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ECtHR / Application no. 63235/00 / Judgment

Vilho Eskelinen and Others v. Finland

Policy area:
Employment and social policy
Deciding Body type:
European Court of Human Rights
Deciding Body:
Court (Grand Chamber)
Type:
Decision
Decision date:
19/04/2007
ECLI:
ECLI:CE:ECHR:2007:0419JUD006323500

Key facts of the case:

10. The first five applicants and the late Mr Hannu Matti Lappalainen worked in the Sonkajärvi Police District. Under a collective agreement concluded in 1986, they were entitled to a remote-area allowance, which was added to their salaries as a bonus for working in a remote part of the country. The amounts of the allowance were calculated on the basis of a given area’s remoteness. By a collective agreement concluded on 15 March 1988, the remote-area allowance was abolished. This would have resulted in a reduction of the salary payable to civil servants whose duty station was Sonkajärvi. In order to prevent such a reduction, the collective agreement granted them monthly individual wage supplements from 1 March 1988.

11. On 1 November 1990 the Sonkajärvi Police District was incorporated into the Iisalmi Police District by a decision of the Ministry of the Interior (sisäasiainministeriö, inrikesministeriet). Following the incorporation, the applicants’ duty station changed. They also lost their individual wage supplements and the length of their commute allegedly increased by up to 50 km per day as they had to travel from Sonkajärvi to Iisalmi.

12. According to the applicants, following their request of 17 October 1990 to that effect, the Kuopio Provincial Police Command (läänin poliisijohto, länspolisledningen) promised that their loss would be compensated.

13. On 25 March 1991 the Police Department of the Ministry of the Interior, at the request of the Provincial Police Command, submitted a request for authorisation for the payment of monthly individual wage supplements, amounting to between 500 and 700 Finnish marks (FIM) (84‑118 euros) per person, to those police officers and other personnel whose duty station had been changed from Sonkajärvi to Iisalmi. The request referred to an allegedly analogous case (the Mäntyharju case) in which the Ministry of Finance (valtiovarainministeriö, finansministeriet) had granted a request for individual wage supplements on 29 December 1989. On 3 July 1991 the Ministry of Finance replied that it could not grant such authorisation. It gave no reasons for its refusal.

14. On 1 October 1992 competence to decide on wage supplements in respect of local police forces was transferred to the County Administrative Boards (lääninhallitus, länsstyrelsen).

Outcome of the case:

OR THESE REASONS, THE COURT

1. Holds by twelve votes to five that Article 6 § 1 of the Convention is applicable in the present case;

2. Holds by fourteen votes to three that there has been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings;

3. Holds unanimously that there has been no violation of Article 6 § 1 of the Convention as regards the lack of an oral hearing;

4. Holds by fifteen votes to two that there has been a violation of Article 13 of the Convention;

5. Holds unanimously that there has been no violation of Article 1 of Protocol No. 1 taken alone or in conjunction with Article 14 of the Convention;

6. Holds by thirteen votes to four:

(a) that the respondent State is to pay, within three months, the following amounts:

(i) EUR 2,500 (two thousand five hundred euros) to each applicant in respect of non-pecuniary damage;

(ii) EUR 9,622.11 (nine thousand six hundred and twenty-two euros and eleven cents) to the applicants jointly in respect of costs and expenses;

(iii) any tax that may be chargeable on the above amounts;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses unanimously the remainder of the applicants’ claim for just satisfaction.

JOINT DISSENTING OPINION OF JUDGES COSTA, WILDHABER, TÜRMEN, BORREGO BORREGO AND JOČIENĖ

(Translation)

1. The heart of this case concerns the applicability of Article 6 § 1 of the Convention to a dispute between individuals belonging to a police service and their employer, the State. The dispute centred on the refusal to pay them allowances arising from a change in their place of work; with one exception, an administrative assistant, the applicants were police officers.

2. Unlike our colleagues in the majority, we considered that Article 6 § 1 was not applicable in this case.

3. The reasoning on which we based our decision consisted in following the approach taken in Pellegrin v. France ([GC], no. 28541/95, ECHR 1999 VIII).

4. Through this widely-commented and well-known judgment, the Court had sought to “put an end to the uncertainty which surrounds application of the guarantees of Article 6 § 1 to disputes between States and their servants” (§ 61). To this end, it had abandoned criteria such as that relating to the economic nature of the dispute, which “[left] scope for a degree of arbitrariness” (§ 60), in favour of “a functional criterion based on the nature of the employee’s duties and responsibilities” (§ 64). While adopting a restrictive interpretation of the exceptions to the safeguards afforded by Article 6 § 1, the Court decided that “the only disputes excluded from the scope of Article 6 § 1 of the Convention are those which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities is provided by the armed forces and the police” (our emphasis) (§ 66). 5. It is well known that, in defining this functional criterion, the Court relied on the European Commission’s legal theory and the case-law of the Court of Justice of the European Communities, reviewed in Pellegrin in paragraphs 37 to 41. In this respect, we disagree with the majority when, in the instant judgment, it refers, in paragraph 60, to a “landmark judgment” of the Court of Justice, namely that delivered in case no. 222/84. Admittedly, that was indeed a landmark judgment, delivered following a request for a preliminary ruling, which held that judicial control reflects a general principle of law (this ECJ judgment, Marguerite Johnston, is cited in the joint dissenting opinion of Judges Costa, Tulkens, Fischbach, Casadevall and Maruste in the Athanassoglou and Others v. Switzerland judgment ([GC], no. 27644/95, ECHR 2000 IV)). However, its scope differs from that which is presumed in the instant judgment. The issue was not one of determining whether every dispute between the State and its agents fell within the scope of Article 6 of the Convention, but merely of confirming that, by virtue of a general principle of law, every act by a public authority must, in principle, be open to supervision of its lawfulness (such as the recours pour excès de pouvoir in French law).

6. In any event, we fail to see what theoretical or practical necessity required the Court to abandon the Pellegrin case-law in the present case. It has been applied by the Court for seven years without any real problem and, as could have been expected and desired, it has extended rather than restricted the application of the guarantees secured under Article 6 § 1. The categories of agents excluded from these guarantees, such as the police service in its entirety, are limited when compared with public service employees as a whole (for examples, see paragraph 52 of the judgment). Legal certainty has certainly improved if we compare the situation with that which obtained prior to the Pellegrin judgment. As to the argument based on the existence of access to a domestic court, we are not convinced by it. As Article 53 of the Convention rightly points out, nothing prevents a High Contracting Party from recognising in its law freedoms or guarantees which go further than those set forth in the Convention; in addition, as legal systems vary from one State to another, the reasoning in the instant judgment is likely to have the effect of making the applicability of Article 6 § 1 to disputes between the State and its agents dependent on there existing access to a court with jurisdiction to decide them within the domestic legal system. To sum up, instead of the “autonomous interpretation” (by the Court) that the latter considered it important to establish for the purposes of Article 6 § 1 (see Pellegrin, § 63), the instant judgment encourages a dependent and variable, not to say uncertain, interpretation, in other words an arbitrary one. In our opinion, this is an inappropriate step back.

7. In conclusion, the Court has overturned its well-established case-law. Admittedly, it is entitled to do so (even if the case-law in question is relatively recent). In general, however, the Court takes this step where there are new developments and where a new need arises. This is not the case here. Abandoning a solid precedent in such conditions creates legal uncertainty and, in our opinion, will make it difficult for the States to identify the extent of their obligations.