The Protocol Department deems it useful to recall the principle of exception to immunity from jurisdiction of States in connection with contracts of employment, a principle which is enshrined in customary international law and accepted by French courts. In other words, as regards contracts of employment, barring exceptions a State cannot invoke immunity from jurisdiction before a French court which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of France.
This customary exception to immunity from jurisdiction is codified in Article 11 of the United Nations Convention on Jurisdictional Immunities of States and Their Property which was adopted by the United Nations General Assembly on 2 September 2004.
According to Article 11, contracts of employment concluded between a mission or the representation of a foreign State and an employee who is not a national of that State nor a permanent resident in the State of the forum are not in principle covered by the jurisdictional immunity of foreign States, unless:
- the employee is expected to perform particular functions in the exercise of governmental authority on behalf of the foreign State concerned in France. Conversely, where the employee is not tasked with any special responsibilities in the exercise of public authority, his or her dismissal by a foreign State is an act of private management which is not covered by jurisdictional immunity;
- The employee is a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961, or a consular officer, as defined in the Vienna Convention on Consular Relations of 1963, or a member of the diplomatic staff of a permanent mission to an international organization or of a special mission, or is recruited to represent a State at an international conference, or any other person enjoying diplomatic immunity;
- the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual;
- the subject-matter of the proceeding is the dismissal or termination of employment of an individual and such a proceeding would interfere with the security interests of the foreign State;
- the foreign employer State and the employee have otherwise agreed in writing, insofar as the courts of the State of the forum do not have exclusive jurisdiction for considerations of public policy, by reason of the subject-matter of the proceeding.
Furthermore, as underlined in Article 41 of the Vienna Convention of 18 April 1961 on Diplomatic Relations and in Article 55 of the Vienna Convention of 24 April 1963 on Consular Relations, the acknowledged immunities from jurisdiction and execution enjoyed by diplomatic and consular missions do not exempt them from compliance with existing French legislation and regulations, particularly in relation to labour law.
Consequently, and in pursuance of the above principles, the Protocol Department draws attention to the fact that it is the responsibility of the recipients of this note to adopt the means they deem necessary to assert their rights and possible immunities, and those of their agents, before the competent courts where the complaints of their staff members have been lodged.
Lastly, it goes without saying that it is the responsibility of the entities and agents enjoying an immunity to comply with the court rulings concerning them.
Updated : July 2012