CEDH · CASELAW;CLIN;ENG — 27 juillet 2006

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Austria - 10523/02 Judgment 27.7.2006 [Section I] Article 6 Civil proceedings Article 6-1 Access to court Refusal of employment permits for foreign nationals, oral hearing and intended employee’s access to a tribunal: violation   [This summary also covers the Judgment of the case Jurisic and Collegium Mehrerau v. Austria , no. 62539/00, 27 July 2006] Facts : Collegium Mehrerau, an Austrian monastery, wished to employ Mr   Jurisic, a national of Bosnia and Herzegovina, as a farmhand. In February 1998 the applicants lodged a request with the Bregenz Labour Market Service for the grant of an employment permit to Mr   Jurisic; this was refused on the ground that the maximum quota for foreign workers had already been exceeded. The applicants each lodged an appeal with the Vorarlberg Labour Market Service; both appeals were met with a refusal. The applicants each lodged a complaint with the Administrative Court and requested an oral hearing. Mr   Jurisic’s complaint was rejected on the ground that none of his rights had been violated, the refusal to grant the employment permit requested not being based on reasons related to his personal circumstances; Collegium Mehrerau’s complaint was dismissed as unfounded in law. Coorplan-Jenni GmbH, an Austrian limited liability company, employed Mr   Hascic, also a national of Bosnia and Herzegovina, until advised by the Labour Market Service that an employment permit was required. In April 1998 the applicants lodged a request with the Feldkirch Labour Market Service for the grant of such a permit; this was refused on the ground that the maximum quota for foreign workers had already been exceeded. The applicants each lodged an appeal with the Vorarlberg Labour Market Service; both appeals were met with a refusal. The applicants each lodged a complaint with the Administrative Court and requested an oral hearing. Mr   Hascic’s complaint was rejected on the ground that none of his rights had been violated, as it was in principle for the employer to request that an employment permit be issued; Coorplan-Jenni GmbH’s complaint was dismissed as unsubstantiated and unfounded in law. A hearing was not held in either case, the Administrative Court taking the view, firstly, that a hearing was unlikely to contribute to the clarification of the case and, secondly, that Article   6 of the Convention was in any event inapplicable. Law : Applicability of Article   6 – As regards Collegium Mehrerau and Coorplan-Jenni GmbH, it is not in dispute that there was a “dispute”. An employment permit for a specific foreign employee is granted to the employer upon request, provided that specified conditions are met, important public or economic interests are not harmed and the situation and evolution of the labour market allow; consequently, the proposed employers could, at least on arguable grounds, claim the “right” to an employment permit. Finally, the validity of an employment contract concluded between an employer and a foreign employee is in principle dependent on the grant of an employment permit; therefore, the outcome of the proceedings at issue has to be considered directly decisive for the proposed employers’ relations under the civil law; it thus concerned their “civil” rights. Conclusion: Article   6 applicable (unanimously). As regards Mr   Jurisic and Mr   Hascic, the Court notes that they had no locus standi in the proceedings concerning the issue of an employment permit. Since the applicants agreed on the employment contracts and in each case jointly applied for an employment permit, and since Collegium Mehrerau and Coorplan-Jenni GmbH could and actually did claim a right to the issue of an employment permit, the Court finds that Mr   Jurisic and Mr   Hascic must be taken to have also had a right, derived from their prospective employers’ right, to adjudication on their requests for an employment permit. The fact that the domestic legislation precluded them from making the request for an employment permit to the domestic authorities personally does not affect the existence of that right but is only a procedural bar. Having regard to its findings above, the Court further considers that Mr   Jurisic’s and Mr   Hascic’s right to conclude a valid employment contract was arguable, and that the disputes they wished to bring before the domestic tribunals were both directly decisive for this “civil” right and genuine and serious. Conclusion: Article   6 applicable (5   votes to 2). Compliance with Article   6 – As regards Collegium Mehrerau and Coorplan-Jenni GmbH, the Court finds that the applicant company was in principle entitled to a public oral hearing before the first and only tribunal to examine its case, unless there were exceptional circumstances which justified dispensing with such a hearing. The Court has accepted such exceptional circumstances in cases where proceedings concerned exclusively legal or highly technical questions. However, the Court does not consider that the subject matter of the proceedings before the Administrative Court in the present case was of such a highly technical or exclusively legal nature as to justify dispensing with the obligation to hold a hearing. Conclusion: violation(6 votes to 1). Mr   Jurisic and Mr   Hascic were prevented by law from bringing their claims before the domestic tribunal. Their right of access to a court has been violated. Conclusion : violation (5 votes to 2).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes