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 noted that the defendant was not subject to the jurisdiction of the German courts (§20 (2) of the Courts Act [Gerichtsverfassungsgesetz]).

Although Article 5 of the European Convention on State Immunity of 1972 excludes the State immunity defence in certain labour contract disputes, Article 31 of the Convention expressly reserves the privileges and immunities of diplomatic and consular missions and accords priority to the Vienna Conventions on Diplomatic Relations of 1961 and on Consular Relations of 1963 in cases of conflict. Thus a State party to the European Convention on State Immunity of 1972 can claim sovereign immunity in labour contract disputes with employees of its embassies and consulates to a wider extent than in similar disputes with other employees. In particular, the international legal principle ne impediatur legatio applies in those cases.

According to Article 32 of the European Convention on State Immunity, this convention is not meant to limit the sovereign powers of the States Parties with regard to diplomatic and consular personnel any further than they were limited by the general rules of international law and the Vienna Conventions when the European Convention on State Immunity entered into force. This interpretation is also supported by Article 24 (1) of the European Convention on State Immunity pursuant to which the immunity of foreign States from jurisdiction with regard to acta iure imperii is expressly reserved.

According to §20 (2) of the Courts Act, a foreign State is exempted from the jurisdiction of the German courts with regard to disputes arising from the termination of labour contracts with consular employees (see decision of the Federal Labour Court (Bundesarbeitsgericht) “Argentine citizen and former employee of the Argentine Consulate General in Germany v. Argentine Republic” of 3 July 1996). The same applies with regard to embassy employees who perform consular functions in a branch office of the embassy. The judicial review of the dismissal of such an employee would interfere with the sovereign functions of the foreign State and thus run counter to the principle ne impediatur legatio. This holds true no less if the foreign State is a party to the European Convention on State Immunity (see Article 32 of this Convention).

The plaintiff did in fact perform core consular functions at the branch office of defendant’s embassy. She was empowered to sign visas and to use the embassy seal. She was also put on the list of personnel with signing authority.

Summary of the case

Termination of plaintiff’s labour contract after she had abused an Embassy seal for private purposes was considered as ineffective by plaintiff. She therefore sued the defendant, seeking declaratory relief to the effect that her labour contract had continued beyond the date of the termination.

Sources

Betriebs-Berater 2002, p.787 et seq.

Additional information (explanations, notes, etc.)

The decision of the Federal Labour Court relies on its earlier decision of 3 July 1996 in the case "Argentine citizen and former employee of the Argentine Consulate General in Germany v. Argentine Republic".

See also the decision of the Federal Labor Court of 23 November 2000 (Neue Zeitschrift für Arbeitsrecht 2001, p. 683 et seq.).