- BVerfGE 59, 63 2 BvR 1058/79 Eurocontrol II - Decision
- 10 November 1981
- Zeidler, Rinck, Wand, Dr. Rottmann, Dr. Dr. h.c. Niebler, Steinberger, Träger, Mahrenholz
- © Nomos Verlagsgesellschaft
1. The pattern of legal protection for officials of the European Organization for the Safety of Air Navigation (Eurocontrol) in accordance with the general conditions of employment, and the establishment of the jurisdiction of the administrative tribunal of the International Labour Organization, do not contradict minimum rule-of-law requirements within the meaning of the Basic Law.
2. A general rule of international law that would oppose the pattern of legal protection for Eurocontrol officials does not in any case exist, especially since legal protection before the administrative tribunal of the International Labour Organization also meets the international minimum standard of elementary procedural propriety.
Order of the Second Senate of 10 November 1981 -- 2BvR 1058/79 --
in the proceedings on the constitutional complaint of Mr H... - against the order of the Baden-Württemberg Higher Administrative Tribunal of 7 August 1979
- IV 1355/79 -
The constitutional complaint is dismissed.
EXTRACT FROM GROUNDS:
The object of the constitutional complaint is the question whether for legal disputes between the European Organization for the Safety of Air Navigation (Eurocontrol) and its staff the international competence of German administrative courts is constitutionally guaranteed.
1. By the "Eurocontrol" international convention relating to cooperation for the safety of air navigation (Eurocontrol Convention, ECC) of 13 November 1960, the Federal Republic of Germany, the Kingdom of Belgium, the French Republic, the United Kingdom of Great Britain and Northern Ireland, the Grand Duchy of Luxembourg and the Kingdom of the Netherlands agreed to strengthen their cooperation in matters of air navigation and in particular to provide for the common organization of air traffic services in the upper air space (Art. 1 (1) ECC). For this purpose they established the European Organization for the Safety of Air Navigation (Eurocontrol) ....
Eurocontrol is an international organization having legal a personality (Art. 4, first sentence, ECC) with its seat in Brussels (Art. 1 (3) ECC). By Art. 4, second sentence, ECC, the organization also has the fullest legal capacity in the territory of the Contracting Parties to which corporate bodies are entitled under national law. Its organs are the Permanent Commission for the Safety of Air Navigation and the Air Traffic Services Agency (Art. 1 (2) second sentence, ECC). The Commission is composed of representatives of the Contracting Parties (Art. 5, first sentence, ECC). It handles general policy tasks for the organization (cf. esp. Arts. 6 and 7 ECC). The Agency is led by a Committee of Management and a Director (Art. 3 of the Statute of the Agency, attached to the Eurocontrol Convention as an annex). It is responsible in particular for carrying out the practical operational activities entrusted to the organization (cf. esp. Art. 2 of the Statute of the Agency).
2 a) The Agency may call upon the services of qualified persons who are nationals of the Contracting Parties (Art. 24 (1) ECC). It makes available to the Commission the staff it requires for its operation (Art. 11 ECC). The "persons employed by the organization" enjoy various facilitations (cf. Art. 24 (2-6) ECC).
In relation to Agency staff, the Contracting Parties have adopted the following provisions in particular in the Statute of the Agency:
Art. 13 (3)
Furthermore, on behalf of the Organisation and in accordance with the general directives of the Committee, but without being required to refer individual cases to the Committee:
a) (the Director) may appoint those officials whose gross annual salary is less than a sum determined by the Committee and approved by the Commission, and may terminate their services under the conditions prescribed in the staff regulations;
b) - d)....
1. The Committee shall draw up the Agency's staff regulations; they shall include inter alia provisions relating to the nationality of personnel, salary scales, disqualifications for office, professional secrecy, continuity of the service and authority to report infringements, and they shall define those posts which may not be held in plurality with any other without the special authorisation of the Director.
2. The aforesaid regulations shall be submitted to the Commission for its approval by unanimous vote.
1. The Agency shall be empowered to recruit personnel directly only if the Contracting Parties are unable to make qualified personnel available to it.
2. A member of the personnel who is provided by a national Administration shall be subject, throughout the period of his employment by the Agency, to the Agency's staff regulations, without prejudice to the retention of those career benefits which are guaranteed by national regulations to members of the administrative group to which he belongs if they are made available to a national public body.
3. Staff provided by a national Administration may always be returned to that Administration without the return being regarded as a disciplinary measure.
b) When they concluded the Eurocontrol Convention the Contracting Parties inter alia declared, in the protocol of signature of 13 December 1960 on the "Eurocontrol" International Convention relating to Co-operation for the Safety of Air Navigation (BGBl 1962 II p. 2322) that:
5. Nothing in the Convention or the Statute annexed thereto shall be deemed to restrict the jurisdiction of national courts in respect of disputes between the Organisation and the personnel of the Agency.
3 a) On the basis of Art. 14 of the Statute of the Agency, the organs of Eurocontrol adopted, for Agency staff, the Staff Regulations governing Officials of the Eurocontrol Agency (Staff Regulations) and the General Conditions of Employment governing Servants of the Eurocontrol Maastricht Centre (Conditions of Employment). Title VII of each of these statutes contains inter alia the following provisions on sequence of appeals and legal protection:
Art. 91 (2) of the Conditions of Employment
(Art. 92 (2) of the Staff Regulations)
Any person to whom these Conditions of Employment (these Staff Regulations) apply, may submit to the Director-General (the appointing authority) a complaint against an act adversely affecting him, either where the said authority has taken a decision or where it has failed to adopt a measure prescribed by the Staff Regulations. The complaint must be lodged within three months....
Art. 92 of the Conditions of Employment (Art. 93 of the Staff Regulations)
1. Any dispute between the Agency and one of the persons referred to in the present Conditions (Staff Regulations) involving non-observance, in substance or in form, of the provisions of the present Conditions (Regulations), shall be referred to the Administrative Tribunal of the International Labour Office, in the absence of a competent national jurisdiction.
2. A complaint to the Tribunal shall lie only if:
- The Director-General (the appointing authority) has previously had a complaint submitted to him (it) pursuant to Article 91(1) (Art. 92(2)) within the period prescribed therein, and
- the complaint has been rejected by express or by implied decision.
3. Complaints under paragraph 2 shall be filed within three months....
4. By way of derogtion from paragraph 2, the person concerned may, after submitting a complaint to the Director-General pursuant to Article 91(2) (the appointing authority pursuant to Art. 92(2)) immediately file an appeal with the Tribunal, provided that such appeal is accompanied by an application either for a stay of execution of the contested act or for the adoption of interim measures....
5. Appeals shall be investigated and heard as provided in the Rules of Procedure of the Tribunal.
b) The Staff Regulations came into force on 1 September 1963 (Art. 102 (1)), and the General Conditions of Employment on 1 January 1969 (Art. 97 (1)(1)). The provisions on legal protection (Art. 92 of the Conditions of Employment, Art. 93 of the Staff Regulations) became effective after the governing body of the International Labour Organization (ILO) had adopted the declaration recognizing the jurisdiction of the Administrative Tribunal by Eurocontrol pursuant to Art. II (5) of the Statute of that tribunal (see Art. 97 (2) of the Conditions of Employment, Art. 102 (2) of the Staff Regulations). Art. II (5) of the Statute of the Administrative Tribunal (Statute and Rules of Court of the Administrative Tribunal, International Labour Office, Geneva, 1972; in French in Ballaloud, Le Tribunal administratif de l'Organisation Internationale du Travail et sa jurisprudence, Paris, 1967, p. 143 f., 147) reads:
5. The Tribunal shall ... 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 intergovernmental international organisation approved by the Governing Body which has addressed to the Director-General a declaration recognising, in accordance with its Constitution or internal administrative rules, the jurisdiction of the Tribunal for this purpose, as well as its Rules of Procedure.
The annex to the Statute of the Administrative Tribunal further provides in this connection:
The Statute of the Administrative Tribunal of the International Labour Organisation applies in its entirety to those international invergovernmental organisations which, in accordance with their Constitution or internal administrative rules, recognise the jurisdiction of the Tribunal and formally declare that they adopt its Rules of Procedure in accordance with paragraph 5 of article II of the Statute....
The ILO Administrative Tribunal has recognized its competence for staff disputes relating to officials of Eurocontrol and has given a variety of decisions on such disputes.
1. The complainant has been employed since 1 September 1974 as programmer in the Karlsruhe office of Eurocontrol. As regards the employment relationship he initially reached an agreement with the Agency on 10 August 1974, termed "letter of engagement"; according to this the appointment was to be for a period of 5 years. In September 1974 the General Director of the Agency appointed the complainant an "official" of the organization. By an "Act of Establishment for an Official" of 31 March 1976 he was taken into an established post by being appointed a "permanent official" by the Director-General. The appointment documents hereto each provide for a limitation of the employment relationship to 5 years (with effect from 1 September 1974). The documents further refer to the Eurocontrol Convention, in particular to Art. 24 (1) ECC, to the Statute of the Agency, in particular Arts. 3, 13 and 15, and to the General Conditions for Employment governing Servants at the Eurocontrol Centre in Maastricht, in particular to the provisions on appointment of officials, their assignment to a post, their grading in a salary class and their completion of a probation period.
2 a) On 21 February 1979 the complainant brought an action against Eurocontrol before the Karlsruhe Administrative Tribunal. He applied for a finding "that the contract of employment concluded between the parties does not end on 31 August 1979 and the defendant has to employ the plaintiff in the same or a similar post". The Administrative Tribunal has not yet decided the suit; the proceedings are, with the agreement of both parties, suspended pending the present constitutional complaint.
b) A petition of the complainant submitted on 15 June 1979 to oblige Eurocontrol by temporary order to employ him beyond 31 August 1979 in the same or a similar post as before until a legally valid decision in the main case, or alternatively to continue to pay him his existing salary beyond 31 August 1979 in full, or at least to the extent of two thirds, was rejected by the Karlsruhe Administrative Tribunal by a decision of 5 July 1979. The petition was found inadmissible because the dispute did not fall under German jurisdiction.
c) The appeal lodged by the complainant against the decision was rejected by the Baden-Württemberg Higher Administrative Tribunal by a decision of 7 August 1979 (ESVGH 30, 20 and DVBl. 1980, p. 127). After summary consideration, the Tribunal reached the view that the legal dispute at issue was not subject to German jurisdiction. Eurocontrol was an international institution within the meaning of Art. 24 (1) Basic Law. It could employ officials and regulate their legal positions autonomously. On the basis of Art. 14 of the Statute of the Agency, Eurocontrol had - as autonomous (secondary) international law - laid down internal service rules of its own. These were embodied in particular in the Staff Regulations and in the General Conditions of Employment.
The Eurocontrol Convention contained no explicit provision whereby Eurocontrol was - particularly in respect of actions by its officials arising out of their service relationship - removed from domestic jurisdiction. Whether one might consider that there was some customary rule of general international law whereby international organizations were removed from domestic jurisdiction was doubtful. This might also be questionable to the extent that disputes between the international organization and its officials relating to service regulations were involved. The question could be left open. It was at any rate possible to assume an immunity of Eurocontrol made possible by international treaty. Eurocontrol could perform its tasks smoothly only if the staff employed by it was subject to unitary staff regulations. It was manifestly on this consideration that the empowerment to create such staff regulations contained in Art. 14 (1) of the Statute was based. This presumably included the power to provide, in relation to officials' legal relationships, for exclusion of Eurocontrol from the respective domestic judiciary authority or from judicial review by a single (international) jurisdiction, as was usual for actions by officials of international organizations arising out of the service relationship. The object pursued by this empowerment would be called in question were the relationships regulated by the internal service regulations to be subject to differing review by the courts of the individual Contracting States. The Contracting States had, by acting together to establish autonomous sovereign authority for Eurocontrol (including the empowerment of Art. 14 (1) of the Statute of the Agency), renounced such national control. There was no provision in the Eurocontrol Convention that could prevent Art. 14 (1) of the Statute of the Agency from being understood in this way. This was true in particular of the provisions adopted in Arts. 25-27 ECC on the organization's liability, on individual privileges and immunities and on the organization's cooperation with the competent domestic authorities.
It was in line with the conception set forth for Eurocontrol, on the basis of its autonomous (secondary) international law, to have entrusted the Administrative Tribunal of the International Labour Organization in Geneva with exclusive jurisdiction for disputes relating to the staff regulations. By Art. 93 (1) of the Staff Regulations and Art. 92 (1) of the Conditions of Employment, these disputes were conveyed to the ILO Administrative Tribunal "in the absence of a competent national jurisdiction"; this clause meant - as the French version showed still more clearly - that the respective domestic jurisdiction was regarded as not competent. The Staff Regulations and the Conditions of Employment had been approved by the Commission. An agreement had been concluded between Eurocontrol and the International Labour Organization on involvement of the Administrative Tribunal. The Administrative Tribunal of the ILO had affirmed its competence and had also already decided a number of such disputes.
The competence of the ILO Administrative Tribunal met with no objections in connection with declaration 5 of the Protocol of Signature. That provision at any rate contained no binding reference to respective national judiciary authority for the whole period of duration of the Eurocontrol Convention. The Contracting States had, having regard to the fact that Eurocontrol had initially employed staff seconded from the national services, arrived at the finding that the competence of domestic courts for service disputes should remain unaffected. They did not however thereby wish to rule out the possibility of in future providing for exclusion from the respective domestic jurisdiction, on the basis of staff regulations adopted pursuant to Art. 14 (1) of the Statute of the Agency. Declaration 5 of the Protocol of Signature was accordingly to be seen as a provision for a transitional period. If the empowerment in Art. 14 (1) of the Statute of the Agency was intended to be burdened by a reservation in favour of the relevant domestic judiciary authority, it would have been appropriate to make reference to this article in the Protocol of Signature; other provisions of the protocol contained corresponding references to provisions of the Treaty and the Statute. In interpreting international declarations, the practice of the States involved also played a particular part; concurrent practice could confirm an interpretation as correct. The Contracting States had not seen themselves as prevented by declaration 5 of the Protocol of Signature from approving the assignment of competence to the ILO Administrative Tribunal.
This assignment did not seem to present constitutional objections. No contradiction with the fundamental structure of the Basic Law could be seen; in particular, a fundamental restriction of the rights of Eurocontrol officials arising out of Art. 19 (4) Basic Law could not be seen. The ILO Administrative Tribunal met rule-of-law requirements. It was a genuine court and was called on by a number of international organizations in the same way as by Eurocontrol. Comparable international tribunals similarly decided without a sequence of appeals. The Eurocontrol staff regulations also provided for temporary protection of rights.
The present legal dispute was covered by Eurocontrol's immunity from German jurisdiction. The complainant's instrument of appointment had referred to the Statute of the Agency and to the Conditions of Employment.
The constitutional complaint is directed against the ruling of the Baden-Württemberg Higher Administrative Tribunal. The complainant objects to infringement of Art. 3 (1) and 19 (4) Basic Law. He takes the view that he must constitutionally be given the possibility of taking legal recourse to the German administrative tribunals.
1. The Federal Minister for Transport regards the constitutional complaint as unjustified
2. Eurocontrol regards the constitutional complaint as inadmissible, but in any case as unjustified
The constitutional complaint is directed only against the ruling of the Baden-Württemberg Higher Administrative Tribunal of 7 August 1979. While the complainant has asserted constitutional objections also in relation to legal provisions relating to the social position of Eurocontrol officials and their application by German authorities, it cannot be taken from his petition that in the present complaint he wished in that respect to challenge further acts of the public authorities.
The constitutional complaint is admissible, but not justified.
1. Possible infringement of Art. 3 (1) and 19 (4) Basic Law has been adequately shown by the complainant. He has in particular presented the grounds on which he regards it as constitutionally required for recourse to German administrative tribunals to be open to him against acts by Eurocontrol in connection with his employment relationship. Even insofar as he intended in the initial case to complain that Eurocontrol was infringing on his rights by the fact that it was omitting to continue his employment, infringement of Art. 19 (4) Basic Law by denial of protection in domestic law might come into consideration.
2. The admissibility of the constitutional complaint is not opposed by the fact that the complainant can still pursue the proceedings in the main case and to that extent the sequence of remedies has not been exhausted.
The constitutional complain is unjustified.
1. The decision challenged does not infringe Art. 19 (4) Basic Law.
a) Actions or omissions by Eurocontrol in connection with the further employment of the complainant beyond 31 August 1979 are not measures of "public authority" within the meaning of this constitutional provision. In relation to this action, accordingly, the guarantee of legal protection in Art. 19 (4) Basic Law does not operate. As the Senate found in its order, similarly relating to Eurocontrol, of 23 June 1981, to which reference is made, it is irrelevant in this connection whether the transfer of sovereign rights to the international institution and its organizational and legal pattern in detail are valid by the criteria of German constitutional law. All that is essential is that the institution should have been set up by an act effective in international law and not have become entirely separated from that basis in international law in the action at dispute. Even then, its actions are those of non-German public authority, in relation to which at any rate the legal protection guarantee of Art. 19 (4) Basic Law does not operate. Art. 19 (4) Basic Law does not guarantee "subsidiary" jurisdiction of German courts for the case where the transfer of sovereign powers to the international institution is - formally or substantively - faulty according to domestic law. According to Art. 19 (4) Basic Law, in particular, no international "buffer competence" of German courts is guaranteed should legal protection against actions of the international institution be inadequate, measured by domestic requirements.
The question whether the legal protection provided in relation to action by an international institution is adequate accordingly does not directly concern the guarantee of Art. 19 (4) Basic Law. Provisions regulating legal protection against acts of the international institution are not to be measured against this constitutional provision, because they do not concern legal protection against acts of German public authority. If legal protection against acts of an international institution appears inadequate measured by domestic requirements, then at most infringement of Art. 24 (1) Basic Law might come into consideration; having regard to the basic principles of the constitution, existing bounds to this "transfer empowerment" might be transgressed should sufficient account not have been taken, in creating an international institution and its organizational and legal pattern, of the guarantee - embodied in the very principle of the rule of law - of effective legal protection against acts of the public authority. Where these boundaries are to be drawn, and accordingly what requirements are to be placed in this connection on the pattern of legal protection against acts of international institutions, does not however require any further clarification in the context.
b) Eurocontrol is an international institution within the meaning of Art. 24 (1) Basic Law. It has by international acts (the Eurocontrol Convention, the Multilateral Agreement relating to the collection of route charges of 8 September 1970, BGBl 1971 II p. 1154, the Bilateral Agreement relating to the collection of route charges of 8 September 1970, BGBl 1971 II p. 1158) been granted sovereign rights in relation to air traffic control services. To that extent, Eurocontrol exercises non-German public authority. By Art. 4 ECC, it also has legal capacity in relation to the law of the Federal Republic of Germany. Its tasks are also de facto performed by the organs, the Commission and the Agency (Art. 1(2) ECC). The effectiveness in international law of the underlying acts is to be presumed, for lack of any pointers to the contrary.
In relation to the officials employed for the carrying out of its tasks, Eurocontrol has autonomous personal sovereignty. Its organs are empowered to regulate the position and tasks of officials in staff regulations (Art. 14 of the Statute of the Agency). According to the conditions provided for in the Statute, the Director of the Agency appoints and dismisses officials (Art. 13 (3) (a) of the Statute; see also Art. 15 of the Statute). These provisions are in line with a widespread practice of States of granting international organizations set up by them autonomous regulatory and decisional power in relation to their officials.
According to the appointing document, the General Conditions of Employment governing Servants of the Eurocontrol Maastricht Centre are to apply to the employment relationship between Eurocontrol and the complainant. The relevant provisions, in particular as regards the appointment of officials (appointment by unilateral act of the Director-General - Art. 2 (1); appointment only to occupy an established post and on the conditions set out in the Conditions of Employment - Art. 3), their assignment to a post (Art. 7 (1)), their grading in a salary class (cf. Art. 34) and the completion of a probationary period as a condition for permanent appointment (Art. 36) show that employment relationships between Eurocontrol and its officials take - in terms of concepts of domestic law - a public-law shape, and accordingly that the acts undertaken by Eurocontrol in this connection are of a public-law nature. The legal nature of the employment relationships between Eurocontrol and its officials does not however ultimately require any closer definition. Nor need it be gone into whether and to what extent the criteria derived from domestic law for the demarcation between public and private law can at all be transferred to the internal staff law of an international organization. Eurocontrol at any rate does not exercise any German public authority within the meaning of Art. 19 (4) Basic Law, when it acts in relation to the employment of its officials. Accordingly, its acts are not - irrespective of their legal nature - covered by the guarantee of legal protection in that constitutional provision. This admittedly does not yet say anything as to whether for disputes relating to service provisions like the present one, any international competence of German courts follows from other norms of international or domestic law. This is anyway a question of so-called ordinary law, in particular since neither Art. 19 (4) Basic Law nor the principle of the rule of law otherwise establish any "buffer competence" for German courts.
2. The domestic applicability of the provisions from which the Baden-Württemberg Higher Administrative Tribunal has derived the exclusive international competence of the ILO Administrative Tribunal and the exclusion of German international competence are not opposed by any constitutional grounds. It need not be gone into here whether the decision challenged might have had a different outcome if the domestic application of these provisions had been constitutionally barred. For even then, serious doubts could be raised as to whether the German administrative tribunals approached by the complainant were internationally competent on the basis of other norms applicable domestically.
a) The interpretation and application of the provisions relevant for international competence is a matter primarily for the specialized courts. The Federal Constitutional Court here examines, in constitutional complaint proceedings, only whether federal constitutional law has been infringed thereby (see BVerfGE 18, 85 ; consistent case law). In the context of its jurisdiction the Federal Constitutional Court has certainly to pay particular attention here to ensuring that infringements of international law lying in faulty application of international legal norms by German courts or in failure to comply with them that may establish responsibility of the Federal Republic of Germany under international law are as far as possible prevented or eliminated. This may in an individual case require comprehensive verification to that effect (cf. the Senate's order of 23 June 1981).
b) Neither Art. 24 (1) Basic Law, Art. 59 (2), first sentence, Basic Law nor fundamental principles of the constitutional order oppose application of the provisions taken as a basis by the Baden-Württemberg Higher Administrative Tribunal.
It need not be gone into here whether the assenting act to the Eurocontrol Convention ought to that extent at all to be measured against Art. 24 (1) Basic Law, since the treaty provisions authorize the organization to adopt conditions of employment and settle legal disputes arising out of employment relationships with it. There may be serious doubts as to whether the treaty and associated documents accordingly at all bring about a withdrawal of a previously existing exclusive governance claim of the Federal Republic of Germany, whether, accordingly, a "transfer" of a sovereign right within the meaning of Art. 24 (1) Basic Law is present. In the present case, there are no constitutional objections whether in formal or in substantive respects.
(1) The Statute of the Agency of Eurocontrol as basis for empowerment is covered by the Assenting Act, as an annex to the Treaty. This Act gave the necessary order to apply the law domestically.
Art. 34 (1) ECC further provides that the Statute of the Agency, likewise any modifications which, subject to the conditions prescribed in the present Convention and in the Statute annexed thereto, shall be valid and have effect in the territory of the Contracting Parties. To the extent that this is not in any case brought about for the sovereign rights granted the organization in virtue of Art. 24 (1) Basic Law, Art. 34 (1) ECC also covers the domestic applicability of secondary law adopted by the Agency in accordance with the statutes and therefore also the provision on the exclusive jurisdiction of the ILO Administrative Tribunal for service disputes.
Objections that the complainant asserts in relation to the formal compatibility of the Conditions of Employment adopted with the Statute of the Agency did not need to be gone into by the Baden-Württemberg Higher Administrative Tribunal, at any rate in the proceedings for temporary protection of rights; these objections are on the one hand not evidently justified; and on the other do not directly affect the justification of the jurisdiction of the ILO Administrative Tribunal.
(2) As far as the content goes too, there are no fundamental principles of the constitutional law of the Federal Republic of Germany that oppose applicability of the provisions taken as a basis by the Baden-Württemberg Higher Administrative Tribunal. The pattern of legal protection for Eurocontrol officials in accordance with the General Conditions of Employment and the justification of the jurisdiction of the ILO Administrative Tribunal herefor first of all corresponds to a widespread practice of international organizations of which the Federal Republic of Germany is a member; the Statute and Rules of Court of the Tribunal, moreover, meet an international minimum standard of elementary procedural justice such as arises from developed systems of rule of law and from the procedural law of international courts (on this see Gerichtsschutz gegen die Exekutive, vol. 3, 1971); nor do they in toto contradict minimum rule-of-law requirements within the meaning of the Basic Law.
The ILO Administrative Tribunal is a genuine judicial organ. It was set up by an act in international law and decides on the basis of legally established powers and in accordance with a legally ordered procedure exclusively in accordance with legal norms and legal principles, the procedural objects brought before it. Its judges are obliged to independence and impartiality (see Art. III of the Statute); that they in general or in the complainant's case do not meet this obligation has not been shown by the complainant, nor is it evident. Access to the court is not made unreasonably difficult (cf. esp. Art. VII of the Statute); obstacles arising out of distance from the seat of the court and from the procedural language are reasonable for those involved - officials of a European international organization. The procedural law of the court guarantees a legal hearing and a minimum degree of procedural equality of those involved (cf. Art. IV, VII of the Statute, and the Tribunal's Rules of Court).
To be sure, invocation of the International Court of Justice to deliver a binding opinion in relation to decisions of the ILO Administrative Tribunal is (see Art. XII of the Statute of the ILO Administrative Tribunal), pursuant to Art. 92 (2) of the Charter of the United Nations Organization and Art. 65 of the Statute of the International Court of Justice, open only to the International Labour Organization, but not to individual officials. Since this, however, is an extraordinary procedure from the point of view of protecting the right of the private individual, and a result of the Statute of the International Court of Justice, to that extent the requirement for procedural equality must yield, especially since the International Court of Justice has procedural possibilities of ascertaining the view of the individual involved regarding his case.
The ILO Administrative Tribunal also exercises its jurisdiction. In particular, it regards itself as empowered to decide as to commitment petitions for the extension of time-limited service contracts (see Art. VIII of the Statute).
c) The Baden-Württemberg Higher Administrative Tribunal left it open, in the decision challenged, whether there exists a general rule of international law whereby international organizations - at any rate in relation to service disputes of the type at issue here - are not subject to domestic jurisdiction. The court did not consider this question to be of relevance to the issue. The absence of German jurisdiction followed already from the provisions of the Eurocontrol Convention and associated documents and the organization's internal service regulations. Accordingly, in the present case too the question need not be gone into, whether and if so, which general rules of international law exist in this connection and should, pursuant to Art. 25 Basic Law, be complied with.
A general rule of international law opposing the pattern of legal protection for Eurocontrol officials found by the Higher Administrative Tribunal does not in any case exist, especially since protection of rights before the ILO Administrative Tribunal also meets the international minimum standard of elementary procedural justice.
d) The interpretation and application of the provisions taken as a basis by the Baden-Württemberg Higher Administrative Tribunal does not infringe the ban on arbitrariness in Art. 3 (1) Basic Law either.
The Higher Administrative Tribunal took it that Eurocontrol is empowered to regulate its officials' legal relationships autonomously. This is - especially considering Art. 14 of the Statute of the Agency, whereby the organs of the organization may adopt staff regulations - evidently not an immaterial consideration. Moreover, the Higher Administrative Tribunal's view, that the broadly formulated empowerment of Art. 14 (1) of the Statute includes - even without explicit mention - the power to provide in respect of officials' legal relationships an exclusion of Eurocontrol from the domestic judiciary authority concerned and to provide for judicial review by a single (international) jurisdiction, is free from arbitrariness too. The court has in this connection stressed the object pursued by Art. 14 (1) of the Statute, to guarantee the organization's functionality. Even in the absence of explicit provisions, international organizations are commonly recognized as having the right to grant competence for service disputes to administrative tribunals of their own.
Constitutionally, there are no objections to the view of the Higher Administrative Tribunal that one cannot from other provisions of the Eurocontrol Convention and associated documents conclude a competence of domestic courts for service disputes too.
The interpretation of declaration 5 of the Protocol of Signature as a transitional provision not materially applicable to the complainant can at any rate not be objected to constitutionally. This may admittedly not conclusively follow from the tenor of the Protocol of Signature. The Higher Administrative Tribunal has however rightly also stressed the subsequent practice of those involved as a criterion for Treaty interpretations. As elements in this practice, in the present case one may assess the facts that the Contracting Parties objected neither to adoption of the relevant provisions in the Conditions of Employment nor to the establishment of the international competence of the ILO Administrative Tribunal for legal disputes arising therefrom, even a short time after the entry into force of the Eurocontrol Convention and associated documents, particularly since such an arrangement is usual in the case of a number of international organizations.
Finally, it does not seem to us to be immaterial when the Higher Administrative Court understands the wording in Art. 92 (1) of the Conditions of Employment "in the absence of a competent national jurisdiction" in the sense that it merely states the existing legal position and at any rate does not imply that the ILO Administrative Tribunal is to be competent only subsidiarily in relation to domestic courts.
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