ECJ: Country where embassy is situated also competent in disputes
By Sophie Petitjean | Thursday 19 July 2012
A worker employed by the embassy of a third country on EU territory can bring proceedings before the court of the member state in which said embassy is situated to contest a dismissal, where the functions carried out by the employee do not fall within the exercise of public powers. The EU Court of Justice (ECJ) found that a third country can neither plead immunity from jurisdiction nor use the existence of an agreement on jurisdiction concluded before a dispute arises to impose its own jurisdiction.
This 19 July ruling (Case C-154/11) concerns a dispute between the Algerian Embassy in Germany and its former chauffeur, Ahmed Mahamdia. Mahamdia, who has Algerian and German nationality, worked for the Algerian state as a driver at its embassy in Berlin, Germany. In 2007, he contested his dismissal before the German courts and claimed compensation for his notice period and the overtime he had worked previously. Algeria argues, however, that as a foreign state it enjoys immunity from jurisdiction in Germany, recognised by international law, under which a state cannot be subjected to the jurisdiction of another state. In addition, Algeria relies on the term in the contract of employment concluded with Mahamdia, which provides that, in the event of a dispute, only the Algerian courts are to have jurisdiction. The People’s Democratic Republic of Algeria is pleading an exception of jurisdiction of the German courts on the basis of international rules on the immunity from jurisdiction and the clause in the employment contract attributing it legislation and stipulating that in the case of dispute, only the Algerian courts have jurisdiction.
In this context, the Higher Labour Court, Berlin and Brandenburg (Landesarbeitsgericht Berlin-Brandenburg) asked the ECJ to interpret Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters, which lays down inter alia rules on jurisdiction over individual contracts of employment. Those rules are intended to ensure proper protection for the employee as the weaker of the contracting parties. Thus the regulation allows the employee to bring proceedings to his employer before the court he considers will best protect his interest, and grants him the power to act within the jurisdiction of the state in which he resides, or of the state in which he habitually carries out his work, or in the state in which his employer is situated.
In its ruling, the ECJ found that an embassy is well and truly an ‘establishment’ within the meaning of the regulation, where the functions carried out by the employee with which it has concluded these contracts are linked to the management activity carried out by the embassy in the receiving state. Similarly, immunity from jurisdiction is not absolute and may be excluded if the legal proceedings relate to acts that do not fall within the exercise of public powers.
The ECJ justifies this exception because the embassy, like any other public entity, can acquire rights and obligations of a civil nature and may be equated with a centre of operations that has the appearance of permanency. Moreover, a dispute such as that in the present case has a sufficient link with the functioning of the embassy with respect to the management of its staff.
Therefore, the judges charge the referred national jurisdiction to determine the exact nature of the employee’s role.
As to the term in Mahamdia’s contract of employment stating that, in the event of a dispute, only the Algerian courts have jurisdiction, the ECJ notes that Regulation No 44/2001 limits the possibility of derogating from the rules of jurisdiction it lays down. The court states that an agreement on jurisdiction concluded before the dispute arises cannot prevent the employee from bringing proceedings before the court of his choice (among the courts that have jurisdiction within the meaning of the regulation, and also before other courts, which may include courts outside the EU). If it were otherwise, the objective of protecting the employee as the weaker party to the contract would not be attained.