De Sousa v Republic of Portugal

• Jurisdiction: Holanda
• Date: 05 Abril 1979
• Court: Local Court (Netherlands)

Netherlands, Local Court of Amsterdam.

De Sousa

and

Republic of Portugal

Sovereign immunity Foreign States and their entities Foreign State school Teacher employed by ministry of foreign State Contract of employment Termination of Claim for unlawful dismissal Whether foreign State entitled to jurisdictional immunity Acts iure imperii and iure gestionis The law of the Netherlands

Summary: The facts:The plaintiff, a Portuguese national, had been employed by the Portuguese Ministry of Education as a teacher at the Portuguese School of Amsterdam since 10 January 1976. In a letter dated 16 November 1977 he was given notice by the Consul-General of Portugal in Amsterdam of termination of his employment. The plaintiff summonsed Portugal to appear before the Local Court, claiming payment of his salary until the lawful termination of his contract of employment and alleging that his dismissal was unlawful as the consent of the Director of the Regional Employment Office, required under Article 6 of the Decree on Special Employment Relationships (BBA), had not been obtained.

Held:The Court had jurisdiction and the plaintiff's claim was allowed in part.

Under the contract of employment in question the defendant had entered into a legal relationship on an equal footing with a private person. The fact that the defendant took responsibility for education, as did the majority of States, did not alter the fact that in practice the provision of education was often undertken by institutions other than public bodies. Where the defendant had established and maintained a school in the Netherlands, such school was therefore comparable with private institutions for schools set up for ideological or commercial reasons. Such activity was not to be regarded as involving specifically governmental acts and the sovereignty of a foreign State did not come into question.

The following is the text of the relevant part of the judgment of the Court:

The principal defence set up by the defendant is that, first, Dutch courts in general, and the Local Courts in particular, have no jurisdiction, since the defendant, being a foreign State, declines to be subjected to the jurisdiction of this Court. Second, the defendant contends that the legal relationship between the partiesa Portuguese national and the Portuguese Stateis an official (civil service) one, governed by Portuguese law and justiciable only in a Portuguese civil service tribunal.

This principal defence must fail on both points. The...