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International

24-10-2017

Embassies in the Netherlands – local employees and state immunity

Most embassies in the Netherlands cannot rely solely on the diplomatic corps of their own nation to function properly. Supporting staff, such as receptionists, personal drivers, secretaries and cleaners, will often be recruited locally.

However, there is a down-side to having local employees. Unlike with its own diplomatic personnel, a state cannot invoke immunity from jurisdiction vis-à-vis locally hired employees. This means that in case of a dispute, locally hired employees can initiate proceedings against the sending state before the Dutch courts.

Jurisdiction in employment disputes

On the basis of Regulation (EU) 1215/2012 (Brussels I recast), a Dutch court will assume jurisdiction over any dispute between an employer and an employee if:

  • the employer is located in the Netherlands; or
  • the employee normally carries out his work in the Netherlands; or
  • if the employee does not habitually carry out his work in any one country, the business location which engaged the employee is situated in the Netherlands.

The rules set out above override any choice of forum agreed upon between the employer and the employee, unless

  • the choice was made after the dispute arose; and
  • the choice allows (only) the employee to bring proceedings in courts other than those indicated by the criteria set out above.

State immunity

Of course, if the employer is a foreign state, and the foreign state has not expressly waived its right to do so, the state will be able to invoke state immunity, which presents itself in two distinct forms.

Firstly, foreign states may invoke immunity of jurisdiction which means that a local court has no jurisdiction to pass judgment on disputes in which it is involved. Should a plaintiff wish to start proceedings against a foreign state as a defendant, a successful appeal to the immunity of jurisdiction would mean the local court would consider the case to be non-admissible. This would prevent a Dutch court from being able to look into the case materially.

As a ‘second stage’ manifestation of state immunity, a foreign state faced with a judgment against it, can invoke immunity of enforcement rendering the foreign state immune from having any judgment or writ of execution from a Dutch court enforced against it.

We shall further elaborate on the application of both principals in the Netherlands below.

Immunity of Jurisdiction

Following Dutch case law, the immunity of jurisdiction is not absolute. Also, rules and restrictions of immunity of jurisdiction have been included in the United Nations Convention on Jurisdictional Immunities of States and Their Property (the “UN Convention”). Although the UN Convention has not entered into force yet, the Dutch Supreme Court has held the UN Convention to be a codification of generally accepted standards of international law.

Pursuant to the UN Convention, immunity of jurisdiction is only applicable if the actions taken by a foreign state (as represented by its embassy) are by their nature considered to be the exercise of the foreign states governmental task. This means a state may not claim immunity of jurisdiction in respect of actions undertaken strictly for commercial purposes between a state and private parties, such as the sale of goods or supply of services.

Furthermore, an exception to the principle of immunity of jurisdiction has been allowed for employment matters. Proceedings related to an employment agreement are deemed to fall outside the scope of jurisdictional immunity unless (i) the employee has been recruited to perform particular functions in the exercise of governmental authority, (ii) the employee is a diplomatic agent and/or (iii) the employee is a national of the employer state and does not have a permanent residence in the state of the forum.

For example, in the case of the Kingdom of Morocco v. Aissaoui, the Dutch sub-district court held that the Kingdom of Morocco could not invoke jurisdictional immunity in a dispute with an employee who performed only secretarial tasks, which tasks the court considered to be by their nature not a performance of the exercise of governmental authority.

Immunity of Enforcement

Assuming the plaintiff has obtained a judgement of a Dutch court against a foreign state, the next step would be for the plaintiff to enforce this judgement.

On the basis of article 19 of the UN Convention, which the Dutch Supreme Court held to be a codification of standing international law, no post-judgment measures of constraint (such as attachment, arrest or execution) may be taken against the property of a state, unless it has been established that the property is specifically in use or intended for use by the State for other than governmental purposes.

According to the UN Convention, such governmental purposes include, but are not limited to property (including bank accounts), which is used or intended for use for the performance of the functions of the diplomatic missions of the state.

In addition to the foregoing, the Dutch Supreme Court has held that any party who wishes to seize property from a foreign state on the basis of a Dutch judgement will bear the burden of proof to show that the property is susceptible to seizure even if the property is used for both state and commercial purposes.

Conclusion:

The universally recognized principle of immunity from jurisdiction does not prevent embassy employees who qualify as ‘support staff’, such as drivers, cleaners, or secretaries, from initiating proceedings and obtaining judgments against their employers before the Dutch courts. Ultimately, however, the sending state’s immunity from enforcement will leave the plaintiffs no practical means to actually enforce any such judgments. As a result the enforcement of a decision made by a Dutch court is likely to fail.

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