X v Argentina

CourtFederal Labour Court (Germany)
Federal Republic of Germany, Federal Labour Court (BAG).

(Etzel, President; Bitter and Fischmeier, Judges)

X
and
Argentina

State immunity Jurisdictional immunity National of sending State employed as member of technical and administrative staff of consulate of foreign State DismissalClaim for damages for unlawful dismissal Whether foreign State entitled to jurisdictional immunity Restrictive theory of immunity Scope of application to disputes concerning employment contracts Employment involving performance of subordinate consular functions Whether exercise of jurisdiction would constitute interference with performance of sovereign functions

Consular relations Consular employee Whether performing consular functions Vienna Convention on Consular Relations, 1963, Article 5

Sources of international law Customary international law Rules on State immunity relating to employment contracts Scope of application of rules in the absence of applicable international treaty The law of the Federal Republic of Germany

Summary: The facts:The plaintiff, an Argentinian national, was employed as a member of the administrative and technical staff of the Consulate General of Argentina in Dsseldorf from 1964 to 1991, when the relationship was terminated. She instituted proceedings against her employer before the German courts, seeking a declaration that her employment had subsisted until the end of 1991, arguing that there were no grounds for her dismissal, and claiming damages. At first instance and on appeal the action was dismissed on the ground that the defendant was entitled to jurisdictional immunity as a foreign State. The plaintiff appealed to the Federal Labour Court.

Held:The appeal was dismissed.

(1) In the absence of international agreements or other legal provisions, the question of whether and to what extent a foreign State was subject to German jurisdiction was to be decided in accordance with the general rules of public international law. There was no rule of public international law which excluded German jurisdiction for actions brought against a foreign State relating to its non-sovereign activities. The decisive factor in making the distinction between sovereign and non-sovereign acts was their nature rather than their purpose. Whilst this classification was, in principle, a matter for national law, certain limits were imposed by public international law in cases where it was necessary to classify an activity of a foreign State as performed jure imperii because it belonged to the core sphere of State authority, even though under national law it would be regarded as a private law activity.

(2) Where an employment relationship with a foreign State involved the performance of consular functions, within the definition contained in Article 5 of the Vienna Convention on Consular Relations, 1963, including the issue and extension of passports and the processing of visas, even though the employee had a subordinate role in the performance of those functions, the employment belonged to the core sphere of sovereign activity of the State concerned and was exempt from national jurisdiction so far as the conduct and termination of the relationship were concerned. Any examination of the circumstances of the dismissal of such an employee would conflict with the principle that consular relations should not be impeded (ne impediatur legatio).

The following is the text of the judgment of the Court:

OPERATIVE PART OF THE JUDGMENT

The plaintiff's appeal on points of law against the judgment of the Labour Court of Appeal of...

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