International Commission for the Conservation of Atlantic Tunas v. Public Prosecutor

In this case, the Constitutional Court of Spain had addressed for the first time the issue of the jurisdictional immunity of international organizations.

The constitutional complaint originates from an employment dispute instituted before the Labour Court of Madrid by Mr Garcia, a former employee of the International Commission for the Conservation of Atlantic Tuna (ICCAT), against the latter organization. Before the Court of Madrid, Mr Garcia complained the termination of his employment. However, the Court dismissed the case, finding that the respondent organization was immune from legal process by virtue of the Headquarters Agreement concluded in 1971 between the ICCAT and Spain.

On appeal, the High Court of Madrid overturned the judgment of first instance, holding that the dispute fell out of the scope of the respondent organization’s immunity. The High Court held that facts giving rise to the dispute, the employment relationship between ICCAT and the applicant, must be qualified as acta jure gestionis. Such acts are not covered by immunity. In other terms, the High Court determined the scope of ICCAT’s immunity, by relying on the distinction between sovereign acts (acta jure imperii) and commercial activities (acta jure gestionis). 

The ICCAT attempted to appealed the judgment of the High Court before the Supreme Court, which confirmed the conclusion of the High Court. As it held, Mr Garcia performed executive functions as administrative assistant and, thus, he did not participate in the performance of ICCAT’s institutional activities. Hence, the employment relationship between him and ICCAT cannot be regarded as sovereign activities shielded by immunity. The Supreme Court also underlined that, under the Organic Law on Privileges and Immunities of Foreign States and International Organizations, an international organization cannot rely on the immunities granted under the Law, if it has failed to provide alternative and appropriate mechanisms for the resolution of disputes with private parties. According to the Supreme Court, the internal system of employment disputes resolution does not offer an effective legal protection.

The ICCAT filed a request of revision (amparo de revision) to the Constitutional Court, claiming a violation of its right to an effective legal protection enshrined in the Spanish Constitution determined by the national court’s refusal to recognize its immunity. In this regard, ICCAT argued that the Headquarter Agreement concluded with Spain provides ICCAT with absolute immunity from legal process. Notably, Article 11 of the latter agreement establishes that ICCAT shall enjoy immunity from legal process except insofar as it has waived its immunity in a particular case. Accordingly, such provision would exclude the application of the model of restrictive immunity to ICCAT. In addition, ICCAT argued that its internal system of employment disputes resolution provides an effective remedy. In this regard, it stressed that the ICCAT Staff Regulation establishes the subsidiary application of the Food and Agriculture Organization Staff Regulation.

The Constitutional Court dismissed the complaints, finding that national courts had correctly exercised their jurisdiction in the dispute instituted against ICCAT. According the Constitutional Court, ICCAT is not entitled to absolute immunity from the jurisdiction of Spanish courts. Thus, the High Court and the Supreme Court had correctly determined the scope of ICCAT’s immunity, by relying on the distinction between acta jure imperii and acta jure gestionis. On this point, the Constitutional Court affirmed that a dispute arising from the dismissal of an employee, who performs purely administrative tasks, cannot in any way affect the organization’s own purposes and, therefore, falls within the second category of acts jure gestionis.

The Constitutional Court also confirmed that conclusion reached by the Supreme Court on the effectiveness of the ICCAT’s internal system of justice, given the “vague, generic, and imprecise terms in which Article 44 of the ICCAT Staff Regulations and Statutes is drafted”. The Court also noted that ICCAT had not accepted the jurisdiction of the Administrative Tribunal of the International Labour Organization (ILOAT).