CYIL 2014

KLARA POLACKOVA VAN DER PLOEG CYIL 5 ȍ2014Ȏ Republic. The driver filed an extraordinary appeal (in Czech: dovolání ) against these decisions with the Supreme Court of the Czech Republic. In his most relevant point, the driver argued that in case a State enters directly into a private legal relationship, the State is and must be regarded as an ordinary legal person. By dismissing his petition on jurisdiction, he would be denied his right to access to court in violation of Article 6(1) of the European Convention on Human Rights. In its ruling, the Supreme Court held that the extraordinary appeal was well founded, annulled the rulings of the lower courts, and remanded the case for further proceeding to the court of first instance. The Court noted that although the jurisdiction of the Czech civil courts was not challenged as such, jurisdiction would be given on the basis of Council Regulation (EC) 44/2001. 13 However, since neither Council Regulation (EC) 44/2001 nor any applicable international agreement dealt with the immunity of States, the question of the Polish immunity had to be resolved in accordance with the principle of sovereign equality of States, as well as the general provision regulating the exemption of foreign States from the jurisdiction of Czech courts, § 47 Sec. 1 of Act No. 97/1963 Coll., on International Private and Procedural Law, which contains a renvoi to general international law. 14 In the critical section of its decision, the Supreme Court evaluated the applicable international law in the following manner: “The content of State immunity was previously perceived as absolute. Any connection of a State with the subject-matter of the dispute led to the finding of immunity and consequently an impossibility of conducting a proceeding against the State before a foreign court. However, the dynamic expansion of international relations resulted in the development towards a functional conceptualization of this legal relationship. It is beyond doubt that a State enjoys a jurisdictional immunity for itself and for its property before the courts of another State (par in parem non habet jurisdictionem). However, the prevailing developing tendencies have crystallized into a conclusion (see Report of the Working Group on Jurisdictional Immunities of States and Their Property, text UN Doc. A/ CN.4/L.576, annex at p. 58 15 ) that a State cannot invoke its jurisdictional immunity, not only in the cases in which it has explicitly waived it, but also in proceedings concerning its commercial transactions, labor contracts, ownership, possession or use of property, compensation for damage caused to property 13 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Article 19: “An employer domiciled in a Member State may be sued: 1. in the courts of the Member State where he is domiciled; or 2. in another Member State: (a) in the courts for the place where the employee habitually carries out his work or in the courts for the last place where he did so, or (b) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.” 14 Act No. 97/1963 Coll., on International Private and Procedural Law, § 47 Sec. 1: “Foreign states and persons that under international treaties or other rules of international law or special Czech legal regulations enjoy immunity in the Czech Republic shall not be subject to the jurisdiction of Czech courts.” 15 This reference in the Court’s judgment is, however, not traceable.

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