Ree City Œ Danzig
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1 114SUS OF 1IÀ 310H S, C.3i5-.\cil> .1 , Gommunicated to the Council Genova, -»ugust 1st, 1927, V " FREE CITY Œ DANZIG. OH (F DANZIG COURTS IN ACTIONS BROUGHT BY RAIOTAY OFFICIALS AGAINST THE POLISH RAILWAY ADI il HI STRATI CH. Hote I37/ the Secretary-General. The Secretary-General has the honour to comnunicate xT J* to the Council fo considerati on, copy of the following . ocumen arded to him by the High v c .c : y . ,-r ; vV ; orrnni 3 si oner of the" of Hâtions at Danzig, and which - ' . ,5> 3 to the juîu'sd^ ti on of Danzig courts in actions brought It Administration by Danzig railway )U ea nto the Polish Railway Service: I . Decision hy the High C omnri s s oner ted April 8th, 1927; II. Appeal by the Danzig 12 th , 1927; I I I . Reply bÿ the P olish Government, Danzig a p p e a l, f ded by the s i oner on Ju ly 1 '..1927. IV. Observations Senate regarding the Polish Reply, by the High C oinmicsi oner on July 27th. The Polish Government's reply (111 ) includes as an annex the German text of the Danzig-Polish Agreement concerning O fficials (BeamtenabKomnen) of October 22nd, 1921. An English translation by the Secretariat is attached. - 2 - The High C ommiBsi oner has fu rth er communicated to the Secretary-General the following documents, which are in the archives of the S ecretariat and are a t the disposal of the members of the Council: 1. Advisory opinion "by Dr. Walter SchftcKing, Professor of Law; 2. Advisory opinion by Sr. Erich Eauffmann, Professor of Law; 3. Copy of the decision of the Danzig Supreme Court (Obergericht) dated June 29th, 1927, in the case brought by Plander, a railway employee against the Polish Railway Administration; 4. Provisional Danzig-Polish Agreement concerning Officials, dated July 20th, 1921; 5 . Prussian 3>aw of May 24th, 1861, regarding the extension of the jurisdiction of courts in questions relating to the rémunération of o f f ic ia ls . The documents referred to in 1, 2 and 3 are communicated at the request of the Danzig Senate. - 1 - I. SSCI SIGN R30ARDIITG ŒE JURISDICTION Œ DANZIG COUR23 IN ACTIONS BROUGHT BY KAIB/AY Off VICIAIS AGAINST TH3 RAIL'.:AY ADMINISTRATION. translation. On January 11th, 1926, the Polish representative forwarded to the High Commissioner a note in which i t was stated that the Polish Government would n o t, in future, taKe tiognizance of actions brought by railway officials which were based on the provisions of the Agreement of October 22nd, 1921. I t would not enforce any judgment given in such actions by the Danzig Courts. In a note dated May 27 th, 1926 , the Senate explained to me its point of view, requesting me to obtain, by mediation, the withdrawal of the Polish statement, Prolonged conferences, for the purpose of reaching a solution tooK place with the representatives of the two parties. The Danzig Senate then asKed me to give a decision in this matter with reference to the e.ztent of the c ompetcnoe and jurisdiction of the Danzig Courts. The Senate wrote to me on January 12 th, 1927, observing that there had been no withdrawal of the statement; it therefore requested me to give the following decision: (a) That railway employees who had passed from the service of the Free City into Polish service, were entitled to bring actions in respect of pecuniary claims, even if these claims were based on the Danzig-Polish Agreement of October 22nd, 1921 (Agreement concerning - 2 - o f f ic ia ls , "BeamtenabKommen") or on the declaration mc.de under A rticle I of this agreement, which was accepted by the Polish Railways Administration; (b) that Danzig Courts were entitled to hear the actions referred to in (a); (c) that, consequently, the Polish Railways Administration was bound to accept the jurisdiction of the Danzig Courts in disputes such as those mentioned in (a), and to enforce the judgments given by those Courts. In a letter dated February Gth, 1927, based on his note of January 11th, 192G , and on a memorandum which he had submitted to me during the negotiations of June 30th, 1.926, the Polish Representative maintained the views to which I have referred . The Parties submitted reply and rejoinder on February 28th and March 23rd, 1927, respectively. My de ci si on is as foilows; 1) The general argument upheld by Poland that the Danzig Courts are not legally entitled to taKe cognizance of actions in respect of pecuniary claims brought by railway servants who have passed from the Danzig service into Polish service, is unfounded. In general, Danzig members of the railway staff are entitled to bring actions against the Administration in the Courts of the Free City. The right of o ffic ia ls and employees in the service of a State adm inistration tc sue in the civ il courts for pecuniary claims on the strength of their contracts is not a right re cognised eo i^so. The law of several countries does - 3 - not recoGni.se such ju risdiction and lays down that claims ox officials against the State do not come within the scope of c iv il law. These claims therefore, failing any special provisions, do not come within the jurisdiction of the civil courts= In the case of these railway servants, however, the rule that the parties concerned may hr in 3 actions in the civil courts has been specially recognised. It has been recognised in the Agreement of October 22nd, 1921, in A rticle 6 of which i t is laid down that o ffic ia ls who have been Kept on in the service of the Polish railways shall retain any acquired rights the existence of which can be proved. It is laid down, moreover, in the Constitution of the Free City (Article 92) that officials may have access to the civil courts for the purpose of vindicating their pecuniary r ig h ts . In Prussian law the same rule is admitted under a n law concerning the extension of access to the civil courts'', dated May 24th, 1861. Poland is therefore obliged to recognise, in these actions, the jurisdiction of the civil courts. In th is instance the civ il courts are the Danzig courts. This is a consequence of a decision given by the x High Commissioner, General HaKing, on Septemoer 5th, 1921 (No. 12c) which is binding on both Parties and lays down that: A*Note by the Secretary-General. See C.328,H»S35.1921.1 . and Official Journal November 1921.p*974/78, - 4 - "Everything connected vjith the Polish Eailvays Administration tvithin the: territory of the Free City is subject to the civil and criminal Courts of Danzig. The Polish Railv/ay Administration has no sovereign rights within the te rrito ry of the Free City and therefore can establish no 0 ourts of Law within its territory,T. This decision means that in all matters coming within the jurisdiction of civil courts, these Courts shall be the Danzig Courts. In view of the other points to be examined, one observation must be added: General Eating did not contemplate and could not have contemplated the introduction of jurisdiction in cases in which otherwise there would have been none. He merely recognised the sole ju ris diction of the Courts of the Free City in matters in which civil jurisdiction generally applies. Pecuniary clair.s by railway employees at Danzig, based on their contracts, are subject to this rule l the jurisdiction of the Danzig civil Courts is proved in principle and should be recognised by the Polish ijtate. Any claim for payment based on contracts, particularly claims for wages, pensions, half-pay and other grants under the contract, may form the subject of an action in the Danzig civ il courts (unless there be some special jurisdiction recognised by law, as might be the case in questions connected with social insurance). Such actions, brought personally and without intermediary by the parties concerned, are in the nature of civil actions. - 5 - 2 . The Senate also requests mo to decido whether the position is the same in cases in which the claims for payment are "based on the agreement of October 22nd 1921 ( B e an t e nab K on: ne n ) or on the declarations made in conformity with Article 1 of this agreement. The reply to this must be that such cases cannot arise* At law an official cannot ^ found a claim for payment solely on the Agreement or the above-mentioned dec la ra ti ons. In order to bring a personal and direct civil action against the Adm inistration, the employee must be able to plead some provision in his contract. It Is through the contract given by the Administration that the latter assumes responsibility towards the employee. The conditions of the contract can alone establish the legal relations between the official and the Administration. I need not here consider that laws. service regula tion, etc., contain the provisions of this "contract", that is to say the series of provisions which establish the legal relationship between the railway administration and its employees. It has been suggested to me that they may be contained in the Polish law of October 19th 1923 concerning the remuneration of officials (Besoldung der Staatsbeamten) and the regulations for its application as well as other similar rules. On the basis of a l l those provisions an employee may asK the Courts to give a judgment„ But the provisions of the Agreement of October 22nd, 1921, are not provisions on which a civil, personal and direct action can be brought by the person concerned.