113 / 350
WHEN THE SUIT DOESN’T SUIT THEM: JURISDICTIONAL IMMUNITIES OF STATES…
first raised in the context of Ms Nolan’s claim for compensation and not earlier in the
course of the liability proceedings, and the issue of jurisdictional immunity was not
a ground of appeal before the referring Court of Appeal.
33
However, the CJEU seemed
fairly comfortable with the possibility of the United States avoiding both proceedings
before the Court of Appeal and the preliminary reference on interpretation of EU law
had the jurisdictional immunity defence been properly activated. In the arguments
it used for declining its jurisdiction to rule on the interpretation of Directive 98/59/
EC, the CJEU actually stressed that the obligations under EU law and UK national
transposition law should not be applicable to strategic decisions adopted by sovereign
States.
IV.2
C-154/11
Ahmed Mahamdia
34
This case concerned the question whether jurisdictional immunity of (foreign)
States before the courts of EUMember States extended to an employment contract and
whether the EU rules on jurisdiction under Council Regulation (EC) No 44/20011
(hereinafter “Regulation 44/2001”)
35
were fully applicable.
Mr Mahamdia, who has Algerian and German nationality, worked for the
People’s Democratic Republic of Algeria as a driver at the Embassy of Algeria in
Berlin (Germany). Following his dismissal, he challenged it before the German
courts and claimed compensation. Algeria argued, however, that as a foreign State it
enjoyed immunity from jurisdiction before the courts in Germany and relied on the
rule of international law under which a State cannot be subjected to the jurisdiction
of another State without its express consent. In addition, Algeria claimed that under
the terms of the contract of employment concluded with Mr Mahamdia, in the event
of a dispute only the Algerian courts were to have jurisdiction.
In this context, the
Landesarbeitsgericht Berlin-Brandenburg
36
asked the Court
to interpret the relevant provisions of Regulation 44/2001, which lays down
inter
alia
rules on jurisdiction over individual contracts of employment. Those rules are
intended to ensure proper protection for the employee as the weaker of the contracting
parties. Thus, where the employer is domiciled outside the EU, the employee may
sue him in the courts of the Member State in which the employer’s ‘establishment’,
in which the employee works, is situated.
In its judgment in case C-154/11
Mahamdia
the Court held that an embassy
of a third State in a Member State is an ‘establishment’ within the meaning of
Regulation 44/2001, in situations of a dispute concerning a contract of employment
concluded by the embassy on behalf of the sending State, where the functions carried
out by the employee do not fall within the exercise of public powers. The CJEU
33
Opinion of Advocate General Mengozzi, delivered on 22 March 2012, para. 22.
34
Case C-154/11
Ahmed Mahamdia v. People’s Democratic Republic of Algeria
[2012] /not yet reported/.
35
Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters (OJ L 12, 16. 1. 2001, p. 1).
36
Higher Labour Court, Berlin and Brandenburg.