Intergovernmental Committee for European Migration v. Di Banella Schirone

An employee of the Intergovernmental Committee for European Migration (ICEM) filed a lawsuit in Italian courts against the ICEM concerning labour complaints. The judge of first instance ruled upon the case, rejecting the respondent’s preliminary objection on the lack of jurisdiction of national courts in legal actions against it.

The ICEM appealed the judgment of first instance before the Supreme Court of Cassation, invoking the jurisdictional immunity granted to it under Article IV of the 1952 Agreement on the relationships between Italy and the ICEM and under general international law. In particular, it argued that the agreement provided for broader immunity from Italian jurisdiction than that recognized for organizations under customary international law. Such immunity would protect the ICEM from any type of legal action in national courts. Secondly, according to ICEM, the court of first instance had erred in applying the customary rules on the immunity of organizations. The judgment on the merits excluded ICEM’s immunity, as it classified the employment relationship between the applicant and the organization as a private activity, since the applicant performed executive duties as a secretary. This interpretation would restrict the concept of public activities exclusively to employment relationships with managerial employees.

The Supreme Court partially upheld ICEM’s arguments, finding that the Italian courts lacked jurisdiction over the case in question. With regard to the first argument put forward by ICEM, the Court observed that the agreement between Italy and ICEM and international law grant the organization the same immunity from national jurisdiction.
The Court upheld the second argument advanced by ICEM. According to the Court’s reasoning, the notion of activities aimed at pursuing the institutional purposes (public activities) includes all activities of self-organization of the international entity. The establishment of offices and bodies, as well as the selection of personnel to be employed therein, falls within the scope of the institutional activity of organizing the internal structure of the international legal entity. The Court specified that the above-mentioned notion of public activities also includes the determination of the remuneration, salaries, and allowances to be paid to employees, as this is an activity related to the creation of the organs through which the organization acts to achieve its objectives.

The Court also pointed out that the activity of self-organization and the exercise of the institutional powers of the body concern the regulation of all employment relationships, as they are not limited solely to relationships with high-ranking employees. In particular, as affirmed by the Court “this includes the employment relationships of all persons who are permanently and continuously integrated into the internal structure of the organization.“

The Court clarified that the only employment relationships excluded from the scope of public activities are those of occasional workers and those who perform, even on a continuous basis, purely material tasks that do not contribute to the pursuit of institutional objectives.