Opinion of the Advocate General — ECLI:EU:C:2012:309
Date: 2012-05-24
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Public international law — Principles — Immunity of States from jurisdiction — Scope 2. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Jurisdiction over individual contracts of employment — Concept of an establishment within the meaning of Article 18(2) of the regulation — Embassy of a third State situated in a Member State — Included — Condition — Functions carried out by the employee not falling within the exercise of public powers (Council Regulation No 44/2001, Art. 18(2)) 3. Judicial cooperation in civil matters — Jurisdiction and the enforcement of judgments in civil and commercial matters — Regulation No 44/2001 — Jurisdiction over individual contracts of employment — Agreement on jurisdiction concluded before a dispute arises — Lawfulness — Condition — Possibility for the employee of bringing proceedings before other courts as well as before the courts ordinarily having jurisdiction (Council Regulation No 44/2001, Art. 21(2)) 1. See the text of the decision. (see paras 54, 55) 2. Article 18(2) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an embassy of a third State situated in a Member State is an establishment within the meaning of that provision, in a dispute concerning a contract of employment concluded by the embassy on behalf of the sending State, where the functions carried out by the employee do not fall within the exercise of public powers. It is for the national court seised to determine the precise nature of the functions carried out by the employee. The principle of customary international law concerning the immunity of States from jurisdiction does not preclude the application of Regulation No 44/2001 in a dispute in which an employee seeks compensation and contests the termination of a contract of employment concluded by him with a State, where the court seised finds that the functions carried out by that employee do not fall within the exercise of public powers or where the proceedings are not likely to interfere with the security interests of the State. On the basis of that finding, the court seised of a dispute may also consider that that dispute falls within the material scope of Regulation No 44/2001. (see paras 56, 57, operative part 1) 3. Article 21(2) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an agreement on jurisdiction concluded before a dispute arises falls within that provision in so far as it gives the employee the possibility of bringing proceedings, not only before the courts ordinarily having jurisdiction under the special rules in Articles 18 and 19 of that regulation, but also before other courts, which may include courts outside the European Union. (see para. 66, operative part 2)