K v. Supreme Headquarters Allied Powers Europe

The case originates from an employment dispute instituted against the Supreme Headquarters Allied Powers Europe (SHAPE) of the North Atlantic Treaty Organization (NATO) by Mr K, employed at a SHAPE’s subsidiary headquarters located in Germany. After being convicted of stealing secret NATO documents, Mr. K was subjected to disciplinary proceedings by SHAPE, following which the organization decided to terminate his employment.

The former employee attempted to challenge the disciplinary decision by suing SHAPE before the Labour Court of Kaiserslautern. SHAPE invoked its immunity from the jurisdiction of German courts. The Court found that the respondent organization was immune from applicant’s claims, pursuant to the Agreement on the special conditions applicable to the establishment and operation of International Military Headquarters in the Federal Republic of Germany, concluded between SHAPE and Germany in 1967.

Mr K appealed the decision of first instance, arguing that the 1967 Agreement does not provide SHAPE with immunity. Specifically, the source of the privileges and immunities of SHAPE is the Protocol on the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty, which does not expressly grants immunity from legal process.

The Court of Appeal dismissed the case, confirming that SHAPE was immune from national jurisdiction in employment disputes. The Court held that, according to Section 20(2) of the Courts Constitution Act, BGBl I 1975, german court have no jurisdiction over international organizations provided with immunity under international law. According to the Court, SHAPE is an international organization within the meaning of Section 20(2). As it stressed, the 1967 implicitly accords SHAPE immunity from jurisdiction.

The Court of Appeal also stressed that the recognition of SHAPE’s immunity did not infringe the applicant’s right to a judicial remedy, given the existence of alternative modes of dispute settlement. In particular, the Court underlined that NATO’s internal system of justice provides employees with adequate means of redress.