CYIL 2014

424

KLARA POLACKOVA VAN DER PLOEG

CYIL 5 ȍ2014Ȏ

Republic. The driver filed an extraordinary appeal (in Czech:

dovolání

) against these

decisions with the Supreme Court of the Czech Republic. In his most relevant point,

the driver argued that in case a State enters directly into a private legal relationship,

the State is and must be regarded as an ordinary legal person. By dismissing his

petition on jurisdiction, he would be denied his right to access to court in violation

of Article 6(1) of the European Convention on Human Rights.

In its ruling, the Supreme Court held that the extraordinary appeal was well-

founded, annulled the rulings of the lower courts, and remanded the case for further

proceeding to the court of first instance. The Court noted that although the jurisdiction

of the Czech civil courts was not challenged as such, jurisdiction would be given on

the basis of Council Regulation (EC) 44/2001.

However, since neither Council

Regulation (EC) 44/2001 nor any applicable international agreement dealt with

the immunity of States, the question of the Polish immunity had to be resolved in

accordance with the principle of sovereign equality of States, as well as the general

provision regulating the exemption of foreign States from the jurisdiction of Czech

courts, § 47 Sec. 1 of Act No. 97/1963 Coll., on International Private and Procedural

Law, which contains a

renvoi

to general international law.

In the critical section of its decision, the Supreme Court evaluated the applicable

international law in the following manner:

“The content of State immunity was previously perceived as absolute. Any

connection of a State with the subject-matter of the dispute led to the finding of

immunity and consequently an impossibility of conducting a proceeding against

the State before a foreign court. However, the dynamic expansion of international

relations resulted in the development towards a functional conceptualization

of this legal relationship. It is beyond doubt that a State enjoys a jurisdictional

immunity for itself and for its property before the courts of another State (par

in parem non habet jurisdictionem). However, the prevailing developing

tendencies have crystallized into a conclusion (see Report of the Working Group

on Jurisdictional Immunities of States and Their Property, text UN Doc. A/

CN.4/L.576, annex at p. 58

) that a State cannot invoke its jurisdictional

immunity, not only in the cases in which it has explicitly waived it, but also in

proceedings concerning its commercial transactions, labor contracts, ownership,

possession or use of property, compensation for damage caused to property

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition

and enforcement of judgments in civil and commercial matters, Article 19:

“An employer domiciled in a

Member State may be sued: 1. in the courts of the Member State where he is domiciled; or 2. in another Member

State: (a) in the courts for the place where the employee habitually carries out his work or in the courts for the

last place where he did so, or (b) if the employee does not or did not habitually carry out his work in any one

country, in the courts for the place where the business which engaged the employee is or was situated.”

Act No. 97/1963 Coll., on International Private and Procedural Law, § 47 Sec. 1:

“Foreign states and

persons that under international treaties or other rules of international law or special Czech legal regulations

enjoy immunity in the Czech Republic shall not be subject to the jurisdiction of Czech courts.”

This reference in the Court’s judgment is, however, not traceable.