Case number and/or case name
C-154/11 Ahmed Mahamdia v People’s Democratic Republic of Algeria (Grand Chamber)
Referring court and Member State
Germany, Second Instance, Landesarbeitsgericht Berlin-Brandenburg
Summary
This case on Arts 18(2) and 21 of Brussels I was referred to the CJEU in proceedings between Mr Mahamdia, an employee at the Algerian Embassy in Berlin, and Algeria. He concluded an employment contract with the Ministry of Foreign Affairs of Algeria to work as a driver at the Embassy. The contract contained a jurisdiction clause giving exclusive jurisdiction to the Algerian courts. Much later, he brought proceedings against Algeria in Berlin seeking to be paid for his overtime work. Following this, he was dismissed. He then added to his principal claim before the Berlin Labour Court a claim concerning unfair dismissal. Algeria challenged the German courts’ jurisdiction by relying on state immunity and the jurisdiction clause in the contract. The court dismissed the claim based on state immunity. At appeal, this judgment was quashed in part. The Higher Labour court observed that Algeria did not enjoy immunity because Mr Mahamdia was a driver at the embassy and his activities did not form part of the exercise of public powers by Algeria. It further found that the German courts had jurisdiction under Art 19, because the embassy was an ‘establishment’ of Algeria under Art 18(2) and that the jurisdiction agreement did not satisfy the conditions in Art 21 of Brussels I, as it had been concluded before the dispute arose and referred the employee to the Algerian courts exclusively. On a point of law, this judgment was set aside and the case was remitted to the Higher Labour Court which asked the CJEU whether an embassy is an ‘establishment’ under Art 18(2) and whether Art 21 applies where a jurisdiction agreement, conferring exclusive jurisdiction on a third state’s court, was concluded before a dispute arises. The CJEU reaffirmed the two criteria it had established for the concept of ‘branch’, ‘agency’ and ‘other establishment’ in its case-law on the Brussels Convention: 1. “The concept implies a centre of operations which has the appearance of permanency, such as the extension of a parent body. It must have a management and be materially equipped to negotiate business with third parties, so that they do not have to deal directly with the parent body” (para 11 of 139/80 Blanckaert&Willems) and 2. “The dispute must concern acts relating to the management of those entities or commitments entered into by them on behalf of the parent body, if those commitments are to be performed in the State in which the entities are situated” (para 13 of 33/78 Somafer). As regards the first one, it observed that an embassy may be equated with a centre of operations which has the appearance of permanency and contributes to the identification and representation of the State from which it emanates. As regards the second one, it observed a dispute on employment relations has a sufficient link with the functioning of the embassy regarding the management of its staff. Agreeing with AG Mengozzi, it stated that state immunity may be excluded if the legal proceedings relate to acts performed iure gestionis not falling within the exercise of public powers. It thus found that as regards contracts of employment concluded by an embassy on behalf of the State, the embassy is an ‘establishment’ under Art 18(2) where the functions carried out by the employee do not fall within the exercise of public powers. On the second question, the CJEU took account of Art 21’s wording and purpose. It observed that it does not follow either from the wording or from the purpose that a jurisdiction agreement may not confer jurisdiction on the courts of a third State, provided that it does not exclude the jurisdiction conferred by Brussels I. It thus held that a jurisdiction agreement concluded before a dispute arises falls within Art 21(2) in so far as it gives the employee the possibility of bringing proceedings, not only before the courts ordinarily having jurisdiction under the special rules in Arts 18 and 19, but also before other courts, which may include courts outside the EU.