Tribunal da Relação de Lisboa; 2024-06-05; 27445/22.2T8LSB.L1-4
Decision by national courts in the field of European Union law — ECLI:PT:TRL:2024:27445.22.2T8LSB.L1.4.B4
Date: 2024-06-05
Subject matter: Judicial cooperation in civil matters
Origin: Portugal

82024PT0605(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a matter of jurisdiction in a case for unlawful dismissal of an employee of a foreign embassy in Portugal, which included a request for reinstatement, brought before the Tribunal da Relação de Lisboa (hereinafter ‘the Court of Appeal’).
The plaintiff filed a suit in a Portuguese court (hereinafter ‘the Court of First Instance’) against the Embassy of Paraguay in Portugal (hereinafter ‘the defendant’), claiming that the defendant had unlawfully terminated her employment contract. The plaintiff asked that the defendant be ordered to pay amounts due (holiday pay, credit regarding training hours which were not given, etc.) The plaintiff also requested that the court order the defendant to reinstate the plaintiff in her job position and to pay EUR 100 for each day of delay in reinstating her. The defendant claimed that Portuguese courts did not have jurisdiction over the matter. The Court of First Instance considered itself internationally competent to rule on the matter, concluding that there had been an unlawful dismissal, and ordering the defendant to pay labour credits. The Court of First Instance also ordered the defendant to reinstate the plaintiff to her former position, and to pay an amount of EUR 100 for each day of delay in reinstatement. The defendant appealed to the Court of Appeal.
The Court of Appeal ruled as follows:
Although there is no specific legal rule in force in Portuguese national Law concerning jurisdictional immunity, however, Article 8 of the CRP (1) states that the rules or principles of general or common international Law form an integral part of Portuguese Law.
The UNCJISP (2) states in Article 11(1) that unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State 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 that other State.
However, Article 11(2)(c) determines that Article 11(1) shall not apply if the subject-matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual.
The Court of Appeal quoted Portuguese case law and also Court of Justice of the European Union case law, namely Case C-154/11 (3), which considered that Article 18(2) of the Brussels I Regulation (4) 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.
Therefore, the Court of Appeal upheld the judgment of the Court of First Instance in the part which concluded that there was an unlawful dismissal, and which ordered the defendant to pay labour credits.
As for the part of the sentence which ordered the reinstatement of the plaintiff to her former position and to pay EUR 100 for each day of delay in reinstatement, the Court of Appeal did not uphold it, because it considered that Portuguese courts do not have jurisdiction in the matter, and that the defendant was allowed to invoke jurisdictional immunity.
(1) Constituição da República Portuguesa (Constitution of the Portuguese Republic).
(2) United Nations Convention on Jurisdictional Immunities of States and Their Property.
(3) Judgment of the Court of Justice of 19 July 2012 Ahmed Mahamdia v People’s Democratic Republic of Algeria, C-154/11, ECLI:EU:C:2012:491, paragraph 57.
(4) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.