International organizations can invoke jurisdictional immunity. What are the consequences, and when is this allowed?
Roughly 40 international organisations are based in the Netherlands. The Dutch State has a strong interest in the presence of these organisations. To ensure that they can perform their tasks properly and without interference from States, they have been granted immunity from jurisdiction. This means, the national court has no jurisdiction to decide in cases to which an international organisation is a party.
Recently, the Supreme Court of the Netherlands has rendered a decision in a longtime dispute between two trade unions and the European Patent Office. The trade unions wanted the Patent Office to be obliged to negotiate with them. The European Patent Office that was taken to court, invoked immunity from jurisdiction in the proceedings but this was dismissed both in first instance and on appeal. How could this happen?
Access to court
Immunity from jurisdiction is not unlimited. The European Convention on Human Rights establishes that each individual must have access to court. The Hague Court of Appeal considered that this right was violated by invoking immunity from jurisdiction, as it would deny the trade unions the right to access to court.
However, case law provides that the right to access to court is not absolute. The limitation of this right must be proportionate, i.e. it can only be limited if there is a reasonable alternative to the national court.
The trade unions were granted the right to access to court, but this right could be limited by the immunity from jurisdiction the European Patent Office enjoyed if the trade unions had an alternative to obtain justice. Ultimately, the discussion concentrated on the question whether the trade unions had an option to defend their rights outside of the Dutch court.
Reasonable alternative means
The Supreme Court believed they did. The employees represented by these trade unions could contest the measures taken by the international organisation by means of an internal procedure. If they were not satisfied with the result, they could lodge an appeal with the International Labour Organisation Administrative Tribunal (ILOAT) in Geneva.
The European Patent Office was thus allowed to invoke immunity from jurisdiction and the Dutch court was not competent to judge on the dispute.
Embassies and Consulates
International organisations can invoke immunity from jurisdiction if there is a good alternative to Dutch court proceedings. Embassies and Consulates will usually not have this alternative. They can only invoke immunity from jurisdiction when acting in their public function as representative of a foreign State. Where private law is concerned, for instance, in concluding a lease contract or dismissing an employee, they can only invoke jurisdictional immunity if state security is at risk.
Remember:
- Immunity from jurisdiction does not mean that the international organisation, foreign State or diplomat does not have to abide by the national law, such as labour law, real estate or contract law.
- Not having immunity from jurisdiction does not take off other forms of immunity, such as inviolability of persons, buildings and other property.
More information
This newsletter provides a brief insight into diplomatic immunity and the potential consequences for your Embassy. But the Embassy desk of our firm also focuses on:
- Labour law
- Rent law / Real estate
- Investment / Doing business in the Netherlands
- Matrimonial issues
Jan Dop,
Head of Embassy Desk
embassydesk@russell.nl