Points of law

Government draft of Act of Parliament required by Article 59 (2) of the Basic Law to enable the Federal Republic of Germany to ratify the European Convention on State Immunity of 1972 (ETS No.74).

The Explanatory Memorandum shows that the Federal Government supports the concept of relative State immunity embodied in the Convention.

Specific provision(s) of the document

English Translation of Excerpt from Government Draft:

“The Convention follows the concept of relative State immunity which is approved by legal doctrine and case law in the Federal Republic of Germany ...“ (title page under B.)

Partial Summary of the Denkschrift (explanatory memorandum of the Federal Government to the Convention):

"According to the jurisprudence of the Federal Constitutional Court approved by legal doctrine a state enjoys immunity only with regard to acta iure imperii. The question whether state action is iure imperii or iure gestionis must be determined according to the law of the forum state. In Germany, judicial practice focuses on the nature of the state action or of the ensuing legal relationship and not on the motive or purpose of the state action because all state activity is ultimately linked to sovereign purposes and responsibilities. With regard to execution against a foreign state, which is not a priori inadmissible under customary international law, there is no exact parallelism in German law between jurisdictional immunity and immunity of execution because the effects of an execution will hit a foreign state much harder than a judgment and thus the risk of political complications will be greater.

If there is no jurisdictional immunity because a private law activity of a foreign state is involved or because this state has submitted to the jurisdiction of the forum state that does not mean that an execution will also be admissible. The admissibility of an execution does not depend on whether the foreign state owns the object of the execution as a sovereign or merely as a legal person under private law. The decisive question is rather whether the object of the execution serves sovereign purposes of the foreign state at the time at which the execution is bound to commence. (Part I.A. [p.30])

Article 15 attributes immunity to states even with regard to disputes concerning acta iure gestionis which are not covered by the exceptions in Articles 1 to 13. However, Article 24 authorizes states parties to make a unilateral declaration, thereby extending the jurisdiction of their courts to acts of foreign states not so covered but excluding acta iure imperii. As the Federal Republic of Germany adheres to the restrictive theory of sovereign immunity, it intends to make such a declaration. This declaration shall primarily preserve the jurisdiction of German courts in labor disputes between employees and the foreign states which employed them. (Explanations by the Federal Government with regard to Articles 15 and 24 [pp.34, 36-7])."

Sources

Deutscher Bundestag, 11. Wahlperiode, Drucksache 11/4307 (official prints of the German Federal Diet).

Additional information (explanations, notes, etc.)

The Act of Parliament was passed in a slightly revised version and signed by the Federal President on 22 January 1990 (BGBl.1990 II, 34 – see D/20).

The Federal Republic of Germany ratified the Convention (but not the Additional Protocol) on 15 May 1990.