PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission“) and by the Government of the Republic of Austria (“the Government“) on 16 March and 7 April 1989 respectively, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 11761/85) against the Republic of Austria lodged with the Commission under Article 25 (art. 25) by an Austrian national, Mr Karl Obermeier, on 24 September 1985. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Austria recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the Government’s application referred to Articles 45, 47 and 48 (art. 45, art. 47, art. 48). The object of the request and the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 (art. 6-1) and Articles 13 and 14 (art. 13, art. 14) of the Convention.

In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).

The Chamber to be constituted included ex officio Mr F. Matscher, the elected judge of Austrian nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 30 March 1989, in the presence of the Registrar, the President drew by lot the names of the other five members, namely Mr R. Macdonald, Mr J. De Meyer, Mr N. Valticos, Mr S.K. Martens and Mr I. Foighel (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Subsequently Mr R. Bernhardt, substitute judge, replaced Mr Valticos, who was unable to take part in the consideration of the case (Rule 24 § 1).

Mr Ryssdal assumed the office of President of the Chamber (Rule 21 § 5) and, through the Registrar, consulted the Agent of the Government, the Delegate of the Commission and the applicant on the need for a written procedure (Rule 37 § 1). In accordance with the orders made in consequence, the Registrar received: (a) on 30 October 1989, the applicant’s memorial, which, with the President’s leave (Rule 27 § 3), was submitted in German; (b) on 10 November 1989, the Government’s memorial; (c) on 14 December 1989 and 24 January 1990, the day of the hearing, various documents which, acting on the President’s instructions, he had requested the participants in the proceedings to produce; (d) on 9, 10 and 25 April 1990, a number of documents submitted by the applicant in support of his claims under Article 50 (art. 50) and, on 23 April, the Government’s observations on the application of this provision.

Having consulted, through the Registrar, those who would be appearing before the Court, the President on 14 September 1989 had directed that the oral proceedings should open on 24 January 1990 (Rule 38).

The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting beforehand. There appeared before the Court:

for the Government Mr H. Türk, Legal Adviser, Ministry of Foreign Affairs, Agent, Mrs S. Bernegger, Federal Chancellery, Mrs I. Gartner, Federal Ministry of Justice, Mr H. Hofer, Federal Ministry of Labour and Social Affairs, Advisers;

for the Commission Mr J. Frowein, Delegate;

for the applicant Mr H. Blum, Rechtsanwalt, Counsel. The Court heard addresses by Mr Türk, Mrs Bernegger and Mrs Gartner for the Government, Mr Frowein for the Commission and Mr Blum for the applicant, as well as their answers to its questions.

On 16 May 1990 the registry received from Mr Obermeier various documents, whose production had not been requested. The Court decided not to have regard to them on account of the lateness of their submission.

AS TO THE FACTS

Mr Karl Obermeier, who resides at Linz, was formerly employed by a private insurance company (“the company“) as the director of their regional branch office for Upper Austria.

I. THE PARTICULAR CIRCUMSTANCES OF THE CASE

1. The applicant’s suspension

In 1974 a dispute arose between the applicant and the company concerning various paid activities which it proposed to withdraw from him. Mr Obermeier instituted proceedings in the Vienna Labour Court (Arbeitsgericht). On 10 March 1978, the day following the first hearing, he was suspended from his duties by his employer; the company considered that it was entitled to take such a decision at any time without giving reasons.

2. The first round of the proceedings concerning the applicant’s suspension

After having unsuccessfully sought the opening of disciplinary proceedings, the applicant decided to challenge his suspension in the courts. Accordingly, on 9 March 1981, he brought, in the Linz Labour Court, an action for a declaratory judgment (Feststellungsklage) and, in the alternative, an action for performance (Leistungsklage). The first action was intended to establish the invalidity of the contested measure, while the second sought its revocation. He alleged in particular that the measure in question was designed to penalise him for having instituted legal proceedings against the company and was therefore unjustified.

On 23 April 1981 the Linz Labour Court dismissed the applicant’s claims. On 25 November 1981 the Linz Regional Court (Landesgericht) allowed Mr Obermeier’s appeal as regards the part of the judgment concerning the revocation of the suspension. It considered that by virtue of clause 32 of the collective agreement for insurance employees (see paragraph 45 below), which was applicable, suspension of an employee was subject to certain conditions and that the first-instance court should have ascertained whether they were satisfied. The fact that Mr Obermeier had instituted legal proceedings against his employer could not in itself justify the impugned measure. The court dismissed the remainder of the appeal, finding that, under Article 228 of the Code of Civil Procedure (Zivilprozessordnung), a declaratory judgment may bear only on the existence of a legal relationship (Rechtsverhältnis) and not on the validity of a legal measure (Rechtshandlung) such as the suspension of an employee.

The company appealed on points of law to the Supreme Court (Oberster Gerichtshof) which, on 30 March 1982, upheld the Regional Court’s judgment. The case was therefore remitted to the Labour Court.

The first dismissal and the administrative proceedings concerning prior authorisation

In the meantime the company had decided to terminate Mr Obermeier’s employment, his dismissal taking the form of “administrative retirement“ (administrative Pensionierung). This decision, taken pursuant to clause 33 § 9 of the collective agreement (see paragraph 44 below), was notified to him on 14 July 1981 and was due to become operative on 31 March 1982.

Previously, on 8 May 1981, the company had, as it was required to do under section 8 § 2 of the Disabled Persons (Employment) Act (Invalideneinstellungsgesetz, see paragraph 47 below), sought the authorisation of the Disabled Persons Board (Invalidenausschuss, “the Board“) for the applicant’s dismissal. On 21 May 1980 Mr Obermeier had been declared disabled for the purposes of that Act.

The Board took the view that section 8 § 2 left the decision concerning the authorisation in question to its discretion but that it had to exercise that discretion in accordance with the spirit of the Act, in other words taking account of the legitimate interest of the employer in the dismissal and the employee’s special need for social protection. Following a hearing, the Board gave its consent to the dismissal on 8 July 1981, finding that the relationship of trust between the parties had been irremediably undermined.

Mr Obermeier appealed against this decision, alleging inter alia that the Board had failed to hold an inquiry into the case and had obtained only the company’s observations. The Provincial Governor (Landeshauptmann) for Upper Austria confirmed the Board’s decision on 16 October 1981, after proceedings in which no argument was taken.

The applicant then appealed to the Administrative Court (Verwaltungsgerichtshof) which dismissed his appeal on 9 March 1983. It considered that the authorisation for his dismissal given by the Board and confirmed on appeal was not unlawful since it was not vitiated by errors of law; the contested decision had not exceeded the discretionary power which the law conferred on the administrative authorities in this field (see paragraph 53 below). It added that the procedural requirements had been complied with in the administrative proceedings, in particular as regards Mr Obermeier’s access to the file.

The applicant sought relief from the Administrative Court’s judgment by an application (no. 10247/83) to the European Commission of Human Rights, which was declared inadmissible on 12 March 1986 (Decisions and Reports no. 46, pp. 77-80).

4. The second round of the proceedings concerning the applicant’s suspension

Simultaneously with the administrative proceedings relating to the authorisation for the applicant’s dismissal, the Linz Labour Court resumed consideration of his suspension, following the Supreme Court’s decision remitting the case to it (see paragraph 12 above).

The company pleaded Mr Obermeier’s lack of a legal interest (Rechtsschutzbedürfnis) in the revocation of his suspension, since in the meantime he had been dismissed. The applicant, for his part, challenged the lawfulness of his dismissal. He stressed in particular that it had been pronounced before the authorisation from the Disabled Persons Board had become final, as the case was still pending before the Administrative Court.

On 9 December 1982 the court rejected the applicant’s claim. The dismissal had been pronounced with the authorisation of the competent administrative authority and the proceedings in the Administrative Court did not have suspensive effect. On 11 May 1983 the Linz Regional Court upheld this judgment, observing that, in the intervening period, the Administrative Court had dismissed Mr Obermeier’s appeal.

The applicant appealed on points of law to the Supreme Court which, on 23 October 1984, quashed the decisions of the labour courts. Overruling its previous case-law, it found that the company should have waited until the Disabled Persons Board’s authorisation had become final (rechtskräftig). Since the applicant’s dismissal was therefore invalid, he had an interest in challenging his suspension; accordingly, the Supreme Court remitted the case to the Labour Court.

The administrative proceedings concerning the retroactive authorisation of the first dismissal

Following this judgment, the company sent to the applicant, on 21 December 1984, a further notification of dismissal, which was to take effect on 30 June 1985. On 9 January 1985 it requested the Disabled Persons Board for a retroactive authorisation for the dismissal pronounced on 14 July 1981. It alleged that the Supreme Court’s overruling of its own case-law had not been foreseeable and therefore constituted an exceptional case for the purposes of section 8 § 2 of the Disabled Persons (Employment) Act.

On 14 March 1985 the Board rejected the company’s request on the ground that its decision of 8 July 1981 (see paragraph 15 above) had final effect (Rechtskraft). On appeal by both parties, the Provincial Governor set aside this decision on 17 June 1985 and gave his retroactive consent to the applicant’s first dismissal.

On 23 July 1985 the applicant appealed on points of law to the Constitutional Court (Verfassungsgerichtshof) which, on 25 November 1985, referred the case to the Administrative Court. The latter court allowed the appeal on 21 May 1986, finding that the company had committed an error of law by dismissing Mr Obermeier before the authorisation had become final. Consequently, on 1 June 1986, the Provincial Governor confirmed the Board’s decision of 14 March 1985.

Mr Obermeier then asked the Board to declare, pursuant to sections 8 to 12 of the Disabled Persons (Employment) Act, that his employment contract subsisted. The Board and the Provincial Governor found, on 10 February 1986 and 12 January 1987 respectively, that they lacked jurisdiction to make such a declaration, the matter being one for the ordinary courts.

6. The third round of proceedings concerning the suspension

Following the Supreme Court’s order of 23 October 1984 remitting the applicant’s case to it (see paragraph 22 above), the Linz Labour Court allowed the applicant’s claim on 30 January 1985. In its view, the legal proceedings instituted against the company by Mr Obermeier were in no way vexatious and therefore did not justify a measure of suspension, by which the employer had prejudged the outcome of the proceedings pending.

On 31 July 1985, on an appeal by the company, the Linz Regional Court set aside this decision, notwithstanding the applicant’s request for a stay pending the decisions of the Constitutional Court and the Administrative Court (see paragraph 25 above). The Regional Court considered itself bound by the Provincial Governor’s decision of 17 June 1985 authorising Mr Obermeier’s dismissal as from 31 March 1982 (see paragraph 24 above). It concluded therefrom that the applicant no longer had any legal interest in obtaining the revocation of his suspension.

On 15 July 1986 the Supreme Court dismissed the applicant’s appeal on points of law lodged on 7 October 1985. It found that the Regional Court had been correct in regarding the Provincial Governor’s authorisation as binding; since only the administrative authorities were competent to apply the Disabled Persons (Employment) Act, those authorities were not bound by the opinion expressed by the Supreme Court in its judgment of 23 October 1984 (see paragraph 22 above) that the conditions laid down in section 8 § 2 of the Act in question for the granting of retroactive authorisation were not satisfied. The Supreme Court stated that it was not for the civil courts to review the decisions of the administrative authorities. On the contrary, they were required to base their own judgments on such decisions, without any further examination. In its judgment, the Supreme Court did not take into account the applicant’s appeal to the Constitutional Court and the Administrative Court. Indeed it seems to have been unaware of the Administrative Court’s judgment of 21 May 1986 (see paragraph 25 above).

7. Proceedings in the labour courts relating to both dismissals

Simultaneously with the administrative proceedings instituted by him, Mr Obermeier also challenged his dismissal in the labour courts. On 16 August 1982 he brought an action in the Linz Labour Court for a declaration that his dismissal was invalid. He argued that the company had not waited until the authorisation given by the Disabled Persons Board had become final in law and had in addition failed to inform the works council, as it was required to do under section 105 § 1 of the Industrial Relations Act (Arbeitsverfassungsgesetz, see paragraph 46 below).

After having stayed these proceedings on 9 December 1982, the court dismissed Mr Obermeier’s action on 14 August 1985 on the ground that, in the meantime, the Provincial Governor had given his retroactive consent to the applicant’s dismissal from employment (see paragraph 24 above). The parties did not appeal from this decision.

Following the Administrative Court’s judgment of 21 May 1986 (see paragraph 25 above), the applicant filed an application on 22 July 1986 for the proceedings to be reopened (Wiederaufnahmsklage) and requested that such proceedings also deal with the second dismissal from employment. The Linz Labour Court’s judgment of 24 September 1986, which allowed this application, was upheld on 3 February 1987 by the Linz Court of Appeal (Oberlandesgericht) and, on 15 July 1987, by the Supreme Court.

Ruling on the merits on 15 September 1987, the Labour Court found that Mr Obermeier had never been validly dismissed. It took the view that the effects of the prior authorisation given by the Board were not permanent and that such authorisation could provide the legal basis only for a dismissal which was closely linked to it both in terms of the period of time which had elapsed and as regards the substance; this was not the case in respect of the second dismissal.

On an appeal by the company, the Linz Court of Appeal set aside this decision on 15 March 1988 on the ground that the situation was a continuous one so that there was a sufficient connection between the consent given by the administrative authority and the dismissal from employment pronounced on 21 December 1984.

The applicant claimed that he had cited at the hearing, as an additional ground for the invalidity of his dismissal, disregard of clause 33 § 9 of the collective agreement (see paragraph 44 below), which requires the valid consent of the works council. The transcript of the hearing, notified to the applicant on 31 March 1988, did not refer to his statements in this respect; he therefore lodged an objection to it on 5 April 1988, which the Court of Appeal dismissed on 12 April as out of time.

In the meantime, the applicant had appealed on a point of law against the Court of Appeal’s judgment of 15 March 1988 (see paragraph 34 above). On 23 June 1988 in a supplementary memorial he stressed that for his second dismissal no valid prior consent had been obtained from the works council as was required under clause 33 § 9 of the collective agreement.

The Supreme Court dismissed the appeal on 29 June, holding that section 105 of the Industrial Relations Act, by virtue of which any dismissal from employment without prior consultation of the works council is invalid, did not apply to a disabled person. In such cases the consultation of the works council had already been effected by the interposition of the Board, acting in pursuance of section 8 § 2 of the Disabled Persons (Employment) Act. The Supreme Court declared the memorial of 23 June inadmissible under the rule that only one appeal may be lodged (Grundsatz der Einmaligkeit des Rechtsmittels, see paragraph 60 below).

On 30 June 1988, even before a copy of the Supreme Court’s judgment had been served on him, the applicant instituted new proceedings in the Linz Regional Court, sitting as a social and labour court. He sought a declaration that the second dismissal was void on the ground that the company had not obtained the prior consent of the works council, as it was required to do under clause 33 § 9 of the collective agreement. The court dismissed the action on 23 September 1988, finding that the agreement given by the works council in 1981 was also valid in relation to the 1984 dismissal. The Court of Appeal, and subsequently the Supreme Court, dismissed Mr Obermeier’s appeals on 28 February and 14 June 1989 respectively.

On 21 March 1989 the applicant applied again to the Linz Regional Court for a declaration that the dismissal of 21 December 1984 and the authorisation given by the administrative bodies were void as being contrary to honest practices (Sittenwidrigkeit). On 12 May 1989 the court rejected the claim. It took the view that the administrative organs in question had, by implication, expressed their opinion on the matter by giving their agreement pursuant to section 8 § 2 of the Disabled Persons (Employment) Act, because an authorisation accorded for a dismissal contrary to honest practices would have been inconsistent with the criteria which the Administrative Court had laid down for the validity of such decisions. On 10 October 1989 the Linz Court of Appeal upheld this judgment. On appeal on points of law by Mr Obermeier, the Supreme Court quashed these two decisions but dismissed his application on 14 March 1990, on the ground that the judicial decisions which had closed the proceedings in which the applicant had already contested the validity of his dismissal in the labour courts (see paragraphs 30-38 above) were final.

8. The fourth round of the proceedings concerning the suspension

In the intervening period, Mr Obermeier had, on 22 July 1986, applied to the labour courts for the reopening of the proceedings concerning his suspension, proceedings which had been terminated by the Supreme Court on 15 July 1986 (see paragraph 29 above). He relied on the judgment delivered by the Administrative Court on 21 May 1986 (see paragraph 25 above).

On 15 October 1986 the Regional Court dismissed the application for the proceedings to be reopened, on procedural grounds. However, on 15 July 1987 the Supreme Court allowed the applicant’s appeal on points of law and remitted the case to the Linz Court of Appeal which had acquired jurisdiction by virtue of a new Act on the social and labour courts.

On 19 November 1987 the Linz Court of Appeal ordered the proceedings to be reopened but allowed the company’s application for a stay pending the conclusion of the proceedings concerning the dismissal of 21 December 1984. It did so despite the protracted nature of the proceedings, because the decision on the dismissal was clearly crucial to the suspension proceedings. The proceedings remain stayed.