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EMIL RUFFER
CYIL 4 ȍ2013Ȏ
and Italy) now distinguish between acta jure gestionis, in respect of
which they have limited the immunity which they claim for themselves
and which they accord to others, and acta jure imperii.
That approach
has also been followed in the United Nations Convention and the European
Convention (see also the draft Inter-American Convention on Jurisdictional
Immunity of States drawn up by the Inter-American Juridical Committee of the
Organization of American States in 1983 [ILM, Vol. 22, p. 292]).”
8
However, it should be acknowledged at this stage that despite the clear indications
of the existence of a rule of customary international law and codification attempts at
the international level, the concept of jurisdictional immunity is still pretty vague,
based to a large extent on case-law and dependent on divergent concepts in national
law. Thus we witness a general tendency of international law towards a relative concept
of jurisdictional immunity; but we have to be cautious due to its questionable status
as customary law and possible confilicting state practice.
On the other hand, in the European context the relative concept of jurisdictional
immunity has been clearly recognised and confirmed in the case-law of the European
Court of Human Rights (hereinafter the “ECHR”),
9
whose jurisprudence constitutes
an important source of inspiration for the CJEU.
10
The ECHR thus stated on the
developments of international law:
“In this connection, the Court notes that
the application of absolute
State immunity has, for many years, clearly been eroded
. In 1979 the
International Law Commission was given the task of codifying and gradually
developing international law in the area of jurisdictional immunities of States and
their property. It produced a number of drafts that were submitted to States for
comment. The Draft Articles it adopted in 1991 included one – Article 11 – on
contracts of employment (see paragraph 28 above). In 2004 the United Nations
General Assembly adopted the Convention on Jurisdictional Immunities of
States and their Property (…).”
11
So even though we do not have a crystal clear rule of international law to
follow, there is a strong indication of an emerging concept of relative jurisdictional
immunity. Apart from the jurisprudence, it is also recognised in the ECHR case-law,
which should arguably be taken into account also within the context of EU law. We
shall then see further below how this matter is perceived and dealt with by the CJEU.
8
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening)
, ICJ judgement of 3 February
2012, para. 59 (emphasis added).
9
See the ECHR judgments in cases
Cudak v. Lithuania
[GC], Application No. 15869/02, ECHR 2010,
paras. 64 and 66 and
Sabeh El Leil v. France
[GC], Application No. 34869/05, ECHR 2011, paras. 53-54.
10
According to Art. 6 (3) of the Treaty on European Union (hereinafter the „TEU“), „
Fundamental rights,
as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms
and as they result from the constitutional traditions common to the Member States, shall constitute general
principles of the Union’s law.
”
11
Cudak v. Lithuania
, para. 64.