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WHEN THE SUIT DOESN’T SUIT THEM: JURISDICTIONAL IMMUNITIES OF STATES…
one of the issues, depending on whether the situation fell within the scope of the
EU law. But even in cases where the CJEU declared its lack of jurisdiction to rule
on the questions of interpretation put forward by the national court, its reasoning
still presents a valuable insight and offers the Court’s perspective on the relationship
between the EU law and international law.
IV.1
C-583/10
Christine Nolan
22
This preliminary reference from the Court of Appeal (England & Wales) (Civil
Division) essentially focused on the scope of Council Directive 98/59/EC
23
in
relation to protection against (allegedly unlawful) dismissal of a civilian employee(s)
resulting from the closure of an U.S. Army base in the United Kingdom and the
central issue of the Court’s jurisdiction under the Directive 98/59/EC.
The dispute arose between the United States of America and Ms Nolan, a civilian
employee of an U.S. Army base in the United Kingdom, concerning the obligation
to consult staff before carrying out collective redundancies, in accordance with UK
legislation implementing Directive 98/59/EC. Ms Nolan essentially argued in the
proceedings before the national courts that the employer (i.e. the United States) had
failed to consult staff representatives before taking the formal decision to terminate
the employment contracts
24
and therefore had breached the requirements laid down
by Directive 98/59/EC. She also pointed to the fact that the United States of America
have not claimed State immunity in respect of their actions, and they have not raised
‘special circumstances’ within the meaning of Section 188(7) of the Trade Union and
Labour Relations (Consolidation) Act 1992.
25
The United States argued before the CJEU that application of Directive 98/59/
EC or of the national transposition legislation would be incompatible with the clear
wording of the directive and with principles of public international law, in particular
the principle of
jus imperii
and that of the ‘comity of nations’. They therefore considered
that a dismissal (such as that at issue in the main proceedings) did not fall within
the scope of Directive 98/59/EC, given that such dismissal resulted from a strategic
decision, adopted by a sovereign State, concerning the closure of a military base.
26
The CJEU needed to clarify whether a dismissal (such as that at issue in the national
proceedings in the UK), terminating an employment relationship between a United
Kingdom national and a non-member State (i.e. the United States of America),
fell within the scope of Directive 98/59/EC, having regard, in particular, to its
22
Case C-583/10
United States of America v. Christine Nolan
[2012] /not yet reported/.
23
Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States
relating to collective redundancies (OJ L 225, 12.8.1998, p. 16, hereinafter “Directive 98/59/EC”).
24
The formal decision to terminate the employment contracts was taken at the headquarters of the U.S.
Army in Europe (USAEUR) in Mannheim, Germany.
25
The 1992 Act constituted the transposition of Directive 98/59/EC in the United Kingdom.
26
C-583/10
Nolan
, paras. 24-25.