FIRST SECTION
CASE OF
OHNEBERG v. AUSTRIA
(Application no.
10781/08)
JUDGMENT
STRASBOURG
18 September 2012
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 Ohneberg v. Austria,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
NinaVajić, President,
AnatolyKovler,
PeerLorenzen,
ElisabethSteiner,
KhanlarHajiyev,
MirjanaLazarova Trajkovska,
JuliaLaffranque, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 28 August 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
10781/08) against the Republic of Austria lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Austrian national, Mr Wolfgang Ohneberg (“the
applicant”), on 19 February 2008.
The applicant was represented by Mr W.L. Weh, a
lawyer practising in Bregenz. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador H. Tichy, Head of the International Law
Department at the Federal Ministry for European and International Affairs.
The applicant alleged a violation of Article 6 §
1 of the Convention because neither the Appeals Commission nor the Constitutional Court had held an oral hearing.
On 23 September 2009 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1950 and lives in Hard.
The applicant worked for the Bregenz Tax
Authority (Finanzamt) as a civil servant. He was the head of a tax
assessment division (Leiter der Veranlagungsabteilung).
As the Austrian Tax Authorities were to be
reformed, the applicant was removed from his post as head of the tax assessment
division by a decision of the Bregenz Tax Authority of 29 March 2005. On 28
April 2005 the Tax Authority appointed the applicant to the post of specialist (Fachexperte
im Fachbereich), a post that had a lower grade. Upon the applicant’s appeal
the Appeals Commission at the Federal Chancellery (Berufungskommission beim
Bundeskanzleramt - “the Appeals Commission”) set aside those two
decisions on 28 July 2005.
By letter dated 24 November 2005 the Tax
Authority sent the applicant the job profiles for both the post of head of
division and the post of specialist.
The job profile for his former post as head of
the tax assessment division stated that the applicant was responsible for,
among other tasks, organising, coordinating and supervising the procedural
requirements within the tax-assessment division, and dealing with case files in
special circumstances. The applicant was also the supervisor of forty-three
other civil servants and employees.
The job profile for the new post of specialist
stated that, among other tasks, the applicant would assist the leading
specialist (Fachvorstand), especially in the areas of coordination,
quality check and supervisory measures. He would further participate in several
working groups and deal autonomously and on his own initiative with legal
remedies. He was not entitled to directly assign that task to someone else. He
would also have to take decisions on questions of procedural and material law,
give advice in difficult cases in his area of expertise (Fachgebiet),
and represent the authority before the Independent Finance Panel (Unabhängiger
Finanzsenat). The job profile did not state that any employees or civil
servants were to be under his direct supervision.
On 27 April 2006 the Bregenz Tax Authority
issued a decision by which the applicant was transferred to the post of
specialist without any team-leading responsibilities. The applicant’s new post
was graded lower than his former post in the internal categorisation of
public-service positions. However, with regard to a three-year moratorium
provided by the law in the context of transfers involving downgrading due to
re-organisation, the applicant would only be subject to a salary reduction
after three years.
The applicant appealed against the decision to
the Appeals Commission on 18 May 2006. He argued, inter alia, that his
actual work had not changed sufficiently to justify the lower grade.
Consequently the legal requirements for justifying a transfer to another post
with a reduction in salary had not been met. The applicant requested the
Appeals Commission to hold an oral hearing.
On 21 July 2006, and without holding an oral
hearing, the Appeals Commission dismissed the applicant’s appeal. It held that
the applicant’s job profile had changed to a sufficient extent to qualify as a
transfer to another post. Furthermore, the transfer had been strictly necessary
in the interests of the service, specifically, the implementation of the
overall reform of the Tax Authorities.
The applicant complained to the Constitutional Court, arguing, inter alia, that the transfer had been arbitrary and
violated his civil rights, as his salary had decreased in the new position. He
also complained that the Appeals Commission had failed to hold an oral hearing
and requested the Constitutional Court to do so.
The Appeals Commission replied on 30 October
2006 and stated, referring to the Constitutional Court’s case-law, that the
rights and obligations arising from employment in public service did not amount
to civil rights and obligations within the meaning of Article 6 of the
Convention.
In his reply of 19 June 2007 the applicant
argued that Article 6 of the Convention was applicable to his case and that the
Constitutional Court was obliged to compensate the lack of an oral hearing
before the Appeals Commission by holding one in the course of the complaint
proceedings.
The Constitutional Court, without holding a
hearing, dismissed the complaint on 11 July 2007, finding that none of the
legal provisions on which the contested decision had been based was in
violation of the Austrian Constitution. The decision was served on the
applicant’s counsel on 21 August 2007.
II. RELEVANT DOMESTIC LAW
Pursuant to section 41a § 6 of the Civil
Servants Act (Beamten-Dienstrechtsgesetz) an appeal must be decided upon
by the Appeals Commission at the Federal Chancellery.
The decisions of the Appeals Commission are not
subject to an appeal to the Administrative Court. They are, however, subject to
a complaint to the Constitutional Court.
Proceedings before the Appeals Commission are
governed by the Code of General Administrative Procedure (Allgemeines
Verwaltungsverfahrensgesetz), which provides in section 39 that
administrative authorities can hold an oral hearing of their own motion or upon
a motion by one of the parties in the course of the proceedings. As concerns
oral hearings, section 40 § 1 further determines as follows:
“Oral hearings shall be held in the presence of all known
parties and the necessary witnesses and experts. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained under Article 6 § 1 of
the Convention that neither the Appeals Commission nor the Constitutional Court
had held an oral hearing in the course of the proceedingsconcerning the
transfer. Article 6 § 1, as far as relevant, reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing ... by an independent and
impartial tribunal established by law.”
A. Admissibility
The Government stated that in their opinion
Article 6 of the Convention was not applicable to the present case. Firstly,
referring to the case of Pellegrin v. France, a civil servant working in
the financial administration of a government must be considered a “civil
servant exercising specific public activities and acting as an agent of public
authority responsible for protecting the general interests of the State or
other public authorities” (see Pellegrin v. France [GC], no. 28541/95,
ECHR 1999‑VIII). The Government, taking note of the subsequent Eskelinen
case (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, ECHR
2007‑II), further distinguished that case from the present case in that
the present one only concerned a post transfer and thus was not an ordinary
employment dispute. They further emphasised that the post transfer had only been
executed on account of an extensive general reform of the government financial
administration. Applying Article 6 to situations arising from such an
administrative reform process would effectively make such a reform impossible
in the future. Furthermore, the Government noted that the case in question did
not involve proceedings concerning monetary disadvantage, but only the transfer
itself. Finally, the Government stated that the Eskelinen case (cited
above) would seem to allow for a member State to exclude groups of civil
servants entirely from access to a court, which would lead to the undesirable
result that, even though in some cases such civil servants would benefit from
at least a number of the guarantees of Article 6, a member State might be
forced to exclude them from access to a court altogether.
The applicant, referring to the Eskelinen
case (cited above) and the Stojakovic case (Stojakovic v. Austria,
no. 30003/02, 9 November 2006), asserted that Article 6 of the Convention was
applicable to the present case.
The Court reiterates that it established in the Eskelinen
case that there is a presumption that Article 6 applies to ordinary labour
disputes between a civil servant and the State and that it will be for the
respondent Government to show that a civil servant does not have a right of
access to a court under national law and that this exclusion of the rights
under Article 6 is justified (see Vilho Eskelinen and Others, cited
above, § 62).
The Court is not convinced by the Government’s
argument that the dispute at hand was not a labour dispute and did not involve
any monetary disadvantage. The appointment to a specific post is an essential
criterion defining an employment relationship and the scope of work required
from the employee. A second essential criterion is the salary attached to the
post. A transfer to another post directly affects the job profile, which is one
of the defining factors of the employment relationship. If such a transfer is
accompanied by a salary adjustment, a second major defining factor of that
relationship is involved. In the present case, the applicant was transferred to
a post with a lower grade and was subject to a reduction in salary after a
three-year moratorium (see paragraph 11 above). It follows, in the Court’s
view, that the dispute regarding the post transfer in the present case was in
fact an ordinary labour dispute.
It is not contested that the applicant had
access to a court (see paragraph 31 below). The Court further notes that the
Government do not substantiate their claim that the exercise of the guarantees
under Article 6, in particular the requirement of an oral hearing before a
tribunal, would make administrative reform impossible in the future or would
require the Government to exclude tax officers entirely from access to a court.
In line with its findings in the Eskelinen
case (cited above), the Court therefore concludes that Article 6 of the
Convention is applicable to the present case.
The Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The applicant stated that he had explicitly
requested an oral hearing before the Appeals Commission and before the Constitutional Court. He defined the question to be answered in the appeal proceedings as
being how much the applicant’s actual work had changed in the new post, which
needed to be considered as a question regarding the facts and the law.
The Government contested that argument, claiming
that the proceedings before the Appeals Commission and before the Constitutional Court had not included questions regarding the facts of the case or legal
questions that could not be dealt with on the basis of the case file.
Furthermore, the domestic proceedings had been fair overall and the applicant
had had sufficient opportunity to present his arguments in the course of the
written proceedings.
In a comparable case the Court has already found
that the Appeals Commission at the Federal Chancellery is to be regarded as a
tribunal within the meaning of Article 6 § 1 (see, with further references to
the characteristics of a “tribunal”, Stojakovic, cited above, §§ 46 et
seq). Furthermore, the Court observes that the Constitutional Court, which
dealt with the applicant’s case at last instance, did not have, in the
circumstances, the required scope of review in order to constitute a “tribunal”
within the meaning of Article 6 § 1 of the Convention (see Stojakovic,
cited above, § 45 with a further reference to Zumtobel v. Austria,
21 September 1993, § 30, Series A no. 268‑A). No appeal could
be brought before the Administrative Court in the present proceedings.
Turning to the issue of the lack of a public
oral hearing before the Appeals Commission, the Court notes that according to its
established case-law an applicant is in principle entitled to a hearing before
the first and only tribunal examining his case, unless there are exceptional
circumstances which justify dispensing with such a hearing (see Fredin v.
Sweden (no. 2), 23 February 1994, § 21, Series A no. 283‑A; Fischer
v. Austria, 26 April 1995, § 44, Series A no. 312; and Allan Jacobsson
v. Sweden (no. 2), 19 February 1998, § 46, Reports of Judgments and
Decisions 1998‑I). The Court has accepted such exceptional
circumstances in cases where the proceedings concerned exclusively legal or
highly technical questions (see Schuler-Zgraggen v. Switzerland, 24 June
1993, § 58, Series A no. 263; Varela Assalino v. Portugal (dec.), no.
64336/01, 25 April 2002; and Speil v. Austria (dec.), no. 42057/98, 5
September 2002).
The Court considers, however, that there were no
such exceptional circumstances justifying dispensing with a hearing in the
applicant’s case, especially in view of the factual questions raised in the
course of the proceedings regarding the profile of the new post, and the
ensuing legal issues.
There has accordingly been a violation of
Article 6 § 1 of the Convention in respect of the applicant’s right to a hearing
before the Appeals Commission.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“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.”
A. Damage
The applicant claimed 91,893.61 euros (EUR) in
respect of pecuniary damage. He claimed to have suffered “burnout syndrome” and
a slipped disc because of the post transfer and claimed medical costs in that
regard. The applicant further claimed damages on account of early retirement in
2010, loss of monetary advantage due to lack of automatic advancement, and loss
of future pension payments.
The Government contested these claims.
The Court reiterates that it cannot speculate
what the outcome of the proceedings would have been if they had been in
conformity with Article 6 of the Convention. Moreover, the Court cannot discern
any causal link between the damage claimed and the violation found.
Accordingly, it dismisses the applicant’s claims.
B. Costs and expenses
The applicant also claimed EUR 16,047.54,
including value-added tax (VAT), for the costs and expenses incurred in the
domestic proceedings, and EUR 9,024.84, including VAT, for those incurred
before the Court.
The Government contested the claim in respect of
the costs of the domestic proceedings and submitted that the claim for costs in
connection with the proceedings before this Court was excessive.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, as regards the costs claimed for
the domestic proceedings, the applicant has not proved that specific costs were
incurred in relation to the request for a public oral hearing and the complaint
that no such hearing had taken place (see Stojakovic, cited above, § 62).
Consequently, the Court dismisses the applicant claims in this connection.
As regards the costs and expenses incurred
before the Court, it notes that the applicant, who was represented by counsel,
did not benefit from legal aid. Making an assessment on an equitable basis, and
in view of the awards made by the Court in a comparable case (see Stojakovic,
cited above, § 63), the Court finds it reasonable to award EUR 3,500 under this
head, plus any tax that may be chargeable to the applicant. The amount includes
VAT.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention in respect of the applicant’s right to a
hearing before the Appeals Commission;
3. Holds
(a) that the respondent State is to pay the
applicant, within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 3,500
(three thousand five hundred euros) in respect of costs and expenses, plus any
tax that may be chargeable to the applicant;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 September
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
