Brussels Labour Court of Appeals, B.A.M. v Republic of Indonesia, Nr. 2018/AB/868, 2 November 2021
The plaintiff, a former member of the service staff at the Indonesian embassy in Brussels, was challenging his dismissal. Affirming the appealed judgment, the Brussels Labour Court of Appeals upheld Indonesia’s State immunity from jurisdiction. With a view to determining the applicable rules of customary international law, the Court relied upon the United Nations Convention on Jurisdictional Immunities of States and Their Property. More specifically, it focused on Article 11(2)(e), which maintains the immunity where the employee is a national of the employer State – the plaintiff had indeed Indonesian citizenship. The Court considered that the limitation in Article 11(2)(e), that sets immunity aside where the employee has its permanent residence in the State of the forum, does not reflect an existing rule of customary international law. The Court went on to add that, in any event, the plaintiff had failed to demonstrate a permanent residence in Belgium at the time when the proceedings were instituted.
Brussels Labour Court of Appeal, Sipos Szabo v North Atlantic Treaty Organization (NATO) and the Kingdom of Belgium, 2018/AB/22, Nr. 28 October 2020
The case concerned a medical doctor who claimed an entitlement under NATO’s Civilian Personnel Regulation (CPR) to an indefinite contract and had brought its claims before NATO’s Administrative Tribunal. NATO’s Tribunal ruled it had no jurisdiction to entertain the claims because the plaintiff concluded successive sui generis contracts that NATO was entitled to offer. Those contracts did not bring the plaintiff within the realm of the CPR, while the jurisdiction of NATO’s Tribunal is limited to alleged breaches of the CPR. The plaintiff brought her claims before Belgian courts, host nation of NATO, and argued on the basis of ECtHR case-law relating to the interplay between the right to a judge and International Organizations’ immunity that NATO’s immunity must be set aside because she did not have access to an effective remedy within NATO’s legal system as NATO’s Tribunal declared itself without jurisdiction and arguably did not consider the merits of her claims. NATO’s immunity was upheld before Brussels’ Labour Tribunal and, on appeal, by the Brussels Labour Court of Appeal which agreed with NATO that the plaintiff’s argument was based on a wrong premise, that NATO’s internal justice system was effective and independent, that the plaintiff was heard and received an articulated legal answer to her claims following due process.
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.
Labour Court of Appeal Brussels, Confederation of Christian Trade Unions and General Federation of Labour of Belgium v United States, Nr. 2010/AB/1214, 3 May 2012
The jurisdictional immunity of states is a rule of customary international law that prohibits the jurisdictions of one state from exercising its jurisdictional power over another state that has not consented. However, this immunity is limited: it concerns acts relating to sovereignty, not administration. In principle, the states may not invoke jurisdictional immunity before a court of another state in proceedings relating to employment contracts. However, no exception to the states’ jurisdictional immunity is provided for collective labor relations. Disputes concerning the regulations on the establishment of works councils are collective and not individual. The primacy of access to justice (Article 6 of the ECHR) over the rule of jurisdictional immunity and immunity from execution presupposes that the person against whom the immunity is asserted does not have other reasonable means of effectively obtaining the protection of the rights guaranteed to him by the ECHR. What matters in this regard is not that an action can be brought in the state of residence of the plaintiffs or that certainty is provided as to the application of the law of that state by the foreign jurisdiction, but that that jurisdiction (or the body of the international organization to which an internal action can be brought, as in the cases submitted to the Supreme Court) provides the guarantees of impartiality and independence of the court.