CYIL Vol. 4, 2013

WHEN THE SUIT DOESN’T SUIT THEM: JURISDICTIONAL IMMUNITIES OF STATES… 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. ” IV.3