CYIL Vol. 4, 2013

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.