EHRM, 09-09-2008, nr. 73250/01

The applicant, Mr Philip Boivin, who has dual Belgian and French nationality, was born in 1966 and lives in Bornem (Belgium). He was represented before the Court by Mr F. Krenc, a lawyer practising in Brussels.

Relying on Article 6 § 1, Article 13 and Article 14 of the European Convention on Human Rights, the applicant complained that Eurocontrol enjoyed a remedy, limited to certain points of law, before the International Court of Justice, whereas he did not have such a possibility himself. He further alleged, under Article 13, that the ILOAT had not addressed all his arguments and had not conducted an effective examination of his compensation claim. Moreover, he complained under Article 6 that the reasoning in the ILOAT's judgment had been insufficient. Lastly, he disputed the amount of the damages awarded, claiming that the ILOAT's decision on his compensation claim had breached his right to obtain full redress for the injury caused to him, in violation of Article 1 of Protocol No. 1.

The application was initially lodged against Belgium and France. On 4 November 2005 the applicant extended it to 32 other High Contracting Parties.

However, in the present case the ‘final decision’, for the purposes of Article 35 of the Convention, is the judgment of the ILOAT adopted on 3 November 2000 and notified to the applicant on 12 February 2001.

Accordingly, the Court observes that the applicant's complaints, in so far as they were brought against those 32 States, are to be declared inadmissible for non-compliance with the six-month rule provided for in Article 35 § 1 of the Convention and must be rejected under Article 35 § 4.

As to the complaints brought against France and Belgium, the Court finds that they should be examined in the light of the principles it has laid down in cases where it has been called upon to determine whether the responsibility of States Parties to the Convention could be engaged under the Convention because of acts or omissions linked to their membership of an international organisation. These principles were most recently reiterated and developed in the Bosphorus Airways case (Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland[GC], no. 45036/98, ECHR 2005-VI), and in the cases of Behrami and Behrami v. France ((dec) [GC], no. 71412/01, 31 May 2007) and Saramati v. France, Germany and Norway ((dec) [GC], no. 78166/01, 31 May 2007). The relevant passages from the Bosphorus judgment (§§ 152-56) read as follows:

In the Bosphorus case the Court noted that the measure in question (the detention in Ireland of an aircraft leased by the applicant company, on the basis of an EC Council Regulation that was itself applying a Resolution of the United Nations Security Council) had been taken by the authorities of the respondent State on its territory following a decision by that State's Minister for Transport (see Bosphorus, cited above, § 137). In those circumstances the Court did not consider that any question arose as to its competence, notably ratione personae, vis-à-vis Ireland. It went on to observe that the protection of fundamental rights afforded by Community law was, at the relevant time, ‘equivalent’ to that of the Convention system, and thus concluded that the impugned measure had not entailed a violation of Article 1 of Protocol No. 1.

However, the Court found that the subsequent cases of Behrami and Behrami and Saramati were to be distinguished from Bosphorus in terms both of the respondent States' responsibility under Article 1 and of the Court's competence ratione personae. It took the view that the respondent States' responsibility could not be engaged on account of the impugned acts and omissions of KFOR and UNMIK, which were directly attributable to the United Nations, an organisation of universal jurisdiction fulfilling its imperative collective security objective. As the United Nations had a legal personality separate from that of its member States and was not a Contracting Party to the Convention, the Court concluded that the applicants' complaints in those cases had to be declared incompatible ratione personae with the provisions of the Convention (see Behrami and Behrami, cited above, §§ 151-52).

In the present case, the Court observes that the application arose from a dispute concerning the refusal to appoint the applicant to a staff post in Eurocontrol, following which he used the organisation's internal complaints procedure and then filed his complaints with the ILOAT. Under Article 2 of its Statute, the Tribunal is competent to hear complaints from officials or former officials of the ILO and the other international organisations that have recognised its jurisdiction. Those other organisations include Eurocontrol, whose Statute grants the ILOAT sole competence to settle its disputes with staff (see ‘Relevant law’ above).

The Court observes that it has not been established, or even alleged, that the protection of fundamental rights generally afforded by Eurocontrol is not ‘equivalent’, within the meaning given to that term in the Bosphorus judgment, to that of the Convention system. Thus the Court need not examine whether Eurocontrol's internal mechanism for the settlement of labour disputes is ‘manifestly deficient’ in that connection; such an examination would only be meaningful if the Court were to consider that there was a presumption of an ‘equivalent’ protection of Convention rights and then to ascertain whether or not that presumption had been rebutted in the circumstances of the case (see Bosphorus, cited above, §§ 165-66).

The Court notes that, in reality, the applicant's complaints were directed essentially against the relevant judgment of the ILOAT concerning his individual labour dispute with Eurocontrol.

The Court would point out that the impugned decision thus emanated from 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 Eurocontrol, an international organisation that has a legal personality separate from that of its member States. At no time did France or Belgium intervene directly or indirectly in the dispute, and no act or omission of those States or their authorities can be considered to engage their responsibility under the Convention. In this respect the instant case is to be distinguished from previous cases where the international responsibility of the respondent States has been in issue, for example that of the United Kingdom in the Matthews case (cited above — decision not to register the applicant as a voter on the basis of an EC treaty), that of France in the Cantoni case (15 November 1996, Reports of Judgments and Decisions 1996-V — enforcement against the applicant of a French law implementing an EC Directive), that of Germany in the Beer and Regan and Waite and Kennedy cases ([GC], nos. 28934/95 and 26083/94, 18 February 1999 — denial of access to the German courts) or that of Ireland in the above-mentioned Bosphorus case. Unlike in those cases, in all of which the State or States concerned had been involved directly or indirectly, in the present case the applicant cannot be said to have been ‘within the jurisdiction’ of the respondent States for the purposes of Article 1 of the Convention.

The Court finds that the alleged violations of the Convention cannot therefore be attributed to France and Belgium. As regards the possible responsibility of Eurocontrol in this connection, the Court points out that since this international organisation is not a party to the Convention its responsibility cannot be engaged under the Convention (compare, among other authorities, Matthews, cited above, § 32, and Behrami and Behrami, cited above, § 144).

In the light of the foregoing, the Court concludes that the applicant's complaints must be declared incompatible ratione personae with the provisions of the Convention (see, mutatis mutandis, Behrami and Behrami, § 149).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Claudia Westerdiek

Registrar

Peer Lorenzen

President