CASE OF COORPLAN-JENNI GMBH AND HASCIC v. AUSTRIA
(Application no. 10523/02)
27 July 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Coorplan-Jenni Gmbh and Hascic v. Austria,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 6 July 2006,
Delivers the following judgment, which was adopted on the last mentioned date:
(a) for the Government
Mr H.Winkler, Ambassador, Agent,
Mrs I. Nowotny, Ministry of Economics and Labour,
Mrs J. Höller, Chancellery/Constitutional Service, Advisers;
(b) for the applicants
Mr W. Weh, a lawyer,
Mr R. Kolb, a lawyer, Counsel.
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW AND PRACTICE
- certain refugees who had indefinite leave to remain in Austria, who were married to an Austrian national or who had a child of Austrian nationality (s. 1(2)(a));
- aliens married to an Austrian national if they were in possession of a residence document (Aufenthaltstitel) within the meaning of the Act (s.1(2)(1)); under the Aliens Act (Fremdengesetz) there are two types of residence document: residence permits (Aufenthaltsbewilligung) and settlement permits (Niederlassungsbewilligung). The relevant provisions of the Aliens Act make it easier for aliens married to an Austrian national to obtain a settlement permit.
Under s. 3(8) of the Employment of Aliens Act the competent Regional Labour Office had to certify that the alien concerned fulfilled the requirements of s. 1(2) (l) before he could take up employment.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
A. The parties’ submissions
1. The applicants
2. The Government
B. The Court’s assessment
1. Applicability of Article 6 § 1 of the Convention
1. The applicant company
2. The second applicant
2. Compliance with Article 6 § 1 of the Convention
1. The applicant company
61 The applicant company complained under Article 6 § 1 of the Convention that there had been no oral hearing before the Administrative Court.
2. The second applicant
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
1. Holds unanimously that Article 6 § 1 of the Convention is applicable to the proceedings in respect of the applicant company;
2. Holds by five votes to two that Article 6 § 1 of the Convention is applicable to the proceedings in respect of the second applicant;
5. Holds unanimously that it is unnecessary to examine the second applicant’s further complaint about the lack of an oral hearing under Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,175.36 (nine thousand one hundred and seventy-five euros and thirty-six cents) in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount[s] at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 27 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following dissenting opinions are annexed to this judgment:
(a) Partly dissenting opinion of Mrs Steiner joined by Mrs Vajić;
(b) Partly dissenting opinion of Mrs Vajić.
PARTLY DISSENTING OPINION OF JUDGE STEINER JOINED BY JUDGE VAJIĆ
I do not agree with the majority that Article 6 of the Convention is applicable in respect of the second applicant for the following reasons.
It has been the Court’s consistent case-law that Article 6 applies only to disputes over “rights” which can be said, at least on arguable grounds, to be recognised under domestic law (see, amongst many other authorities, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, Z and Others, at § 81 and the authorities cited therein together with McElhinney v. Ireland [GC], no. 31253/96, § 23, ECHR 2001 XI (extracts))
It was the applicants’ contention that the second applicant had a right recognised under Austrian law for an employment permit. They did not claim that such a right could be derived from the provisions of the Employment Act but rather argued that such a right can be based on other provisions which are part of Austrian law.
I will take these provisions in turn. The first argument is that he can rely on Article 8 of the Convention. I would, however, point out that in the admissibility decision of this very case, the Court found that the facts complained of did not fall within the ambit of Article 8 of the Convention. The applicants next argue that the second applicant can rely on the Constitutional Court’s case-law prohibiting all kinds of discrimination including discrimination between foreigners. However, this case-law merely refers to an equal enjoyment of legal positions guaranteed by law and cannot guarantee a substantive right to employment itself. Next the applicants suggest that a right to an employment permit might be inferred from the Geneva Refugee Convention. However, it has not been submitted that the second applicant has been recognised as a refugee or that any such application had been made before the domestic authorities. Further, the applicants refer to the International Covenant on Economic, Social and Cultural rights and the European Social Charta. However, these international instruments are not self executing at the domestic level and for this reason cannot confer any subjective right at the domestic level on the applicants. I would only add that the wording of the relevant provisions does not give the impression that they actually give an unconditional right of employment to foreigners. Lastly the applicants propose that the Association Agreement concluded between the European Union and the Republic of Turkey be extended to them. I do not think this is possible. By concluding such an agreement the parties have consented to enter into a special relation and it cannot be claimed that they had had the intention to extend this special treatment to thirds who are not party to that agreement.
I will now turn to the majority’s finding that the fact that the second applicant had no locus standi in the proceedings concerning the issuing of an employment permit did not delimit the substantive content properly speaking of his right, but amounted merely to a procedural bar and that Article 6 of the Convention was therefore applicable (§§ 56, 58). They cite the case Roche v. the United Kingdom. This case refers in fact to previous case-law concerning otherwise well-founded claims in domestic law subsequently prevented from being entertained before a domestic court because subsequently issued legal acts or the grant of State immunity. In these cases Article 6 was held applicable (see Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, judgment of 10 July 1998, Reports of Judgments and Decisions 1998 IV; Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001 XI; Fogarty v. the United Kingdom [GC], no. 37112/97, ECHR 2001 XI and McElhinney v. Ireland [GC], no. 31253/96, ECHR 2001 XI (extracts)).
However, I cannot find that the present case is in any aspect comparable to these cases. Looking at the relevant provisions of the domestic legislation, the Employment of Aliens Act, and its interpretation by the domestic courts, I cannot discern any provision granting a foreigner the right to an employment permit and, consequently, general locus standi in such proceedings. Only in very exceptional situations, which the applicants have never even alleged to exist in their case, a foreigner may be party to the proceedings (see § 37 above).
I finally note that in the very case Roche v. United Kingdom the Court stressed that, in assessing whether there is a civil “right” and in determining the substantive or procedural characterisation to be given to an impugned restriction, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (see § 120) and, having carefully examined these elements, considered that Mr Roche had no (civil) “right” recognised under domestic law which would attract the application of Article 6 § 1 of the Convention (§ 124)
I regret that the majority disregarded these principles in the present case. Thereby, the Court distorted the domestic legislation and its accepted interpretation by substituting them by its own understanding.
PARTLY DISSENTING OPINION OF JUDGE VAJIĆ
1. I regret that I am unable to agree with the majority’s finding that Article 6 of the Convention is applicable to the second applicant. On that point I join the dissenting opinion of Judge Steiner.
2. I have voted with the majority as to the applicability of Article 6 in respect of the first applicant. However, I cannot agree with the finding that there was also a violation of Article 6 in respect of the applicant company’s rights to an oral hearing in the present case. In rejecting the request for an oral hearing the Administrative Court based itself, inter alia, on section 39(2) of the Administrative Court Act according to which it may decide not to hold a hearing if such a hearing is unlikely to help clarify the case (§ 25).
The dispute between the parties in the instant case related basically to the maximum quota fixed for the employment of foreign workers in Vorarlberg as the applicant contested the accuracy of the official statistics due to which the quota had been exceeded.
The majority has concluded, without any further explanation and following a somewhat mechanical approach, that the subject matter of the proceedings before the Administrative Court in the present case was not of such a “highly technical or exclusively legal nature” as to justify dispensing with the obligation to hold a hearing (§ 64). With due respect, I do not share that opinion.
In my opinion the applicant’s submissions to the Administrative Court were not of a kind to raise issues of fact or law which were of such a nature as to require an oral hearing for their disposition (see among others Pitkänen v. Sweden (dec.), no. 52793/99, 26 August 2003; Pursiheimo v. Finland (dec.), no. 57795/00, 25 November 2003; Varela Assalino v. Portugal (dec.), no. 64336/01,25 April 2002; Döry v. Sweden, judgment of 12 November 2002, § 44; Strömblad v. Sweden (dec.), no. 45935/99, 11 February 2003; Allan Jacobsson v. Sweden (No. 2), judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 49). Having regard to the facts of the case, the main question the Administrative Court had to determine related to the finding of the Labour Market Services that the maximum quota has been exceeded and the application of the quota to the applicant, thus leaving no discretionary powers to the court to decide. In my opinion that question could have been adequately resolved on the basis of the case file and the written submissions and did not require a debate. I therefore fail to see why written submissions challenging the findings on the maximum quota and containing information and possible data trying to prove the contrary would not have sufficed. The applicant has not submitted any elements of a nature to convince me that only an oral hearing subsequent to the written submissions would have assured the fair character of the proceedings.
Moreover, it is understandable that in this sphere relating to employment quotas for foreign workers the national authorities should have regard to the demands of efficiency and economy. Systematically holding hearings could be an obstacle to the particular diligence required in such cases (see mutatis mutandis Speil v. Austria (dec.), no. 42057/98, 5 September 2002; Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, § 58).
For these reasons I am of the opinion that there were circumstances which justified dispensing with an oral hearing before the Administrative Court in the present case.
Finally, I am of the opinion that the Court should have a more flexible approach, than the one adopted by the majority in the instant case, when evaluating whether decisions of domestic authorities not to hold an oral hearing in civil cases amounted to a violation of Article 6 § 1 of the Convention. In other words, it should examine the need for the hearing (i.e., whether it would serve any purpose and/or bring new elements to the courts’ reasoning) on the particular facts of each case and also having special regard to the reasoning of the domestic courts. The Court should, of course, always emphasize the need for an oral hearing in really important cases, but at the same time it should avoid unnecessarily burdening domestic courts from whom we repeatedly demand particular diligence, especially in the kind of cases as the present one.