Re Danish State Railways in Germany

CourtRegional Court (Germany)
Date19 n 1953
German Federal Republic, District Court of Kiel.
In re Danish State Railways in Germany.

Jurisdiction — Immunity from Jurisdiction of Local Courts — Legal Position of Foreign States in Contentious Proceedings — Whether Foreign States Immune in respect of Acts jure gestionis.

The Facts.—The plaintiff instituted proceedings against the Kingdom of Denmark for damages for personal injuries sustained as a result of the alleged negligence of the driver of an omnibus which was owned by the Danish State Railways and was then operating in Germany. The Court of first instance refused to exercise jurisdiction in the matter, on the ground that the Kingdom of Denmark was immune from the jurisdiction of the German courts. The plaintiff appealed.

Held: (i) that the operation of bus services by the Kingdom of Denmark was a commercial activity, and that in respect of activities of this nature a sovereign State was not entitled to immunity from the jurisdiction of the local courts;

(ii) that the jurisprudence of the former Supreme Court of Germany (Reichsgericht), in so far as it recognized the immunity of foreign States from the jurisdiction of the German courts in respect of acta jure gestionis, was no longer binding;

(iii) that, accordingly, the judgment of the Court of first instance must be reversed, and the action allowed to proceed on the merits.

The Court said: “International doctrine and jurisprudence unanimously agree that, by virtue of international customary law, foreign States are not subject to the local jurisdiction where it is intended to hold them responsible for liabilities deriving from acts of sovereignty. This exemption is based on the legal principle that sovereign States are independent and their rights of sovereignty beyond the reach of other States. This principle, however, is not applicable in the present case, because the Kingdom of Denmark does not here face the plaintiff in the capacity of possessor of sovereign rights, but as possessor of civil rights and duties. The plaintiff seeks to hold the defendant State responsible in its capacity of operator of an omnibus, viz., in respect of activities which are of a purely fiscal nature. To that extent the Kingdom of Denmark is subject to the jurisdiction of the German courts. This Court is unable to share the contrary view of the Court of first instance which assumed that foreign States are, by virtue of the general rules of international law, never subject to the jurisdiction of the courts of...

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