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.
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.
Brussels Labourt Court, N.A. v African Union, Nr. 16/7777/A, 10 January 2018
The plaintiff, who had worked for the Permanent Mission of the African Union in Brussels based on successive short-term contracts, was disputing the termination of his appointment. The Brussels Labour Court upheld the African Union’s immunity from jurisdiction pursuant to a 1985 headquarters agreement concluded with Belgium. The plaintiff had sought to challenge the immunity based on the individual’s right of access to a court (Art. 6 ECHR). However, the Court held that neither the African Union nor its Member States are bound by the ECHR; that the Belgian State, by approving the headquarters agreement and the immunity it provides for, had intended to depart from Article 6 of the (previously ratified) ECHR; and that, at any rate, the restriction on the plaintiff’s right of access to a court was not disproportionate since he had several reasonable alternative remedies available to him – including an appeal before the African Union’s Administrative Tribunal – which he refrained from using.
Belgian Supreme Court, Western European Union v S. M., Nr. S.04.0129.F, 21 December 2009
The assertion that immunity is on the same level as the ECHR, which considers access to the courts to be a fundamental right, must be made with the necessary caution. The international organisation is an actor of international law, whereas the proper administration of justice takes place -in principle- within the State. Moreover, international organisations are not party to international instruments such as the ECHR. Of course, this does not mean that the principles contained in international human rights treaties are not applicable to international organisations. Nevertheless, the Supreme Court is of the opinion that the judge who establishes that a conflict has arisen between two norms of international law that also apply in the internal legal order (access to the courts and immunity) and that are invoked respectively by the parties in the dispute, may not give precedence to one norm over the other.
Supreme Court, ACP Group v B.D., Nr. C.07.0407.F, 21 December 2009
In its judgment of 21 December 2009, the Belgian Supreme Court rejects an appeal by the Secretariat of the Group of African, Caribbean and Pacific States (the ACP Group), in which it claimed that the Brussels Court of Appeal had disregarded its immunity from execution in contravention of Protocol No. 3 to the Lomé IV Convention. According to the Supreme Court, provisions granting immunity to international organizations normally do not constitute an impermissible restriction of Article 6 ECHR. However, the proportionality of these restrictions must be examined on a case-by-case basis, having regard to the availability of alternative means of redress for the person against whom the immunity is invoked. In the present case, the contested judgment had found that no such alternative means of redress were present. Accordingly, the contested judgment had duly motivated why the immunity from execution as invoked by the ACP Group was incompatible with Article 6.1 ECHR.