Vreemdelingenzaken en Integratie, Case C-327/02, [2004], ECR I-00000, § 27), as well as by the Charter on Fundamental Rights. Concerning the applicability of Article 6 the Court recalled that for Article 6 to apply there must be a "right" and it must be "civil" in character. In this case the Government questioned the applicability of Article 6 on two grounds, namely as to whether there was a "right" and as to whether it was "civil" in nature. As to the first point, the Court concluded that the applicants could claim to have had a right on arguable grounds and that there was therefore no bar to the applicability of Article 6 in this respect. On the second, the Government had argued that Article 6 was not applicable since, under the Court's case-law, disputes concerning servants of the State such as police officers over their conditions of service were excluded from its ambit. The Court recalled that, with a view to removing uncertainty in previous case-law in this area, in the judgment of Pellegrin v. France (Pellegrin v. France ([GC], no. 28541/95, ECHR 1999-VIII) the Court had introduced a functional criterion based on the nature of the employee's duties and responsibilities. The Court had ruled that the only disputes excluded from the scope of Article 6 § 1 were those concerning public servants whose duties typified the specific activities of the public service in so far as the latter was acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities was provided by the armed forces and the police. The Court decided to adopt a new approach in this area, according to which in order for the respondent State to be able to rely on the applicant's status as a civil servant to exclude the application of Article 6, two conditions had to be fulfilled. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State's interest. The mere fact that the applicant was in a sector or department which participated in the exercise of power conferred by public law was not in itself decisive. In order for the exclusion to be justified, it was not enough for the State to establish that the civil servant in question participated in the exercise of public power or that there existed, to use the words of the Court in the Pellegrin judgment, a "special bond of trust and loyalty" between the civil servant and the State, as employer. The State would also have to show that the subject matter of the dispute in issue was related to the exercise of State power or that it had called into question the special bond. Thus, there could in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of relationship between the particular civil servant and the State in question. There would, in effect, be a presumption that Article 6 applied. It would be for the respondent Government to demonstrate, first, that a civil-servant applicant did not have a right of access to a court under national law and, second, that the exclusion of the rights under Article 6 for the civil servant was justified. In the case under review it was not disputed that the applicants had all had access to a court under national law. Accordingly, Article 6 § 1 was applicable

Parties: Vilho Eskelinen e altri c/ Finlandia

Original language: French

Classification: Freedoms - Art. 17 Right to property - Equality - Art. 21 Non discrimination - Justice - Art. 47 Right to an effective remedy before a tribunal

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Notices: In the "COMMENTS": 05.05.2007 - GIUSEPPE BRONZINI e VALERIA PICCONE, "The European Parliament, the European Communities' Court of Justice and the Court of Strasbourg revive the Charter of Nice: a message for the future Intergovernmental Conference?"