EUPillar BAG, 1.7.2010 – 2 AZR 270/09

Summary

The defendant is the People’s Democratic Republic of Algeria. The claimant had been employed as a driver at the defendant’s embassy in Berlin. He filed an action for wrongful dismissal due to the termination of his employment to the District Labour Court of Berlin. Regarding the claim, the defendant invoked state immunity. It argued that the claimant had not merely worked as a driver but also had acted in a sovereign capacity, namely as an interpreter for the ambassador during conversations with guests from foreign countries. Furthermore, the defendant challenged the international jurisdiction of the German courts. The District Labour Court dismissed the action as inadmissible. The Regional Labour Court of Berlin, however, accepted jurisdiction and granted the action. The defendant appealed on a point of law to the Federal Labour Court. The Federal Labour Court grants the appeal on a point of law and remands the case back to the court of appeal. With regard to the state immunity of the defendant, it must be determined regarding the object of the claimant’s activities whether the activities required of the claimant under the contract of employment are private law in nature or whether the claimant carried out activities which were closely connected to the diplomatic tasks of the embassy. In the latter case, his activities would fall under the sovereign activities of the defendant and according to the principle of state immunity would therefore not be subject to German jurisdiction. The Regional Labour Court must clarify this matter. If the claimant’s activities are private law in nature, international jurisdiction would arise under Articles 19(1) and 18(2) Brussels I Regulation. It is questionable whether an embassy of a third State may be considered as an establishment within the meaning of Article 18(2). However, as the case may be, this question would have to be referred to the CJEU for a preliminary ruling.