EHRM, 06-01-2015, nr. 415/07

The Government argued that, even assuming the applicability of Article 6 in the present case, the applicant's right of access to court under that provision had not been breached. The limitation, by the Federal Constitutional Court, of its control of the compliance with fundamental rights of acts of international organisations to cases in which the latter's acts had effects on the legal position of persons in Germany complied with the Convention. Under Article 1, the latter obliged the Contracting Parties only to secure the Convention rights to those within their ‘jurisdiction’.

Moreover, even assuming an interference with the applicant's right of access to court under Article 6 by the Federal Constitutional Court's restriction of access to it, that interference had been justified. The exclusion of the applicant's access to the German courts under Article 8 of the European Patent Convention, read in conjunction with Article 3 of the Protocol on Privileges and Immunities of the EPO (see paragraphs 30–31 above), was justified on objective grounds of public interest. Immunity of international organisations from jurisdiction was indispensable in order to guarantee the functioning of such organisations and in order to prevent undue influence exercised by its Member States.

The internal system of judicial review within the EPO also guaranteed a protection of fundamental rights comparable to that secured by the Convention. Moreover, despite the restriction of access to that system of internal judicial review for job applicants, the applicant did have, in the circumstances of the present case, alternative means effectively to protect his Convention rights. The EPO had offered the applicant to conduct an arbitration procedure which would have afforded him effective protection.

The Government stressed that the applicant had discontinued the negotiations for an arbitration contract with the EPO, of which the European Patent Office was an organ, without giving reasons. The arbitration contract offered to the applicant had been reasonable. In particular, it had been reasonable for the EPO to allow only its internal law to be applied as that would also have been the case had the applicant's complaint been dealt with on the merits by the Administrative Tribunal of the ILO. The rights of disabled persons were also protected by the EPO and the Administrative Tribunal of the ILO which had expressly declared to protect fundamental rights. It had been the applicant's free decision, in applying for a job at the EPO, to subject himself to the internal rules of that organisation.

The applicant argued that the limitation on his right of access to court had not been justified. According to the decision rendered by the Federal Constitutional Court in his case, that court would not have jurisdiction in cases in which an international organisation acted in a manner inconsistent with the Convention as long as its acts did not have legal effects in the German legal order. This did not meet the standards established by the Court in its case-law.

In the applicant's submission, the European Patent Office also had not offered reasonable alternatives to access to court. He had neither had access to the European Patent Office's internal appeals system nor to the Administrative Tribunal of the ILO. In any event, there was no body of human rights law within the EPO legal order which could afford a protection equivalent to that of the Convention.

The applicant further argued that he had not abandoned the negotiations for an arbitration contract without giving reasons. He submitted that the European Patent Office apparently had not made sufficient attempts to obtain assistance from the Administrative Tribunal of the ILO in constituting an arbitral tribunal. Furthermore, counsel acting for the EPO had not sent him a copy of his power of attorney, but had only given an assurance that he had been mandated by the EPO whereas he had a dispute with the European Patent Office and not the EPO. As the European Patent Office had failed to give him the information he had requested, it had not been him who had terminated the arbitral proceedings.

The applicant also submitted that the arbitral procedure proposed could not be considered as an adequate alternative to access to court. He considered that there had been serious deficiencies in the arbitral procedure — which would not have complied with the requirements of Article 6 of the Convention — proposed unilaterally by the EPO. Moreover, the applicable law in the arbitration procedure had been unduly limited to the internal law of the EPO and the latter failed to provide redress in this respect. Furthermore, as there was no clear definition of the fundamental rights and the law prohibiting discrimination applicable, the arbitral tribunal could not have found his discrimination on grounds of disability to have been illegal and the arbitration therefore did not have reasonable prospects of success.

The applicant further argued that he had not waived his right of access to court under Article 6 § 1 of the Convention because he had not agreed to an arbitral procedure. In any event, a procedure before an arbitral tribunal never met the requirements of Article 6 of the Convention as the latter was never established by law.

The Court recalls that the right of access to the courts secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999-I; Beer and Regan v. Germany [GC], no. 28934/95, § 49, 18 February 1999; Fogarty, cited above, § 33; Lopez Cifuentes v. Spain (dec.), no. 18754/06, § 31, 7 July 2009; Eiffage S.A. and Others v. Switzerland (dec.), no. 1742/05, 15 September 2009; Cudak v. Lithuania [GC], no. 15869/02, § 55, ECHR 2010; Sabeh El Leil v. France [GC], no. 34869/05, § 47, 29 June 2011; Chapman v. Belgium (dec.), no. 39619/06, § 45, 5 March 2013; and Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, § 139, ECHR 2013 (extracts)).

The Court is of the opinion that where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. This is particularly true for the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see, inter alia, Waite and Kennedy, cited above, § 67; Beer and Regan, cited above, § 57; referring to Airey v. Ireland, 9 October 1979, § 24, Series A no. 32).

For the Court, therefore, a material factor in determining whether granting an international organisation immunity from jurisdiction of the domestic courts is permissible under the Convention is whether the applicants concerned had available to them reasonable alternative means to protect effectively their rights under the Convention (see Waite and Kennedy, cited above, § 68; Beer and Regan, cited above, § 58; and Chapman, cited above, § 51).

The Court notes that the Federal Constitutional Court declared inadmissible the applicant's constitutional complaint alleging a breach of his right not to be discriminated by the decision of the President of the European Patent Office not to recruit him because of his disability. As the Patent Office's decision only concerned the internal sphere of the organisation, the court found that it did not have jurisdiction to examine its compliance with the fundamental rights laid down in the Basic Law. It further confirmed that the EPO had immunity from jurisdiction of the German (labour) courts within the scope of its official activities (see paragraphs 13–16 above).

Therefore, the applicant's access to the German courts was limited to access to the Federal Constitutional Court, where he could argue only a preliminary issue, the extent of the EPO's immunity (compare also Waite and Kennedy, cited above, § 58; and Beer and Regan, cited above, § 48).

In determining whether that limitation of the applicant's access to court pursued a legitimate aim, the Court is satisfied that, as the Government pointed out, granting immunity from German jurisdiction to the EPO aimed at guaranteeing the proper functioning of that international organisation. The Court has indeed previously stressed that the attribution of privileges and immunities to international organisations was an essential means of ensuring the proper functioning of such organisations free from unilateral interference by individual governments. Moreover, the immunity from jurisdiction commonly accorded by States to international organisations under the organisations' constituent instruments or supplementary agreements was a long-standing practice established in the interest of the good working of these organisations. The importance of this practice was enhanced by a trend towards extending and strengthening international cooperation in all domains of modern society (see Waite and Kennedy, cited above, § 63; and Beer and Regan, cited above, § 53). Therefore, the immunity from jurisdiction applied by the Federal Constitutional Court to the EPO in the present case had a legitimate objective.

As regards the proportionality of the limitation of the applicant's right of access to court in order to pursue that legitimate aim, the Court observes that the applicant was not only refused an examination of the merits of his complaint about discrimination in the recruitment procedure before the European Patent Office by the German Federal Constitutional Court. In his position as a candidate for a post, as opposed to a (former) staff member, he was also found not to have standing to lodge an internal appeal within the EPO under the Service Regulations of the European Patent Office (see paragraphs 10 and 36 above). Likewise, the Administrative Tribunal of the ILO dismissed the applicant's complaint about the impugned decision of the European Patent Office as inadmissible as it equally did not have jurisdiction in respect of external candidates for employment (see paragraphs 19 and 38 above). Therefore, the applicant's complaint about the impugned decision of the European Patent Office was not reviewed on the merits by any tribunal or other body.

Having regard to the importance in a democratic society of the right to a fair trial, of which the right of access to court is an essential aspect, the Court therefore considers it decisive whether the applicant had available to him reasonable alternative means to protect effectively his rights under the Convention.

The Court notes in this respect that in its judgment of 11 July 2007, the Administrative Tribunal of the ILO found that as a result of its lack of jurisdiction, there was a legal vacuum and that it was highly desirable that the EPO sought a solution affording the applicant access to a court, either by waiving its immunity or by submitting the dispute to arbitration (see paragraph 20 above). The European Patent Office, following up that proposal, subsequently declared to be ready to submit its impugned decision refusing to recruit the applicant to an arbitral tribunal. It offered the applicant to conclude a concrete contract of arbitration. Under that contract, three arbitrators were to hear the applicant's case in an oral hearing in private. They were to determine the case on the basis of the substantive rules which the Administrative Tribunal of the ILO would have applied had it had jurisdiction to adjudicate the case, that is, the European Patent Convention, the European Patent Office's Service Regulations and the general principles of international labour law as established by the Administrative Tribunal of the ILO (see paragraphs 24–25 above). It further offered to examine specific proposals concerning the procedure made by the applicant, who did not take up that offer (see paragraphs 27–28 above).

The Court finds that this offer of arbitration made to the applicant had awarded the applicant a reasonable opportunity to have his complaint about the European Patent Office's decision examined on the merits. It does not only fail to share the applicant's doubts about the mandate of counsel acting for the EPO, of which the European Patent Office is a body. In particular, it does not consider that the EPO's offer to have the dispute examined (only) under the rules which would have been applicable before the Administrative Tribunal of the ILO was such as to make the arbitration procedure an unreasonable alternative to proceedings before the domestic courts.

The Court notes in that context that it has previously found, in particular, that, bearing in mind the legitimate aim of immunities of international organisations, the test of proportionality cannot be applied in such a way as to compel an international organisation to submit itself to national litigation in relation to employment conditions prescribed under national labour law. To read Article 6 § 1 of the Convention and its guarantee of access to court as necessarily requiring the application of national legislation in such matters would, in the Court's view, thwart the proper functioning of international organisations and run counter to the current trend towards extending and strengthening international cooperation (see Waite and Kennedy, cited above, § 72; and Beer and Regan, cited above, § 62).

It had therefore been reasonable to propose the applicant a determination of his labour dispute with the European Patent Office under the rules which would have been applicable to him had he become a staff member of that organisation (but not to offer him a more advantageous treatment compared to those staff members). The Court further notes in that context that the applicant himself had relied, inter alia, on an anti-discrimination provision contained in the Service Regulations (Article 4 § 3) and that it was uncontested that the Administrative Tribunal of the ILO had declared to protect fundamental rights, which entailed a right not to be discriminated on grounds of disability, in its case-law.

Moreover, the Court considers that the fact alone that the oral hearing before the arbitral tribunal, in which the parties could be represented by counsel, was not to be public did not make the arbitration procedure offered an unreasonable alternative to domestic court proceedings either. It refers in this respect, mutatis mutandis, to its findings in the case of Gasparini (cited above), in which it had considered that the lack of publicity of a hearing before an internal body of an international organisation in labour disputes did not render the proceedings before that body manifestly deficient for the purposes of the Convention.

Finally, the Court notes that there is a current trend in international law towards a relaxation of the rule of State immunity as regards State's employment disputes with the staff, in particular, of their diplomatic missions abroad (see, in particular, Cudak, cited above, § 63; and Sabeh El Leil, cited above, § 53). However, the Court is not aware of any such trend in international law in relation to the jurisdictional immunity of international organisations, as opposed to that of States. It further notes that issues of recruitment of an individual are, in any event, not covered by that trend in relation to State immunity (see, in particular, Fogarty, cited above, § 38; Cudak, cited above, § 63; and Sabeh El Leil, cited above, §§ 18 ss.).

Having regard to the foregoing, the Court considers that, in having been offered the arbitral procedure in question, the applicant had available to him reasonable alternative means to protect effectively his rights under the Convention. Therefore, the limitations placed on the applicant's access to the German courts had been proportionate to the legitimate aims pursued by the grant of immunity from jurisdiction to the EPO and the very essence of the applicant's right of access to court under Article 6 § 1 was not impaired.

It follows that this part of the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

In the Government's submission, the application was incompatible ratione personae with the provisions of the Convention as Germany could not be held responsible for the acts of the EPO or the Administrative Tribunal of the ILO. The acts of the European Patent Office, an organ of the European Patent Organisation, could not be attributed to Germany in the present case. The EPO was an independent organisation with legal personality and did not fall under German jurisdiction. Its acts in the labour dispute at issue did not have any consequences on the applicant's rights under the German legal order.

Moreover, Germany had neither directly been involved in the dispute between the applicant and the international organisation — for instance by a participation in the procedure before the said institutions — nor indirectly, for instance by taking measures to execute the Organisation's or the tribunal's decision.

Germany further could not be held responsible for the impugned act as a result of a generally insufficient protection of Convention rights within the European Patent Organisation. First of all, the impugned act, concerning the refusal of the recruitment of a person as a staff member, had remained internal and had not had any consequences on the German legal order. The act was therefore not attributable to Germany in this respect.

Moreover, the criteria under which the Court considered Member States indirectly responsible for acts of international organisations were not met. The EPO's system of review in relation to internal employment disputes guaranteed a protection equivalent to that laid down in the Convention. In particular, the fact that candidates for jobs were barred from these review procedures did not disclose a manifestly deficient protection of Convention rights within the meaning of the Court's case-law as developed, for instance, in Waite and Kennedy (cited above, § 69). The Convention equally did not grant legal protection against measures relating to the recruitment to civil service, even after the Court's judgment in the case of Vilho Eskelinen (cited above). The applicant in the present case also had at his disposal reasonable alternative means to protect his Convention rights effectively. The EPO had offered the applicant to conduct an arbitration procedure but the applicant had discontinued negotiations to that effect without giving reasons.

Furthermore, under Article 13 § 1 of the European Patent Convention (see paragraph 37 above), (former) staff members had the right to lodge a complaint with the Administrative Tribunal of the ILO in disputes with the EPO in accordance with the conditions laid down in the Service Regulations. Prior to lodging a complaint with the Administrative Tribunal of the ILO, they had to lodge a complaint in accordance with Articles 106 ss. of the Service Regulations (see Article 13 § 2 of the European Patent Convention). The Appeals Committee competent for dealing with these complaints could not itself determine the dispute, but could only make recommendations to the President of the European Patent Office (Article 109 § 1 of the Service Regulations, see paragraph 36 above). However, it was sufficient for the purposes of Article 6 of the Convention that the Administrative Tribunal of the ILO met the requirements of an independent tribunal. Moreover, the latter took into consideration fundamental rights in its judgments. A catalogue of fundamental rights was not indispensable therefor.

The applicant submitted that Germany had had the authority to intervene in the procedure before the European Patent Office where the immunities claimed by the EPO were not necessary for the proper functioning of the European Patent Office. The immunity granted to the EPO under the Protocol on Privileges and Immunities of the European Patent Organisation and the Headquarters Agreement between the EPO and the German Government was not absolute, but functional. In the present case, the EPO's immunity could be dispensed with without prejudicing its legitimate interests.

The applicant further argued that Germany remained responsible under the Convention for the acts of the EPO even after having delegated sovereign powers to it. He relied, inter alia, on the Court's judgments in the cases of Matthews ( Matthews v. the United Kingdom [GC], no. 24833/94, ECHR 1999-I) and Bosphorus ( Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005-VI) in this respect. Germany was to be held responsible for the acts of the European Patent Office as the latter had failed to protect human rights, both as regards the substantive guarantees and as regards the mechanisms controlling their observance, at a level at least equivalent to that provided by the Convention.

On the one hand, he had not had access to any tribunal at all. On the other hand, there was no internal law within the European Patent Office defining and offering protection of human rights on which he could have relied. The Administrative Tribunal of the ILO, which applied the provisions of the EPO internal legal order, thus did not have a body of fundamental rights to apply. The Member States of the European Patent Convention, including Germany, were to be held responsible for this lack of a clear body of human rights law. They had thus failed to ensure that the level of human rights protection by the European Patent Office was equivalent to that guaranteed by the Convention.

The applicant further argued that the act at issue was a discrimination against disabled persons. Existing German law on the protection of the disabled should apply because these provisions were not excluded by the privileges and functional immunities granted to the EPO.

The Court recalls that it recently gave decisions in a number of applications where the impugned decision emanated from an internal body of an international organisation or 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 an international organisation that had a legal personality separate from that of its Member States. It was decisive for the respondent States to be held responsible under the Convention in those cases whether the States concerned had intervened directly or indirectly in the dispute, and whether an act or omission of those States or their authorities could be considered to engage their responsibility under the Convention. If that was not the case, the Court considered the applicants not to have been ‘within the jurisdiction’ of the respondent States concerned for the purposes of Article 1 of the Convention and therefore declared the applications to be incompatible ratione personae with the provisions of the Convention in this respect (see, inter alia, Boivin v. 34 Member States of the Council of Europe (dec.), no. 73250/01, ECHR 2008; Connolly v. 15 Member States of the European Union (dec.), no. 73274/01, 9 December 2008; Beygo v. 46 Member States of the Council of Europe (dec.), no. 36099/06, 16 June 2009; Lopez Cifuentes, cited above, §§ 27–30; see also, mutatis mutandis, Etablissements Biret et Cie S.A. and Biret International v. 15 Member States of the European Union (dec.), no. 13762/04, 9 December 2008; see also the references to that case-law in Gasparini v. Italy and Belgium (dec.), no. 10750/03, 12 May 2009, and Rambus Inc. v. Germany (dec.), no. 40382/04, 16 June 2009, in which the Court considered the respective applications as manifestly ill-founded on further, additional grounds).

The Court clarified in this context that respondent States were directly or indirectly involved in the dispute at issue, for the purposes of the above case-law, in particular, if State authorities applied or enforced legal provisions emanating from an international organisation against an applicant (see, for instance, Matthews v. the United Kingdom [GC], no. 24833/94, ECHR 1999-I; and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, ECHR 2005-VI).

The Court further reiterates that in its recent decisions concerning the Contracting parties' jurisdiction in relation to acts of international organisations and tribunals in labour disputes of those organisations with their staff, it has examined the applicants' complaints in these respects also in the light of the principles established in cases in which it was called upon to answer the question whether the Member States of the Convention could be held responsible under the Convention for acts or omissions following from their membership of an international organisation. These principles have been recalled and developed in particular in the case of Bosphorus ( Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi, cited above) (see, inter alia, Boivin, cited above; Connolly, cited above; Rambus, cited above; Beygo, cited above; and Lopez Cifuentes, cited above, § 24).

In Bosphorus, the Court held that, while a Contracting Party was not prohibited by the Convention from transferring sovereign power to an international organisation in order to pursue cooperation in certain fields of activity, that Party remained responsible under Article 1 of the Convention for all acts and omissions of its own organs (ibid., §§ 152–153). However, where such State action was taken in compliance with international legal obligations flowing from its membership of an international organisation and where the relevant organisation protected fundamental rights in a manner which could be considered at least equivalent to that which the Convention provided, a presumption arose that the State had not departed from the requirements of the Convention. Such presumption could be rebutted if, in the circumstances of a particular case, it was 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 (ibid., §§ 155–156; see also Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. the Netherlands (dec.), no. 13645/05, ECHR 2009; and Rambus, cited above).

The Court subsequently examined complaints about acts of international organisations and tribunals in labour disputes in the light of its case-law relating to States' responsibility established in the case of Bosphorus (cited above), in particular in the case of Gasparini (cited above). The Gasparini case differed from the Bosphorus case. In the Bosphorus case, an action taken by the respondent State itself (detention of an aircraft) in order to implement legal provisions emanating from international organisations was at issue (ibid., §§ 19 ss.). The case of Gasparini (cited above) concerned the compliance with the Convention of internal procedures on labour disputes within an international organisation, without the respondent State having intervened in that procedure as such.

In Gasparini (cited above), the Court deducted from the principles developed in the Bosphorus case that, when transferring part of their sovereign powers to an international organisation of which they are a member, Contracting Parties to the Convention were under an obligation to monitor that the rights guaranteed by the Convention received within that organisation an ‘equivalent protection’ to that secured by the Convention system. In fact, a Contracting Party's responsibility under the Convention could be engaged if it subsequently turned out that the protection of fundamental rights offered by the international organisation concerned was ‘manifestly deficient’ (see Bosphorus, cited above). Conversely, an alleged violation of the Convention was not attributable to a Contracting Party because of a decision or measure emanating from an organ of an international organisation of which it is a member where it has not been established nor even been alleged that the protection of fundamental rights generally offered by the said international organisation was not ‘equivalent’ to that secured by the Convention and where the State concerned neither directly nor indirectly intervened in the commission of the impugned act (see Boivin, cited above).

In the present case, the Court notes that, in so far as the acts of and the procedure before the bodies of the European Patent Office and the Administrative Tribunal of the ILO as such are at issue, the German authorities neither directly nor indirectly intervened in the proceedings before these bodies. In particular, they did not take any measures in order to implement or enforce decisions taken by those bodies.

However, the Court having regard to Germany's membership in the EPO and to the principles developed in the case of Gasparini (see paragraph 97 above), also has to take note of the applicant's allegation in the present case that the EPO's internal labour dispute settlement mechanism, including recourse to the ILO tribunal, failed to secure an equivalent protection of fundamental rights compared to the level of protection provided by the Convention. The Court observes that while the applicant claimed a general lack of equivalent protection of fundamental rights within the EPO's internal labour dispute settlement mechanism he based his argumentation only on two specific grounds. He argued, on the one hand, that access to a tribunal was excluded for those having been refused employment. However, as shown above (see paragraphs 48–51), the Convention itself does not require in all circumstances full access to a tribunal in respect of complaints concerning the refusal of a person's recruitment to civil service.

The applicant submitted, on the other hand, that within the EPO there was no internal body of human rights law. However, as can be concluded from the Court's findings in its judgment in the case of Bosphorus (cited above, §§ 159 to 165), the fact that an international organisation does not dispose of a binding written catalogue of fundamental rights as such does not warrant the conclusion that it lacks a protection of fundamental rights equivalent to that under the Convention system as long as the organisation at issue effectively protects those rights in practice. The Court refers in this respect to its above finding (see paragraph 73) that it was uncontested that the Administrative Tribunal of the ILO had declared to protect fundamental rights, which entailed a right not to be discriminated on grounds of disability, in its case-law. In addition, the Court has already found that the fact alone that the oral hearing before the ILO tribunal was not to be public could not alter that finding (compare Gasparini, cited above).

The Court therefore does not see any reason to consider, in the light of the elements brought before it by the applicant, that since the transfer by Germany of its sovereign powers to the EPO the rights guaranteed by the Convention would generally not receive within the EPO an ‘equivalent protection’ to that secured by the Convention system. Consequently, Germany's responsibility under the Convention will only be engaged if the protection of fundamental rights offered by the EPO in the present case was ‘manifestly deficient’ (compare, mutatis mutandis, Bosphorus, cited above, § 156). The Court is therefore called upon to examine whether the fact that a candidate for a job is denied access to the procedures for review of the decision of the European Patent Office not to recruit him before the European Patent Office itself and before the Administrative Tribunal of the ILO, which is at issue in the present case, disclosed a manifest deficiency in the protection of human rights within the EPO.

The Court recalls that in the applicant's case, the EPO's internal labour dispute mechanism in relation to candidates for a job was shown to function as follows: The applicant's internal appeal under the Service Regulations of the European Patent Office was rejected as inadmissible because he was found not to have standing to lodge such an appeal. Such an appeal was only open to (former) staff members of the European Patent Office, as opposed to job applicants (see paragraphs 10 and 36 above). Likewise, the applicant's complaint to the Administrative Tribunal of the ILO was rejected as inadmissible by reference to that tribunal's well-established case-law because that court did not have jurisdiction in respect of external job applicants (see paragraphs 19 and 38 above). In none of the review procedures set up within or by the EPO, the applicant's complaint about his discriminatory treatment in the recruitment procedure before the European Patent Office had therefore been examined on the merits.

However, the Court finds that, as the Government rightly pointed out, under the Court's case-law, the Convention itself permits restrictions on the access to a tribunal in relation to measures concerning an applicant's recruitment to civil service. As shown above, an issue arises already as regards the applicability of Article 6 in this respect (see in detail paragraphs 48–52 above).

In any event, as regards compliance with Article 6 of the Convention of restrictions on access to court in employment disputes of applicants with international organisations, the Court recalls that it has consistently held in relation to access to the domestic courts of the Contracting Parties to the Convention that limitations to the right of access to court by granting immunity from jurisdiction to those organisations was proportionate to the legitimate aim of strengthening international cooperation, in particular, if the persons concerned had available reasonable alternative means to effectively protect their Convention rights (see, in particular, Waite and Kennedy, cited above, §§ 50 ss. and paragraph 64 above).

The Court refers to its above finding that the limitations placed on the applicant's access to the German domestic courts had been proportionate to the legitimate aims pursued by the grant of immunity from jurisdiction to the EPO and the very essence of the applicant's right of access to court under Article 6 § 1 was not impaired. This finding was based, in particular, on the fact that the offer of arbitration made by the EPO to the applicant had made available to him a reasonable alternative means to have his complaint about the European Patent Office's decision examined on the merits (see paragraphs 68–74 above).

The Court considers that therefore, the fact that the applicant was denied access to the review procedures set up by the EPO, an international organisation with legal personality which is not a party to the Convention, in relation to the decision of the President of the European Patent Office not to recruit him, but was offered by the EPO an arbitration procedure to have the impugned act of the Office examined, a fortiori does not disclose a manifestly deficient protection of fundamental rights within the EPO.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Done in English and notified in writing on 29 January 2015.

Claudia Westerdiek

Registrar

Mark Villiger

President