Ahmed Mahamdia v People’s Democratic Republic of Algeria.
Date: 2012-07-19
38. It should be noted, to begin with, that Regulation No 44/2001, which lays down the rules for determining the jurisdiction of the courts of the Member States, applies to all disputes in civil and commercial matters with the exception of certain matters expressly mentioned in that regulation. As may be seen from paragraph 10 above, Section 5 of Chapter II of the regulation, which comprises Articles 18 to 21, sets out the rules of jurisdiction for disputes relating to individual contracts of employment.
42. To ensure the full effectiveness of that regulation, in particular Article 18, the legal concepts it uses must be given an independent interpretation common to all the States (see, to that effect, concerning the interpretation of the Brussels Convention, inter alia, Case 33/78 Somafer  [1978] ECR 2183, paragraph 8).
44. For disputes relating to employment contracts, Section 5 of Chapter II of Regulation No 44/2001 lays down a series of rules whose objective, as stated in recital 13 in the preamble to that regulation, is to protect the weaker party to the contract by means of rules of jurisdiction that are more favourable to his interests (see, to that effect, Case C-462/06 Glaxosmithkline and Laboratoires Glaxosmithkline  [2008] ECR I-3965, paragraph 17).
45. In particular, they enable an employee to sue his employer before the court which he regards as closest to his interests, by giving him the option of proceeding before a court of the State in which he is domiciled, the State in which he habitually carries out his work, or the State in which his employer’s establishment is situated. The provisions of that section also limit the choice of jurisdiction by an employer suing an employee, and the possibility of derogating from the rules of jurisdiction laid down by the regulation.
46. As follows from the Court’s case-law on the rules of jurisdiction over contracts of employment in the Brussels Convention (see Case 133/81 Ivenel  [1982] ECR 1891, paragraph 14; Case C-125/92 Mulox IBC  [1993] ECR I-4075, paragraph 18; Case C-383/95 Rutten  [1997] ECR I-57, paragraph 22; and Case C-437/00 Pugliese  [2003] ECR I-3573, paragraph 18), the provisions of Section 5 of Chapter II of Regulation No 44/2001 must be interpreted with account being taken of the concern to ensure proper protection for the employee as the weaker of the contracting parties.
48. In interpreting those concepts of ‘branch’, ‘agency’ and ‘other establishment’ the Court has identified two criteria which determine whether an action relating to the operations of one of those categories of establishments is linked to a Member State. First, the concept of ‘branch’, ‘agency’ or ‘other establishment’ implies a centre of operations which has the appearance of permanency, such as the extension of a parent body. It must have a management and be materially equipped to negotiate business with third parties, so that they do not have to deal directly with the parent body (see Case 139/80 Blanckaert & Willems  [1981] ECR 819, paragraph 11). Secondly, the dispute must concern acts relating to the management of those entities or commitments entered into by them on behalf of the parent body, if those commitments are to be performed in the State in which the entities are situated (see, to that effect, Somafer , paragraph 13).
54. On this point, it must be observed that under the generally accepted principles of international law concerning immunity from jurisdiction a State cannot be sued before the court of another State in a dispute such as that in the main proceedings. Such immunity of States from jurisdiction is enshrined in international law and is based on the principle par in parem non habet imperium , as a State cannot be subjected to the jurisdiction of another State.
55. However, as the Advocate General observes in points 17 to 23 of his Opinion, in the present state of international law, that immunity is not absolute, but is generally recognised where the dispute concerns sovereign acts performed iure imperii . It may be excluded, by contrast, if the legal proceedings relate to acts performed iure gestionis  which do not fall within the exercise of public powers.
56. Consequently, in view of the content of that principle of customary international law concerning the immunity of States from jurisdiction, it must be considered that it does not preclude the application of Regulation No 44/2001 in a dispute, such as that in the main proceedings, 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 such as that in the main proceedings may also consider that that dispute falls within the material scope of Regulation No 44/2001.
61. Article 21 of Regulation No 44/2001 restricts the conclusion by the parties to a contract of employment of an agreement on jurisdiction. Such an agreement must thus be concluded after the dispute has arisen or, if it was concluded beforehand, must allow the employee to bring proceedings before courts other than those on which those rules confer jurisdiction.
63. Moreover, in accordance with the wording of Article 21 of Regulation No 44/2001, agreements on jurisdiction may ‘allow’ the employee to bring proceedings in courts other than those indicated in Articles 18 and 19. Consequently, that provision cannot be interpreted as meaning that an agreement on jurisdiction could apply exclusively and thus prohibit the employee from bringing proceedings before the courts which have jurisdiction under Articles 18 and 19.