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[1] On September 22nd, 1927, the
Council of the League of Nations adopted the following Resolution:
"The Council of the League of Nations, having received from the Government
of the Free City of Danzig an appeal against a Decision given on April 8th,
1927, by the High Commissioner of the League of Nations at Danzig as to the
jurisdiction of the Danzig Courts in [p5] actions brought against the Polish
Railways Administra¬tion by Danzig railway officials who have passed into
the Polish service, decides to ask the Permanent Court of International
Justice to give it an advisory opinion on the following question:
Whereas the Government of the Free City of Danzig requested the High
Commissioner on January 12th, 1927, 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 officials, Beamtenabkommen) or on
the declaration made under Article 1 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 Administra¬tion 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;
Whereas the High Commissioner on April 8th, 1927, on the above request of
the Senate of Danzig, gave the annexed Decision;
Whereas the Government of Danzig has appealed to the Council of the League
of Nations against this Decision in a Note dated May 12th, 1927;
Is the Court of opinion that the High Commissioner's Decision of April 8th,
1927, given as a result of the requests made by the Danzig Government on
January 12th, 1927 — in so far as his Decision does not comply with those
requests — is legally well founded?
The Secretary-General is authorized to submit this application to the Court
with all the documents relating to the question; to explain to the Court the
action the Council has taken in the matter; to give all the neces¬sary
assistance for the examination of the case, and, if necessary, to take steps
to be represented before the Court."
[2] In pursuance of this Resolution, the Secretary-General of the League of
Nations, on September 24th, 1927, submitted [p6] to the Court a Request for
an advisory opinion in the following terms:
"The Secretary-General of the League of Nations, in pursuance of the Council
Resolution of September 22nd, 1927, and in virtue of the authorization given
by the Council, has the honour to submit to the Permanent Court of
International Justice an application requesting the Court, in accordance
with Article 14 of the Covenant, to give an advisory opinion to the Council
on the question which is referred to the Court by the Resolution of
Septem¬ber 22nd, 1927;
The Secretary-General will be prepared to furnish any assistance which the
Court may require in the examination of this matter, and will, if necessary,
arrange to be represented before the Court."
[3] According to the terms of the letter under cover of which the
Secretary-General of the League of Nations transmitted to the Court the
Request reproduced above, the Decision of the High Commissioner of the
League of Nations at Danzig, dated April 8th, 1927, to which the Council's
Resolution of September 22nd refers, is to be regarded as annexed to that
Resolution. The complete text of the Decision in question as transmitted to
the Registry is attached to the present opinion, only the operative portion
thereof being reproduced below:
"Pecuniary claims of any kind, based on one of the provisions which
constitute the contract of service for Danzig employees of the Polish
Railways who have passed into the service of the Polish Administration under
the Danzig-Polish Agreement of "October 22nd, 1921, and in particular claims
in connection with salaries, pensions, half-pay, and other grants under the
contract, may form the subject of an action in the Danzig Courts (except for
the reservation mentioned on pages 5-6 [FN1]); the clauses of the Agreement
itself, and the declarations referred to in Article 1 of the Agreement, are
not to be regarded as provisions which constitute the contract of service of
the above-mentioned employees, and therefore they cannot give ground for a
personal action to be brought in the courts; under these circumstances, I do
not think that the question set out in (c) arises." [p7]
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[FN1] See page 30.
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[4] In conformity with Article 73, paragraph 1, of the Rules of Court, the
Request for an opinion was communicated to Members of the League of Nations
and to States entitled to appear before the Court. At the same time, the
Registrar sent to the Governments of Poland and of the Free City of Danzig,
being regarded as likely to be able to furnish infor¬mation on the question
upon which the Court's opinion was asked, a special and direct communication
to the effect that the Court was prepared to receive from them written
state¬ments and, if necessary, to hear oral statements made on their behalf
at a public hearing to be held for the purpose.
[5] The time for the submission of any written statements, which was at
first fixed to expire on November 4th, 1927, was afterwards, at the request
of the representative of the Free City of Danzig, extended until December
5th, 1927. On the latter date Memorials had been filed on behalf both of the
Polish Government and of the Government of the Free City of Danzig.
Subsequently, the representative of the Free City before the Court, having
asked whether the Court intended to request the Governments in question to
present a Counter-Memorial, the Registrar informed them that the Court would
not ask them for any further document, but that, should either or both of
them wish to submit Counter-Memorials, the time-limit for the filing of such
documents would be fixed to expire on January 15th, 1928.
[6] No Counter-Memorials having been filed on that date, the representatives
of the interested Governments were informed that the Court wished to hear
their oral statements.
[7] Accordingly, the Court, in the course of public sittings held on
February 7th and 8th, 1928, heard oral arguments presented by M. G. Gidel,
Professor at the Faculty of Law of Paris, on behalf of the Free City of
Danzig, and by M. J. Limburg, Counsellor of State and former leader of the
Bar at The Hague, on behalf of Poland.
[8] In addition to the documents submitted by the interested Governments,
the Court has had before it documents commu¬nicated by the Secretary-General
of the League of Nations with the Council's request for an opinion, certain
additional documents and information collected by the Registry (see annexed
list), and also the replies furnished by the representatives of the [p8]
interested Governments to questions put to them on behalf of the Court.
[9] Before undertaking the examination of the question set out in the
Resolution of the Council of the League of Nations of September 22nd, 1927,
the Court considers that it should recall the circumstances in which the
Council was led to ask for an advisory opinion on this question.
[10] Under Article 104 of the Treaty of Versailles, "the Principal Allied
and Associated Powers undertake to negotiate a treaty between the Polish
Government and the Free City of Danzig, which shall come into force at the
same time as the establishment of the said Free City, with the following
objects", amongst others: "to ensure to Poland the control and
administration of the .... whole railway system within the Free City, except
such street and other railways as serve primarily the needs of the Free City
. . . .". This Convention was concluded in Paris between Poland and the Free
, City on November 9th, 1920, and is called hereafter the Convention of
Paris. It contains, in Articles 20 and 21, provisions to the effect that the
Danzig railways — apart from those already excepted by the Treaty of
Versailles and those specially serving the port — ". ... shall be controlled
and administered by Poland, which shall receive the profits and defray the
expenditure". Article 22 of the Convention is as follows:
"Subsequent agreements to be concluded between Poland and the Free City
within four months after the coming into force of the present Treaty shall
settle any questions which may arise from the execution of Article 21,
especially questions relating to the retention of officials, employees and
workmen at present employed on the railways and to the maintenance of rights
acquired by them, and questions relating to the guarantees to be accorded
reciprocally for the use of the Danzig and Polish languages and currencies,
and for the interests of the local population, in all matters concerning the
[p9] administration, exploitation and services referred to in Article 21.
Failing such agreement, the decision shall be taken by the High Commissioner
of the League of Nations in accordance with Article 39."
[11] Article 39 reads as follows:
"Any differences arising between Poland and the Free City of Danzig in
regard to the present Treaty or to any other subsequent agreements,
arrangements or conventions, or to any matter affecting the relations
between Poland and the Free 'City, shall be submitted by one or the other
Party to the decision of the High Commissioner, who shall, if he deems it
necessary, refer the matter to the Council of the League of Nations.
The two Parties retain the right of appeal to the Council of the League of
Nations."
[12] This article was based on Article 103 of the Treaty of Versailles,
which runs as follows:
"A constitution for the Free City of Danzig shall be drawn up by the duly
appointed representatives of the Free City in agreement with a High
Commissioner to be appointed by the League of Nations. This constitution
shall be placed under the guarantee of the League of. Nations.
The High Commissioner will also be entrusted with the duty of dealing in the
first instance with all differences arising between Poland and the Free City
of Danzig in regard to this Treaty or any arrangements or agreements made
thereunder.
The High Commissioner shall reside at Danzig."
[13] In pursuance of Article 22 of the Convention were signed first of all,
on July 20th, 1921, a "Provisional Agreement in regard to officials" (provisorisches
Beamtenabkommen), and sub¬sequently, on October 22nd, 1921, a "Definitive
Agreement in regard to officials" (endgültiges Beamtenabkommen), the
author¬itative German text of which is reproduced in the annex, together
with the French translation — in regard to the accuracy of which some
reservations should however be made — of this text, which was attached to
the Request for the opinion.
[14] The Definitive Agreement of October 22nd, 1921, was to a large extent
based on two Decisions of General Haking, the High Commissioner of the
League of Nations at Danzig, [p10] given on August 15th and September 5th of
the same year in accordance with the last paragraph of Article 22 of the
Con¬vention of Paris, and in pursuance of the jurisdictional clause
contained in Article 39 of the same Convention.
[15] The Decisions in question, against which the two Govern¬ments, by an
"arrangement" made at Geneva on September 23rd, 1921, undertook not to
appeal, were recognized in a memo¬randum (Niederschrift) signed on December
1st, 1921, by the representatives of the Free City and of the Polish State
Railways Administration, as entering into full effect on that date, together
with the Arrangement of September 23rd, 1921, and the Agreement of October
22nd of that year.
[16] Subsequently, from the year 1925 onwards, Danzig railway officials who
had passed into the service of the Polish Admi¬nistration in accordance with
the Agreement of October 22nd, 1921, brought actions before the Courts of
the Free City against the said Administration for pecuniary claims which
they considered that they had against the latter. A certain number of
examples of these suits have come to the knowledge of the Court (Flander v.
the Polish Treasury; Holz v. the Polish Treasury; Menge v. the Polish
Treasury) as the result of the communication of the text of the judgments
given, or of the transmission of copies of records concerning the different
stages of the proceedings. It appears from these documents as well as from
the information given to the Court by the interested Governments, that the
claimants based their actions on the provisions of the Agreement of October
22nd, 1921, that the Polish Treasury raised objection in all these cases on
the ground that the Danzig Courts had no juris¬diction to entertain such
actions, and that, on the other hand, the courts in question declared
themselves, both in first instance and on appeal, to have jurisdiction.
[17] On January nth, 1926, the Commissioner-General of the Polish Republic
at Danzig sent to the High Commissioner of the League of Nations in the Free
City a letter containing the following passage:
"In the future, the Polish Government will not take cognizance of actions
brought by railway officials and based on the provisions of the Agreement of
October 22nd, 1921. It will not comply [p11] with any judgment given by
Danzig Courts in such cases. It rests with the Senate of the Free City to
inform its nationals as to the means of which they may avail themselves for
the protection of their interests and to compel the courts of the Free City
to respect the provisions of the treaties in force and the decisions of the
High Commissioner.
I am sending a copy of this note to the Senate of the Free City [FN1]."
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[FN1] Translation by the Registry of the French original.
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[18] In its reply, dated May 27th, 1926, the Senate of the Free City, whilst
declaring itself prepared to ask the High Com¬missioner for a decision in
accordance with Article 39 of the Convention of Paris, sought the
intervention of the High Commissioner and requested him to endeavour to
induce the Polish Government to withdraw the declaration set out above.
[19] According to the High Commissioner, prolonged conferences followed with
a view to reaching a settlement. On January 12th, 1927, however, the Danzig
Senate asked him, in accordance with the terms of Article 39 of the
Convention of Paris, for a decision on the requests which were set out as
follows in the original German text [FN2]:
"dass .... a) die aus dem Eisenbahndienst der Freien Stadt Danzig in den
Polnischen Eisenbahndienst übernommenen Eisenbahnbeamten befugt sind,
vermögensrechtliche Ansprüche aus ihrem Dienstverhältnis im Wege der Klage
geltend zu machen, auch wenn die Klagen auf das Danzig-polnische Abkommen
vom 22. Oktober 1921 (sogen. Beamtenabkommen) oder auf die gemass Artikel 1
dieses Abkommens abgegebene und von der polnischen Eisenbahnverwaltung
angenommene Erklärunggestutzt werden,
b) für Klagen der zu a) bezeichneten Art die Danziger Gerichte zuständig
sind, und daher,
c) die polnische Eisenbahnverwaltung verpflichtet ist, in
Rechtsstreitigkeiten der zu a) bezeichneten Art vor Danziger Gerichten Recht
zu nehmen und die Urteile der Danziger Gerichte auszuftihren."
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[FN2] See English and French translations on page 12.
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[20] Following upon proceedings consisting in the exchange of a reply, dated
February 28th, 1927, presented by the Free City, and a rejoinder, dated
March 23rd, 1927, presented by Poland, the High Commissioner gave the
Decision the operative part of which is reproduced at the beginning of this
opinion. [p12]
[21] On May 12th, 1927, the Government of the Free City of Danzig, again
relying on Article 39 of the Convention of Paris, lodged an appeal with the
Council of the League of Nations against this Decision, asking that the said
Decision "should be annulled" and that "it should be decided that" "the
former Danzig railway officials taken over by the Polish Railway service are
authorized to recover pecuniary claims, arising out of their conditions of
service, in the Danzig Civil Courts, from the Polish Railways
Administration, even when these claims, are based on the Danzig-Polish
Agreement of October 22nd, 1921 (the so-called Beamtenabkommen), or on the
declaration made under Article 1 of that Agreement, and accepted by the,
Polish Railways Administration".
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[FN1] English translation communicated by the Secretariat of the League of
Nations.
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[22] On receipt of this appeal and of two other documents emanating from
Danzig, as well as of three documents of proce¬dure filed by Poland and four
legal opinions respectively signed by Professors Kaufmann, Schücking,
Cavaglieri and Le Fur, the Council at its forty-eighth session, on the
report of M. Villegas, adopted the resolution reproduced at the begin¬ning
of this advisory opinion.
I.
[23] The Court has to consider, in the first place, the exact scope of the
question submitted to it for an advisory opinion. The Resolution of the
Council of the League of Nations, adopted on September 22nd, 1927, states
the question in the following terms:
"Is the Court of opinion that the High Commissioner's Decision of April 8th,
1927, given as a result of the requests made by the Danzig Government on
January 12th, 1927 — in so far as his Decision does not comply with those
requests — is legally well founded?" [p13]
[24] It may be recalled that the requests made by the Danzig Government,
referred to in the above-mentioned question, are in the following terms
(according to the text of the High Commissioner's Decision annexed to the
Council's Resolution):
"(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 officials, Beamtenabkommen) or on
the declaration made under Article 1 of this Agreement, which was accepted
by the Polish Railways Administration;
(b) that Danzig Courts were entitled to hear the actions re¬ferred 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".
[25] The operative portion of the High Commissioner's Decision of April 8th,
1927, is as follows:
"Pecuniary claims of any kind, based on one of the pro¬visions which
constitute the contract of service for Danzig employees of the Polish
Railways who have passed into the service of the Polish Administration under
the Danzig-Polish Agreement of October 22nd, 1921, and in particular claims
in connection with salaries, pensions, half-pay, and other grants under the
contract, may form the subject of an action in the Danzig Courts (except,
for the reservation mentioned on pages 5-6 [FN1]); the clauses of the
Agreement itself, and the declarations referred to in Article 1 of the
Agreement, are not to be regarded as provisions which constitute the
contract of service of the above-mentioned employees, and therefore they
cannot give ground for a personal action to be brought in the courts; under
these circumstances, I do not think that the question set out in (c)
arises."
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[FN1] See page 30.
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[26] An examination of the documents submitted to the Court and Of the oral
statements made by the representatives of the Parties before the Court at
its public sittings, establishes the fact that neither Party has contested
that part of the [p14] High Commissioner's Decision according to which
"pecuniary claims of any kind based on one of the provisions which
constitute the contract of service for Danzig employees of the Polish
Railways who have passed into the service of the Polish Administration under
the Danzig-Polish Agreement of October 22nd, 1921, and in particular claims
in connection with salaries, pensions, half-pay, and other grants under the
contract, may form the subject of an action in the Danzig Courts". This part
of the Decision, hereafter called "the first part", may be considered as
complying to this extent with Danzig's requests; and by the terms of the
Resolution, the Court is not asked for an opinion as to whether it is
legally well founded or not.
[27] The Decision further lays down that "the clauses of the Agreement
itself, and the declarations referred to in Article 1 of the Agreement, are
not to be regarded as provisions which constitute the contract of service of
the above-mentioned employees, and therefore they cannot give ground for a
personal action to be brought in the courts; under these circumstances, I do
not think that the question set out in (c) arises". This part of the
Decision, hereafter called "the second part", does not comply with Danzig's
requests. It is, therefore, on this part that the Court is asked to give its
opinion as to whether it is legally well founded or not.
[28] Before entering upon the examination of the question before it, as
defined above, the Court deems it necessary to consider, as a preliminary
question, whether its opinion should contem¬plate the Danzig railway
"officials" only, or whether it should include in its purview Danzig railway
"employees" who are not "officials". It should be noted in this connection
that in some of the articles of the Agreement of October 22nd, 1921,
hereafter called Beamtenabkommen, the word Beamte (officials, e.g. Article
4, No. 2), or the word Arbeiter (workmen, e.g. Article 2), is used; other
articles speak of Beamte und Arbeiter (officials and workmen, e.g. Article
3), or Bedienstete (employees, e.g. Article 6, [c]). This difference in
terminology is evidently intended to fix the scope of application of the
several provisions [p15] concerned. Turning now to the Decision of the High
Commis¬sioner, we find that the word "employees" is used in its opera¬tive
portion. However, in view of the fact that the original requests made by
Danzig in its letter of January 12th, 1927, which led to the said Decision
as well as to the appeal made by Danzig against the Decision, refer only to
Beamte (officials), the Court is of opinion that the question before it
should be construed as referring to "officials" only. This interpretation is
borne out by the first paragraph of the Council's Resolution, which says:
"The Council of the League of Nations, having received from the Government
of the Free City of Danzig an appeal against a Decision given on April 8th,
1927, by the High Commissioner of the League of Nations at Danzig as to the
jurisdiction of the Danzig Courts in actions brought against the Polish
Railways Administration by Danzig railway officials who have passed into the
Polish service, decides to ask the Permanent Court of International Justice
to give an advisory opinion on the following question".
II.
[29] The appeal made by Danzig, on May 12th, 1927, against the High
Commissioner's Decision of April 8th, 1927, requests the Council to quash
(aufheben) the said Decision, and to decide that:
"the former Danzig railway officials taken over by the Polish Railway
service are authorized to recover pecuniary claims, arising out of their
conditions of service, in the Danzig Civil Courts from the Polish Railways
Administration, even when these claims are based on the Danzig-Polish
Agreement of October 22nd, 1921 (the so-called Beamtenabkommen), or on the
declaration made under Article 1 of that Agreement, and accepted by the
Polish Railways Administration [FN1] ". [p16]
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[FN1] Translation communicated by the Secretariat of the League of Nations.
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[30] At first sight, it would seem that the first part of the "Decision of
April 8th, 1927, was also included in Danzig's appeal. But, as has just been
said, and in view of the statement of reasons for the appeal, this part of
the Decision should not be considered as having been contested by Danzig.
Indeed, the very words used in the statement of the appeal quoted above,
namely, "even when (auch wenn) these claims are based on the Danzig-Polish,
Agreement of October 22nd, 1921" (the so-called Beamtenabkommen), etc.,
necessarily imply the existence of the jurisdiction of the Danzig Courts
with regard to certain other pecuniary claims, i.e. those which are not
based on the Beamtenabkommen.
[31] In examining the second part of the High Commissioner's Decision, the
Court deems it necessary to take its first part as a starting point, and to
consider what is laid down therein as finally settled. This does not imply
that the Court accepts the reasons given by the High Commissioner for this
part of his Decision.
[32] The second part of the High Commissioner's Decision lays down that "the
clauses of the Agreement itself, and the declarations referred to in Article
1 of the Agreement, are not to be regarded as provisions which constitute
the contract of service of the above-mentioned employees, and therefore they
cannot give ground for a personal action to be brought in the courts".
[33] The Court will first deal with the question relating to actions brought
for the recovery of pecuniary claims based upon the Agreement of October
22nd, 1921 (Beamtenabkommen), [p17] and will then pass to the question of
the declarations.
[34] The contentions of the two Parties, resulting from their discussion
before the Court, may be briefly summarized as follows:
[35] Poland contends: (1) that the Beamtenabkommen, being an international
agreement, creates rights and obligations between the contracting Parties
only; (2) that the Beamtenabkommen, as such, and failing its incorporation
into Polish national legislation, cannot create direct rights or obligations
for the individuals concerned; and (3) that if, in any respect, Poland has
not carried out her international obligations arising under the
Beamtenabkommen, she is responsible only to the Free City of Danzig. In
other words, Poland contends that the legal relations between the Polish
Railways Administration and the former Danzig officials, who have become
Polish officials, are governed solely by Polish national law, which should
be in conformity with the Beamtenabkommen.
[36] On the other hand, Danzig contends that the Beamten¬abkommen, though an
international agreement in form, was intended by the contracting Parties to
constitute part of the "series of provisions which establish the legal
relationship between the Railways Administration and its employees"
("contract of service") and that it is the substance rather than the form of
the instrument that determines its juridical character.
[37] The point in dispute amounts therefore to this: Does the
Beamtenabkommen, as it stands, form part of the series of provisions
governing the legal relationship between the Polish Railways Administration
and the Danzig officials who have passed into its service (contract of
service)? The answer to this question depends upon the intention of the
contracting Parties. It may be readily admitted that, according to a well
established principle of international law, the Beamten¬abkommen, being an
international agreement, cannot, as such, create direct rights and
obligations for private individuals. But it cannot be disputed that the very
object of an inter¬national agreement, according to the intention of the
contract¬ing Parties, may be the adoption by the Parties of some [p18]
definite rules creating individual rights and obligations and enforceable by
the national courts. That there is such an intention in the present case can
be established by reference to the terms of the Beamtenabkommen. The fact
that the various provisions were put in the form of an Abkommen is
corroborative, but not conclusive evidence as to the char¬acter and legal
effects of the instrument. The intention of the Parties, which is to be
ascertained from the contents of the Agreement, taking into consideration
the manner in which the Agreement has been applied, is decisive. This
principle of interpretation should be applied by the Court in the present
case.
[38] The wording and general tenor of the Beamtenabkommen show that its
provisions are directly applicable as between the officials and the
Administration. This is particularly the case in regard to Articles 6, litt.
(a) and (b), 7, 11 and 12, which are of such a nature as to lead possibly to
pecuniary claims. According to its contents, the object of the
Beamtenabkommen is to create a special legal regime governing the relations
between the Polish Railways Administration and the Danzig officials, workmen
and employees who have passed into the permanent service of the Polish
Administration. That this special regime, according to the intention of the
contract¬ing Parties, is to be governed by the very provisions of the
Beamtenabkommen, may be seen for instance from an analysis of Article 4 of
the Beamtenabkommen. This article (No. 2) stipulates that the Danzig
officials are subject to the disci¬plinary laws of Poland. Further on, No. 5
gives Poland the right to frame her disciplinary laws differently from the
corresponding provisions of the Beamtenabkommen (subject, however, to the
reservations concerning the composition of the disciplinary chambers and the
use of the German language). Now, if Poland's contention were justified,
such laws, once enacted, would be immediately applicable to the Danzig
officials. But No. 5 expressly stipulates that in such a case, "these
provisions" (i.e. the provisions of the Beamtenabkom¬men concerning
discipline) "shall be amended and brought into harmony with the Polish
disciplinary law" (so werden diese Bestimmungen in Anlehnung an das
polnische Disziplinargesetzt geändert werden). The necessity of resorting to
[p19] this additional procedure of amending the Beamtenabkommen shows (1)
that the Polish disciplinary law, in so far as it differs from the
provisions of the Beamtenabkommen, does not de plano regulate the legal
relations between the Polish Railways Administration and the Danzig
officials, and this, in spite of the fact that, according to the intention
of the Parties, Poland has the right to pass such laws; and (2) that in so
far as the matters regulated by its provisions are concerned, the
Beamtenabkommen constitutes a legal document governing the relations between
the Polish Railways Admi¬nistration and the Danzig officials; hence the
necessity, e.g. in the matter of discipline, of amending the provisions of
the Beamtenabkommen in order to make the provisions of the Polish law
binding on the Danzig officials.
[39] It is true that Article 9 of the Beamtenabkommen has been invoked by
Poland in order to show that the Abkommen itself makes Polish national
legislation applicable. The article reads:
"Sämtliche Angelegenheiten der im polnischen Dienst übergetretenen Beamten
und Arbeiter regelt die polnische Staatsbahnverwaltung [FN1]."
---------------------------------------------------------------------------------------------------------------------
[FN1] Translation by the Registry: "All matters affecting officials and
workmen transferred to the Polish service shall be dealt with by the Polish
State Railways Administration."
---------------------------------------------------------------------------------------------------------------------
[40] In Poland's opinion, this article is a proof that the intention of the
Parties was to leave it to Poland to make all the regulations concerning the
Danzig Railway officials including regulations based on the Beamtenabkommen,
for which regulations she would be responsible only to the Free City of
Danzig.
[41] In the opinion of the Court, the scope of application of Article 9 is
not so wide. The meaning of this article, read in the light of the general
tenor of the Beamtenabkommen, and especially of General Haking's Decision of
September 5th, 19,21, becomes apparent. This Decision (No. 12 a) lays down
that:
"Within these limits [i.e. the maintenance of the rights of the Danzig
officials, employees and workmen engaged in the railway service and the
safeguarding of the [p20] interests of the local population], the passing of
the bye-laws for this railway system is a matter entirely for the Polish
Railway Administration."
[42] It follows that Article 9 of the Beamtenabkommen should not be
construed in a manner which would make the applicability of the provisions
of the Beamtenabkommen depend on their incorporation into a Polish
Regulation.
[43] The argument drawn by Poland from Article 9 of the Beamtenabkommen
cannot therefore affect the conclusion reached by the Court, namely, that
the Beamtenabkommen constitutes part of the special regulations which govern
the relations between the Polish Railways Administration and the officials
concerned.
[44] This conclusion is corroborated by the following circumstance attending
the actual execution of the Beamtenabkommen.
[45] Neither Party has disputed the fact that the Beamtenabkommen has been
actually put into effect in accordance with the intention of the contracting
Parties. On December 1st, 1921, the date of the taking over of the Danzig
railways by Poland, a memorandum (Niederschrift) was signed by the Polish
Railways Administration and the Free City of Danzig, the relevant passages
of which read as follows:
"Niederschrift betreffend den Uebergang Danziger Bahnen an die Polnische
Eisenbahnverwaltung am 1. Dezember 1921.
...
Beide Parteien erkennen an, dass mit Wirksamkeit vom 1. Dezember 1921 die
Entscheidungen des Oberkommissars vom 15. August 1921 und vom 5. September
1921, ferner die Bestimmungen des Genfer Vertrages vom 23. September 1921
und schliesslich die nachstehend aufgezahlten Abkommen zur vollen Geltung
gelangen und zwar:
(a) ...
(b) Ausführungsbestimmungen zur Entscheidung des Ober¬kommissars vom 15.
August 1921 und 5. September 1921 betreffend Uebernahme der Danziger
Eisenbahnbeamten und Eisenbahnarbeiter in den dauernden Dienst der
polnischen Staatseisenbahnverwaltung, vereinbart zwischen der Polnischen und
der Danziger Regierung am 22. Oktober 1921 [FN1].” [p21]
---------------------------------------------------------------------------------------------------------------------
[FN1] Translation by the Registry: "Memorandum in regard to the transfer of
the Danzig railways to the Polish Railways Administration on December 1st,
1921.
…
Both Parties recognize that, as from December 1st, 1921, the High
Commissioner's Decisions of August 15th and September 5th, 1921, as also the
provisions of the Convention of Geneva of September 23rd. 1921, and,
finally, the agreements enumerated below, shall enter into full effect.
(a) …
(b) The provisions for the execution of the High Commissioner's Decisions of
August 15th and September 5th, 1921, in regard to the transfer of Danzig
railway officials and workmen to the permanent service of the Polish State
Railways Administration, agreed upon between the Polish and Danzig
Govern¬ments on October 22nd, 1921."
---------------------------------------------------------------------------------------------------------------------
[46] The Ausführungsbestimmungen (provisions of execution) men¬tioned in (b)
above are the provisions of the Beamtenabkommen.
[47] This document leaves little room for doubt that the Beamtenabkommen has
been recognized by the Parties as having come into full force and effect
from December 1st, 1921, the date of the taking over by Poland of the Danzig
railways.
[48] The Court therefore arrives at the conclusion that, in the intention of
the contracting Parties, the relations between the Polish Railways
Administration and the Danzig officials should be governed by the
Beamtenabkommen, the provisions of which constitute part of what the High
Commissioner calls the "contract of service", and that, consequently, the
Danzig officials have, in accordance with the first part of the Decision, a
right of action against the Polish Railways Administration for the recovery
of pecuniary claims based on the Beamten¬abkommen.
[49] The Court, having arrived at the above conclusion, deems it unnecessary
to consider at length the legal significance and effects of the declarations
referred to in the second part of the High Commissioner's Decision of April
8th, 1927. It is appropriate in this connection to state briefly the main
facts relating to these declarations.
[50] Article 1 of the Beamtenabkommen stipulates (1) that all the railway
officials concerned shall state with regard to their passing into the Polish
Railway service whether they desire to be maintained in the service; (2)
that the statement shall be in the form of a declaration (Erklärung), which
must correspond with the tenor of the article, and must have [p22] reference
to these regulations (Verordnung); (3) that the declaration must not contain
any supplementary additions or conditions; and (4) that all the declarations
shall, within eight weeks from the taking over of the Danzig railways by
Poland, be transmitted to the Directorate of the Polish State Railways of
Danzig through the intermediary of the Danzig delegate. (See the High
Commissioner's Decision of August 15th, 1921.) The wording of the
declaration is as follows:
"Erklärung*. — Ich erkläre mich bereit, vom 1. April 1922 angefangen, im
polnischen Eisenbahndienst im Gebiete der Freien Stadt Danzig unter den in
der am 22. Oktober 1921 zwischen der Danziger und der Polnischen Regierung
abgeschlossenen Vereinbarung festgesetzten Bedingungen zu verbleiben.
[Unterschrift.]
* Weitere Zusatze und Bedingungen machen diese Erklärung ungültig [FN1]."
---------------------------------------------------------------------------------------------------------------------
[FN1] English translation communicated by the Secretariat of the League of
Nations: "Declaration*. — I declare that 1 am prepared to remain, as from
April 1st, 1922, in the Polish Railway service in the territory of the Free
City of Danzig under the conditions laid down in the Agreement concluded
between the Danzig and the Polish Governments on October 22nd, 1921.
[Signature.]
* Further additions and conditions render this declaration null and void."
---------------------------------------------------------------------------------------------------------------------
[51] The declarations were transmitted within the time-limit and in the
manner prescribed in Article 1 of the Beamtenabkommen and were accepted by
the Directorate of the Polish State Railways at Danzig. These declarations
have been differently interpreted by the Parties.
[52] According to the Polish point of view, the object of the declaration
was to make dear the fact that the officials really intended to remain in
the Polish Railway service.
[53] According to the Danzig point of view, as the declaration specifically
refers to the conditions stipulated in the Beamten¬abkommen, it constitutes,
when duly signed by the Danzig official concerned and accepted by the Polish
Railways Administration, an accord de volontes, having the legal effect of
rendering the provisions of the Beamtenabkommen applicable to the relations
between the Polish Railways Adminis¬tration and the Danzig officials. [p23]
[54] In the opinion of the Court, the requests made by Danzig which led to
the High Commissioner's Decision, of April 8th, 1927, were intended to
establish a right of action on the part of the Danzig officials against the
Polish Railways Administration based on the Beamtenabkommen or on the
declaration made thereunder; they were not intended to obtain a decision by
the High Commissioner as to the scope of the right of the officials under
the Beamtenabkommen or the declaration. For this reason, the Court, having
recognized a right of action on the part of the Danzig officials, deems that
a determination of the nature and legal effects of the declaration is of no
practical value for the purpose for which the Court is asked to give an
advisory opinion.
[55] The answer to the question whether the Polish Railways Administration
is bound to accept the jurisdiction of the Danzig Courts to adjudicate upon
pecuniary claims based on the Beamtenabkommen, and to execute the judgments
given by those courts on such claims, can be deduced from what has been said
above; for the Court has reached the following conclusions:
(1) The jurisdiction of the Danzig Courts to entertain actions brought by
the officials concerned in respect of pecuniary claims based upon one of the
stipulations of the "contract of service" has been recognized by the first
part of the High Commissioner's Decision of April 8th, 1927.
(2) The Court is of opinion that the Beamtenabkommen constitutes part of the
provisions of the "contract of service", that is, "the series, of provisions
which constitute the legal relationship between the Railways Administration
and its employees".
[56] From the foregoing considerations, it follows that judgments given by
the Danzig Courts on pecuniary claims based on the Beamtenabkommen should,
in conformity with the first part of the Decision of April 8th, 1927, be
recognized and executed by the Polish Railways Administration. [p24]
[57] This conclusion does not preclude the right of Poland, under Article 39
of the Convention of Paris, to have recourse, should the occasion arise, to
the international procedure provided for in the said article. Such an
occasion would arise, for instance, if a decision of the Danzig Courts
should go beyond the limits of their jurisdiction as laid down in the
decisions of the High Commissioner or the provisions of the Beamtenabkommen,
or if it should in any other manner be in conflict with the general
principles of international law or the rules governing the relations between
Poland and Danzig, such as the Treaty of Versailles, the Convention of
Paris, other conventions or agreements concluded between the Parties, or
decisions of the High Commissioner or of the Council of the League of
Nations. If a judgment of the Courts of Danzig were in conflict with any of
these rules, it would be possible for Poland to request the High
Com¬missioner under Article 39 of the Convention, of Paris to give a
decision in the matter.
III.
[58] The Court has so far examined the question underlying the dispute
before the Council, with reference to the second part of the High
Commissioner's Decision, i.e. the point whether the provisions of the
Beamtenabkommen form part of the "contract of service".
[59] The Court now proceeds to examine the same question with reference to
the original application of Danzig of January 12th, 1927, i.e. in regard to
the extent of Poland's obligation to recognize the jurisdiction of Danzig
tribunals for pecuniary claims against the Polish Railway Administration.
Paragraph с of Danzig's requests, contained in the above-mentioned
appli¬cation, which draws a logical conclusion from paragraphs a and b, puts
the question essentially as one relating to the extent of Poland's
obligation to recognize the jurisdiction of the Danzig Courts in a specified
category of cases. The question as to what substantive law can be lawfully
applied by the Danzig tribunals can only arise after the jurisdiction [p25]
has been established. The Court will therefore investigate the nature and
extent of the jurisdiction of the Danzig Courts as regards the Polish
Railways Administration.
[60] The High Commissioner, General Haking, in his Decision of September
5th, 1921, lays down that:
"Everything connected with the Polish Railways Administration within the
territory of the Free City is sub¬ject to the civil and criminal Courts of
Danzig. The Polish Railways Administration has no sovereign rights within
the territory of the Free City and therefore can establish no courts of law
within its territory."
[61] This Decision, which is couched in quite comprehensive terms,
constitutes, in the opinion of the Court, the legal basis of the
jurisdiction of the Danzig Courts to entertain actions brought by Danzig
railway officials against the Polish Railways Administration. Judgments
which are given within the limits of jurisdiction thus determined and which
are not in conflict with other rules of law internationally binding upon
Danzig in her relations with Poland are lawful, and must be recognized by
the latter. The recognition and execution of judgments given by Danzig
Courts is the corollary of the recognition of their jurisdiction by Poland
in accordance with General Haking's Decision.
[62] Since the object of the concluding paragraph с of Danzig's request,
dated January 12th, 1927, was to obtain the recognition, by Poland, of the
judgments given by the Danzig tribunals on claims based on the
Beamtenabkommen or on the1 declaration provided for in Article 1 of the
Beamtenabkommen, the question to be decided by the High Commissioner was
really this: do the judgments on pecuniary claims of railway officials,
based on the Beamtenabkommen or on the declaration, fall within the
jurisdiction contemplated in the Decision of September 5th, 1921, or are
they in conflict with any rule of law internationally binding upon Danzig?
[p26]
[63] As has been, stated in the first part of the High Commissioner's
Decision of April 8th, 1927, pecuniary claims of railway officials relating
to their "contract of service" fall within the jurisdiction established by
the Decision of September 5th, 1921. Jurisdiction implies the right to
decide what substantive law is applicable in a given case to which the
jurisdiction extends. It is therefore for the Danzig tribunals to examine
what law is applicable to a claim brought forward by a railway official
against the Polish Railways Administration. If they hold that they have to
apply the provisions of the Beamtenabkommen, the question whether such
application is lawful, is determined by the rules which are internationally
binding as between Danzig and Poland.
[64] Since the Beamtenabkommen, according to its contents, deals precisely
with the regime which Poland is bound under international law to grant to
its railway officials taken over from Danzig, and since the Beamtenabkommen
is an agreement to execute, amongst others, the Decision of September 5th,
1921, which established the jurisdiction of the Danzig tribunals, the
applicability of the Beamtenabkommen by those tribunals must be considered
as being in conformity with international law, unless the contrary is
proved. Such proof could have been given in the international proceedings by
showing that the Beamtenabkommen, as an agreement between Danzig and Poland,
was, in the intention of the Parties, not intended to constitute a part of
the "contract of service" or otherwise to be applied directly by the Danzig
tribunals. The Court, for the reasons given above, has rejected such a
construction of the Beamtenabkommen.
[65] No other arguments have been adduced by Poland which, in the opinion of
the Court, could preclude the Danzig tribunals from applying the
Beamtenabkommen as substantive law to the pecuniary claims of the Railways
officials. If, as seems to appear from some of the documents before the
Court and especially from a legal opinion submitted on behalf of the Polish
Govern¬ment, Poland would contend that the Danzig Courts could not apply the
provisions of the Beamtenabkommen because they were not duly inserted in the
Polish national law, the Court would have to observe that, at any rate,
Poland could not [p27/4] avail herself of an objection which, according to
the cons¬truction placed upon the Beamtendbkommen by the Court, would amount
to relying upon the non-fulfilment of an obliga¬tion imposed upon her by an
international engagement.
[66] From the foregoing considerations, it follows that the Decision of the
High Commissioner of April 8th, 1927, is not well founded in law in so far
as it does not give satisfaction to the requests which Danzig has made. The
conclusion reached upon an examination of the nature and extent of the
jurisdiction established by the Decision of September 5th, 1921, fully
confirms that which is based exclusively upon an examination of the nature
and legal effect of the Beamtenabkommen in connection with the first part of
the High Commis¬sioner's Decision of April 8th, 1927.
[67] For these reasons,
The Court,
unanimously,
is of opinion that the High Commissioner's Decision of April 8th, 1927,
given as a result of the requests made by the Danzig Government on January
12th, 1927 — in so far as his Decision does not comply with those requests —
is not legally well founded.
[68] Done in English and French, the English text being authoritative, at
the Peace Palace, The Hague, this third day of March, one thousand nine
hundred and twenty-eight, in two copies, one of which is to be placed in the
archives of the Court and the other to be forwarded to the Council of the
League of Nations.
(Signed) D. Anzilotti,
President.
(Signed) Paul Ruegger,
Deputy-Registrar.
[p28] Annex I.
Decision of the High Commissioner Regarding the Jurisdiction of Danzig
Courts in Actions Brought by Railway Officials against the Railway
Administration (on April 8th, 1927).
[Translation.]
On January nth, 1926, the Polish Representative forwarded to the High
Commissioner a note in which it was stated that the Polish Government would
not, in future, take cognizance of actions brought by railway officials
which were based on the provisions of the Agreement of October 22nd, 1921.
It would not enforce any judgment given in such actions by the Danzig
Courts.
In a note dated May 27th, 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 extent of the
competence and jurisdiction of the Danzig Courts. The Senate wrote to me on
January 12th, 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 officials, Beamtenabkommen). Or on
the declaration made under Article 1 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 8th, 1927, based on his note of January nth,
1926, and on a memorandum which he had [p29] submitted to me during the
negotiations of June 30th, 1926, 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 decision is as follows:
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 officials and employees in the service of a State
administration to sue in the civil courts for pecuniary claims on the
strength of their contracts is not a right recognized eo ipso. The law of
several countries does not recognize such jurisdiction and lays down that
claims of officials against the State do not come within the scope of civil
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 bring actions in the civil courts has been specially
recognized.
It has been recognized in the Agreement of October 22nd, 1921, in Article 6
of which it is laid down that officials 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 rights.
In Prussian law the same rule is admitted under a "Law concerning the
extension of access to the civil courts", dated May 24th, 1861.
Poland is therefore obliged to recognize, in these actions, the jurisdiction
of the civil courts.
In this instance the civil courts are the Danzig Courts. Thisis a
consequence of a Decision given by the High Commis¬sioner, General Haking,
on September 5th, 1921 [FN1] (No. 12 c), which is binding on both Parties
and lays down that:' [p30]
---------------------------------------------------------------------------------------------------------------------
[FN1] See C. 328. M. 236. 1921. I. and Official Journal, November 1921, pp.
974-978. [Note by the Secretary-General."]
---------------------------------------------------------------------------------------------------------------------
"Everything connected with the Polish Railways Administration within the
territory of the Free City is subject to the civil and criminal Courts of
Danzig. The Polish Railway Administration has no sovereign rights within the
territory of the Free City and therefore can establish no courts of law
within its territory."
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 Haking did not
contemplate and could not have contemplated the introduction of jurisdiction
in cases in which otherwise there would have been none. He merely recognized
the sole jurisdiction of the courts of the Free City in matters in which
civil jurisdiction generally applies.
Pecuniary claims by railway employees at Danzig, based on their contracts,
are subject to this rule; the jurisdiction of the Danzig Civil Courts is
proved in principle and should be recognized by the Polish State.
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 Civil Courts (unless there be some special
jurisdiction recognized 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.
2. - The Senate also requests me to decide whether the position is the same
in cases in which the claims for payment are based on the Agreement of
October 22nd, 1921 (Beamten-abkommen), 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 declarations.
In order to bring a personal and direct civil action against the
Administration, 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 what laws, service regulations, etc., contain the
provisions of this "contract", that is to say the [p31] 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 all these
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.
The Agreement of October 22nd, 1921, does not form part of the contract
which establishes legal relations between the Administration and its
employees. It is an international treaty concluded between two Governments,
between two States, an international act which establishes reciprocal legal
relations between governments. That is its only force.
It is a rule of law generally recognized in doctrine and in practice that
international treaties do not confer direct rights on individuals, but
merely on the governments concerned. Very often a government is obliged,
under a treaty, to accord certain benefits or rights to individuals, but in
this case the individuals do not themselves automatically acquire these
rights. The government has to introduce certain provisions into its internal
legislation in order to carry out the obligations, into which it has entered
with another government. Should it be necessary to insist on the carrying
out or application of this obligation, the only Party to the case who can
legally take action is the other government. That government moreover would
not institute proceedings in civil courts but would take diplomatic action
or apply to the competent organs of international justice.
The case in question is not comparable to that of an undertaking on behalf
of a third Party (Versprechen der Leistung an einen Dritten) which figures
in certain civil codes, precisely because international treaties are not
civil contracts under which governments assume obligations at private law on
behalf of the persons concerned. To give an example: "the most-favoured
nation" clause in a treaty of commerce does not entitle an individual to
refuse to pay customs duties on the ground that in his opinion they are too
high to be compatible with the clause; he can only base his action on the
internal customs legislation which should be drafted in conformity with the
clauses of the treaty of commerce. [p32]
In this respect the Beamtenabkommen of October 22nd, 1921, is similar to all
other international treaties. In the Preamble it formulates the rules under
which the Polish Government agrees to take into its service the employees of
the Danzig railways. The obligation undertaken by the Polish Govern¬ment is
towards the Danzig Government: a Danzig employee cannot therefore take
action in the civil courts to secure the application of the Treaty. There is
nothing to show that in this particular international agreement the Parties
intended to institute an exception to the general rule as regards treaties,
bу conferring direct and personal rights on the individuals in question. In
no case does the terminology of the Agreement differ from that of an
ordinary agreement between govern¬ments; this fact is clearly brought out in
the Preamble itself. Its clauses could hardly serve as a direct ground for
personal civil action. A civil court would be more than a little embarrassed
if it had to decide claims based not merely on considerations of private
law, but also on points of general administrative organization. This
observation applies, not only to clauses such as those contained in Articles
3, 5 and 12 and to actions for damages and interest which may be based on
the same, but also to matters arising out of Articles 7 and 8, in which also
considerations connected with administrative and general organization must
necessarily play a considerable part.
The personal legal guarantees afforded to railway servants under the
Agreement are not less important than those which existed under the Danzig
Administration. Then, as now, railway servants were free to take civil
proceedings in all matters connected with an infringement of their contract.
If necessary, the Senate of the Free City can apply to the Polish Government
when, in the Senate's opinion, some clause of the Agreement has been
incorrectly applied to railway servants. It would then be possible to resort
to international procedure and it is certain that the railway servants would
be afforded that protection to which they are entitled under the
international provisions concluded on their behalf.
It is impossible, therefore, to conceive of an action brought by a railway
servant against the Administration in the civil courts to obtain payment, if
the action be based solely on a clause of the Agreement of October 22nd,
1921. In any case, the courts would be obliged to decide that such an action
could not be maintained at law.
3. - I now have to consider whether the clauses of the Treaty itself might
not provide grounds on which a personal action could be brought in the civil
courts : this may be the [p33] effect of the declarations made under Article
1 of the Agreement. The Senate asks me to lay down that the Danzig Courts
may try actions based on these declarations.
The declarations in question are the personal statements which Danzig
railway employees were bound to make if they wished to enter into Polish
service.
The article of the Agreement is worded as follows [FN1]:
"Artikel 1. - Wegen Uebernahme in den polnischen Eisenbahndienst im Gebiete
der Freien Stadt Danzig sollen sich samtliche Eisenbahnbeamten äussern, ob
sie the Beibehaltung im polnischen Dienst wünschen.
Diese Aeusserungen werden in der Form einer entspre-chenden auf diese
Verordnung bezughabenden Erklärung zu erfolgen haben. Diese Erklärungen,
welche keine weiteren Zusätze und Bedingungen enthalten dürfen, sind der
polnischen Staatsbahndirektion in Danzig durch den durch Entscheidung des
Hohen Kommissars vom 15. August 1921 bestellten Danziger Delegierten binnen
8 Wochen nach erfdlgter Uebernahme der Danziger Eisenbahnen durch Polen
vorzulegen.
Die Uebernahme erfolgt nach dem erforderlichen Kopfetat."
---------------------------------------------------------------------------------------------------------------------
[FN1] Translation made by the Secretariat: "Article 1. - All railway
officials shall, for the purpose of transfer to the Polish Railway service
in the territory of the Free City of Danzig, state whether they desire to
remain in the Polish service.
"The statement shall be made in the form of a declaration referring to this
provision. These declarations, which may not contain any additions and
further conditions, shall be submitted, within eight weeks after the taking
over of the Danzig railways by Poland, to the Polish State Railway
Management in Danzig by the Danzig delegate appointed under the High
Commissioner's Decision of August 15th, 1921.
"Transfer shall be made according to the numbers required and provided for
in the budget." [Note by the Secretary-General.]
---------------------------------------------------------------------------------------------------------------------
In conformity with this article, declarations have been signed and forwarded
to the Polish Administration.
In virtue of these declarations, signed by the employees and accepted by the
Polish Administration, the latter must be deemed to have accepted the
clauses of the Agreement as clauses of a bilateral contract between the
State and the employees.
The declaration is worded as follows [FN2]: [p34]
"Erklärung *. - Ich erkläre mich bereit, vom 1. April 1922 angefangen, im
polnischen Eisenbahndienst im Gebiete der Freien Stadt Danzig unter den in
der am 22. Oktober 1921 zwischen der Danziger und der Polnischen Regierung
abge- schlossenen Vereinbarung festgesetzten Bedingungen zu verbleiben.
[Unterschrift.]
* Weitere Zusätze und Bedingungen machen diese Erklärung ungültig."
---------------------------------------------------------------------------------------------------------------------
[FN2] Translation made by the Secretariat: "Declaration*. - I declare that I
am prepared to remain, as from April 1st, 1922, in the Polish Railway
service, in the territory of the Free City of Danzig under the conditions
laid down in the Agreement concluded between the Danzig and the Polish
Governments on October 22nd, 1921.
(Signature.)
* Further additions and conditions render this declaration null and void."
[Note by the Secretary-General.]
---------------------------------------------------------------------------------------------------------------------
Is the legal effect of these declarations really to transform the articles
of an international treaty into clauses in a personal contract ?
Personally I do not think so. It is not the signature and acceptance of
these declarations which constitute the conclusion of a contract for service
between the Danzig employee and the Polish Administration. The contract was
concluded by the "taking over" (Uebernahme) to which the Polish Government
had bound itself under the terms of Article 2 of the Agreement, namely
[FN1]:
" Artikel 2. - Sämtliche Arbeiter - darunter fallen auch die im
Arbeiterverhältnis stehenden Aushilfsbediensteten - werden nach dem
Personalstande тот Tage des-Abschlusses der Danzig-polnischen Konvention, d.
i. vom 9. November 1920, vollzählig ohne besondere Anmeldung in den
polnischen Eisenbahndienst übernommen werden.
Wenn der gegenwärtige Stand der Arbeiter und der im Arbeiterverhältnis
stehenden Aushilfsbediensteten den Stand vom 9. November 1920 überschreiten
sollte, werden von der Uebernahme in den polnischen Eisenbahndienst die
überzähligen Arbeiter - von den zuletzt in den Eisenbahndienst eingetretenen
angefangen - so lange ausgeschlossen, bis der am 9. November 1920 bestandene
Arbeiterstand erreicht is. Arbeiter, die bei einer Dienststelle überzählig
werden sollten, werden zur Auffüllung [p35] von Lücken an andere Stelle
verwandt oder vorgemerckt. Die Hilfsbediensteten, die ständig Beamtendienste
verrichten, zählen bei der Uebernahme nicht zum Arbeiterkopfetat."
---------------------------------------------------------------------------------------------------------------------
[FN1] Translation made by the Secretariat : "Article 2.-All workmen,
including auxiliary personnel regarded as workmen, shall pass integrally
into the Polish railway service without special notification, on the basis
of their number on the date of the conclusion of the Danzig-Polish Treaty,
i.e. November 9th, 1920.
"Should the present number of workmen and of auxiliary personnel regarded as
workmen exceed the number employed on November 9th, 1920, the workmen in
excess of the latter number, beginning with those who last entered the
railway service, shall be successively excluded from such transfer until the
number as on November 9th, 1920, is reached. Workmen in excess of the
strength of any office shall be employed or held in readiness to fill
vacancies in another office. Auxiliary personnel permanently. doing the
duties of officials shall not be included in the budgetary number of workmen
for purposes of transfer." [Note by the Secretary-General.]
---------------------------------------------------------------------------------------------------------------------
The declaration itself is merely an antecedent condition to be fulfilled by
the employee before the "taking over" (Uebernahme) of that employee. The
"taking over" itself was effected according to Article 2 without special
notification, directly the employees were allowed to continue to carry out
their duties. It was a wholesale transaction by which the Polish
Administration became the employer of the Danzig staff. As for the direct
and personal obligations assumed by this employer towards the employees, we
have only the legal provisions to which I referred above and which
constitute the "contract of service".
The character of the antecedent declarations is obvious. It was simply a
question of formally establishing the fact that before he was "taken over"
each separate employee really desired to enter into the Polish service.
These employees therefore were required to state whether they were prepared
to make the change and whether they agreed to do so under the system defined
in the Danzig-Polish Agreement. The Polish Administration, by accepting and
taking cognizance of these declarations, did not thereby enter into a
contract with each employee - a contract which would have converted the
terms of the treaty into clauses of a civil contract. It merely verified the
desire of the persons concerned; the declaration is a sort of declaration of
option. It was a question of recognizing a system established under an
agreement at public international law, and not of documents intended to
constitute a "contract of service".
One. of the clauses of the Agreement - Article 9 - lays down that: "All
matters connected with the officials and employees who have passed into
Polish service shall be settled by the Polish Administration." (Sämtliche
Angelegenheiten der im pol-nischen Dienst übergetretenen Beamten und
Arbeiter regelt die -polnische Staatsbahnverwaltung.)
This is even clearer proof of the fact that, according to the very
conditions under which the Danzig railways were transferred to the Polish
Administration, it is under the internal laws and regulations of the latter
(which laws and regulations should, of course, be in conformity with the
provisions of the Agreement, as we have pointed out under (2) that the
employees acquired their personal rights. With regard to the application by
Poland of the provisions of the Agreement concluded with Danzig, the
Government of the Free City alone is entitled to proceed against Poland in
connection with the observance of clauses favourable to Danzig employees.
[p36]
We must therefore conclude that no personal action to obtain payment under
the terms of the contract of service, could be brought on the ground of the
above-mentioned declara¬tions; if such an action were opened in any civil
court, the court would be bound to set it aside as not based on law.
4. - To sum up, my decision is as follows:
Pecuniary claims of any kind, based on one of the provisions which
constitute the contract of service for Danzig employees of the Polish
railways who have passed into the service of the Polish Administration under
the Danzig-Polish Agreement of Octob.er 22nd, 1921, and in particular claims
in connection with salaries, pensions, half-pay, and other grants under the
contract, may form the subject of an action in the Danzig Courts (except for
the reservation mentioned on pages 5-6 [FN1]); the clauses of the Agreement
itself, and the declarations referred to in Article 1 of the Agreement, are
not to be regarded as provisions which constitute the contract of service of
the above-mentioned employees, and therefore they cannot give ground for a
personal action to be brought in the courts; under these circumstances, I do
not think that the question set out in (c) arises.
---------------------------------------------------------------------------------------------------------------------
[FN1] See page 30.
---------------------------------------------------------------------------------------------------------------------
Done at Danzig, April 8th, 1927.
(Signed) Van Hamel,
High Commissioner.
[p44] Annex 3.
I.—Documents transmitted by the secretariat of the league of nations:
(1) (a) Document C. 375. 1927. I. Note from the Secretary-General
transmitting to the Council:
(1) Decision by the High Commissioner, dated April 8th, 1927 (in English and
French).
(2) Appeal by the Danzig Senate, dated May 12th, 1927 (in English and
French).
(3) Reply by the Polish Government to the Danzig. Senate appeal, forwarded
by the High Commissioner on July 19th, 1927 (in English and French).
(4) Observations of the Danzig Senate regarding the Polish Reply, forwarded
by the High Commissioner on July 27th, 1927 (in English and French).
(5) Text of the Danzig-Polish Agreement concerning officials, of
October 22nd, 1921 (in German, with English and French translations).
(b) Documents held by the Secretary-General at the disposal of the Members
of the Council:
(1) Advisory opinion by Professor Schücking (in German, with French
translation)
(2) Advisory opinion by Professor Kaufmann (in German, with French
translation).
(3) Copy of the decision of the Danzig Supreme Court (Obergericht) dated
June 29th, 1927, concerning the case of the railway employee Flander v. the
Polish Railways (in German, with French translation).
(4) Provisional Danzig-Polish Agreement concerning officials, dated July
20th, 1921 (in German).
(5) Prussian Law of May 24th, 1861; Gesetz betreffend die Erweiterung des
Rechtsweges (in German).
(2) (a) Document C. 415. 1927. I. Note by the Secretary-General
communicating to the Council Part V of the Note dated August 17th, 1927,
which contains the Polish observations on the Danzig Note of, July 27th,
1927, and on the legal opinions of Professor Schücking and Professor
Kaufmann, and on the sentence of the Danzig Supreme Court of June 29th, 1927
(in French and English).
(b) Documents mentioned in the Secretary-General's note as held by the
Secretariat at the disposal of the Members of the Council:
Complete text of the Polish Note of August 17th, 1927 (in French), with the
following annexes:
(1) Decision of the Danzig Court pronounced on May 1st, 1926, concerning the
case Flander (in German, with French translation).
(2) Danzig-Polish Agreement of October 24th, 1921 (in German, with French
translation).
(3) Danzig Law dated May 30th, 1922, concerning the acquisition
1 and loss of Danzig nationality (in German, with French translation). [p45]
3. — Document C. 429. 1927. I. Note by the Secretary-General informing the
Council that the following document had been received and was held by the
Secretariat at the disposal of the Members of the Council:
Opinion of Professor Cavaglieri, of the University of Naples, submitted by
the Polish Government.
Copy of this opinion (in Italian, with French translation).
4. — Document C. 478. 1927. I. Note by the Secretary-General informing the
Council that the following documents had been received and were held by the
Secretariat at the disposal of the Members of the Council:
(1) Opinion by Professor Louis Le Fur, submitted by the Polish Government.
(2) Danzig Note dated September 10th, 1927, containing the obser¬vations of
the Danzig Senate on the Polish Note of August 17th, 1927, and on the
opinion of Professor Cavaglieri.
Copies of the above-mentioned documents:
(1) Opinion of Professor le Fur (in French).
(2) Danzig Note of September 10th, 1927 (in German, with French
translation).
5. — Document C. 483. 1927. I. Note by the Secretary-General informing the
Council that the following document had been received and was held by the
Secretariat at the disposal of the Members of the Council:
Polish Note dated September 13th, 1927, containing the observa¬tions of the
Polish Government on the Danzig Note of September 10th. 1927.
Copy of this Note (in French).
6. — Document C. 409 (1) and C. 409 (1) (a). 1927. I. Report presented to
the Council by M. Villegas, representative of Chile, on September 22nd, 1927
(in English and French).
7. — Minutes of the fifth meeting of the 47th Session of the Council,
containing the Resolution adopted by the Council on September 22nd, 1927 (in
French and English).
II.—Documents sent by the high commissioner of the league of nations at
Danzig on the request of the court, forwarded by the Secretary-General of
the League of Nations:
(1) Copy of the Klage des Eisenbahnsekretärs Ferdinand Flander,
Neuschoffland, Schellmühlerweg 2, Klägers, gegen die polnische Republik
(Eisenbahnfiskus), Beklagte, wegen Feststellung und Zahlung, Werl des
Streitgegenstandes G. 200.
(2) Copy of a letter from M. B. Langowski to the Landgericht, Danzig (March
30th, 1926).
(3) Copy of a note from the Obergericht, Danzig, in the case of the Polish
Republic v. Flander (April 6th, 1926).
(4) Copy of a note from M. B. Langowski, Danzig (April 17th, 1926).
(5) Copy of a letter from M. B. Langowski to the Danzig Supreme Court (April
26th, 1927).
(6) Copy of the Zwischen-Urteil (May 1st, 1926) in the case of the Polish
Republic v. Flander. [p46]
(7) Copy of a note from M. Max Hellwig and M. Heinz Bauer to the Danzig
Obergericht (May 18th, 1927).
(8) Copy of a note from M. B. Langowski to the Danzig Oberge¬richt (June
7th, 1926).
(9) Copy of a note from M. Max Hellwig and M. Heinz Bauer to the Danzig
Obergericht (June 9th, 1927).
(10) Copy of a note from M. Max Hellwig and M. Heinz Bauer to the Danzig
Obergericht (June 10th, 1927).
(11) Copy of a note from M. B. Langowski to the Danzig Oberge¬richt (August
11th, 1926).
(12) Copy of a letter from the Commissioner-General of the Polish Republic
to M. Van Hamel, High Commissioner of the League of Nations at Danzig
(January 3rd, 1927).
(13) Copy of a note from M. B. Langowski to the Danzig Oberge¬richt (January
20th, 1927).
(14) Copy of a note from M. Max Hellwig and M. Heinz Bauer to the Danzig
Obergericht (January 24th, 1927).
(15) Urteil des III. Zivilsenats des Obergerichts der Freien Stadt Danzig
vom 22. Juni 1927 — 2. III U. 270/26 — in Sachen der Republik Polen gegen
den Eisenbahnsekretär Flander.
(16) Note of January 11th, 1926, sent by the Commissioner-General for the
Republic of Poland at Danzig to the High Commissioner of the League of
Nations.
(17) Auszug aus der Verhandlung des Rates des Völkerbundes, March 3rd, 1921.
(18) Danziger Juristischer Monatschrift, 4. Jahrgang, Nummer 12, Danzig,
Dezember 1925.
(19) Note from the Senate of the Free City of Danzig dated May 27th, 1926
(in German).
(20) Note from the Senate of the Free City of Danzig dated Jan¬uary 12th,
1927 (in German).
(21) Note of the Commissioner-General of the Polish Republic to the High
Commissioner of the League of Nations at Danzig (Feb¬ruary 8th, 1927) (in
French).
(22) Note of the Commissioner-General of the Polish Republic to the High
Commissioner of the League of Nations at Danzig (Feb¬ruary 28th, 1927) and
Annex (in German).
(23) Note of the Commissioner-General of the Polish Republic to the High
Commissioner of the League of Nations at Danzig (March 23rd, 1927) (in
French).
III.—Documents filed on behalf of the governments directly interested:
(a) Documents filed by the Agent for the Polish Government:
(1) Certified true copy of the judgment given in the case of Holz v.
Polish Republic (in German).
(2) Letter of July 6th, 1926, sent by the High Commissioner of the League
of Nations to the Commissioner-General of the Polish Republic
at Danzig and extracts in German of the legal expose of the
Danzig Senate in the Menge case.
(3) Ordinance concerning the deposit of the declarations provided
for under Article 1 of the Agreement of October 22nd, 1921,
dated December 22nd, 1921. [p47]
(4) Decision of the Polish Railway Administration at Danzig (con¬cerning
officials' uniforms) (May 4th, 1923).
(5) Circular of the Polish Railway Administration at Danzig (con¬cerning the
swearing in of officials) (April 23rd, 1925).
(b) Documents filed by the Agent for the Danzig Government:
(1) Certified true copy of the judgment given in the case of Holz v. Polish
Republic (in German).
(2) Certified true copy of a Note dated January 18th, 1928, and sent by the
Senate of the Free City of Danzig to the diplomatic representative of the
Polish Republic.
(3) Certified true copy, in Polish with a German translation, of a Note from
the Commissioner-General of the Polish Republic at Danzig, dated January
9th, 1928.
IV.—Collection of documents prepared by the registry:
(1) Decisions by the High Commissioner of the League of Nations at Danzig
(August 15th, 1921, and September 5th, 1921) (in English, with a German
translation).
(2) Extract from the Constitution of the Polish Republic (March 17th, 1921,
and August 2nd, 1926) (in French).
(3) Extract from the Constitution of the Free City of Danzig (League of
Nations — Official Journal — Special Supplement No. 7—July, 1922) (in
French).
(4) Extracts from Prawo Narodow, by Ludwik Ehrlich (English translation).
(5) Extract from Danziger Staats- und Völkerrecht, by Hermann Lewinsky and
Richard Wagner (page 127) (in German).
(6) Polish Law of August 3rd, 1922, constituting the Supreme Administrative
Tribunal (Dz. Ust. poz. 600).
(7) Polish Law of October 9th, 1923, concerning salaries of State officials
and military persons (Dz. Ust. poz. 924).
(8) Polish Ordinance by the Minister of Communications of April 12th, 1924,
in pursuance of Article 5 of the Law of October 9th, 1923.
(9) Decision No. 485 of the Supreme Administrative Tribunal of November
14th, 1924 (L. R. 135-24).
(10) Ordinance of the President of the Polish Republic of Septem¬ber 24th,
1926 (Dz. Ust. poz. 568).
(11) Extract from a Decision of the Supreme Administrative Tribunal of
December 5th, 1927 (L. R. 932-25).
(12) Extract from the Gesetz-Sammlung für die Königlichen Preussischen
Staaten (p. 19) Nr. 777. Verordnung wegen streitig gewordener Auslegung von
Staatsverträgen (25. Januar 1823) (in German).
(13) Protocol signed on December 1st, 1921, by the Polish Railway
Administration and the Free City of Danzig (in German).
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