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Anonymous v. The Kingdom of Morocco

2009 September 15

Anonymous v. The Kingdom of Morocco

Court: Netherlands Supreme Court

Date: September 11, 2009

LJN Number: BI6317

Case: A national of the Kingdom of Morocco, started working as a chauffeur for the Moroccan Ministry of Foreign Affairs and Cooperation in 1976. From 1976 until 1986, and in 1993 and 1994, he performed his duties in Morocco. From 1986 until 1993, and from 1994, he performed his duties for the Consulate-General of the Kingdom of Morocco in Rotterdam, The Netherlands. In 2000, parties entered into a new agreement, containing a choice for Moroccan law. In 2004, the Consul-General confirmed in writing that Dutch social security contributions were being paid for the chauffeur by the Consulate-General. He has been granted a residency permit for The Netherlands, which states that he is a "member of staff" of the Consulate-General.

On March 18, 2005, the chauffeur became ill. On April 20, 2005, the Moroccan Minister of Foreign Affairs and Cooperation terminated the contract of employment, coming into effect with retroactive force as from the 18th of March 2005. The chauffeur asked the court in the Netherlands to declare the contract termination null and void. The Kingdom of Morocco invoked state immunity. An answer to this issue should be sought along the lines of the European Convention on State Immunity of 1972 and although not signed and therefore not (yet)  in force in The Netherlands, the United Nations Convention on Jurisdictional Immunities of States and Their Property of 2004. Article 11 reads:
"1. 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.
2. Paragraph 1 does not apply if:
(…)
(e) the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum".

Both the court of first instance and the Court of Appeal have granted this invocation of state immunity by the Kingdom of Morocco.

Held: The chauffeur had relied upon the Dutch Ministry of Foreign Affairs' interpretation of "permanently resident" as meant in article 37 of the Vienna Convention on Diplomatic Relations of 1961. For matters concerning the Kingdom of The Netherlands, a diplomatic or consular employee is deemed to have permanent residence in The Netherlands after working and living here for a continuous period of at least ten years. From 1994 until March 2005, he has worked and lived in The Netherlands without interruption. When the procedure started, he had lived and worked in The Netherlands for at least ten successive years. Hence one would anticipate that no state immunity would be granted. Given these circumstances, the Court of Appeal failed to motivate why the Kingdom of Morocco was nonetheless granted immunity in this matter. The decision of the Court of Appeal was therefore quashed and the case was sent back to another Court of Appeal.

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