Access to court against an international organisation

Klausecker v. Germany

The applicant complained of his inability to obtain an examination on the merits of a complaint he had lodged against an international organisation.

Limitations on access to domestic courts to review recruitment procedure before European Patent Office when reasonable alternative procedure (arbitration) available: inadmissible

The applicant, who is disabled, applied for a post as a patent examiner at the European Patent Office (EPO) in Munich. Although he passed the professional tests, he was not offered employment as he did not meet the physical requirements for the post. His internal appeal against that decision was declared inadmissible as he was not a staff member. The German Federal Constitutional Court declined to consider his constitutional complaint, inter alia, on the ground that the EPO enjoyed immunity from the jurisdiction of the German courts. A further complaint by the applicant to the Administrative Tribunal of the International Labour Organization (ILO) was also dismissed on the grounds that it had no jurisdiction in respect of external candidates for employment and no authority to order the EPO to waive its immunity. The Tribunal noted, however, that its judgment created a legal vacuum and indicated that it was highly desirable that the EPO should seek a solution affording the applicant access to a court, either by waiving its immunity or by submitting the dispute to arbitration. The EPO subsequently informed the applicant that it was willing to go to arbitration, but the applicant ultimately did not take up the offer.

The Court ruled against the applicants. The Convention itself permitted restrictions on access to a tribunal in relation to measures concerning an applicant’s recruitment to civil service and indeed an issue as regards the applicability of Article 6 had arisen in the applicant’s case.

Further, the Court had already found the EPO’s offer of arbitration constituted a reasonable alternative means to have his complaint about the EPO’s decision examined on the merits. Accordingly, the fact that the applicant was denied access to the review procedures set up by the EPO in relation to the decision not to recruit him but was offered an arbitration procedure instead did not disclose a manifestly deficient protection of fundamental rights within the EPO.

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