Muller v United States of America

Date11 Mayo 1998
CourtRegional Court (Germany)
Federal Republic of Germany, Regional Labour Court (LAG) of Hesse

(Niedenthal, President; Henninger and Mayer, Judges)

United States of America

State immunity Jurisdictional immunity Consular employee National of receiving State employed as financial assistant Dismissal Claim for unlawful dismissal Whether foreign State entitled to jurisdictional immunity Whether assistant performing sovereign functions Whether assistant integrated into organizational structure of consulate Whether enquiry by municipal courts into lawfulness of dismissal would infringe sovereignty of foreign State

Consular relations Consular employee Financial assistant Whether performing consular functions Vienna Convention on Consular Relations, 1963, Article 5 Whether judicial enquiry into circumstances of dismissal would interfere with consular functionsThe law of the Federal Republic of Germany

Summary: The facts:Mr Muller, a German national, was employed from 1992 to 1996 as a financial assistant responsible for analysis and budgetary preparation at the United States Consulate General in Frankfurt. In 1996 his employment was terminated for reasons of organizational restructuring and he was offered new employment at a lower grade. He instituted proceedings before the German courts seeking a declaration that the termination of his employment was void since it was unjustifiable on social grounds. The United States argued that the German courts had no jurisdiction over the claim because the plaintiff was responsible for the fulfilment of sovereign functions. The Labour Court (AG) of Frankfurt accepted the plea of lack of jurisdiction and the plaintiff appealed.

Held:The United States was entitled to jurisdictional immunity.

(1) The plaintiff clearly had a staff function within the consular administration. The preparation and drafting of budget plans for the financing of the work of a consulate fell within the core area of consular activity since they determined and limited the scope of that work. A person performing such tasks was entrusted with a function directly related to the fulfilment of consular functions. It was therefore not relevant to consider the necessary limits imposed upon the doctrine of State immunity (p. 518).

(2) The question of the social justification for the alteration of the terms and conditions of the employment of the plaintiff related to the organizational structure of the Consulate of the Defendant State. Any examination of whether the decision at issue was reasonable or arbitrary would necessarily involve the danger that the administrative and organizational structure of the Consulate would be subjected to judicial review involving an assessment of how it worked. The manner in which a foreign State provided for the fulfilment of consular tasks from an organizational standpoint was a matter for sovereign decision and could not be subject to judicial review. Such an examination would adversely affect the guarantee under international law of the unimpeded fulfilment of consular functions (pp. 51819).

The text of the judgment of the Court commences on the following page.

operative part of the judgment

The plaintiff's appeal against the judgment of the Labour Court of Frankfurt am Main of 6 March 1997 (No 3 Ca 4355/96) is dismissed with costs. Leave to appeal on points of law is granted.

Facts and Procedure

The parties are in dispute concerning a notice of termination of employment pending a change of contract.

The plaintiff has been employed at the Consulate General of the United States of America in Frankfurt am Main since 1 July 1992, on the basis of a contract dated 24 June 1992, most recently with an annual gross remuneration of DM 87,000.00. He is employed as a so-called Financial Assistant and is classified in Remuneration Category FSN 9. According to the contract, the conditions of employment are determined by the FSN Handbook and a Compensation Plan. The plaintiff's tasks at work are regulated by a job description relating to Job No N53405. He is there described as first financial adviser to the managing administrative officials and as head of department. As such, his tasks include the analysis of financial information of the Consulate relating to both past financial years and the various current budget programmes, as well as the formulation of the Consulate's budget plan for...

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