Belgian Court Decision on Jurisdictional Immunity of International Organizations in Employment Disputes
Kelley Drye Client Advisory
The Brussels Employment Tribunal upheld the immunity from jurisdiction of an international organization in a judgment dated 10 January 2018 (unpublished to date). This judgment differentiates itself from a certain trend in the Belgian case law which for some years has been adopting a fairly restrictive approach towards immunities of international organizations in labour matters.
Following non-renewal of his employment by the international organization, the plaintiff, who had been working as a policy officer for the organization’s permanent mission in Brussels, brought a lawsuit against the organization before the Belgian labour courts. He claimed various amounts under Belgian employment legislation (indemnity in lieu of notice, arrears of salary) as well as his retroactive registration with Belgian social security. The organization relied in the first place on its immunity from jurisdiction pursuant to the Headquarters Agreement concluded in 1985 with Belgium.
As the relevant provisions of the Headquarters Agreement did not make the immunity contingent upon any particular factor (except the absence of a waiver, an issue which was not at stake in the case at hand), the Tribunal rejected the plaintiff’s arguments that the immunity would not be applicable due to his exercising of ‘subordinate’ functions, due to the lack of impediment to the operation of the organization as a result of the court proceedings, and due to the nature of his contract as a ‘commercial act’.
The focus was then on the impact of the individual’s right of access to a court, invoked by the claimant on the basis of Article 6 of the European Convention on Human Rights (ECHR). In this respect, it is worth recalling that in a number of decisions delivered by Belgian courts in employment disputes over the past few years, including a famous judgment of 21 December 2009 of the Court of Cassation (Supreme Court), the immunity from jurisdiction of the international organization concerned was denied based on the plaintiff’s right of access to a court. The reasoning in these decisions was, in essence, that reasonable alternative remedies were not available to the plaintiff. A quite strict interpretation of what constitutes such reasonable alternative remedies was favoured in this context – the Court of Cassation finding for instance, in the above 2009 judgment, that a claims commission set up by the organization to settle staff disputes, composed of members appointed by the organization for a term of two years, is not a reasonable alternative remedy as it cannot be considered independent, and that the organization accordingly cannot rely on immunity.
Interestingly enough, the Brussels Employment Tribunal first pointed out that the Belgian State itself, by concluding the Headquarters Agreement (1985) subsequent to the ECHR (1955), made the choice to depart from the individual’s right of access to a court where the immunity of the organization would prove applicable.
The Tribunal went on to decide that, even if Article 6 ECHR were to be taken into consideration, it was not breached in the case at stake. Indeed, the plaintiff did have, according to the Tribunal, several reasonable alternative remedies at his disposal, which he decided not to exhaust, therefore it could not be said that there was a disproportionate limitation on his right of access to a court. In this regard, the Tribunal mainly took into account the existence of the Administrative Tribunal of the international organization involved, which indeed has jurisdiction to hear staff disputes within the organization and, it was ruled, meets all requirements of an independent tribunal (the Brussels Tribunal referred among others to the following elements : members of the Administrative Tribunal appointed for terms of four years and with high professional qualifications, publicity of the debates, adversarial process, assistance by counsel and interpreters, obligation to give reasons for judgments, revision or annulment remedies).
This judgment appears to be in line with the leading Waite and Kennedy case of the European Court of Human Rights, in which the employee had equally failed to exhaust the available remedies within the international organization concerned.