AG v. N.

The instant case originated from a civil proceeding instituted before the Josefstadt District Court against Mr N., a special representative of the Parliamentary Assembly of the Organization for Security and Cooperation in Europe (OSCE). The proceedings concerned an eviction request made by the owner of an apartment of which N. was the tenant. Mr opposed his absolute immunity pursuant to the Vienna Convention on Diplomatic Relations. The District Court uphold the defense of immunity. On appeal, the Vienna Regional Court in Civil Matters confirmed that national courts lacked jurisdiction over the case. The applicant lodged an appeal to the Supreme Court.

In dealing with the issue at stake, the Supreme Court firstly underlined that, unlike States enjoying restrictive immunity, international organizations are entitle to absolute immunity. In particular, “this follows from the functional nature of the legal personality of international organizations, whose actions must necessarily be related to their organizational purpose”. The Court also clarified that immunity of international organization must be distinguished from the immunities conferred on international organizations’ organs, officials of international organizations and representatives of States. The scope of these immunities vary significantly and it must be determined in light of the specific legal basis of each immunity. While officials of international organizations are entitled to functional immunity, special representatives and head of diplomatic missions enjoy personal immunity pursuant to the Vienna Convention on Diplomatic Relations.

In light of these premises, the Supreme Court stated that the District Court should have ascertained whether, at the time of the events in question, N. was acting as an OSCE agent or as a representative of a State to the OSCE. In the first case, immunity can only be recognized if it is established that the rental of the property was used for purposes related to N.’s official functions. In the second case, however, it is necessary to ascertain whether the sending State, in agreement with the organization in question, had waived the immunity of its representative.