EHRM, 19-04-2007, nr. 63235/00

Before the Pellegrin judgment the Court had held that disputes relating to the recruitment, careers and termination of service of civil servants were as a general rule outside the scope of Article 6 § 1. That general principle of exclusion had however been limited and clarified in a number of judgments. For example, in the cases of Francesco Lombardo v. Italy (judgment of 26 November 1992, Series A no. 249-B, p. 26–27, § 17) and Massa v. Italy (judgment of 24 August 1993, Series A no. 265-B, p. 20, § 26) the Court had considered that 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 had held that the applicants' claims were ‘civil’ in nature within the meaning of Article 6 § 1.

On the other hand, in the case of Neigel v. France (judgment of 17 March 1997, Reports 1997-II, p. 411, § 44) the decision contested by the applicant, namely the refusal to reinstate her to a permanent post in the civil service, had been held by the Court to concern ‘her ‘recruitment’, her ‘career’ and the ‘termination of [her] service’’. Nor did the applicant's claim for payment of the salary she would have received if she had been reinstated render Article 6 § 1 applicable as an award of such compensation by the administrative court was ‘directly dependent on a prior finding that the refusal to reinstate [had been] unlawful’. The Court had accordingly decided that the dispute did not concern a ‘civil’ right within the meaning of Article 6 § 1.

According to other judgments, Article 6 § 1 had applied where the claim in issue related to a ‘purely economic’ right — such as payment of salary (see the De Santa v. Italy, Lapalorcia v. Italy and Abenavoli v. Italy judgments of 2 September 1997, Reports 1997-V, p. 1663, § 18; p. 1677, § 21; and p. 1690, § 16 respectively) — or an ‘essentially economic’ one (see the Nicodemo v. Italy, judgment of 2 September 1997, Reports 1997-V, p. 1703, § 18) and did not mainly call in question ‘the authorities' discretionary powers’ (see Benkessiouer v. France and Couez v. France, judgments of 24 August 1998, Reports 1998-V, pp. 2287–88, §§ 29–30; and p. 2265, § 25 respectively; Le Calvez v. France, judgment of 29 July 1998, Reports 1998-V, pp. 1900–01, § 58; and Cazenave de la Roche v. France, judgment of 9 June 1998, Reports 1998-III, p. 1327, § 43).

When the Court came to review the situation in the case of Pellegrin (§ 60) it considered that the above case-law contained a degree of uncertainty for Contracting States as to the scope of their obligations under Article 6 § 1 in disputes raised by employees in the public sector over their conditions of service. The Court sought to put an end to that uncertainty by establishing an autonomous interpretation of the term ‘civil service’ which would make it possible to afford equal treatment to public servants performing equivalent or similar duties in the States Parties to the Convention, irrespective of the domestic system of employment and, in particular, whatever the nature of the legal relation between the official and the administrative authority.

To that end the Court introduced a functional criterion based on the nature of the employee's duties and responsibilities. The holders of posts involving responsibilities in the general interest or participation in the exercise of powers conferred by public law wielded a portion of the State's sovereign power. The State therefore had a legitimate interest in requiring of these officials a special bond of trust and loyalty. On the other hand, in respect of other posts which did not have this ‘public administration’ aspect, there was no such interest (see the judgment cited above, § 65). The Court therefore ruled that the only disputes excluded from the scope of Article 6 § 1 were those which were raised by 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 (see § 66). It concluded that no disputes between administrative authorities and employees who occupied posts involving participation in the exercise of powers conferred by public law attracted the application of Article 6 § 1 (§ 67).

The Court observes that Pellegrin was categorical in its wording; where the post belonged to the said category, all disputes were excluded from Article 6 irrespective of their nature. It allowed only one exception: disputes concerning pensions all came within the ambit of Article 6 § 1 because, on retirement, the special bond between the employees and the authorities was broken; the employees then found themselves in a situation exactly comparable to that of employees under private law in that the special relationship of trust and loyalty binding them to the State had ceased to exist and the employee could no longer wield a portion of the State's sovereign power (see the judgment cited above, § 67).

It is important to note that the Court emphasised that in applying a functional criterion it must adopt a restrictive interpretation, in accordance with the object and purpose of the Convention, of the exceptions to the safeguards afforded by Article 6 §1 (§§ 64–67). This was to limit the cases in which public servants could be denied the practical and effective protection afforded to them (as confirmed in Frydlender v. France [GC], no. 30979/96, § 40, ECHR 2000-VII).

The Pellegrin judgment, which is the most recent significant link in the chain of development of the case-law, was intended to provide a workable concept by which it was to be ascertained, on a case-by-case basis, whether the applicant's post entailed — in the light of the nature of the duties and responsibilities appertaining to it — direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. It then had to be determined whether the applicant, in the framework of one of these categories of posts, did indeed exercise functions which could be characterised as falling within the exercise of public power, that is, whether the applicant's position within the State hierarchy was sufficiently important or elevated to speak of a participation in wielding State power.

The present case, however, highlights that the application of the functional criterion may itself lead to anomalous results. At the material time the applicants were employed by the Ministry of the Interior. Five of them were employed as police officers, which typifies the specific activities of the public service as defined above. This entailed participating directly in the exercise of powers conferred by public law and the performance of duties designed to safeguard the general interests of the State. The functions of the office assistant applicant were purely administrative, without any decision-making competence or other exercise directly or indirectly of public power. Her functions were thus not distinguishable from any other office assistant in public or private employment. As noted above, Pellegrin expressly mentioned the police as a manifest example of activities belonging to the exercise of public authority, thus excluding a whole category of persons from the scope of Article 6. On a strict application of the Pellegrin approach it would appear that the office assistant applicant in the present case would enjoy the guarantees of Article 6 § 1, whereas there is no doubt that the police officer applicants would not. This would be so irrespective of the fact that the dispute was identical for all the applicants.

Further, an examination of the cases decided since Pellegrin shows that ascertaining the nature and status of the applicant's functions has not been an easy task; nor has the category of public service in which the applicant works always been clearly distinguishable on the basis of his or her actual role. In some cases it has not been apparent the extent to which inclusion in a particular sector of public service was sufficient to remove the applicability of Article 6 without consideration of the nature of the individual's responsibilities.

For example, in Kępka v. Poland ((dec.), nos. 31439/96 and 35123/97, ECHR 2000-IX) the Court found that, although the applicant, unfit for fire-fighting duties, worked throughout his career in the national fire service as a lecturer, his duties, which involved research and access to information of a sensitive nature, had to be regarded as falling within the sphere of national defence, in which the State exercised sovereign power, and as having entailed, at least indirectly, participation in the performance of duties designed to safeguard the general interests of the State (see, a contrario, Frydlender v. France, cited above, § 39). Accordingly, Article 6 was inapplicable. By way of further example, in Kanayev v. Russia, (no. 43726/02, § 18, 27 July 2006), where the applicant was an active officer of the Russian navy, a third-rank captain, and thus in that capacity ‘wielded a portion of the State's sovereign power’, Article 6 § 1 was held not to apply, even though the dispute related to non-enforcement of a court judgment in his favour which related to disputed travel expenses. In Verešová v. Slovakia (cited above), Article 6 § 1 was excluded in respect of a lawyer working for the police on the basis of the nature of the functions and responsibilities of the police service as a whole, without any apparent consideration of her own individual role in the organisation.

Furthermore, it is particularly striking that, taken literally, the ‘functional approach’ requires that Article 6 be excluded from application to disputes where the position of the applicant as a State official does not differ from the position of any other litigant, or, in other words, where the dispute between the employee and the employer is not especially marked by a ‘special bond of trust and loyalty’.

That it was the applicant's position and not the nature of the dispute which was decisive was, however, confirmed in the case of Martinie v. France ([GC], no. 58675/00, § 30, 12 April 2006) where the Grand Chamber concluded that Article 6 § 1 was applicable, as the Chamber had done (admissibility decision of 13 January 2004), but on the basis of different reasoning. It had regard to the fact that the applicant was a civil servant who worked as an accountant for a school, without any participation in the exercise of public powers, whereas the Chamber had mainly had regard to the nature of the dispute between the applicant and the State, namely his liability to repay unauthorised payments, in reaching the conclusion that the obligations of the applicant were ‘civil’ ones within the meaning of Article 6 § 1, with private-law features predominating in this case.

The Court can only conclude that the functional criterion, as applied in practice, has not simplified the analysis of the applicability of Article 6 in proceedings to which a civil servant is a party or brought about a greater degree of certainty in this area as intended (see, mutatis mutandis, Perez v. France [GC], no. 47287/99, § 55, ECHR 2004-I.).

It is against this background and for these reasons that the Court finds that the functional criterion adopted in the case of Pellegrin must be further developed. While it is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents laid down in previous cases, a failure by the Court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see, mutatis mutandis, Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005-I.).

Pellegrin should be understood against the background of the Court's previous case-law and as constituting a first step away from the previous principle of inapplicability of Article 6 to the civil service, towards partial applicability. It reflected the basic premise that certain civil servants, because of their functions, are bound by a special bond of trust and loyalty towards their employer. However, it is evident from the cases decided since, that in very many Contracting States access to a court is accorded to civil servants, allowing them to bring claims for salary and allowances, even dismissal or recruitment, on a similar basis to employees in the private sector. The domestic system, in such circumstances, perceives no conflict between the vital interests of the State and the right of the individual to protection. Indeed, while neither the Convention nor its Protocols guarantee a right of recruitment to the civil service, it does not follow that in other respects civil servants fall outside the scope of the Convention (see, mutatis mutandis, Abdulaziz, Cabales and Balkandali, judgment of 28 May 1985, Series A no. 94, pp. 31–32, § 60; and Glasenapp v. Germany, judgment of 28 August 1986, Series A no. 104, p. 26, § 49).

Furthermore, Articles 1 and 14 of the Convention stipulate that ‘everyone within [the] jurisdiction’ of the Contracting States must enjoy the rights and freedoms in Section I ‘without discrimination on any ground’ (see, mutatis mutandis, Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, p. 23, § 54). As a general rule, the guarantees in the Convention extend to civil servants (see, mutatis mutandis, Schmidt and Dahlström v. Sweden, judgment of 6 February 1976, Series A no. 21, p. 15, § 33; Engel and Others v. the Netherlands, cited above, p. 23, § 54; Glasenapp v. Germany, cited above, p. 26, § 49; and Ahmed and Others v. the United Kingdom, judgment of 2 September 1998, Reports 1998-VI, p. 2378, § 56).

Adopting the restrictive interpretation of the functional criterion advocated in Pellegrin itself, there should therefore be convincing reasons for excluding any category of applicant from the protection of Article 6 § 1. In the present case, where the applicants, police officers and administrative assistant alike, had, according to the national legislation, the right to have their claims for allowances examined by a tribunal, no ground related to the effective functioning of the State or any other public necessity has been advanced which might require the removal of Convention protection against unfair or lengthy proceedings.

Looking to European law generally, which provides useful guidance (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, §§ 43–45, 92 and 100, ECHR 2002-VI; Posti and Rahko v. Finland, no. 27824/95, § 54, ECHR 2002-VII; and Meftah and Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97, § 45, ECHR 2002-VII), the Court notes that Pellegrin sought support in the categories of activities and posts listed by the European Commission and by the Court of Justice of the European Communities in connection with the exception to the freedom of movement (§ 66). However, the Court would observe that the Luxembourg Court itself applies a wider approach in favour of judicial control, as shown by its landmark judgment in the case of Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary (Case 222/84, [1986] ECR 1651, § 18) brought by a female police officer on the basis of the Directive on non-discrimination. The Luxembourg Court reasoned:

This and other case-law in areas having a connection with community law indicate 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 MargueriteJohnston 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 (see above §§ 29–30).

The Court recognises the State's interest in controlling access to a court when it comes to certain categories of staff. However, it is primarily for the Contracting States, in particular the competent national legislature, not the Court, to identify expressly those areas of public service involving the exercise of the discretionary powers intrinsic to State sovereignty where the interests of the individual must give way. The Court exerts its supervisory role subject to the principle of subsidiarity (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 103, ECHR 2001-V). If a domestic system bars access to a court, the Court will verify that the dispute is indeed such as to justify the application of the exception to the guarantees of Article 6. If it does not, then there is no issue and Article 6 § 1 will apply.

It should be emphasised, however, that this situation is distinct from other cases, which due to the claims being made are regarded as falling outside the civil and criminal heads of Article 6 § 1 of the Convention (see, inter alia, for the assessment of tax Ferrazzini v. Italy ([GC], no. 44759/98, ECHR 2001-VII); for matters of asylum, nationality and residence in a country, Maaouia v. France ([GC], no. 39652/98, ECHR 2000-X); and for the adjudication of election disputes in respect of members of Parliament, Pierre-Bloch v. France, cited above). The reasoning in this case is therefore limited to the situation of civil servants.

To recapitulate, in order for the respondent State to be able to rely before the Court on the applicant's status as a civil servant in excluding the protection embodied in Article 6, two conditions must 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 is in a sector or department which participates in the exercise of power conferred by public law is not in itself decisive. In order for the exclusion to be justified, it is not enough for the State to establish that the civil servant in question participates in the exercise of public power or that there exists, 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. It is also for the State to show that the subject matter of the dispute in issue is related to the exercise of State power or that it has called into question the special bond. Thus, there can 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 will, in effect, be a presumption that Article 6 applies. It will be for the respondent Government to demonstrate, first, that a civil-servant applicant does 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 is justified.

In the present case it is common ground that the applicants all had access to a court under national law. Accordingly, Article 6 § 1 is applicable.

The Court would note that its conclusion concerning the applicability of Article 6 is without prejudice to the question of how the various guarantees of that Article (for example, the scope of review required of the national courts; see Zumtobel v. Austria, judgment of 21 September 1993, Series A no. 268-A, p. 14, § 32) should be applied in disputes concerning civil servants. In the present case, the Court needs to consider only two such guarantees, namely those relating to the length of the proceedings and to oral hearings.