457 / 532
441
STATE IMMUNITY IN JURISPRUDENCE OF CZECH COURTS
(unless this would interfere with the security interests of the employer State).
Additionally, immunity is preserved if the employee is a national of the employer State
at the time when the proceeding is instituted and is not a permanent resident in the
forum State.
83
The ECtHR initially recognized a margin of appreciation in relation to States’
approaches to immunity of foreign States;
84
however, in its latest decisions, the
ECtHR held that States may uphold immunity in employment matters only with
respect to those employees who actually perform governmental or sovereign activity.
Otherwise, the State would violate the employee’s right to access to court protected
under Article 6 of the European Convention on Human Rights.
85
As such, the standard practice is not to remove immunity for all employment
disputes
en bloc
, and the applicable standard is fundamentally not based on the
character of the legal relationship as the Polish Embassy Driver Case would suggest. All
employment relationships of course have formally the same private-law legal character
and the nature-of-the-act test is therefore inadequate, as it provides no scope for the
recognition of sovereign activity.
86
Even German courts, which otherwise also tend to
determine
acta jure gestionis
with reference to the juridical character of the underlying
legal relationship, give only secondary importance to the private-law character of
the employment relationship if the core sphere of State authority is involved in
performance of the employment.
87
With respect to employment at an embassy, international practice thus recognizes
two positions: either to exempt employment matters of all embassy employees, or to
exempt only those matters that relate to employees directly performing the public
functions at the embassy. The Polish Embassy Driver Case, with its broad holding,
thus corresponds to neither.
The Polish Embassy Driver Case could be viewed as very progressive from an
employee protection perspective, as the general principle articulated by the Supreme
Court would effectively grant access to local courts to all employees performing work
within the territory of the Czech Republic. However, on the facts, the driver was
an employee who did not perform functions falling within the exercise of public
powers. At the time of instituting the proceedings, he was also a Czech national (a
national of the forum State) and the work was wholly performed within the territory of
the Czech Republic. A cautiously narrow reading of the decision is therefore probably
83
For details,
see
, Article 11(2) of the UN Convention.
84
See,
for example,
Case of Fogarty v The United Kingdom,
European Court of Human Rights (Grand
Chamber), Application No. 37112/97, Judgment of 21 November 2001.
85
See
, for example,
Case of Cudak v Lithuania,
European Court of Human Rights (Grand Chamber),
Application No. 15869/02, Judgment of 23 March 2010;
Case of Sabeh El Leil v France
, European
Court of Human Rights (Grand Chamber), Application No. 34869/05, Judgment of 29 June 2011.
86
Crawford J.,
Brownlie’s Principles of Public International La
w, 497. This conclusion has been endorsed
even in Czech legal literature.
See
Caban P.,
Jurisdikční imunity států
, 49.
87
Muller v. USA,
114 ILR 512 517;
Conrades v. UK,
65 ILR 205, 208;
X. v. Argentina,
114 ILR 502, 506;
French Consulate Disabled Employee Case
, 114 ILR 507, 511.