REPRESENTATION (article 24) - FEDERAL REPUBLIC OF GERMANY - C111 - 1979

1. World Federation of Trade Unions (WFTU)

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Report of the Committee set up to examine the representation alleging non-observance by the Federal Republic of Germany of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), made under article 24 of the ILO Constitution by the World Federation of Trade Unions (CGT)

Report of the Committee set up to examine the representation alleging non-observance by the Federal Republic of Germany of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), made under article 24 of the ILO Constitution by the World Federation of Trade Unions (CGT)

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

INTRODUCTION
1. By a letter of 24 January 1978 (Endnote_1) the World Federation of Trade Unions (WFTU) presented a representation under article 24 of the Constitution of the International Labour Organisation alleging non-observance of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), by the Government of the Federal Republic of Germany.
2. The Discrimination (Employment and Occupation) Convention, 1958 (No. 111), was ratified by the Federal Republic of Germany on 15 June 1961. It came into force for the Federal Republic of Germany one year later, on 15 June 1962, under the normal procedure.
3. The relevant provisions of the Constitution of the International Labour Organisation concerning the presentation of representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure for the examination of representations is governed by the Standing Orders adopted by the Governing Body on 8 April 1932 and amended on 5 February 1938. (Endnote_2)
5. In accordance with article 2, paragraphs 1 and 2, of the Standing Orders, the Director-General communicated the representation to the Governing Body together with all the elements of information in his possession as regards the receivability of the representation.
6. The Governing Body, at its 205th Session (February-March 1978), decided to appoint the Committee provided for under article 2, paragraph 3, of the Standing Orders in accordance with the recommendations contained in a report by its Officers which was submitted to it at the same session. (Endnote_2) The Committee was composed of Mr. Hector Griffin (Government member), Chairman, Mr. G. Polites (Employer member) and Mr. H. Maier (Worker member).
7. As in the case of previous representations examined in 1965, 1970, 1975 and 1978, the Governing Body decided to empower the Committee to perform all the functions entrusted by the 1932 Standing Orders to the Governing Body as a whole until it was in a position to submit to the Governing Body proposals as to the action, if any, to be taken on the representation.
8. The Committee met in Geneva after its appointment. It first examined the receivability of the representation as regards form and considered that it met the conditions laid down in article 3 of the Standing Orders of 1932. It next decided, pursuant to article 4, paragraph 2, clauses (c) and (d) of the Standing Orders: (a) to invite the WFTU to communicate before 7 April 1978 any additional information which it wished to bring to the notice of the Committee; (b) to invite the Government to present its observations on the representation before 15 May 1978, on the understanding that any additional information received from the WFTU would also be communicated to the Government.
9. By letter of 14 March 1978, the WFTU requested that the memorandum on the application of the Convention enclosed with its letter of 25 January 1978 for the attention of the Committee of Experts on the Application of Conventions and Recommendations should be placed at the disposal of the Committee, together with its annexes, as additional information on the points on which the representation was based.
10. At a second meeting held on 29 May 1978 the Committee took note of a communication from the Government, dated 24 May, informing the Director-General that a reply to the Committee's request would be sent during June 1978.
11. At a further meeting, held on 8 November 1978, the Committee noted the observations sent to the International Labour Office by the Government of the Federal Republic of Germany by a letter of 5 June 1978. It noted from this information that the Government reserved the right to produce at a later date figures correcting those supplied by WFTU, and that the Government considered that the judgements on legal procedures expressed in the essential parts of the complaint were either incorrect or tendentious or based on false premises. Accordingly, the Committee decided to give the Government the opportunity to supply before 15 January 1979 additional information on these points and, more generally, on any actual or expected developments.
12. The Committee held a further meeting on 19 February 1979, during which it noted the additional observations communicated by the Government in its letter of 30 January 1979. The Committee decided to postpone to a later meeting its examination of the representation with a view to adopting its conclusions and report.
13. Additional information was received from the WFTU by a letter of 22 March 1979. At the request of the Chairman of the Committee this information was communicated to the Government of the Federal Republic of Germany, which was invited to send any comments it might wish to make by the beginning of May 1979. In its reply dated 15 May 1979 the Government confirmed the observations which it had made in its letter of 30 January 1979, to which it referred.
14. The Committee met on two other occasions, on 30 May and 4 June 1979, before reaching its conclusions and adopting the present report at its seventh and final meeting, which was held on 15 June 1979.
EXAMINATION OF THE REPRESENTATION AND OF THE REPLY RECEIVED
15. According to the allegations presented in the representation, the practice known as the "work ban" is said to be widely applied in the public service, particularly since the adoption of the "Anti-radical Decree" by the prime ministers of the Länder and their "common declaration" with the Federal Chancellor (Appendix I). The political principles underlying these decisions, which allegedly aim at denying citizens access to employment or preventing them from carrying out their occupation in the public service, received the legal endorsement of the Federal Constitutional Court in its Order of 22 May 1975 (Appendix II). Together with the rules of procedure adopted in 1976 (Appendix III) and 1979 (Appendix IV), these texts constitute the basic provisions governing the alleged discriminatory practices. They set forth and define the principle that public servants shall be loyal to the Constitution in accordance with the law governing the public service.
16. Following the order of the Federal Constitutional Court other decisions taken by governments and administrative tribunals at federal and Länder level are all evidence, according to the WFTU, that an applicant for employment in the public service may be rejected, or a serving official dismissed, on the grounds of his political opinion. The representation notes that, although the Government is attempting to justify these practices by a deliberate misinterpretation of Article 4 of the Convention, the persons concerned have been denied access to, or removed from, public employment not on the grounds of subversive activity against the security of the State, but merely because they are members of lawfully constituted organisations or parties (or because they participate in lawful activities) whose objectives have been declared hostile to the Constitution by the public authorities.
17. According to the representation this notion of "hostility to the Constitution" is the basis for the "work ban" practice. It was approved by the Federal Constitutional Court, which reached its conclusions as the result of an excessively broad interpretation of section 33, paragraph 5, of the Constitution. (Endnote_3) It has no legal basis. It is a political notion, devised by political bodies for political purposes which run counter to the Constitution itself.
18. The provisions concerning the loyalty to the Constitution which is demanded of applicants for employment in the public service and serving officials have been formulated in general terms. The criteria used are vague. It follows that a wide margin of appraisal is left to the authorities and it is thus easy to practise discrimination based on political opinion. In addition, the public servant or applicant for employment in the public service is required to profess loyalty to the State, which, according to the representation, in practice means loyalty to the political line of the government in power and the prohibition of criticism of existing structures.
19. The persons affected by the practice of "work bans" are for the most part members of the German Communist Party (DKP), which is officially recognised but which has been declared "hostile" to the Constitution. However, political parties in the Federal Republic of Germany have a special status, defined by section 21 of the Constitution, of which they may be deprived only by a decision of the Federal Constitutional Court establishing their hostility to the free democratic basic order. Members of trade unions/and other democratic and progressive organisations who have allegedly expressed their opposition to the existing economic and social structures or merely to the Government's policy are also said to have been affected by these practices.
20. The practice of "work bans" based on the notion of hostility to the Constitution would be, according to the representation, in contradiction with the fundamental rights recognised by the Federal Constitution, in particular equality before the law and freedom of political opinion (section 3), the right to free choice of occupation (section 12), equal eligibility for public office (section 33) and, as mentioned in the previous paragraph, the protection of political parties or "party privilege" (section 21). The practice consequently would represent an attempt to deprive certain groups of persons of the civil and political rights guaranteed by the Constitution on the grounds of their political opinions.
17. According to the representation the principles concerning the obligation of loyalty, as defined by the Federal Constitutional Court, have been very widely applied. They govern both the employment of officials properly speaking and that of employees and manual workers in the public service. They are also applied during an applicant's probationary period. No distinction is made with reference to the responsibilities of the post, or the nature of the tasks or functions in the different sectors of public employment (jurists, teachers, railwaymen, postal clerks). In addition, says the representation, persons who have been dismissed from the public service have been deprived of the right to pursue their occupation in the private sector, and discrimination based on political opinion is allegedly practised against employees and manual workers in large industrial undertakings.
22. On the basis of the above-mentioned government decisions and court orders, a full-scale bureaucracy is alleged to have been set up for the systematic verification of citizens' loyalty to the Constitution. Practically all applicants for public employment are subject to such investigation, which is compulsory in the teaching profession. Since 1972 an estimated 1.3 million persons are said to have been required to furnish proof of their loyalty to a "special police", according to the representation, which mentions that discriminatory measures have been taken in 4,000 cases. As an example, the representation refers to 11 individual cases of "work bans", 9 of which were the subject of judicial decisions between 1975 and 1977. In these latter cases, the persons concerned were teachers or candidates for posts as primary or secondary school teachers; another case concerned an applicant for employment as a railway engineer. The activities mentioned by the courts might be essentially summarised under the heading of membership of the German Communist Party (DKP). Purely occupational qualifications or the irreproachable exercise of an occupation are insufficient grounds for accepting the candidature of a member of a party which has been declared hostile to the Constitution or maintaining him in employment, for example as a teacher. The courts have referred to the opinion of the Government to establish whether or not a political party or organisation should be considered as hostile to the Constitution. Furthermore, the representation alleges that interrogations conducted under non-usual procedures have had a discriminatory effect on the conditions of employment of the persons concerned; as an example it cites four individual cases (three concerning railwaymen, the fourth a postal employee).
23. As regards procedure, the principles for establishing loyalty to the Constitution adopted by the Federal Government in 1976 in conformity with the Federal Constitutional Court order have not put an end to discriminatory practices, nor were they designed to do so. Moreover, the rules of procedure have not been respected in many cases. According to the representation the new version of the principles for establishing loyalty to the Constitution, adopted in 1979, changes nothing in the fundamental problem, but merely alters certain rules of procedure. Membership of lawfully constituted political organisations may still give serious grounds for doubt regarding the loyalty to the Constitution of a candidate or an official. These new principles represent, in effect, only another attempt to legalise the discrimination practised against persons who express certain political opinions.
24. Moreover, it should be noted that the field of application of the principles for establishing loyalty to the Constitution remains limited to the federal administration. A number of Länder are said to have announced that their policy in this respect remains unchanged after the revision of 1979. The Länder have applied the procedure-and continue to apply it-in many different ways, and the extent of the "work ban" varies widely from one Land to another; in certain Länder inquiries are said to be made at regular intervals to establish whether persons belong to organisations which are considered to be pursuing aims hostile to the Constitution. According to the WFTU, action with a view to prohibiting the pursuit of an occupation has been recently brought, in the Länder, in at least 23 new cases.
Government's Reply
25. In reply to the allegations contained in the representation of the WFTU the Government of the Federal Republic of Germany states that political opinion as such can never be the sole ground for rejection of an applicant for employment in the public service. Nevertheless, the Constitution (section 33, subsection 5) and the legislation governing the public service impose the requirement of loyalty to the State and the Constitution, a requirement whose nature, extent and scope were set forth in detail by the Federal Constitutional Court in its order of 22 May 1975.
26. The obligation of loyalty to the Constitution is a positive one which goes beyond neutrality or mere loyalism, and which requires that a candidate for employment in the public service, or a serving official, shall "by his conduct bear witness to his support for the free democratic basic order in accordance with the Constitution, and shall uphold it at all times". This guarantee of active loyalty which must be offered by all applicants is a condition for their suitability to exercise their occupation in the public service. The Government considers that such a condition for admission is in conformity with Article 1, paragraph 2, of the Convention, which provides that "any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination".
27. The concept of state and constitutional order is defined in detail. According to the Government, it is similar to that of the security of the State set forth in Article 4 of the Convention and is compatible with the principles of non-discrimination.
28. The Government does not accept the allegations that democrats, trade unionists, progressists . . . have been affected by "work bans" in the public service. The only persons denied access to the public service are those who engage in activities whose aim is to reject and combat the constitutional order. The hostility of an applicant to the Constitution is presumed only on the basis of a judgement of his personality, consisting of an assessment based on various elements, which may differ from one case to another. Membership of a party whose aims are hostile to the Constitution may be an important element in this assessment, in the view of the Constitutional Court, but it does not constitute an automatic ground for rejection of the application. According to the Government the rejection of an applicant for public employment is not determined by his failure to fulfil the obligation of loyalty, which demands a commitment in favour of the basic principles of the Constitutional Order, nor by the mere fact of his belonging to a party which pursues aims hostile to the Constitution. The Government may consider a party to be hostile to the Constitution without having to file a petition for its prohibition. In reply to a parliamentary question the Federal Government indicated clearly on 29 October 1975 that the German Communist Party (DKP) pursued aims and carried on activities hostile to the Constitution.
29. The Government also disputes the allegations that the practice of investigating loyalty violates the fundamental rights guaranteed by the Basic Law. These rights, in particular freedom of opinion and expression, equality before the law and non-discrimination, and the free choice of employment, are subject to limitations provided for by the Constitution itself, which in the present case are inherent in the special nature of the public service and the regulations making admission conditional upon the requirement of active loyalty to the Constitution.
30. The legal principles derived from section 33, subsection 5, of the Constitution apply to all public employment relationships, whatever their nature. Employees in the public services are also subject to the requirement of loyalty. Contrary to the allegations in the representation, persons who have been refused access to employment in the public service are free to pursue their careers in the private sector, where there are no loyalty requirements or restrictions dictated by political activities hostile to the Constitution. According to the Government no discrimination is practised on the grounds of political opinion in large industrial undertakings.
31. The Government protests against the use of the expression "work bans" or "prohibition of the right to exercise an occupation" to refer to the exceptional cases in which political extremists who cannot guarantee that they are prepared to uphold the free democratic basic order have been rejected for employment in the public service. The statistics cited by the WFTU in its representation are grossly exaggerated in order to give the impression that the practice followed is a habitual one. According to the statistics supplied by the Government there were, between 1 January 1973 and 30 June 1976, 393 cases of rejections of applications on the grounds of failure to demonstrate loyalty to the Constitution in the federal and Länder public services (excluding Baden-Würtemberg and Schleswig-Holstein); between 1976 and 1977 there were 227 rejections (excluding the Saar). The figures for rejections of applications for the federal public service alone were eight for 1973 to 1975, five for 1976 to 1977 and three for 1976 (1 July) to 1978 (30 May).
32. As regards the specific cases of individuals mentioned in the representation, which were the subject of court decisions, the Government states that the persons concerned were active members of the German Communist Party (DKP). In all cases it was established that they were actively and personally militating for the achievement of their Party's objectives, which are hostile to the Constitution. The applications of these persons for employment in the public service were rejected because the assessment of their personalities which the authorities are required to make under the regulations established that the condition of loyalty to the Constitution-and hence of suitability for public employment-was not fulfilled in their cases.
33. Investigation of the loyalty to the Constitution of applicants for the public service in both the Federation and the Länder is in conformity with uniform legal standards based on the Constitution. Both the Federation and the Länder are bound by the Federal Constitutional Court order of 22 May 1975. The Länder may work out the details of the investigation process in different ways.
34. The procedural principles governing investigations of loyalty to the Constitution were approved by the Federal Cabinet on 19 May 1976 (Appendix III); a new version was issued on 17 January 1979 (Appendix IV). Under these regulations it is the employing authority which investigates loyalty along with the other conditions of suitability. The competent authority must observe the Federal Constitutional Court order of 22 May 1975 (Appendix II) and the Federal Parliament resolution of 24 October 1975 (Appendix V), according to which there must be a presumption of loyalty to the Constitution in favour of the applicant. Thus, states the Government, no one has to prove his loyalty before a "special police body"; the constitutional protection offices have held no hearings in connection with investigations of suitability for employment. It is the employing authority which decides whether a request for information should be addressed to the constitutional protection offices. The new version of the procedural principles adopted in 1979 stipulates that no routine inquiries shall be made by these bodies; when an inquiry has been requested, only facts which can be used as evidence in a court of law may be communicated; in principle, facts dating from the applicant's youth or from more than two years before may not be communicated; the federal authorities must satisfy themselves that the information communicated by the constitutional protection authorities is examined by a central body designated by the federal authorities, in order to determine whether it is relevant.
35. The principles adopted offer full procedural guarantees, in particular a hearing of the applicant, the assistance of a legal adviser, the requirement to give reasons for the decision, written communication of the facts and the reasons for the rejection of the application, and notification to the candidate of his right to appeal to an independent court against the decision to reject him. The condition respecting a procedural guarantee stipulated by Article 4 of the Convention is thus, in the Government's view, fully met.
Assessment
36. The Committee observes that, in the present case, the question raised by the representation relates to those conditions of access to the public service involving the obligation of loyalty to the Constitution; according to the representation, the procedures for the verification of this obligation could be applied in such a manner as to have the effect of rejecting candidates on the grounds of their political opinions, on a vast scale. In its replies, the Government provided detailed information on the application of the procedures, giving figures indicating that cases of inquiries and of rejection were not of the extent alleged; it demonstrated that in the cases specifically mentioned in the representation and which had been the subject of decisions by tribunals, candidates had been rejected not simply on the grounds of their political affiliation but because of militant activities not compatible with the obligation of loyalty by public servants to the Constitution. Lastly, the Government pointed to the adoption in January 1979 of new rules for the verification of loyalty to the Constitution for the federal administration, which had entered into force in April 1979, which established stricter principles on the subject and which were designed, according to the explanatory statement (Appendix IV), to remedy the risk of excesses implied in the previous rules, as will be indicated below in detail.
37. The Committee observes that, independently of doubts to which the previous situation could have given rise, the adoption, during the examination of the representation, of these new rules at the level of the federal administration has created a new situation and that it is incumbent on it now to evaluate the scope of this new situation in the light of the provisions of the Convention and the comments thereon by the permanent bodies for the examination of the application of ratified Conventions.
38. According to Article 1 of Convention No. 111 the term "discrimination" includes "any distinction, exclusion or preference made on the basis of ... political opinion . . ., which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation" (paragraph 1 (a)) " Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination" (paragraph 2). According to Article 4 of the Convention "Any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State shall not be deemed to be discrimination, provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice." As regards the relationship between the various provisions of the. Convention, the Committee of Experts on the Application of Conventions and Recommendations has observed (in another case to which the WFTU refers) that "in protecting workers against discrimination on the basis of political opinion, the Convention implies that this protection shall be afforded to them in respect of activities expressing or demonstrating opposition to the established political principles-subject only to the limitations referred to below . . ."-these being concerned with activities prejudicial to the security of the State and the particular obligations attaching to certain occupations. It has pointed out in this regard that "activities prejudicial to the security of the State" should not be defined in a manner which would authorise measures inconsistent with the basic protection provided for by the Convention. It has recalled that "special requirements for certain specified forms of employment may relate to the reliability or restraint which may be expected from their incumbents in political matters" as long as the scope of such requirements likewise remains within limits consistent with the general sense of the Convention. (Endnote_4) In referring to the situation in the public service in a general survey of 1963, the Committee of Experts stated that it was aware, for example, that "political opinions may be taken into account in connection with the requirements of certain senior administrative posts involving special responsibility in the implementation of government policy", but that if it were carried beyond certain limits, this practice could involve a conflict with the provisions of the Convention. (Endnote_5)
39. In the observations which it made on the case of the Federal Republic of Germany in 1977, the Committee of Experts noted with interest that the principles for investigating loyalty to the Constitution approved by the Federal Cabinet on 19 May 1976 prescribed certain procedural guarantees, in particular regarding notification to interested parties of facts held against them, their right to submit observations and to be assisted by a legal adviser, and various conditions designed to facilitate exercise of their right of appeal to the courts. Nevertheless, the Committee of Experts noted in the same observation that additional information would be necessary regarding the regulations applied in the Länder in this connection, together with information relating to the kind of requirements regarding loyalty to the Constitution that may have to be satisfied for the various types of public service concerned.
40. On this last point, the Federal Constitutional Court order of 22 May 1975 considered that membership of a political party pursuing aims hostile to the Constitution (regardless of whether this party had been declared unconstitutional by the Constitutional Court) might be an important element in assessing the suitability of an applicant for employment in the public service, although the order did not itself specify the nature of the elements which might be taken into consideration in individual cases and had left wide discretion to the employing authorities in this respect. The new principles for investigating loyalty to the Constitution adopted on 17 January 1979 as regards the federal administration appear likely to limit such powers, by establishing that there shall be a presumption of loyalty and a case-by-case assessment of situations and by abandoning the practice of making systematic inquiries; the last-mentioned may be undertaken only at the initiative of the authorities competent to recruit the officials, and on the basis of facts; limitations are also placed on the communication of information by the authorities for the protection of the Constitution. The explanatory statement of the new principles explained that it appeared necessary to abandon rules of procedures which implied the inadmissible risk that applicants could be rejected simply on the basis of an abstract criterion such as membership of an organisation with objectives regarded as hostile to the Constitution. It would appear that these new regulations should secure the required respect for the guarantees and limit investigation to special cases in which there are serious and justified doubts regarding the reliability or restraint which may be expected from applicants for employment in the public service, with particular reference to the nature of the posts which they are to occupy.
41. Obviously, in view of the recent entry into force of these new principles, their effect will depend on their future practical application. This of course will be subject to examination in accordance with established ILO procedures for examining the effect given to ratified Conventions. These opportunities for examination will also apply fully as regards the evolution of the situation at the level of the Länder, which have been able, within the framework of their administrative autonomy, to apply more stringent principles (especially concerning access to teaching positions, to which the majority of cases cited in the representation refer) and where, according to the figures provided by the Government, cases involving inquiries and the rejection of candidates have been proportionally more numerous than in the federal administration. In this regard, the Committee notes that, as the Committee of Experts has remarked, (Endnote_6) the Convention takes account of the special problems which may stem from the federal structure of a State by providing for its application "by methods appropriate to national conditions and practice", but that the responsibility of the federal authorities in this respect is to take all measures to give effect to the Convention through methods appropriate to existing constitutional practice (for example, by taking direct legislative or other action in areas which are within their competence and by exercising their influence in other areas through educational measures, co-operation and other appropriate methods of action; in the present case it should be noted that the above-mentioned Federal Parliament resolution of24 October 1975 requested the Länder to harmonise their recruitment procedures for employment in the public service).
CONCLUSION
42. In conclusion, in the light of all the material before it and the reasons adduced above, the Committee recommends the Governing Body:
(a) to take note of the present report;
(b) to declare the closure of the present procedure initiated in the Governing Body following the representation of the World Federation of Trade Unions on the subject of the application of Convention (No. 111) concerning Discrimination in Employment and Occupation by the Federal Republic of Germany;
(c) to request the Director-General to inform the Government of the Federal Republic of Germany and the organisation which made the representation of the decisions taken.
Geneva, 15 June 1979.
(signed): H. Griffin, Chairman.
G. Polites.
H. Maier.
Endnote 1
See document GB.205/21/11, Appendix II.
Endnote 2
See document GB.205/21/11, Appendix I.
Endnote 3
This section stipulates that "the law of the public service shall be regulated with due regard to the traditional principles of the permanent civil service". But, notes the representation, these principles, which are based on outdated concepts, should not be contrary to other principles, in particular those set forth in the Constitution.
Endnote 4
ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4A), International Labour Conference, 57th Session, Geneva, 1972, p. 204.
Endnote 5
Ibid., Report III (Part IV): Part Three: Discrimination in respect of employment and occupation, International Labour Conference, 47th Session, Geneva, 1963, p. 192, para. 42.
Endnote 6
ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part IV): Part Three: Discrimination in respect of employment and occupation, International Labour Conference, 47th Session, Geneva, 1963, p. 200, para. 63 and p. 226, para. 109.