Points of law

The suit was dismissed according to §20 (2) of the Courts Act for lack of jurisdiction of the German courts. The Court considered that the immunity claim by defendant must be evaluated according to the general rules of international law (§20 (2) of the Courts Act). Customary international law excludes the jurisdiction of German courts over sovereign acts of foreign States but not over their non-sovereign acts. The distinction turns not on the motive or purpose of the act but on its nature. The distinction is to be made according to the law of the forum State. However, the general rules of international law provide that all those acts of foreign States must remain exempt from the jurisdiction of the national courts which are considered as sovereign acts (acta iure imperii) by the majority of States even if the law of the forum State would rate them as acta iure gestionis.

Although labour contracts are considered as private law contracts in Germany even if concluded on behalf of the State, the pending case concerns acta iure imperii beyond the jurisdiction of the German courts. The reason is that plaintiff exercised consular functions (e.g., she issued Argentine passports and visas). These functions are within the core area of sovereignty.

The concept of State immunity protects foreign States from German courts’ interference in their sovereign functions. If an employee exercises sovereign functions as a consular official of a foreign State, the review of this employee’s dismissal by German courts would interfere with the consular functions of this State and thus run counter to the principle ne impediatur legatio.

Summary of the case

The plaintiff considered the termination of her labour contract as ineffective and sued the defendant, seeking declaratory relief to the effect that her labour contract had continued beyond the date of the termination.

Sources

Entscheidungen des Bundesarbeitsgerichts Vol. 83, p.262 et seq.

Additional information (explanations, notes, etc.)

n/a