458 / 532
442
KLARA POLACKOVA VAN DER PLOEG
CYIL 5 ȍ2014Ȏ
more appropriate until the Czech courts consider the matter further in other factual
scenarios.
In relation to the question of jurisdiction, the Polish Embassy Driver Case preempted
a decision in a factually analogous scenario handed down in July 2012 by the Grand
Chamber of the Court of Justice of the European Union (the “ECJ”) in
Mahamdia
v Algeria
.
88
In that case, the Algerian Embassy in Berlin terminated the employment
contract of its driver, who challenged the termination before German courts. One
of the German courts ultimately submitted a preliminary question to the ECJ asking
whether an embassy of a non-EU State which is situated in a Member State is a “branch,
agency or other establishment” within the meaning of Article 18(2) of Regulation
No. 44/2001. The ECJ concluded that, with regard to contracts of employment
concluded by an embassy on behalf of a foreign State, Article 18 indeed provided the
basis for jurisdiction (identically with the Czech courts in the Polish Embassy Driver
Case), as the embassy is an ‘establishment’ within the meaning of that provision.
89
The ECJ also addressed the immunity question and held (similarly to the ECtHR’s
current practice) that the employer State does not enjoy immunity
“where it concludes
contracts of employment with persons who do not perform functions which fall within the
exercise of public powers.”
90
3.4.2 Refining the Tort Exception
In the Denied Entrance in the Austrian Cultural Forum Case, the Czech courts
dealt with a tort claim. The Czech Supreme Court’s decision on its face is again
very broad and generic, as the Court simply declared that all private-law relations
(including torts) are
acta jure gestionis
. Admittedly, the Supreme Court was not
issuing a final decision on the jurisdictional immunity of Austria in the proceedings,
but was essentially merely instructing the lower courts to reflect on its considerations
and assess whether they might be applicable to the facts.
91
However, the tort exception in the international law of immunities has quite
specific parameters (even though these may differ across jurisdictions).
92
Any Czech
court ultimately deciding this type of case will have to take a position with respect to
these features. Four aspects of the tort exception in particular come to mind: (i) the
requirement of a territorial link; (ii) the relevance of the
acta jure gestionis/acta jure
imperii
distinction; (iii) whether physical injury must be involved; and (iv) whether
pecuniary compensation must be sought.
88
Mahamdia v Algeria, C
ourt of Justice of the European Union (Grand Chamber), case No. C-154/11,
Judgment of 19 July 2012.
89
Ibid
, para. 52.
90
Ibid
, para. 49.
91
The case unfortunately did not go any further as the petition was dismissed due to the plaintiff’s failure
to pay court fees and the first instance court thus had no opportunity to decide on the matter. Ruling of
the Municipal Court in Prague dated 6 June 2012, case No. 32C 66/2011-45 (on file with the author).
92
Crawford J.,
Brownlie’s Principles of Public International Law
, 498.