V. et al v the Holy See

Ghent Court of Appeal., V. et al v the Holy See, Nr. 2013/AR/2889, 25 February 2016

Following the 2013 ruling by the Court of First Instance, the Ghent Court of Appeal confirms that the Holy See enjoys immunity from jurisdiction in a case brought by multiple victims of sexual abuse by catholic priests, since the Holy See is expressly recognized by Belgium as a state or at least as a foreign sovereign enjoying the same rights and obligations as a state.
The Court disagrees with the appellants’ argument that the Holy See enjoys state immunity only when acting int its capacity as the government of Vatican City, but not when acting in its capacity as the government of the Roman Catholic Church.
The Court further dismisses the appellants’ argument that the Holy See does not qualify as a state as it does not meet the requirements under Article 1 of the 1993 Montevideo Convention. In particular, the Court emphasizes that the Holy See is recognized ‘de jure’ as a state by Belgium. Moreover, the Holy See, as a governmental body, can claim immunity from jurisdiction based on Article 2 of the 2004 UN Convention on Jurisdictional Immunities of States and their Property, which reflects customary international law.
The Court asserts that the Holy See’s alleged policy errors must be qualified as ‘acta jure imperii’ which are covered by jurisdictional immunity. In this regard, the Court rules that the territorial tort exception in Article 11 of the 1972 European Convention on State Immunity does not apply to ‘acta jure imperii’ and that, moreover, the conditions of that provision are not met. Similarly, the territorial tort exception laid down in Article 12 of the 2004 UN Convention cannot be considered to reflect customary international law with regard to ‘acta jure imperii’, and its conditions are not met in the current case. Finally, the Court dismisses the appellants’ arguments that granting immunity from jurisdiction would breach their right to access to justice as guaranteed under Article 6(1) of the ECHR.

X {Ex parte}

Bruges First Instance Tribunal, X, Nr. 14/1508/B, 23 November 2015

The Tribunal examined a request of a man of Palestinian origin seeking recognition as a stateless person. Since statelessness presupposes an absence of ‘nationality’, and ‘nationality’ in turn necessitates a connection between an individual and a ‘State’, the Tribunal needed to determine whether Palestine qualified as such. Starting from the four cumulative conditions of the 1933 Montevideo Convention, the Tribunal accepts that Palestine fulfills the requirements of a permanent population and a defined (even if fragmented) territory. By contrast, it is less clear whether the Palestinian National Authority (PNA) qualifies as an ‘effective government’, since it only has limited powers and Israel still controls their airways, external borders, territorial waters, national registrations, taxes and functions in the government itself. In any case, according to the Tribunal, fulfillment of the Montevideo criteria is ‘manifestly meaningless’ if the Palestinian State is not internationally recognized. As a significant number of countries, including Belgium itself, has not recognized Palestine as such, the Tribunal cannot under present circumstances establish the existence of a sovereign Palestinian State. It follows that the applicant cannot be seen as having the ‘Palestinian nationality’ and must be regarded as being stateless.  

Rb. Brugge 23 november 2015, T.Vreemd 2016, afl. 2, 223.
AGENTSCHAP INTEGRATIE EN INBURGERING, “Palestijnse nationaliteit wordt niet erkend, staatloosheid dus niet uitgesloten”, T.Vreemd 2016, 509-510.

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

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.

R.J.V.D.B. v Imperial Tomacco Ltd. and Gallagher Ltd.

Supreme Court, R.J.V.D.B. v Imperial Tobacco Ltd. and Gallagher Ltd, Nr. 14.0414.N, 26 May 2015

In this case, the claimant seeks annulment of a judgment of the Antwerp Court of Appeal, inter alia on the basis of an alleged breach of Article 22(3) of the Vienna Convention on Diplomatic Relations (VCDR). In particular, the claimant argues that a vehicle of the Ivorian embassy in London with a British diplomatic license plate be immune from search and seizure in the context of a criminal investigation in Belgium.  The Supreme Court recalls that Art. 22(3) VCDR regulates mutual obligations between the sending and receiving States. By contrast, neither Article 22(3) nor article 40 VCDR provide immunity from investigation or seizure of a means of transportation of a diplomatic mission that is not accredited in Belgium.

Central Bank of Iraq v Commerzbank AG, Prysmian Finland OY et al.

Belgian Supreme Court, Central Bank of Iraq v Commerzbank AG, Prysmian Finland OY et al., Nr. C.14.0459.N/1, 15 May 2015

The Belgian Supreme Court observes that the immunity from execution owed to foreign States pursuant to customary international law, treaty law or national law, is not absolute and is susceptible to waiver of immunity. Immunity from execution does not alter the fact that grievances regarding the seizability of goods must be brought before the court in a timely manner.