Judgment of the Court (Grand Chamber) pronounced on 19 July 2012

in Case C–154/11 Ahmed Mahamdia/People’s Democratic Republic of Algeria

Nikolay Bandakov[1]

 

From a systematic point of view this article is structured in six parts, following a brief introduction. The first five parts of the article summarize the facts of the case, the questions referred for a preliminary ruling and their significance, the applicable law, the opinion of the Advocate General and the judgment of the Court of Justice in case C–154/11. The last part of the paper endeavours to critically assess and discuss the Advocate General’s and the Court’s reasoning, as well as their possible consequences from a practical point of view.

The questions raised in the main proceedings can be summarized as follows: (i) may the sending State always rely on its immunity from jurisdiction in proceedings over individual contracts of employment brought abroad by employees at the diplomatic missions of that State; (ii) which are the applicable rules for determining the international jurisdiction in such cases; (iii) is it possible to apply the Brussels I Regulation even if the defendant has his domicile outside the Union’s jurisdiction and is established in a third State and what about if that defendant is the third State itself; (iv) what are the conditions necessary to avoid applying the Brussels I Regulation.

Taking into account the thorough and very informative analysis provided by the Advocate General in his opinion, and after having elaborated on the various aspects of the case the Court of Justice rules on the one hand that in employment disputes (i) where the functions carried out by the employee do not fall within the exercise of public powers of the third State,Article 18(2) of Brussels I Regulation must be interpreted as meaning that an embassy of a third State situated in a Member State is an ‘establishment’ within the meaning of that provision, and on the other hand that (ii) Article 21(2) of the same regulation must be interpreted as meaning that an agreement on jurisdiction concluded before a dispute arises falls within that provision in so far as it gives the employee the possibility of bringing proceedings, not only before the courts ordinarily having jurisdiction under the special rules in Articles 18 and 19 of that regulation, but also before other courts, which may include courts outside the European Union.

This interpretation of the Court confirms and continues, first, the case law of the Court of Justice regarding the possibility to refer to the rules of customary international law and to the provisions of international conventions in the context of a preliminary ruling. The Court of Justice adopts the theory of the relative immunity from jurisdiction of third States and considers that the nature of the functions of the relevant employee is the main criterion for assessing the question whether the third State concerned may rely on its immunity from jurisdiction before the courts of Member States.

Second, according to a well-established doctrine, the provision of Article 5(5) of the Regulation is a “quasi“ general rule for determining the international jurisdiction of the courts of Member States. In the light of this understanding, it may be argued that Article 18(2) of the Regulation has a “quasi“ universal effect and broadens to an optimal extent both the territorial scope of Brussels I and its applicability rationae personae. It could be considered that this shows one of the peculiarities of the regulation — a marked graduation of the values protected and of the specific objectives pursued. The idea according to which the Brussels I mechanism is triggered only when the defendant is domiciled in a Member State, is therefore abandoned in favour of the specific objective to protect the weaker party. In addition, the Court of Justice departs from its earlier case law and rules that the notion of “establishment” should not be interpreted as referring only to an establishment carrying out а particular commercial activity. Much more significant for the purposes of the application of Article 18(2) is that the defendant has acted in his capacity of employer as such and that the employee works at the premises of its establishment. Thus, although it is an exception to the general rule and should therefore be interpreted strictly, the Court of Justice allows for a wider understanding of Article 18(2) in order to ensure that its special objective will be achieved.

Third, the judgement unveils how important it is to draft jurisdictional clauses in individual employment contracts in a clear and exact manner. The employers should be aware of the fact that a prorogation agreement that provides for the exclusive jurisdiction of the courts of a State other than the State of the habitual work of the employee, the clause of which is drafted in advance and included in the employment contract at the moment of its signing may be impossible to enforce before the courts of Member States. Thus it turns out that Article 21 of the Brussels I Regulation is a mandatory provision of EU international private law whose application does not depend on the will of theparties.

In conclusion, it should be pointed out that this judgement brings a significant change with a view to protecting the legal rights and interests of the employees of third countries’ embassies situated on the territory of the EU. Nevertheless, it may turn out that judicial proceedings in similar cases will be rather complex. It could be expected that one of the basic issues will be the fact that in every separate law suit the parties will strive to establish what the actual functions of the respective employee are and whether they involve any form of manifestation of the third State’s sovereignty. Another possible issue may arise from the fact that the courts may have to apply foreign law, whereas upon taking into consideration and applying Art. 8(1) of Rome I Regulation these courts will have to eventually split the applicable law to the contract in case the mandatory provisions of the labour law of the State of the employee’s habitual work provides for a better protection of his interests. Last but not least, additional complications may arise with regard to the provision of Article 22(3) of the Vienna Convention on Diplomatic Relations according to which the judgement of the national court may not be enforced against any property of the respective diplomatic mission.

 

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Линк към цялата статията на български език: ОТНОСНО СЪДЕБНИЯ ИМУНИТЕТ НА ТРЕТИ ДЪРЖАВИ ПО ТРУДОВИ СПОРОВЕ СЪС СЛУЖИТЕЛИ НА ТЕХНИ ДИПЛОМАТИЧЕСКИ ПРЕДСТАВИТЕЛСТВА В ДЪРЖАВИТЕ ЧЛЕНКИ И ПРИЛОЖИМОСТТА НА РЕГЛАМЕНТ БРЮКСЕЛ І

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[1] PhD Candidate in Private International Law, Faculty of Law — Sofia University “St. Clement Ohridsky” and lawyer linguist at the Directorate General “Translation” at the Court of Justice. The views expressed are strictly personal.