Points of law

- immunity from jurisdiction of foreign States

- the only exceptions being express or tacit but unequivocal waiver

- immunity encompasses not only acts ius imperii, but also cases where the State acts as a private law person

- a consulate constitutes a representation of a foreign State and its acts are, whether of ius imperii or ius gestionis, acts of the State and thus Portuguese courts lack competency to judge them

Summary of the case

In an appeal before the District Court of Porto by an individual against the Spanish Consulate, the Court considered that:

When one of the subjects of a judicial proceeding is a foreign State, namely when the State is the defendant, one has to look into the international rules regarding jurisdictional competency contained in treaties and custom and not in internal law. There is no general rule of international law regarding jurisdictional competency. Foreign States are entitled to immunity from jurisdiction, the only exceptions being express or tacit but unequivocal waiver, for the waiver cannot be presumed. This immunity encompasses not only acts ius imperii, but also cases where the State acts as a private law person. A Consulate constitutes a representation of a foreign State and its acts are, whether of ius imperii or ius gestionis, acts of the State and thus Portuguese courts lack competency to judge them.

Sources

Colectânea de Jurisprudência, 1981, No. VI-1

Additional information (explanations, notes, etc.)

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