Cour de cassation Chambre sociale; 2023-04-19; Soc., 19 avril 2023, pourvoi n° 21-22.452
Decision by national courts in the field of European Union law — ECLI:FR:CCASS:2023:SO00417
Date: 2023-04-19
Subject matter: Judicial cooperation in civil matters
Origin: France

82023FR0419(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, brought before the Cour de Cassation (hereinafter ‘the Supreme Court’) concerned jurisdiction problems pertaining to the jurisdictional immunity of States.
An employee (hereinafter ‘the defendant’) dismissed by a French consulate in Algeria (hereinafter ‘plaintiff 1’) sued this consulate and the agent judiciaire de l’État (1) (hereinafter ‘plaintiff 2’) before the conseil de prud’hommes de Paris (hereinafter ‘the Court of First Instance’).
The work contract of the defendant included a choice-of-forum clause in favour of the Algerian courts.
The case was brought before the cour d’appel de Paris (hereinafter ‘the Court of Appeal’), which concluded that the Court of First Instance had jurisdiction. The Court of Appeal was satisfied that the defendant could submit an application to the French courts under Article 43 of the Vienna Convention (2), which provides as follows:
‘1. Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.
2. The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either:
(a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State;
[…]’
The Court of Appeal also held that plaintiff 1 did not have legal personality, and that meant that the defendant had to sue plaintiff 2, who was in Paris.
The Court of Appeal concluded that the choice-of-forum clause could not prevent the application of Article R. 1412-1 of the Code du travail (3), which provides that ‘when the work is performed at home or outside any company or organisation, [the conseil des prud’hommes (4) that has jurisdiction is] that in whose jurisdiction the employee is domiciled’.
The plaintiffs appealed to the Supreme Court. They argued, inter alia, that the defendant performed her work at the consulate, and that, even if Article 43 of the Vienna Convention allows a State or a legal representative of this State to challenge the jurisdiction of a foreign court, it does not give jurisdiction to the courts of that State.
The Supreme Court cited Article 21(1)(a) of the Brussels I Regulation (recast) (5), which provides that ‘1. An employer domiciled in a Member State may be sued: (a) in the courts of the Member State in which he is domiciled’ and Article 23 of the same Regulation, which provides that ‘[the] provisions of this Section may be departed from only by an agreement: (1) which is entered into after the dispute has arisen; or (2) which allows the employee to bring proceedings in courts other than those indicated in this Section’.
The appeal was dismissed.
(1) Judicial Agent of the State.
(2) Vienna Convention on Consular Relations, signed on 24 April 1963.
(3) Code du travail (Labour Code).
(4) Labour court.
(5) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).