FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62539/00 
by Ivan JURISIC and COLLEGIUM MEHRERAU 
against Austria

The European Court of Human Rights (First Section), sitting on 24 February 2005 as a Chamber composed of:

Mr  C.L. Rozakis, President
 Mrs F. Tulkens,

Mrs N. Vajić, 
 Mrs S. Botoucharova
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, judges
 and Mr S. Quesada, Deputy Section Registrar,

Having regard to the above application lodged on 7 August 2000,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the submissions at the hearing on 24 February 2005,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr Ivan Jurisic, is a citizen of Bosnia-Herzegovina and Croatia who was born in 1968 and lives in Bregenz. The second applicant is a monastery located in Austria. The applicants are represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz. At the oral hearing on 24 February 2005 the applicants were represented by Mr W.L. Weh, assisted by Mr Rony Kolb. The respondent Government are represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs. At the oral hearing on 24 February 2005 the Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs, assisted by Mrs Ingrid Nowotny and Mrs Johanna Höller.

A.  The circumstances of the case

The second applicant wished to employ the first applicant as a farm hand.

On 6 February 1998 the applicants filed a request with the Bregenz Labour Market Service (Arbeitsmarktservice) for the granting of an employment permit to the second applicant. They submitted that the first applicant, a national of Bosnia and Herzegovina, was residing together with his wife since November 1992 in Austria. Both had been granted a residence permit (Aufenthaltsbewilligung) valid until December 1998. The applicants claimed that the first applicant had a right to employment in Austria. They referred in this regard to the Geneva Refugee Convention and the Association Agreement between the European Union and Turkey and submitted that these treaties had to be applied analogical to their case.

On 19 March 1998 the Labour Market Service dismissed the request in accordance with S. 4 § 6 of the Employment of Foreigners Act (Ausländerbeschäftigungsgesetz). It found that the maximum quota fixed for the employment of foreigners in Vorarlberg had been exceeded and none of the conditions for an exception under S. 4 § 6 of the above Act were met.

On 6 April 1998 the applicants appealed. They reiterated the arguments submitted before the Bregenz Labour Market Service.

On 25 May 1998 the Vorarlberg Labour Market Service rejected the first applicant's appeal as inadmissible. It noted that only the second applicant as proposed employer, but not the first applicant, had the right to file a request for the granting of an employment permit. According to S. 21 of the Employment of Foreigners Act a foreigner was only then party to the proceedings concerning the issuing of a work permit when his particular personal circumstances were relevant for the decision or in case there was no employer. In the present case, however, none of these two conditions were met. In particular, the Bregenz Labour Market Service had based its decision exclusively on the situation of the labour market, namely that the maximum quota for the employment of foreigners had been exceeded. Therefore, the first applicant was not a party to the proceedings.

It further noted that only certain refugees who were authorised to an unlimited stay in Austria or who were married with an Austrian national or had a child of Austrian nationality were exempted from the regulations of the Employment of Foreigners Act. The first applicant did not fulfil these conditions. The Association Agreement between the European Union and Turkey was not applicable in the present case as the first applicant was not a Turkish national.

It further dismissed the second applicant's appeal. It observed that the Bregenz Labour Market Service had proposed a substitute worker within the meaning of S. 4b §§ 2 and 3 of the Employment of Foreigners Act who had not been employed instead of the first applicant. In a telephone conversation the Labour Market Service had been informed by a representative of the second applicant that the substitute worker had not been employed because the relevant post had already been filled. In further submissions the second applicant stated that the substitute worker had not complied with the requirements of the post.

The Labour Market Service concluded that the second applicant had no interest anymore in employing the first applicant. It observed in particular that the second applicant had not given sufficient reasons as to why the substitute worker could not work as a farm hand, a post which did not require any special qualification. It concluded that the second applicant was not interested in employing a substitute worker and dismissed the request for an employment permit under S. 4 § 1 of the Employment Act. The Labour Market Service further noted that, in any way, the conditions for the granting of an employment permit were not met as the maximum quota fixed for the employment of foreigners in Vorarlberg had been exceeded and none of the conditions for an exception under S. 4 § 6 of the above Act were met.

On 7 July 1998 the applicants filed a complaint with the Administrative Court and requested an oral hearing. They submitted that the Labour Market Service had not made sufficient investigations for its findings. In particular, it had not heard the second applicant. They further contested that the second applicant had informed the Labour Market Service that the relevant post had been filled, as well as the correctness of the maximum quota.

They further, referring to Article 17 of the Geneva Refugee Convention, the Association Agreement between the European Union and Turkey as well as Art. 23 of the Universal Declaration of Human Rights, the European Social Charta and Article 6 of the International Convenant for economic, social and cultural rights, submitted that the first applicant had a right to claim employment in Austria and should be granted legal standing in the proceedings at issue. They invoked in this regard also Article 6, Article 8 and Article 1 of Protocol 1 of the Convention.

They submitted that the first applicant had come as a Bosnian refugee to Austria, was residing since 1992 together with his wife in Austria and was in possession of a residence permit valid until December 1998.

On 15 December 1999 the Administrative Court rejected the first applicant's appeal and dismissed the second applicant's appeal.

It found that the first applicant had not been violated in any of his rights as the refusal of the employment permit was not based on reasons concerning the first applicant's particular personal circumstances under S. 21 of the Employment of Foreigners Act.

As to the second applicant's complaint, it found that the Labour Market Service's decision was coherent and conclusive. The Labour Market Service had based its decision essentially on the statements of the second applicant. There had, therefore, been no further need to hear the second applicant. The Administrative Court concluded that the Labour Market Service had rightly refused the issuing of an employment permit under S. 4 § 1 under the Employment Act and did not consider it necessary to examine the second applicant's further submissions concerning the correctness of the maximum quota.

The Administrative Court further noted that the second applicant had never alleged that the first applicant was a refugee within the meaning of the Geneva Refugee Convention. As regards the referral to the European Social Charta and the International Convenant for economic, social and cultural rights it noted that these treaties were not directly applicable and could, therefore, not create any subjective rights but could at the best be of importance for the interpretation of domestic legislation. However, having regard to the clear wording of S. 21 of the Employment Act and the fact that the challenge of this provision before the Constitutional Court (Verfassungsgerichtshof) had no prospect of success, as the Constitutional Court had already found that proceedings concerning the request for an employment permit under the Employment Act did not concern a “civil right or obligation” within the meaning of Article 6 of the Convention, even such an interpretation could not confine legal standing to the first applicant in the present proceedings.

The Association Agreement between the European Union and Turkey was not applicable to the case at issue as the first applicant was not Turkish.

The Administrative Court dismissed at the same time, in accordance with S.  39 § 2 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the applicants' request for a hearing. Referring to its case-law it found that the proceedings at issue did not concern a “civil right” within the meaning of Article 6 of the Convention. This decision was served on the applicants' counsel on 7 February 2000.

The second applicant was subsequently granted an employment permit for employing the first applicant from 14 July 2000 until 13 July 2001 and from 14 July 2001 until 13 July 2002.

In February 2002, the applicant's wife became an Austrian citizen. Consequently, the Employment of Foreigners Act is not any longer applicable to the first applicant.

B.  Domestic law in force at the relevant time

The Employment of Foreigners Act (Ausländerbeschäftigungsgesetz) regulates a foreigner's access to the Austrian labour market.

According to S. 1 the Employment of Foreigners Act is not applicable inter alia to:

- certain refugees who are authorised to an unlimited stay in Austria or who are married with an Austrian national or have a child of Austrian nationality (§ 2 lit a);

- foreigners who are married to an Austrian national if they are in possession of a residence title (Aufenthaltstitel) within the meaning of the Aliens Act (§ 2 lit l); under the Aliens Act (Fremdengesetz) there are two types of residence titles: residence permits (Aufenthaltsbewilligung) and settlement permits (Niederlassungsbewilligung). The relevant provisions of the Aliens Act provide that foreigners married to an Austrian national have eased access to a settlement permit.

Under S. 3 § 8 of the Employment Act the competent Regional Labour Office has to certify a foreigner that he fulfils the requirements of S. 1 § 2 lit l before his first taking up an employment.

S. 3 §§ 1 and 2 of the Employment of Foreigners Act provide that the employment of a foreigner requires in principle an employment permit (Beschäftigungsbewilligung) issued to the proposed employer for the concerned foreigner. Without such a permit an employment contract between an employer and a foreign employee is null and void. As long as he is actually employed a foreigner who had been employed without an employment permit has, however, the same claims against his employer as if the employment contract had been valid. Is the lack of an employment permit due to the employer's negligence, the foreign employee further enjoys all rights to which he would be entitled to upon termination of a valid employment relationship (S.29).

S. 15 of the Employment Act provides that upon request for a certain group of foreigners, namely inter alia for foreigners who have been continuously legally employed within the meaning of the Employment Act at least five years during the last eight years in Austria, and for foreigners who have been married with an Austrian national for at least five years and who have their residence (Wohnsitz) in Austria, an “exemption certificate” (Befreiungsschein) can be issued which subsequently relieves the foreigner or potential employer from the obligation to apply for an employment permit. S. 19 provides that the concerned foreigner can request an “exemption certificate” at the competent Regional Labour Market Service.

If a foreigner had been continuously legally employed within the meaning of the Employment Act for at least 52 weeks in the last fourteen months, he may request the issuing of a personal work permit (Arbeitserlaubnis) which is normally valid for one region only and may be restricted to certain kinds of employment (Section 14a).

S. 19 provides that, for an employment permit to be issued, the employer must submit the proposed employment of a specific employee to the concerned Regional Labour Market Service. Only if there is no employer, the foreigner can apply himself.

According to S. 4 § 1 an employment permit can only be granted if the situation and development of the labour market so allows and provided important public or economic interests are not infringed. Furthermore, specific conditions, enlisted in S. 4 § 3, have to be fulfilled.

According to S. 4b § 1 the situation and development of the labour market only allows the granting of an employment permit to a specific foreigner when there is no other privileged foreigner who can be employed instead. Such privileged foreigners are, for example, foreigners who are in possession of an “exemption certificate” within the meaning of S. 15 of the Employment Act or foreigners who benefit from unemployment insurance payments (Arbeitslosenversicherung) (S. 4b §§ 2, 3).

S. 4c provides that for Turkish nationals who fall within the relevant provisions of the Association Agreement between the European Union and Turkey an employment permit has to be issued ex officio.

Under S. 13a the Minister for Labour and Social Affairs can fix maximum quotas for the employment of foreigners in a specific Region (Landeshöchstzahl) for the following year. S. 4 § 6 provides that once the maximum quota is exhausted, no further employment permits can be issued unless there are certain exceptional circumstances.

S. 21 provides that, in principle, a foreigner is not party to the proceedings concerning the issuing of an employment permit. Exceptions hereto are cases where the particular personal circumstances of the foreigner are relevant for the decision or where there is no employer.

According to the constant case-law of the Constitutional Court and the Administrative Court a refusal of an employment permit under S. 4 §§ 1 and 6 of the Employment of Foreigners Act, cannot violate a proposed foreign employee's rights because no accordant legal position is granted to him under this Act (see VfSlg 14.347/1995, VfSlg 13617/1993; and the Administrative Court's decision of 16 November 1995, 94/09/0330).

The Constitutional Court and the Administrative Court have further held that the refusal of an employment permit to a proposed employer is not a decision concerning his “civil rights” (see, for example, VfSlg 13617/1993 and Administrative Court's decision of 29 October 1997, 95/09/0254 with further references).

According to S. 39 § 1 of the Administrative Court Act, the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. S. 39 § 2 (6) provides, however, that, notwithstanding a party's application, the Administrative Court may decide not to hold a hearing, if it is apparent to the court from the written pleadings of the parties and the files relating to the previous proceedings, that an oral hearing is not likely to contribute to the clarification of the case and the lack of an hearing is not in breach with Article 6 of the Convention.

COMPLAINTS

The applicants complain under Article 6 of the Convention about the lack of an oral hearing before the Administrative Court.

The first applicant further complains under Article 6 of the Convention that he was denied access to court as he had not been a party to the proceedings concerning the issuing of an employment permit to the second applicant.

THE LAW

The applicants complain under Article 6 of the Convention about the lack of an oral hearing before the Administrative Court. The first applicant complains under Article 6 that he was denied access to court as he had not been a party to the proceedings concerning the issuing of an employment permit to the second applicant.

The Court will examine the second applicant's complaint about the lack of an oral hearing before the Administrative Court and the first applicant's complaint about lack of access to a court. In the view of the latter complaint the Court does not consider it necessary to also examine the first applicant's complaint about the lack of an oral hearing before the Administrative Court.

Article 6 of the Convention, 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 a...tribunal...”

Applicants' status as “victims” within the meaning of Article 34

In the oral hearing before the Court the Government maintained that the applicants can no longer be regarded as victims within the meaning of Article 34 of the Convention. They referred in this regard to the fact that the first applicant had been legally employed with the second applicant since August 2000 and is exempted from the application of the Employment of Foreigners' Act since February 2002.

This was contested by the applicants. They argued that the fact that the Employment of Foreigners' Act is not any longer applicable to the first applicant is due to his particular personal circumstances, namely the fact that his wife became an Austrian citizen, and cannot be regarded as a result achieved by the Austrian authorities.

The Court reiterates that the Convention institutions have ruled that an applicant will only cease to have standing as a victim within the meaning of Article 34 of the Convention if national authorities have acknowledged the alleged violation either expressly or in substance and then afforded redress or if that matter has been resolved. A decision or measure favourable to the applicant is in principle not sufficient to deprive him of his status as a victim in the absence of such acknowledgement and redress (see, as a recent authority, Pitkänen v. Finland, no. 30508/96, § 47, 9 March 2004, with further references).

In the present case, the applicants complain about unfairness of proceedings concerning their request for an employment permit which was refused. The Austrian authorities did not afford any acknowledgement or other redress in respect of these proceedings. Nor can it be said that this particular question had been resolved otherwise. In these circumstances the applicants may still claim to be “victims” of a violation of Article 6.

Applicability of Article 6 to the proceedings at issue

The Government submitted that Article 6 is not applicable to the proceedings at issue.

In respect of the first applicant they submitted that he cannot claim a right within the meaning of Article 6 as under domestic law he had neither a right to apply for an employment permit nor a right to the issuing of such a permit. They referred in this regard to the decision B. against the Netherlands (no. 12074/86, Commission decision of 14 July 1988, unreported) where the Commission found that, in the absence of an independent right of a foreigner to an application for a work permit under Dutch law, Article 6 was not applicable to the proceedings relating to such an application. They further stressed that the refusal of the issuing of an employment permit affects the foreigner's legal position only to a limited extent as, in the absence of an employment permit a foreign worker who is actually employed has the same claims against his employer as if the employment contract had been valid. Furthermore, if the lack of an employment permit is due to the employer's negligence, the foreign employee enjoys all rights to which he would be entitled upon termination of a valid employment relationship.

The Government also argued that the proceedings did not involve the determination of a “civil” right of the applicants. They argued in this respect that the requirement of an employment permit to a foreign worker serves the regulation of the Austrian labour market and social policy. Although a decision concerning such a permit has certain effects on relationships under civil law, its primary purpose is public. In the present case the refusal of an employment permit was exclusively based on considerations concerning the public interest.

The Government further argued that the second applicant had been offered a substitute worker and was free to employ any other person. It had therefore not been restricted in the manner and scope of the exercise of his economic activities and property rights.

At the hearing before the Court the Government further submitted that the Employment of Foreigners' Act provides for a gradual integration of foreigners into the Austrian labour market. The decision concerning a foreigner's first step into the Austrian labour market, the issuing of an employment permit, is exclusively based on public interests and the concerned foreigner has, therefore, no right to such a permit. With a foreigner's further integration into the labour market, however, public interests are less and less decisive and a foreigner acquires a legal right to a work permit and, subsequently, to an exemption certificate granting him full access to the Austrian labour market.

The applicants contested the Government's arguments. They submitted that the first applicant is integrated in Austria and has a right to an employment permit under Article 8 of the Convention. They submitted in this regard that the first applicant had been residing in Austria since 1992 with an unlimited settlement permit and has a wife in Austria who, in 2002, had become an Austrian national. The first applicant had already worked for the second applicant during six months in 1993. They submitted that the right of a foreign employee to an employment permit is indirectly granted by the case-law of the Constitutional Court according to which a foreigner must not be discriminated against another foreigner. Further, the competent authorities cannot decide the question whether or not an employment permit should be granted with unfettered discretion but are bound by the conditions under the Employment Act. They argued that the first applicant's right to employment in Austria could be deduced from the Geneva Refugee Convention, the International Convenant on economic, social and cultural rights, the Association Agreement between Austria and Turkey and the European Social Charter.

They further argued that the granting of an employment permit is a condition for the validity of the employment contract between the employer and the foreign employee and is therefore decisive for relations in civil law. Therefore, the proceedings at issue are comparable to administrative proceedings concerning the approval of a transaction under the Real Property Transactions Act to which the Court had found that Article 6 was applicable (Ringeisen v. Austria, judgment of 16 July 1971 Series A no. 13, and Sramek v. Austria, judgment of 22 October 1984, Series A, no.84).

At the hearing before the Court the applicants further argued that the fact that a foreigner permanently established with his family in the host country claims to work there is, at the least, an arguable right.

Merits

The Government admitted that, provided that the Court found that Article 6 was applicable to the proceedings at issue, the first applicant's right of access to a court had been violated.

As regards the second applicant's complaint, they argued that there has not been a breach of its right to an oral hearing before a tribunal as the special features of the proceedings constituted “exceptional circumstances” which justified the absence of a hearing. The Government noted in this regard that in their submissions with the Administrative Court the applicants had not expressly disputed the Labour Market Service's findings as to its statement that the relevant post had been filled, nor had they substantiated their complaint relating to the correctness of the maximum quota and their request for an oral hearing. The Administrative Court could therefore adequately decide the case on the basis of the case-file.

The applicants maintained that the lack of an oral hearing before the Administrative Court and the fact that the first applicant was denied access to court were in violation of Article 6 and, as regards the latter complaint, in eventu, Article 13 of the Convention.

The Court's considerations

In the Court's opinion, the question whether Article 6 is applicable to the proceedings at issue must be further examined together with the merits of the complaints under Article 6 of the Convention. Thus, the Court finds necessary to join the Government's objection in this regard to the merits of the case.

The Court finds, in the light of the parties' submissions, that the application raises issues of fact and law under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Decides to join to the merits the Government's objection as to the applicability of Article 6 of the Convention to the proceedings at issue;

Declares the application admissible, without prejudging the merits of the case.

Santiago quesada Christos Rozakis 
 Deputy Registrar President

JURISIC AND COLLEGIUM MEHRERAU v. AUSTRIA DRAFT DECISION


JURISIC AND COLLEGIUM MEHRERAU v. AUSTRIA DRAFT DECISION