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07-16-2009, 01:40 PM
X. v. THE GERMANY - 2499/65 [1967] ECHR 23 (01 June 1967)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German citizen, born in 1913 and residing atKelkheim/Taunus.From his statements and from documents submitted by him it appears thatfrom 1937 to 1945 he was employed by the IG-Farbenindustrie A.G. From1950 to 1952 he worked for a Greek firm in Athens. In 1953 he took upemployment with the Farbwerke H A.G. as personal assistant to themember of the Board of Directors responsible for Finance and Accounts.In August, 1954, during a meeting of the Technical Directors of theCompany, Mr. W., a fellow employee of considerable standing within thefirm made remarks about the Applicant which were calculated toadversely affect his reputation for integrity and which, if remaininguncontested, would have done great damage to his career. The Applicant,therefore, was not ready to accept a statement of regret from hisopponent which was prepared by Mr. K, a company lawyer, and which didnot appear to him sufficiently to repair the damage to his reputation.On the other hand, the opponent was unwilling to sign a statementprepared by the Applicant.When the Applicant realised that a friendly settlement could not bereached on his terms he instituted legal proceedings against hisopponent before the Regional Court (Landgericht) at Frankfurt.The Company which so far allegedly had taken a rather inactive part insettling the affair, indicated to the Applicant that he would bereleased from his employment if he proceeded with his law suit. TheApplicant states that he was forced to call witnesses after thedefendant had denied having made the derogatory remarks.On .. January, 1956, three days before the witnesses were to giveevidence in court, the Applicant was suspended by his employer andinvited to agree to the termination of his contract. When he refused,the Company, by letter of 15th February, 1956, gave him notice. Thisletter contained the following statement:"We had hoped, in spite of your letter of .. April, 1955 to DirectorDr. E, that, in the course of time, you would come to appreciate that,in the interests of a good working atmosphere, personal differencesarising within the Works cannot be settled by litigation. Since youstill find yourself unable to accept this opinion, we have no choicebut to give you notice herewith with effect from .. September, 1956.Your services will not be required during the period of notice."("Trotz Ihres Schreibens vom .. 4.1955 an Herrn Direktor Dr. E. hattenwir gehofft, dass sich im Laufe der Zeit auch bei Ihnen die Auffassungdurchsetzen würde, dass persönliche Streitigkeiten im Werk im Interessedes Betriebsfriedens nicht durch einen Prozess bereinigt werden können.Da Sie auch jetzt noch glauben, sich dieser Auffassung nichtanschliessen zu können, sehen wir uns veranlasst, hiermit die Kündigungzum .. 9.1956 auszusprechen. Wir verzichten bis zum Ablauf derKündigungsfrist auf Ihre weiteren Dienste.")Having failed to hear the representatives of the Staff Association(Betriebsrat) prior to the notice, the Company obtained their opinionsubsequently and gave notice again by letter of 21st February, 1956.On .. March, 1956, the Applicant lodged a complaint (Klage) with theLabour Court (Arbeitsgericht) at Frankfurt. The Court rejected hiscomplaint but, upon the Applicant's appeal (Berufung), the decision wasreversed by the Labour Court of Appeal (Landesarbeitsgericht) atFrankfurt on the ground that the Staff Association had not been heardin respect of the notice of 15th February, 1956, while the notice of21st February, 1956, was not the subject of the proceedings.The Company, considering the second notice as having determined thecontract as from .. September, 1956, stopped paying the Applicant'ssalary subsequent to that date. The Applicant now sued the Company forhis salary. The Labour Court at Frankfurt rejected his complaint. Hisappeal (Berufung) to the Labour Court of Appeal was dismissed. Uponfurther appeal (Revision) to the Federal Labour Court(Bundesarbeitsgericht), this Court, on .. November, 1958, set aside thelower Court's decision and sent the case back to the Labour Court ofAppeal for further consideration and decision. The Federal Labour Courtalso ordered that a decision should be given by the Labour Court ofAppeal as to the question whether the notice violated public policy(Sittenwidrigkeit) according to Section 138, paragraph (1), of theGerman Civil Code.By judgment of .. December, 1962, the Labour Court of Appeal allowedthe Applicant's claim and decided that the Company's notice of 21stFebruary, 1956 was unlawful in that it contained a violation of theprinciple of good faith (Treu und Glauben). Therefore, the Courtfurther held, it did not have to give a decision on the question of apossible violation of public policy.Upon the Company's appeal (Revision) to the Federal Labour Court, thisCourt, on .. May, 1964, again set aside the lower Court's decisionholding that the notice of 21st February, 1956 constituted neither aviolation of the principle of good faith nor of public policy. TheCourt stated, inter alia: "The plaintiff complains that the defendantgave him notice by way of revenge because he had rejected asinsufficient W's apology as drawn up by K and had brought civilproceedings against W. It is clear from the letter of dismissal thatthis behaviour on the part of the plaintiff was in fact the realgrounds of dismissal. These grounds were, however, not morallyreprehensible ...".("Der Kläger macht der Beklagten ferner zum Vorwurf, sie habe ihm ausRache dafür gekündigt, dass er die von K. entworfene Ehrenerklärung desW. als ungenügend abgelehnt und den Zivilprozess gegen W. geführt habe.Aus dem Kündigungsschreiben geht hervor, dass dieses Verhalten desKlägers in der Tat der eigentliche Kündigungsgrund war. Dieser Grundwar jedoch nicht sittlich verwerflich ...").The Court concluded that it was not revenge which prompted the Companyto give notice to the Applicant, but that it had a legitimate interestin maintaining the good working atmosphere within the Works which, inthe Company's opinion, was disturbed by the Applicant's desire toobtain satisfaction from the courts.This decision found wide criticism in German legal periodicals.Represented by two prominent German lawyers and equipped with a legalopinion given by Professor Arthur Niekisch of Kiel, the Applicantfinally lodged a constitutional appeal (Verfassungsbeschwerde) with theFederal Constitutional Court (Bundesverfassungsgericht). He alleged:(1) that the Federal Labour Court's decision of .. May, 1964 wasarbitrary (Verletzung des Willkürverbots) within the meaning of Article3, paragraph (1), of the German Basic Law in that this Court gave adecision regarding the question of a violation of public policy insteadof referring the case to the lower court;(2) that he did not have a fair trial (Verletzung des rechtlichenGehörs) within the meaning of Article 103 of the Basic Law in that thecourts had refused to admit evidence on the question of a violation ofpublic policy. He alleges that it was not necessary for the LabourCourt of Appeal to go into this matter as it allowed the Applicant'sclaim on other grounds. On the other hand, the Federal Labour Court hadno competence to hear any evidence. Thus he was refused the right everto present any evidence on this point. But, he continued, "no party toan action should be deprived of the possibility to exercise the rightof application and to be heard by the courts. If, in violation of theprinciple expressed in Article 103, paragraph (1), of the Basic Law,these rights are not observed, he ceases to be treated as a person anda free agent (Subjekt) in the proceedings and is degraded to being anobject of proceedings to which he makes no contribution";(3) that the Federal Labour Court's decision violated the general rightto freedom within the meaning of Article 2, paragraph (1), of the BasicLaw in that it considered a release from employment as a proper meansto put pressure on an employee to prevent him from settling disputesin court.
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German citizen, born in 1913 and residing atKelkheim/Taunus.From his statements and from documents submitted by him it appears thatfrom 1937 to 1945 he was employed by the IG-Farbenindustrie A.G. From1950 to 1952 he worked for a Greek firm in Athens. In 1953 he took upemployment with the Farbwerke H A.G. as personal assistant to themember of the Board of Directors responsible for Finance and Accounts.In August, 1954, during a meeting of the Technical Directors of theCompany, Mr. W., a fellow employee of considerable standing within thefirm made remarks about the Applicant which were calculated toadversely affect his reputation for integrity and which, if remaininguncontested, would have done great damage to his career. The Applicant,therefore, was not ready to accept a statement of regret from hisopponent which was prepared by Mr. K, a company lawyer, and which didnot appear to him sufficiently to repair the damage to his reputation.On the other hand, the opponent was unwilling to sign a statementprepared by the Applicant.When the Applicant realised that a friendly settlement could not bereached on his terms he instituted legal proceedings against hisopponent before the Regional Court (Landgericht) at Frankfurt.The Company which so far allegedly had taken a rather inactive part insettling the affair, indicated to the Applicant that he would bereleased from his employment if he proceeded with his law suit. TheApplicant states that he was forced to call witnesses after thedefendant had denied having made the derogatory remarks.On .. January, 1956, three days before the witnesses were to giveevidence in court, the Applicant was suspended by his employer andinvited to agree to the termination of his contract. When he refused,the Company, by letter of 15th February, 1956, gave him notice. Thisletter contained the following statement:"We had hoped, in spite of your letter of .. April, 1955 to DirectorDr. E, that, in the course of time, you would come to appreciate that,in the interests of a good working atmosphere, personal differencesarising within the Works cannot be settled by litigation. Since youstill find yourself unable to accept this opinion, we have no choicebut to give you notice herewith with effect from .. September, 1956.Your services will not be required during the period of notice."("Trotz Ihres Schreibens vom .. 4.1955 an Herrn Direktor Dr. E. hattenwir gehofft, dass sich im Laufe der Zeit auch bei Ihnen die Auffassungdurchsetzen würde, dass persönliche Streitigkeiten im Werk im Interessedes Betriebsfriedens nicht durch einen Prozess bereinigt werden können.Da Sie auch jetzt noch glauben, sich dieser Auffassung nichtanschliessen zu können, sehen wir uns veranlasst, hiermit die Kündigungzum .. 9.1956 auszusprechen. Wir verzichten bis zum Ablauf derKündigungsfrist auf Ihre weiteren Dienste.")Having failed to hear the representatives of the Staff Association(Betriebsrat) prior to the notice, the Company obtained their opinionsubsequently and gave notice again by letter of 21st February, 1956.On .. March, 1956, the Applicant lodged a complaint (Klage) with theLabour Court (Arbeitsgericht) at Frankfurt. The Court rejected hiscomplaint but, upon the Applicant's appeal (Berufung), the decision wasreversed by the Labour Court of Appeal (Landesarbeitsgericht) atFrankfurt on the ground that the Staff Association had not been heardin respect of the notice of 15th February, 1956, while the notice of21st February, 1956, was not the subject of the proceedings.The Company, considering the second notice as having determined thecontract as from .. September, 1956, stopped paying the Applicant'ssalary subsequent to that date. The Applicant now sued the Company forhis salary. The Labour Court at Frankfurt rejected his complaint. Hisappeal (Berufung) to the Labour Court of Appeal was dismissed. Uponfurther appeal (Revision) to the Federal Labour Court(Bundesarbeitsgericht), this Court, on .. November, 1958, set aside thelower Court's decision and sent the case back to the Labour Court ofAppeal for further consideration and decision. The Federal Labour Courtalso ordered that a decision should be given by the Labour Court ofAppeal as to the question whether the notice violated public policy(Sittenwidrigkeit) according to Section 138, paragraph (1), of theGerman Civil Code.By judgment of .. December, 1962, the Labour Court of Appeal allowedthe Applicant's claim and decided that the Company's notice of 21stFebruary, 1956 was unlawful in that it contained a violation of theprinciple of good faith (Treu und Glauben). Therefore, the Courtfurther held, it did not have to give a decision on the question of apossible violation of public policy.Upon the Company's appeal (Revision) to the Federal Labour Court, thisCourt, on .. May, 1964, again set aside the lower Court's decisionholding that the notice of 21st February, 1956 constituted neither aviolation of the principle of good faith nor of public policy. TheCourt stated, inter alia: "The plaintiff complains that the defendantgave him notice by way of revenge because he had rejected asinsufficient W's apology as drawn up by K and had brought civilproceedings against W. It is clear from the letter of dismissal thatthis behaviour on the part of the plaintiff was in fact the realgrounds of dismissal. These grounds were, however, not morallyreprehensible ...".("Der Kläger macht der Beklagten ferner zum Vorwurf, sie habe ihm ausRache dafür gekündigt, dass er die von K. entworfene Ehrenerklärung desW. als ungenügend abgelehnt und den Zivilprozess gegen W. geführt habe.Aus dem Kündigungsschreiben geht hervor, dass dieses Verhalten desKlägers in der Tat der eigentliche Kündigungsgrund war. Dieser Grundwar jedoch nicht sittlich verwerflich ...").The Court concluded that it was not revenge which prompted the Companyto give notice to the Applicant, but that it had a legitimate interestin maintaining the good working atmosphere within the Works which, inthe Company's opinion, was disturbed by the Applicant's desire toobtain satisfaction from the courts.This decision found wide criticism in German legal periodicals.Represented by two prominent German lawyers and equipped with a legalopinion given by Professor Arthur Niekisch of Kiel, the Applicantfinally lodged a constitutional appeal (Verfassungsbeschwerde) with theFederal Constitutional Court (Bundesverfassungsgericht). He alleged:(1) that the Federal Labour Court's decision of .. May, 1964 wasarbitrary (Verletzung des Willkürverbots) within the meaning of Article3, paragraph (1), of the German Basic Law in that this Court gave adecision regarding the question of a violation of public policy insteadof referring the case to the lower court;(2) that he did not have a fair trial (Verletzung des rechtlichenGehörs) within the meaning of Article 103 of the Basic Law in that thecourts had refused to admit evidence on the question of a violation ofpublic policy. He alleges that it was not necessary for the LabourCourt of Appeal to go into this matter as it allowed the Applicant'sclaim on other grounds. On the other hand, the Federal Labour Court hadno competence to hear any evidence. Thus he was refused the right everto present any evidence on this point. But, he continued, "no party toan action should be deprived of the possibility to exercise the rightof application and to be heard by the courts. If, in violation of theprinciple expressed in Article 103, paragraph (1), of the Basic Law,these rights are not observed, he ceases to be treated as a person anda free agent (Subjekt) in the proceedings and is degraded to being anobject of proceedings to which he makes no contribution";(3) that the Federal Labour Court's decision violated the general rightto freedom within the meaning of Article 2, paragraph (1), of the BasicLaw in that it considered a release from employment as a proper meansto put pressure on an employee to prevent him from settling disputesin court.