Points of law

- the Embassy is a representation of the foreign State, its acts, whether ius emperi or ius gestionis, are acts of the foreign State

- foreign States enjoy immunity for acts iure imperii but not for acts iure gestionis, that is to say when it acts in the same way as a private person in relations governed by private law, such as commercial activities

Summary of the case

In an appeal filed with the Supreme Court by Austria, the Court considered that the foreign State acted as a private entity (ius gestionis) vis-à-vis the request to reintegrate a laid off worker; the Court acknowledged the co-existence of two legal doctrines, that of absolute State immunity which is the logical consequence of the principle par in parem non habet imperium, by virtue of which one State is not subject to the jurisdiction of another State, and that of relative State immunity, which is tending to predominate. In this regard, the Court argued that article 8.º of the Portuguese Constitution reflects the principle par in parem non habet imperium, however courts also take into account that currently the State also acts as a private person, in legal relations governed by private law, particularly when pursuing commercial activities.

The Court also highlighted that the foreign States’ entitlement to immunity depends on the task for which the workers were hired (administrative or clerical staff duties lack iure imperii) and whether the activity of hiring a person to perform that task was one in which a private party could engage (as hiring a gardener or a domestic worker).

Sources

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Additional information (explanations, notes, etc.)

Case nº 05S3279