De Queiroz v Portugal
| Date | 22 septembre 1992 |
| Court | Labour Court (Belgium) |
(Gustot, President; Werquin, Ministre Public)
State immunity Jurisdictional immunity Language teacher employed in consular section of embassy of foreign State National of employing State Contract of employment Dismissal Claim for damages for breach of contract Whether foreign State entitled to jurisdictional immunity Whether fact that employee a national of the employing State is relevant Relevance of European Convention on State Immunity, 1972, Article 5(2) Whether applicable as codification of customary international law even though defendant State not a party The law of Belgium
Summary:The facts:The appellant, a Portuguese national, was employed as a language teacher by the consular section of the Portuguese Embassy from 1976 to 1990, when he was dismissed. He brought proceedings against his employer claiming damages for breach of contract. The respondent State did not enter an appearance but the court of first instance raised, ex officio, the issue of jurisdictional immunity and held that Portugal was entitled to immunity from the proceedings in accordance with Article 5(2) of the European Convention on State Immunity, 1972. Portugal had signed but not ratified the Convention. Nevertheless the court of first instance held that Article 5(2) enshrined a rule of customary international law that where the proceedings related to a contract of employment between a State and an individual, who was a national of the employing State, that State could claim immunity. De Queiroz appealed.
Held:The appeal was allowed. The Belgian courts were competent to exercise jurisdiction over the claim.
(1) According to the rules of customary international law, the contract between the parties was governed by private law since the State of Portugal, in hiring the appellant to teach Portuguese language and culture, had not performed an act of sovereignty. Since Portugal had signed but not ratified the European Convention on State Immunity, only those of its provisions which were declaratory of customary international law (such as Article 5(1)) were applicable to the employment relationship at issue.
(2) Article 5(2) of the Convention did not reproduce a pre-existing rule of customary international law since it referred to a connecting factor based on the nationality of the employee, which negated the theory of restrictive immunity based on the distinction between acts of sovereignty performed jure imperii and commercial acts performed jure gestionis.
The text of the judgment of the Court commences on the following page.
The judgment under appeal was rendered on 28 May 1991, in default of appearance by the respondent, by the Labour Court of Brussels.
The appellant, the original plaintiff, was employed as a language teacher by the consular section of the Portuguese Embassy from 19 October 1976...
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