Headquarters of the Allied Force in Southern Europe (HAFSE) v. Gardi
Full Case Title: Headquarters of the Allied Force in Southern Europe (HAFSE) v. Gardi, Supreme Court (Court of Cassation - Civil Division), judgment of 7 July 1978
Reference Number: Judgment n. 3366
Type of Document: Judicial decisions
International Organization: NATO
Year: 1978
Issuing Body: Supreme Court
Country: Italy
Giorgio Gardi was employed at the Headquarters of Allied Force in Southern Europe (HAFSE), located in Italy, from December 1952 to December 1972 as a civilian employee. He filed a lawsuit before the Tribunal of Naples against the HAFSE, claiming that HAFSE unlawfully suspended the payment of social security contributions before the termination of his employment. The HAFSE objected that the Tribunal lacked jurisdiction to adjudicate the case. Specifically, it pointed out that, according to the Agreement concluded between the North Atlantic Treaty Organization (NATO) and Italy on the installation of NATO’s headquarters in Italy and the 1952 Protocol on the status of International Military Headquarters set up pursuant to the North Atlantic Treaty, the applicant must be qualified as a civil employee with an international legal status. The labour relationship between the HAFSE and the applicant would be exclusively governed by the internal rules of the organization, with a complete exemption from the legislation and jurisdiction of the host State.
The Tribunal rejected the objection and established its jurisdiction over the case. In particular, it held that the distinction between local and international employees, laid down in the Agreements, reflected the customary rule regarding international organizations. Indeed, at the time of the dispute, Italian courts relied on the distinction between acta jure imperii and acta jure gestionis, flowing from the customary rules on State immunity, to determine the scope of the immunity granted to international organizations. Accordingly, the jurisdictional immunity of international organizations is limited to the acts performed in the exercise of their institutional activities. Applying the distinction between institutional and private activities in the instant case, the Tribunal affirmed that the relationship between the applicant and the HAFSE fell under the category of private law activities carried on by the latter for securing civil and local services. The Tribunal underlined that the applicant performed material and executive tasks not directly related to the institutional activities of the respondent.
The HAFSE appealed the judgment of first instance before the Supreme Court of Cassation. The Supreme Court upheld the appeal, stating that, since the precedent of HAFSE v. Capocci Belmonte, it settles the issue of the jurisdictional immunity of NATO’s headquarters by applying the treaty-based legal regime. As the judgment underlined, the applicable treaty provisions partially incorporated the international customary rules on immunity. However, regarding the labour relationships between the HAFSE and its personnel, such provisions establish a distinction between local employees, who are subject to the legislation of the headquarters host State, and international employees, whose terms of employment are exclusively governed by NATO’s internal rules. The Supreme Court emphasized that such a distinction is based solely on formal criteria, which preclude any examination of the tasks performed by the applicant.
In particular, the Court reminded that the Protocol defines the international staff as that category of employees on a permanent basis and remunerated on the basis of the organization’s salary scales. In other words, two requirements must exist to qualify an employee as an international civil servant of the HASFE subject to an international legal status: a permanent assignment and the application of the application of the salary scales established by the organization internal rules.
According to the judgment at stake, the applicant must be considered as an employee having international legal status. As assessed by the Supreme Court, the applicant was employed as a civil administrative employee on a permanent basis, and his employment conditions, including those concerning the applicable salary scale and social benefits, were subject to the internal staff regulation.
In light of the above, the Supreme Court held that the judge of first instance should not have engaged in analyzing the tasks performed by the applicant, nor, in any case, should he have recognized him as a local employee. Therefore, the Court concluded that Italian courts lack jurisdiction over employment-related claims brought by international civil personnel of the HAFSE against it.