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WHEN THE SUIT DOESN’T SUIT THEM: JURISDICTIONAL IMMUNITIES OF STATES…
IV.3
C-466/11
Genmaro Curra
40
The reference for the preliminary ruling has been submitted by the Italian court
Tribunale ordinario di Brescia
in the course of proceedings between a number of Italian
nationals (Mr Curra and others) and the Federal Republic of Germany concerning
their application for compensation in respect of the harm which they suffered by
reason of their deportation, or the deportation of the persons to whom they are
the legal successors, during the Second World War. Germany claimed jurisdictional
immunity before Italian courts and argued that under well established principle of
international law, confirmed by state practice, several judgments of the ECHR and
the New York Convention, it enjoyed immunity from suit. Germany also added that
the action was inadmissible because, under the 1947 Peace Treaty,
41
Italy renounced
all applications for compensation against Germany.
42
Nevertheless, the referring court granted the applicants’ request and made
a reference for preliminary ruling to the CJEU, concerning essentially the issue whether
the objection of jurisdictional (civil) immunity deriving from international law, which
Germany invoked before the Italian courts, was contrary to,
inter alia
, the Union’s
respect for fundamental rights enshrined in Art. 6 TEU and, more specifically, whether
it infringed applicants’ rights guaranteed by Art. 17 (Right to property) and Art. 42
(Right to an effective remedy and to a fair trial) of the EU Charter.
The Court (Third Chamber)
43
gave its decision by reasoned order, since it
considered that it clearly had no jurisdiction to rule on the reference for a preliminary
ruling.
44
According to the CJEU, it lacked jurisdiction both from the perspective
ratione materiae
, as well as
ratione temporis
. The Court reiterated again that the EU
had to respect international law in the exercise of its powers and that “
the Court must
40
Case 466/11
Genmaro Curra and others v. Bundesrepublik Deutschland
[2012] /not yet reported/.
41
The Peace Treaty was concluded between the Allied Powers and Italy on 10 February 1947, in the
aftermath of the Second World War, and it regulated the legal and economic consequences of the
war with Italy. Art. 77(4) of the Peace Treaty stipulated: “
Without prejudice to these [measures for the
restoration and restitution of Italian property in Germany determined by the Allied Powers] and to any other
dispositions in favour of Italy and Italian nationals by the Powers occupying Germany,
Italy waives on its
own behalf and on behalf of Italian nationals all claims against Germany and German nationals
outstanding on May 8, 1945
, except those arising out of contracts and other obligations entered into,
and rights acquired, before September 1, 1939. This waiver shall be deemed to include debts, all inter-
governmental claims in respect of arrangements entered into in the course of the war, and all claims for loss
or damage arising during the war.
” (emphasis added).
42
C-466/11
Curra
, para. 9.
43
TheThird Chamber was composed of K. Lenaerts (President of the Chamber) J. Malenovský (Rapporteur),
E. Juhász, T. von Danwitz and D. Šváby (Judges). It was fortunate that the case was assigned to Judge
J. Malenovský, who is not only an experienced judge of the CJEU, but also a renowned international
law scholar, which was particularly important due to the international law dimension of this case.
44
The court had recourse to Art. 92(1) and 103(1) of its Rules of Procedure, which can be applied in
a situation where the CJEU clearly has no jurisdiction. Art. 92(1) [now Art. 52(2)] of the Rules of
Procedure stipulates: “
Where it is clear that the Court has no jurisdiction to take cognisance of an action
or where the action is manifestly inadmissible, the Court may, by reasoned order, after hearing the Advocate
General and without taking further steps in the proceedings, give a decision on the action.
”