Information Note on the Court’s case-law No. 181
January 2015
Klausecker v. Germany (dec.) - 415/07
Decision 6.1.2015 [Section V]
Article 6
Civil proceedings
Article 6-1
Access to court
Limitations on access to domestic courts to review recruitment procedure before European Patent Office when reasonable alternative procedure (arbitration) available: inadmissible
Facts – The applicant, who is disabled, applied for a post as a patent examiner at the European Patent Office (EPO) in Munich. Although he passed the professional tests, he was not offered employment as he did not meet the physical requirements for the post. His internal appeal against that decision was declared inadmissible as he was not a staff member. The German Federal Constitutional Court declined to consider his constitutional complaint, inter alia, on the ground that the EPO enjoyed immunity from the jurisdiction of the German courts. A further complaint by the applicant to the Administrative Tribunal of the International Labour Organization (ILO) was also dismissed on the grounds that it had no jurisdiction in respect of external candidates for employment and no authority to order the EPO to waive its immunity. The Tribunal noted, however, that its judgment created a legal vacuum and indicated that it was highly desirable that the EPO should seek a solution affording the applicant access to a court, either by waiving its immunity or by submitting the dispute to arbitration. The EPO subsequently informed the applicant that it was willing to go to arbitration, but the applicant ultimately did not take up the offer.
In his application to the European Court, the applicant complained that Germany had failed to ensure that he had access to a tribunal in order to protect his right not to be discriminated against on grounds of disability and that Germany was also to be held responsible for the allegedly deficient appeal procedures before the EPO. 
Law – Article 6
(a)  Procedure before the German courts – In so far as the applicant complained of a lack of access to the German Federal Constitutional Court to have his complaint about the EPO’s decision not to offer him employment examined on the merits, he fell within the “jurisdiction” of the German State for the purposes of Article 1. The Court considered it unnecessary to determine whether Article 6 § 1 was applicable in the applicant’s case as the complaint was in any event manifestly ill-founded.
The applicant’s access to the German courts was limited to access to the Federal Constitutional Court to argue the preliminary issue of the extent of the EPO’s immunity. The immunity had a legitimate objective, namely guaranteeing the proper functioning of that international organisation free from unilateral interference by individual governments.
As regards proportionality, the applicant was not only refused an examination of the merits of his complaint by the Federal Constitutional Court: as a candidate for a post rather than a staff member he was also found not to have standing to lodge an internal appeal within the EPO. Accordingly, his complaint about the EPO’s decision was not reviewed on the merits by any tribunal or other body. However, in response to the ILO Administrative Tribunal’s finding that it was highly desirable that the applicant should have access to a court, the EPO had made concrete proposals for private arbitration under the rules which would have been applicable had the applicant become a staff member. Noting (a) that the proportionality test could not be applied in such a way as to compel an international organisation to submit to national litigation in relation to employment conditions prescribed under national labour law and (b) that the absence of an oral hearing in public did not of itself make the arbitration procedure unreasonable, the Court considered that the arbitral procedure that had been offered constituted a reasonable alternative means to protect the applicant’s Convention rights effectively. The limitations on his access to the German courts had thus been proportionate.
Conclusion: inadmissible (manifestly ill-founded).
(See also Waite and Kennedy v. Germany [GC], 26083/94, and Beer and Regan v. Germany [GC], 28934/95, both 18 February 1999, summarised in Information Note 3)
(b)  Procedure before EPO and the Administrative Tribunal of the ILO – Applying its earlier case-law, the Court found that the mere fact that the EPO’s decision was taken at its seat on German territory did not bring the act within Germany’s jurisdiction for the purposes of Article 1 of the Convention.
As to whether any other grounds for Germany assuming “jurisdiction” existed, the Court noted that the German authorities had not directly or indirectly intervened in the proceedings before either the EPO or the ILO Administrative Tribunal, so jurisdiction could not arise on that account. There was no reason to consider that the EPO, to which Germany had transferred part of its sovereign powers, did not afford “equivalent protection” to that secured by the Convention system. In particular, the Convention did 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 and the ILO Administrative Tribunal had referred to the need to protect fundamental rights – which entailed a right not to be discriminated on grounds of disability – in its case-law.
Nor could the protection of fundamental rights offered by the EPO in the present case be said to have been “manifestly deficient”. The Convention itself permitted restrictions on access to a tribunal in relation to measures concerning an applicant’s recruitment to civil service and indeed an issue as regards the applicability of Article 6 had arisen in the applicant’s case (see (a) above). Further, the Court had already found the EPO’s offer of arbitration constituted a reasonable alternative means to have his complaint about the EPO’s decision examined on the merits. Accordingly, the fact that the applicant was denied access to the review procedures set up by the EPO in relation to the decision not to recruit him but was offered an arbitration procedure instead did not disclose a manifestly deficient protection of fundamental rights within the EPO.
Conclusion: inadmissible (manifestly ill-founded).
(See also Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], 45036/98, 30 June 2005, Information Note 76; and Gasparini v. Italy and Belgium (dec.), 10750/03, 12 May 2009, Information Note 119)

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