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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Boivin v 34 Member States of the Council of Europe - 73250/01 [2008] ECHR 1882 (09 September 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1882.html Cite as: [2008] ECHR 1882

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...

THE FACTS

The applicant, Mr Philip Boivin, who has dual Belgian and French nationality, was born in 1966 and lives in Bornem (Belgium). He was represented before the Court by Mr F. Krenc, a lawyer practising in Brussels.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The European Organisation for the Safety of Air Navigation (“Eurocontrol”) was created in 1960 for the purpose of supervising air traffic control in the airspace of its member States, which have included Belgium and France since the beginning.

By a decision of Eurocontrol’s Director General dated 6 September 1995, the applicant was appointed to a post of head accountant at the Institute of Air Navigation Services (a body which is part of Eurocontrol and is situated in Luxembourg) for a renewable term of five years.

On 29 February 1996 Eurocontrol’s Director of Human Resources notified the applicant that his appointment had been cancelled following a complaint by another official of the organisation who claimed that there had been no notice of competition for the vacancy filled by the applicant. After a specific competition the applicant was appointed again. However, the same official challenged the applicant’s new appointment on the ground that there had been no substantiated report and obtained its cancellation.

A fresh recruitment procedure was organised to fill the vacancy. However, the applicant’s name was not included on the list of qualified candidates drawn up by the new Selection Board. As a result, Eurocontrol’s Director General decided not to appoint him to the post. On 18 January 1999 the organisation’s Director of Human Resources sent the applicant a letter notifying him of the termination of his employment on 31 January 1999 and inviting him to discuss compensation with the legal department.

After filing a number of internal administrative complaints, the applicant took his case to the International Labour Organisation Administrative Tribunal (the “ILOAT” – having sole competence to settle all disputes between Eurocontrol and its staff) to challenge the cancellation of his appointment and to seek compensation for the injury caused to him.

In a judgment of 3 November 2000 (notified to the applicant on 12 February 2001) the ILOAT, finding that the recruitment procedure had not been flawed, upheld the decisions cancelling the applicant’s appointment. However, observing that Eurocontrol had “fail[ed] in its duty ... to protect [the applicant] from the injury caused by the quashing of an appointment he [had] accepted in good faith”, the ILOAT partly granted the applicant’s compensation claim and awarded him 220,000 euros (EUR) in damages.

B.  Relevant law

The International Convention relating to Cooperation for the Safety of Air Navigation (the “Eurocontrol Convention”), signed in Brussels on 13 December 1960, established, as provided in Article 1, a European Organisation for the Safety of Air Navigation (Eurocontrol) to create a uniform European air traffic management system. Article 4 of the Eurocontrol Convention provides that “[t]he Organisation shall have legal personality”.

Under Article 5 § 2 of Eurocontrol’s Statute, annexed to the Eurocontrol Convention, the ILOAT has “sole jurisdiction in disputes between the Organisation and the personnel of the Agency, to the exclusion of the jurisdiction of all other courts and tribunals, national or international”.

The International Labour Organisation was founded in 1919 as the “International Labour Office” and since 1946 has operated as a tripartite agency of the United Nations that brings together representatives of governments, employers and workers from its member States. Its Administrative Tribunal hears complaints from officials or former officials of the Organisation and the other international organisations that have recognised its jurisdiction. The relevant provisions of the Tribunal’s Statute are as follows:

Article II

“...

5. The Tribunal shall also be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations of any other international organization meeting the standards set out in the Annex hereto which has addressed to the Director-General a declaration recognizing, in accordance with its Constitution or internal administrative rules, the jurisdiction of the Tribunal for this purpose, as well as its Rules of Procedure, and which is approved by the Governing Body.”

Article VI

“1. The Tribunal shall take decisions by a majority vote; judgments shall be final and without appeal.

2. The reasons for a judgment shall be stated. The judgment shall be communicated in writing to the Director-General of the International Labour Office and to the complainant.

...”

Article XII, paragraph 1, of the Annex to the ILOAT Statute reads as follows:

“In any case in which the Executive Board of an international organization which has made the declaration specified in article II. paragraph 5, of the Statute of the Tribunal challenges a decision of the Tribunal confirming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed, the question of the validity of the decision given by the Tribunal shall be submitted by the Executive Board concerned, for an advisory opinion, to the International Court of Justice.”

COMPLAINTS

Relying on Article 6 § 1, Article 13 and Article 14 of the European Convention on Human Rights, the applicant complained that Eurocontrol enjoyed a remedy, limited to certain points of law, before the International Court of Justice, whereas he did not have such a possibility himself. He further alleged, under Article 13, that the ILOAT had not addressed all his arguments and had not conducted an effective examination of his compensation claim. Moreover, he complained under Article 6 that the reasoning in the ILOAT’s judgment had been insufficient. Lastly, he disputed the amount of the damages awarded, claiming that the ILOAT’s decision on his compensation claim had breached his right to obtain full redress for the injury caused to him, in violation of Article 1 of Protocol No. 1.

THE LAW

1.  The application was initially lodged against Belgium and France. On 4 November 2005 the applicant extended it to 32 other High Contracting Parties.

However, in the present case the “final decision”, for the purposes of Article 35 of the Convention, is the judgment of the ILOAT adopted on 3 November 2000 and notified to the applicant on 12 February 2001.

Accordingly, the Court observes that the applicant’s complaints, in so far as they were brought against those 32 States, are to be declared inadmissible for non-compliance with the six-month rule provided for in Article 35 § 1 of the Convention and must be rejected under Article 35 § 4.

2.  As to the complaints brought against France and Belgium, the Court finds that they should be examined in the light of the principles it has laid down in cases where it has been called upon to determine whether the responsibility of States Parties to the Convention could be engaged under the Convention because of acts or omissions linked to their membership of an international organisation. These principles were most recently reiterated and developed in the Bosphorus Airways case (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005 VI), and in the cases of Behrami and Behrami v. France ((dec) [GC], no. 71412/01, 31 May 2007) and Saramati v. France, Germany and Norway ((dec) [GC], no. 78166/01, 31 May 2007). The relevant passages from the Bosphorus judgment (§§ 152-56) read as follows:

“152.  The Convention does not, on the one hand, prohibit Contracting Parties from transferring sovereign power to an international (including a supranational) organisation in order to pursue cooperation in certain fields of activity (see M. & Co., p. 144, and Matthews, § 32, both cited above). Moreover, even as the holder of such transferred sovereign power, that organisation is not itself held responsible under the Convention for proceedings before, or decisions of, its organs as long as it is not a Contracting Party (see Confédération française démocratique du travail v. European Communities, no. 8030/77, Commission decision of 10 July 1978, DR 13, p. 231; Dufay v. European Communities, no. 13539/88, Commission decision of 19 January 1989, unreported; and M. & Co., p. 144, and Matthews, § 32, both cited above).

153.  On the other hand, it has also been accepted that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s ‘jurisdiction’ from scrutiny under the Convention (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998-I, pp. 17-18, § 29).

154.  In reconciling both these positions and thereby establishing the extent to which a State’s action can be justified by its compliance with obligations flowing from its membership of an international organisation to which it has transferred part of its sovereignty, the Court has recognised that absolving Contracting States completely from their Convention responsibility in the areas covered by such a transfer would be incompatible with the purpose and object of the Convention; the guarantees of the Convention could be limited or excluded at will, thereby depriving it of its peremptory character and undermining the practical and effective nature of its safeguards (see M. & Co., p. 145, and Waite and Kennedy, § 67, both cited above). The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention (see mutatis mutandis, Matthews, cited above, §§ 29 and 32-34, and Prince Hans Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 47, ECHR 2001-VIII).

155.  In the Court’s view, State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides (see M. & Co., cited above, p. 145, an approach with which the parties and the European Commission agreed). By ‘equivalent’ the Court means ‘comparable’; any requirement that the organisation’s protection be ‘identical’ could run counter to the interest of international cooperation pursued (see paragraph 150 above). However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection.

156.  If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.

However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention’s role as a ‘constitutional instrument of European public order’ in the field of human rights (see Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, pp. 27-28, § 75).”

In the Bosphorus case the Court noted that the measure in question (the detention in Ireland of an aircraft leased by the applicant company, on the basis of an EC Council Regulation that was itself applying a Resolution of the United Nations Security Council) had been taken by the authorities of the respondent State on its territory following a decision by that State’s Minister for Transport (see Bosphorus, cited above, § 137). In those circumstances the Court did not consider that any question arose as to its competence, notably ratione personae, vis-à-vis Ireland. It went on to observe that the protection of fundamental rights afforded by Community law was, at the relevant time, “equivalent” to that of the Convention system, and thus concluded that the impugned measure had not entailed a violation of Article 1 of Protocol No. 1.

However, the Court found that the subsequent cases of Behrami and Behrami and Saramati were to be distinguished from Bosphorus in terms both of the respondent States’ responsibility under Article 1 and of the Court’s competence ratione personae. It took the view that the respondent States’ responsibility could not be engaged on account of the impugned acts and omissions of KFOR and UNMIK, which were directly attributable to the United Nations, an organisation of universal jurisdiction fulfilling its imperative collective security objective. As the United Nations had a legal personality separate from that of its member States and was not a Contracting Party to the Convention, the Court concluded that the applicants’ complaints in those cases had to be declared incompatible ratione personae with the provisions of the Convention (see Behrami and Behrami, cited above, §§ 151-52).

In the present case, the Court observes that the application arose from a dispute concerning the refusal to appoint the applicant to a staff post in Eurocontrol, following which he used the organisation’s internal complaints procedure and then filed his complaints with the ILOAT. Under Article 2 of its Statute, the Tribunal is competent to hear complaints from officials or former officials of the ILO and the other international organisations that have recognised its jurisdiction. Those other organisations include Eurocontrol, whose Statute grants the ILOAT sole competence to settle its disputes with staff (see “Relevant law” above).

The Court observes that it has not been established, or even alleged, that the protection of fundamental rights generally afforded by Eurocontrol is not “equivalent”, within the meaning given to that term in the Bosphorus judgment, to that of the Convention system. Thus the Court need not examine whether Eurocontrol’s internal mechanism for the settlement of labour disputes is “manifestly deficient” in that connection; such an examination would only be meaningful if the Court were to consider that there was a presumption of an “equivalent” protection of Convention rights and then to ascertain whether or not that presumption had been rebutted in the circumstances of the case (see Bosphorus, cited above, §§ 165-66).

The Court notes that, in reality, the applicant’s complaints were directed essentially against the relevant judgment of the ILOAT concerning his individual labour dispute with Eurocontrol.

The Court would point out that the impugned decision thus emanated from an international tribunal outside the jurisdiction of the respondent States, in the context of a labour dispute that lay entirely within the internal legal order of Eurocontrol, an international organisation that has a legal personality separate from that of its member States. At no time did France or Belgium intervene directly or indirectly in the dispute, and no act or omission of those States or their authorities can be considered to engage their responsibility under the Convention. In this respect the instant case is to be distinguished from previous cases where the international responsibility of the respondent States has been in issue, for example that of the United Kingdom in the Matthews case (cited above – decision not to register the applicant as a voter on the basis of an EC treaty), that of France in the Cantoni case (15 November 1996, Reports of Judgments and Decisions 1996 V – enforcement against the applicant of a French law implementing an EC Directive), that of Germany in the Beer and Regan and Waite and Kennedy cases ([GC], nos. 28934/95 and 26083/94, 18 February 1999 – denial of access to the German courts) or that of Ireland in the above-mentioned Bosphorus case. Unlike in those cases, in all of which the State or States concerned had been involved directly or indirectly, in the present case the applicant cannot be said to have been “within the jurisdiction” of the respondent States for the purposes of Article 1 of the Convention.

The Court finds that the alleged violations of the Convention cannot therefore be attributed to France and Belgium. As regards the possible responsibility of Eurocontrol in this connection, the Court points out that since this international organisation is not a party to the Convention its responsibility cannot be engaged under the Convention (compare, among other authorities, Matthews, cited above, § 32, and Behrami and Behrami, cited above, § 144).

In the light of the foregoing, the Court concludes that the applicant’s complaints must be declared incompatible ratione personae with the provisions of the Convention (see, mutatis mutandis, Behrami and Behrami, § 149).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen

Registrar President