French Consulate Disabled Employee Case

CourtRegional Administrative Court (Germany)
Federal Republic of Germany, Administrative Court (VG) of Mainz.
French Consulate Disabled Employee Case

State immunity Jurisdictional immunity Consular employee Caretaker Contract of employment Termination Express subjection to provisions of local law Employee suffering from disability Requirement under local law for public authorities to consent to dismissal Whether applicable to consular employee of foreign State Whether application of such rule would infringe sovereignty of foreign State

Consular relations Immunity Jurisdictional immunity Dismissal of disabled consular employee Requirement under local law for consent by public authorities to dismissal Whether enforceable against sending State Whether such requirement constituting interference with performance of consular functions Vienna Convention on Consular Relations, 1963, Article 5 The law of the Federal Republic of Germany

Summary: The facts:The respondent was employed as a caretaker at a French consulate in Germany from 1981 until 1986, when he was dismissed for unsatisfactory performance of his duties following repeated warnings. Since 1983 he had suffered from 50 per cent disability and he now challenged his dismissal on the ground that the consent of the local Welfare Office, which was required under German law because he was disabled, had not been obtained. The Welfare Office took a decision refusing to give its consent to the dismissal. The French Government challenged that decision in administrative proceedings before the German courts, seeking a declaration that the dismissal of their consular employee did not require the consent of the Welfare Office.

Held:The complaint was well founded, the decision of the Welfare Office was quashed and the declaration sought was granted.

(1) Under the restrictive doctrine of State immunity, such immunity applied only to sovereign acts and not to acts of a private-law character. Thus, in principle, when a foreign State entered into a contract of employment it submitted itself to the regime of private law applicable in that jurisdiction.

(2) Nevertheless, it did not follow that the provisions of the German Law on Disabled Persons were applicable in this case. Those provisions were not concerned with the effect of an agreement under private law but rather required, for reasons of employment policy, the consent of the public authorities in any case of dismissal of a disabled employee. To allow the German State such far-reaching influence where the employer was a foreign State would be contrary to the principle of sovereign immunity.

(3) The French Consulate served the interests of the French State by fulfilling consular functions as defined in Article 5 of the Vienna Convention on Consular Relations 1963. It thereby fulfilled sovereign functions of the sending State and accordingly the receiving State was debarred from intervening in the internal affairs of the Consulate...

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