Kingdom of Morocco v DR

Date06 novembre 1989
CourtLabour Court (Belgium)
Belgium, Labour Court of Brussels (Sixth Chamber).

(Thomas, President)

Kingdom of Morocco

State immunity Jurisdictional immunity Chauffeur employed by embassy of foreign State Contract of employment Dismissal Claim for damages for unjustifiable dismissal Whether foreign State entitled to jurisdictional immunity Whether fact that employee is a foreign national is material Relevance of European Convention on State Immunity, 1972, Article 5(1) Whether applicable as codification of customary international law even though defendant State not a party The law of Belgium

Summary: The facts:The respondent, a Portuguese national, was employed as a chauffeur by the Embassy of Morocco. In October 1985 he was dismissed with one month's notice. He brought proceedings claiming compensation for unjustifiable dismissal and Morocco invoked jurisdictional immunity. At first instance the plea of immunity was rejected and Morocco appealed.

Held:Jurisdictional immunity was denied and the claim was allowed.

(1) In concluding and subsequently terminating a contract of employment, the appellant State had not exercised its public power but had rather performed an ordinary commercial act in the same manner as a private individual. The nationality of the individual had no bearing on the rules applicable to contracts of employment executed in Belgium.

(2) This conclusion was confirmed by Article 5(1) of the European Convention on State Immunity, 1972. Although Morocco was not a party to the Convention, Article 5(1) enshrined a rule of customary international law which was binding on non-parties to the Convention.

The following is the text of the judgment of the Court:

I. With regard to jurisdiction ratione materiae

The judge at first instance (Labour Court of Brussels, 2 April 1987) correctly considered that a distinction has always been made in the case-law between acts of public power and commercial acts, even where a foreign State is the defendant.

The Court of Cassation decided as early as 1903 that where a State did not exercise its public power but acted in the same manner as an individual might, as an ordinary private person, any dispute arising from such an act between a Belgian citizen and a foreign State was subject to the jurisdiction of the Belgian courts (Court of Cassation, 11 June 1903, Pas., I, p. 294; also for the same approach see Labour Court of Brussels, 1 February 1980 [1] and 25 April 1983, JTT 1984, p. 277).[2]

It is not relevant to point out that the...

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