Immunity – Page 2 – ILBC DATABASE

United States of America v P.V.N.

On 4 March 2019 By Amber De Coninck In Supreme Court

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.

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R.B. v Kingdom of Morocco

On 17 March 2017 By Amber De Coninck In Labour Court of Appeal

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.

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M.R. v La Posterie

On 28 October 2016 By Felix Blommaert In Supreme Court

Supreme Court, M.R. v La Posterie, Nr. C.16.0039.N, 28 October 2016

ECLI:BE:CASS:2016:ARR.20161028.6

The Belgian Supreme Court adjudges that the immunity of jurisdiction of a member of the United States Permanent Representation to NATO (as per Article XII of the Ottawa Agreement and Articles 29-31 of the Vienna Convention on Diplomatic Relations (VCDR)) does not violate the right of access to court (Article 6 ECHR). In a case involving a dispute over the payment of rent arrears, the lower court had previously held that such immunity would violate the right of access to court, in light of the fact that the proceedings would “in no way compromise” the proper functioning of the US Permanent Representation or NATO itself. According to the Supreme Court, however, this approach was not legally justifiable. The Supreme Court further recalls that lawsuits regarding the lease of a private home do not fall within the exception to immunity from jurisdiction under Article 31 (1) (a) VCDR.

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J.P.-A. v Kingdom of the Netherlands and Dutch Central Bank

On 23 October 2015 By Amber De Coninck In Supreme Court

Supreme Court, J.P.-A. v Kingdom of the Netherlands and Dutch Central Bank, Nr. C.14.0322.F/1, 23 October 2015

During the financial crisis of 2008, the Dutch State decided to buy the Dutch activities of the Fortis group instead of proceeding with the recapitalization as previously agreed to. In the wake of the events, a group of former shareholders decided to file a lawsuit against the Dutch State, as well as against the Dutch central bank (DNB), which they deemed complicit in the dismantling of the Fortis group.

In 2013, the Court of Appeal held that the Kingdom of the Netherlands and DNB enjoyed immunity from jurisdiction. In particular, the Court found that while both Belgium and the Netherlands had made a declaration pursuant to Article 24 of the European Convention on State Immunity (the Basel Convention), such declarations were without prejudice to the immunity from jurisdiction which foreign States enjoy in respect of acts performed in the exercise of sovereign authority. After careful consideration of the nature of the act, the context in which the act was done and the capacity in which the Dutch State had acted (as the guarantor of the State’s financial stability), taking into account the context in which the Dutch State acted (cf. the urgency and severity of the financial crisis and the absence of a private investor capable of intervening), the Court of Appeal concluded that the Dutch State had effectively acted in the exercise of its public authority and accordingly enjoyed immunity from jurisdiction. Furthermore, while DNB constituted a distinct legal entity, it equally enjoyed immunity from jurisdiction for ‘acts performed by the entity in the exercise of sovereign authority’ pursuant to Article 27(2) of the Basel Convention.

The Belgian Supreme Court adjudges that this conclusion was legally constituted and dismisses the appeal in cassation.

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NML Capital Ltd v Republic of Argentina

On 11 December 2014 By Tom Ruys In Supreme Court

Belgian Supreme Court, NML Capital Ltd v Republic of Argentina, Nr. C.13.0537.F, 11 December 2014

ECLI:BE:CASS:2014:ARR.20141211.4

According to the Court, the right of access to court, as enshrined in Article 6 ECHR, cannot be invoked to force a State to set aside the customary rule of immunity from execution, which seeks to ensure the proper functioning of diplomatic missions and to promote friendly relations between sovereign States. The Court rejects the argument that immunity from execution must be set aside when no alternative means of legal redress are available.

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