UN Special N° 645 Novembre · November 2005 

Personnel
WIPO

The French Supreme Court said…

The right to a day in court prevails over jurisdictional immunity

André Heitz, WIPO

“In the determination of his civil rights and obligations [...], everyone is entitled to a [...] hearing [...] by [a] tribunal [...]”
(Article 6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms).
In March 2000, the Federation of International Civil Servants’ Associations (FICSA) drew two landmark judgements of the European Court of Human Rights to the attention of its members (FICSA Update 3/2000). In Beer and Regan v. Germany and Waite and Kennedy v. Germany, the Court held:

“The Court is of the opinion that where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention [for the Protection of Human Rights and Fundamental Freedoms], however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. This is particularly true for the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial [...]”

“For the Court, a material factor in determining whether granting [the European Space Agency] immunity from German jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention.”

«... It would seem, however,
that it is the first time that a
Supreme Court confirms the
primacy of the right to a
tribunal over said immunity ...»

The cases were eventually dismissed, essentially because the complainants had held an employment contract with an outside firm, and not ESA. What matters, however, is that the principle was firmly established, and was so at the level of a continent.
The French judiciary has recently ruled on the basis of that principle in a case involving a former official of the African Development Bank (ADB). The facts are simple: the official was terminated in 1995 “in the framework of ‘involuntary separations’ implemented by ADB under a reorganisation and redeployment programme” (quoted from the judgement
of the Court of Appeals
). At that time, ADB only had a system of review of administrative decisions by a Staff Appeals Board making a recommendation to the President of the Bank. An “in-house” Administrative Tribunal, whose decisions are binding, was established with effect from 1 January 1998, though, but the decision-making bodies took great pains – so to speak – to exclude from its jurisdiction all cases that had arisen before that date.
The official, Mr. Alexis Degboe, thus brought an action with the Paris Labour Court to claim an indemnity in lieu of termination notice, payment of allowances in arrears and compensation for dismissal without real and effective justification. The Court declared itself competent, Mr. Degboe being a French national, and ruled in his favour. ADB appealed, but to no avail. In its judgement of 7 October 2003, the Court of Appeals indeed found that:

“the application of jurisdictional immunity to the dispute between Mr.Degboe and ADB would infringe the very substance of his ‘right to a tribunal’, and he would be the victim of a denial of justice; moreover, the fact that ADB is forced to defend itself before a French Court on the merits of the dispute over the dismissal of Mr. Degboe is not such as to impair ADB’s efficient functioning.”

The case was then brought to the Supreme Court (Cour de cassation). In its decision of 25 January 2005, the Court affirmed the Court of Appeals’ ruling:

“whereas the African Development Bank may not assert jurisdictional immunity in its dispute with its dismissed worker since at the material time it had not established a tribunal competent to entertain complaints of this nature, for the inability for one party to refer its claim to the competent judge for a ruling and to exercise a right vested onto him by international public order constitutes a denial of justice which in turn establishes the competence of the French Judiciary when there is a connection with France.”

This is not the first time that a national tribunal accepts to hear a complaint involving an international institution despite the jurisdictional immunity that the latter may adduce. It would seem, however, that it is the first time that a Supreme Court has confirmed the primacy of the right to a tribunal over said immunity.
The decisions of the French courts are fully relevant to international Geneva. On the one hand, the headquarters agreements signed with the Swiss Confederation generally provide that the international institutions must take the necessary steps to ensure the satisfactory settlement of any disputes arising from contracts to which they are party; this provision cannot but apply to employment or service contracts and it is only meaningful if any failure is remedied by an ex judicio waiver of the immunity. On the other hand, Switzerland has recognized the competence of the European Court of Human Rights, and the Waite and Kennedy decision is thus also binding upon her.
In any event, that “[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal” is a human right (Article 10 of the Universal Declaration of Human Rights), whereas jurisdictional immunity is only a right granted for purposes of convenience. The decisions of the French judiciary are therefore of worldwide significance.

But what is the practical meaning of the judgements?

For one, the Executive Heads of the many organizations which have not yet created or recognised a tribunal are warned that they must do so; and, by the way, a tribunal is an instrument for both parties for it sets out the law to both the staff and management (and member States). Let us be clear: an internal appeals board making recommendations to the Executive Head is not sufficient. The French Court of Appeals in fact noted that “the dispute has thus been examined solely by the ADB President; it is common ground that Mr. Degboe has no other recourse to effectively safeguard his rights” (our emphasis). In some cases, the credibility – independence and impartiality – of an “in-house” tribunal may also be successfully challenged before a national Court.
For another, some categories of personnel, particularly those on precarious contracts, are told that they are not deprived of legal protection, even where their organization deploys efforts to convince them of the opposite (for instance by stipulating in the employment contract that the Staff Rules – and thus the recourse procedure – are not applicable to them).
The Administrative Tribunal of the International Labour Organisation also did so in 1998, but somewhat timidly, in judgement No. 1118 (Cissé v. ILO). But, in these times when precarious employment is made the rule, the ruling of the French Supreme Court is most welcome.

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