Employees of international organisations not welcome in national courts?
Traditionally, the Netherlands hosts several international organisations. Many people work for these organisations. Unlike ‘normal’ employees, an employee who comes into conflict with an international organisation usually cannot turn to a Dutch court. Why is this?
What is an international organisation?
International organisations are established by treaty with at least two countries as a party. Examples of international organisations in the Netherlands are the European Patent Office (EPO), the European Space Agency/European Space Technology Centre (ESA/ESTEC), the European Medicines Agency (EMA), the International Court of Justice (ICJ) and the International Criminal Court (ICC).
Immunity
In principle, international organisations have immunity from jurisdiction; they cannot be brought before national courts. In other words, national courts may not hear a case against an international organisation because they lack jurisdiction to do so.
The idea behind this is that international organisations should be able to perform their duties without fear of repercussions. That is, they should be independent from the legal system of the countries involved in the organisation, especially that of the country where the organisation is based.
This immunity is not unlimited: it is limited to disputes related to the performance of the organisation's functions and referred to as ‘functional immunity’. Labour disputes of employees (or: staff members) of international organisations are in principle covered by this immunity.
Note: the above applies to employees of the international organisation. That is, someone who performs work on the basis of an employment contract. If work is performed on a different basis, for example on the basis of an assignment contract, other rules may apply.
Where can the employee turn to?
How does an employee of an international organisation know where to turn to in case of a conflict with the organisation? For this, the employee will have to look at his organisation's internal rules. These are usually contained in Staff Rules and Staff Regulations or similar documents.
The rules vary from one international organisation to another, but the steps to take if an employee disagrees with an organisation's decision are usually as follows:
1. The first step is to stand up against the decision, by objecting to the deciding officer.
2. If this does not have the desired result, an internal appeals procedure is usually available.
3. If this procedure also fails to provide relief, the employee may appeal to an external tribunal, but only if the organisation concerned is affiliated to it. The main tribunal is the International Labour Organisation Administrative Tribunal (ILOAT).
Trying your luck in national court anyway?
Granting immunity to an international organisation may violate the employee's right to a fair trial, as contained in Article 6 ECHR. If the employee goes to the national court and invokes their rights derived from this article, the court will assess whether granting immunity affects the right to access to justice. The question to answer is whether the international organisation provides an alternative remedy that offers comparable protection to Article 6 ECHR.
If this is the case, the national court will decline jurisdiction and refuse to hear the case. The employee must then follow the route designated in the internal Staff Rules and Regulations. If no reasonable alternative is offered, the national court will hear the substance of the case. This however is an exception; an appeal to Article 6 ECHR is rarely accepted.
Lastly
Whether the case is heard before a tribunal or the national court, the case is judged according to the internally applicable rules of the organisation where the employee works. These dictate the manner in which the proceedings are conducted as well as how they are assessed on substance.