Supreme Court, Russian Federation v Godeau Finances, Nr. C.18.0282.F/1, 6 December 2019
The Supreme Court addresses a case by the Brussels Court of Appeal between a Belgian Real Estate company and the Russian Federation. The company sought compensation after the Russian Federation renounced the acquisition of a set of real estate properties intended for the housing of personnel of its Permanent Mission to the EU.
The Supreme Court confirms that State immunity from jurisdiction is a rule of customary international law which only applies to acts performed in the exercise of public authority (‘acta jure imperii’) and not to ‘acta jure gestionis’. In order to determine whether an act is done in the exercise of a State’s public authority, the nature of the act and the capacity in which the State has intervened, and the context in which the act was performed must be taken into account.
The Supreme Court finds that, by relying exclusively on the nature or form of the acts of the Russian Federation’s Permanent Mission to the EU in order to determine that they constituted acta jure gestionis, without examining the quality in which the applicant intervened having regard to the context in which the acts were undertaken, the Court of Appeal infringed customary international law. Consequently, the judgement is annulled.
Supreme Court, United States of America v P.V.N., Nr. S.15.0051.N/2, 4 March 2019
The Belgian Supreme Court examines a judgement of the Brussels Labour Court of Appeal. The case concerns a dispute involving an employment contract between the USA and a private person, P.V.N., who worked for the US embassy in Belgium and demanded compensation after being dismissed in 2010.
The Supreme Court holds that, according to international customary law and, as provided by Article 11(1) of the 2004 Convention on Jurisdictional Immunities of States and their Property, a foreign state can only invoke immunity from jurisdiction in the context of employment disputes when a number of criteria are met, including that a person must be appointed for the performance of certain acts performed in the exercise of public authority (‘acta jure imperii’).
The Brussels Court of Appeal previously established that, while the defendant performed certain preparatory acts with regard to acts involving the exercise of public authority, he did not have the authority to sign and bind the USA. Consequently, such acts could not of themselves be considered to entail the exercise of public authority for which immunity from jurisdiction can be invoked. The Supreme Court confirms that the judgement of the Court of Appeal was properly motivated.
Brussels Court of Appeal, X v Prosecutor, Nr. 2017/FA/707, 5 June 2018
The Brussels Court of Appeal states that according to article 1.1° of the 1954 Statelessness Convention, a person who is not considered a national by any State constitutes a stateless person. In assessing the statehood of Palestine, the Court takes into account the four criteria established in the 1933 Montevideo Convention and holds that, in accordance with the declaratory theory, the political existence of a State is not contingent on its recognition by other States. The Court determines that, based on these elements, Palestine must be considered as a ‘State’ hic et nunc.
According to the Court, the alleged absence of a Palestinian nationality legislation does not imply that the defendant ought to be regarded as a stateless person. Instead, what matters is that the State of Palestine considers the defendant as a Palestinian citizen by virtue of applicable national law. In particular, the defendant’s UNRWA Registration Card indicates Palestinian descent, whereas individuals of Palestinian origin and their descendents who sought refuge in Lebanon following the establishment of the State of Israel are recognized as nationals by the Palestinian National Authorities. It follows that the defendant is not a stateless person in the sense of the 1954 Convention.
Antwerp Labour Court of Appeal, R.B. v Kingdom of Morocco, Nr. 2015/AA/536, 17 March 2017
R.B., a person of Belgian-Moroccan nationality, who used to work for the Moroccan Consulate-General in Belgium, was seeking the payment of severance pay and of overdue salary after his mandate was terminated.
Notwithstanding plaintiff’s suggestion that he was merely engaged in simple administrative tasks, the Antwerp Labour Court held that the mandate of the plaintiff related to ‘acta jure imperii’, in particular as his tasks could be qualified as consular functions in the sense of Article 5(e) of the Vienna Convention on Consular Relations of 1963, for which the state of Morocco was entitled to immunity from jurisdiction. Moreover, the plaintiff could not prove the existence of an employment contract instead of a statutory employment. For the sake of completeness, the Court tested Morocco’s state immunity against the 2004 UN Convention on Jurisdictional Immunities of States and their Property, which it considered to reflect customary international law, and upheld the immunity of Morocco under several of the exceptions contained in Article 11(2) of that treaty relating to employment contracts.
Supreme Court, Touax v Touax Rom, Nr. C.13.0528.F, 9 February 2017
During the 1999 Kosovo war, two shipping companies operating boats on the Danube saw their commercial activities come to a halt because of the bombing of several bridges over the river by NATO. They turned to the Kingdom of Belgium to receive compensation for their economic losses, relying on article 1382 of the civil code. According to the claimants, Belgium’s participation in NATO’s military operation constituted a breach of the prohibition on the use of force enshrined in article 2(4) of the UN Charter and accordingly qualified as a tort.
In 2013, the Brussels Court of Appeal rejected the appeal, holding that a private person cannot invoke a violation of Article 2(4) UN Charter because the provision lacks direct effect.
The judgment was later upheld by the Supreme Court. The Supreme Court found that the claimants did not invoke any fact – other than the alleged breach of Article 2(4) UN Charter – of such nature as to constitute an error of conduct. It also dismissed the argument that the existence of a tort deduced from a provision of an international treaty does not require that this provision has direct effect in the internal legal order. Lastly, the Supreme Court did away with the alleged violation of the jus in bello resulting from Belgium’s participation in the bombing of non-military targets: as the bridges over the Danube constituted a military objective, their destruction could not constitute a tort.