Brussels, 20/07/2012 (Agence Europe) - A foreign state cannot plead immunity in response to employment law proceedings brought by an employee of its embassy, where the employee carries out functions which do not fall within the exercise of public powers. Nor can it invoke an agreement concluded before the dispute arises to impose its own jurisdiction. An employee can bring proceedings before the courts of the member state in which the embassy is situated.
That is the substance of the ruling delivered on Thursday 19 July by the Court of Justice of the EU in case C-154/11 in response to the Landesarbeitsgericht Berlin-Brandenburg (Higher Labour Court, Berlin and Brandenburg), which is hearing a case between the Embassy of Algeria and a former driver. The driver, Ahmed Mahamdia, who has Algerian and German nationality, is contesting his dismissal before the German courts and claiming compensation. 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 invokes a term in the contract of employment concluded with Mr Mahamdia which provides that, in the event of a dispute, only the Algerian courts are to have jurisdiction. The German court asks the Court of Justice to interpret Regulation No 44/20011, which lays down rules on jurisdiction over individual contracts of employment. In order to ensure proper protection for the employee as the “weaker of the contracting parties”, this regulation states that, where the employer is domiciled outside the EU, the employee may sue him in the courts of the member state in which the employer's “establishment” in which the employee works is situated.
In its ruling, the Court finds that: - an embassy of a third state in a member state is an “establishment” within the meaning of the regulation in a dispute like the one at issue here, where the functions carried out by the employee do not fall within the exercise of public powers: in this case, the embassy, like any other public entity, can acquire rights and obligations of a civil nature; moreover, the case at issue has a sufficient link with the functioning of the embassy with respect to the management of its staff; - the immunity pleaded by Algeria is not absolute: it is generally recognised where the dispute concerns sovereign acts but may be excluded if the legal proceedings relate to acts which do not fall within the exercise of public powers; - the term in Mr Mahamdia's contract of employment stating that, in the event of a dispute, only the Algerian courts have jurisdiction cannot prevent the employee from bringing proceedings before the German courts. Regulation No 44/2001 limits the possibility of derogating from the rules of jurisdiction it lays down (precedence of the courts of the country where the employee works). An agreement on jurisdiction concluded before the dispute arose can only, therefore, give the employee the possibility of bringing proceedings, not only before the courts ordinarily having jurisdiction under Regulation No 44/2001, but also before other courts, which may include courts outside the EU. (FG/transl.rt)