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EMIL RUFFER
CYIL 4 ȍ2013Ȏ
further explained that, like any other public entity, the embassy can acquire rights
and obligations of a civil nature. That is the case where it concludes contracts of
employment with persons who do not perform functions which fall within the
exercise of public power:
“In the dispute in the main proceedings, it should be recalled that the functions
of an embassy, as stated in Article 3 of the Vienna Convention on Diplomatic
Relations, consist essentially in representing the sending State, protecting the
interests of the sending State, and promoting relations with the receiving State.
In the exercise of those functions, the embassy, like any other public
entity, can act iure gestionis and acquire rights and obligations of a civil
nature, in particular as a result of concluding private law contracts.
That is the case where it concludes contracts of employment with persons who
do not perform functions which fall within the exercise of public powers.”
37
As to the jurisdictional immunity pleaded by Algeria, the Court recognised it
as an established principle of customary international law, but stressed that such
immunity was not absolute. Whereas such immunity is generally recognised where
the dispute concerns sovereign acts (
acta iure imperii
), it may be excluded in situations
where the suit relates to acts which do not fall within the exercise of public powers:
“However, as the Advocate General observes in points 17 to 23 of his Opinion
,
in the present state of international law, that [jurisdictional] immunity
is not absolute
, but is generally recognised where the dispute concerns sovereign
acts performed iure imperii.
It may be excluded, by contrast, if the legal
proceedings relate to acts performed iure gestionis which do not fall
within the exercise of public powers
.”
38
Consequently, the Court concluded that the principle of customary international
law concerning the immunity of States from jurisdiction did not preclude the
application of Regulation 44/2001 in a dispute in which an employee contested the
termination of the contract of employment he had concluded with a State, where the
national court before which the case was brought finds that the functions carried out
by that employee do not fall within the exercise of public powers.
39
The concept of
relative (restricted) jurisdictional immunity thus enabled the Court to fully apply the
provisions of Regulation 44/2001, aimed at protection of employees as the weaker
party in court proceedings, without calling into question the respect of international
law principles within the realm of EU law.
37
C-154/11
Mahamdia
, para. 49 (emphasis added).
38
ibid
., para. 55 (emphasis added).
39
ibid
., para. 56.