02.08.22
Gemini version available ♊︎The EPO’s Overseer/Overseen Collusion — Part XXXXV: In the Shadow of “Waite and Kennedy”
Series parts:
- The EPO’s Overseer/Overseen Collusion — Part I: Let the Sunshine In!
- The EPO’s Overseer/Overseen Collusion — Part II: A “Unanimous” Endorsement?
- The EPO’s Overseer/Overseen Collusion — Part III: Three Missing Votes
- The EPO’s Overseer/Overseen Collusion — Part IV: The Founding States
- The EPO’s Overseer/Overseen Collusion — Part V: Germany Says “Ja”
- The EPO’s Overseer/Overseen Collusion — Part VI: A Distinct Lack of Dutch Courage
- The EPO’s Overseer/Overseen Collusion — Part VII: Luxembourgish Laxity
- The EPO’s Overseer/Overseen Collusion — Part VIII: Perfidious Albion and Pusillanimous Hibernia
- The EPO’s Overseer/Overseen Collusion — Part IX: More Holes Than Swiss Cheese
- The EPO’s Overseer/Overseen Collusion — Part X: Introducing the Controversial Christian Bock
- The EPO’s Overseer/Overseen Collusion — Part XI: “General Bock” – Battistelli’s Swiss Apprentice?
- The EPO’s Overseer/Overseen Collusion — Part XII: The French Connection
- The EPO’s Overseer/Overseen Collusion — Part XIII: Battistelli’s Iberian Facilitators – Spain
- The EPO’s Overseer/Overseen Collusion — Part XIV: Battistelli’s Iberian Facilitators – Portugal
- The EPO’s Overseer/Overseen Collusion — Part XV: Et Tu Felix Austria…
- The EPO’s Overseer/Overseen Collusion — Part XVI: The Demise of the Austrian Double-Dipper
- The EPO’s Overseer/Overseen Collusion — Part XVII: The Non-Monolithic Nordic Bloc
- The EPO’s Overseer/Overseen Collusion — Part XVIII: Helsinki’s Accord
- The EPO’s Overseer/Overseen Collusion — Part IXX: The Baltic States
- The EPO’s Overseer/Overseen Collusion — Part XX: The Visegrád Group
- The EPO’s Overseer/Overseen Collusion — Part XXI: The Balkan League – The Doyen and His “Protégée”
- The EPO’s Overseer/Overseen Collusion — Part XXII: The Balkan League – North Macedonia and Albania
- The EPO’s Overseer/Overseen Collusion — Part XXIII: The Balkan League – Bulgaria
- The EPO’s Overseer/Overseen Collusion — Part XXIV: The Balkan League – Romania
- The EPO’s Overseer/Overseen Collusion — Part XXV: The Balkan League – Fresh Blood or Same Old, Same Old?
- The EPO’s Overseer/Overseen Collusion — Part XXVI: A Trojan Horse on the Budget and Finance Committee
- The EPO’s Overseer/Overseen Collusion — Part XXVII: Cypriot Complicity
- The EPO’s Overseer/Overseen Collusion — Part XXVIII: Benoît and António’s Loyal “Habibi”
- The EPO’s Overseer/Overseen Collusion — Part IXXX: The EPOnian Micro-States – Monaco and Malta
- The EPO’s Overseer/Overseen Collusion — Part XXX: San Marino and the Perfidious Betrayal of Liberty
- The EPO’s Overseer/Overseen Collusion — Part XXXI: The Abstentionists
- The EPO’s Overseer/Overseen Collusion — Part XXXII: “Plucky Little Belgium”?
- The EPO’s Overseer/Overseen Collusion — Part XXXIII: Swedish Scepticism
- The EPO’s Overseer/Overseen Collusion — Part XXXIV: An “Extremely Dubious” Proposal
- The EPO’s Overseer/Overseen Collusion — Part XXXV: Slovakian Scruples
- The EPO’s Overseer/Overseen Collusion — Part XXXVI: Serbian Sour Grapes
- The EPO’s Overseer/Overseen Collusion — Part XXXVII: Stubbornly Independent Slovenia
- The EPO’s Overseer/Overseen Collusion — Part XXXVIII: Ensnared in the Tentacles of the SAZAS Octopus
- The EPO’s Overseer/Overseen Collusion — Part XXXIX: On the Slippery Slope to Capture
- The EPO’s Overseer/Overseen Collusion — Part XXXX: The Idiosyncratic Italians
- The EPO’s Overseer/Overseen Collusion — Part XXXXI: Public Service or Self-Service?
- The EPO’s Overseer/Overseen Collusion — Part XXXXII: A Parcel of Rogues?
- The EPO’s Overseer/Overseen Collusion — Part XXXXIII: A Legal No-Man’s Land
- The EPO’s Overseer/Overseen Collusion — Part XXXXIV: Immunity = Impunity?
- YOU ARE HERE ☞ In the Shadow of “Waite and Kennedy”
Everybody is entitled to their day in court.
Well, maybe not, if you happen to work for an international organisation.
Summary: The EPO‘s immunity is troublesome for a plethora of reasons; this sort of problem has long been recognised in a broader context
As we mentioned in the last part, the immunities accorded to international organisations mean that their staff are precluded from pursuing their grievances before national courts of law.
Instead, staff are obliged to have recourse to internal dispute resolution mechanisms involving opaque procedures, whose compliance with the most basic requirements of due process is often open to question.
“The risk of a “denial of justice” arises because – unlike employees in the national domain – staff of an international organisation have no access to a domestic court of law in the case of a dispute with their employer.”The internal means of redress provided by an international organisation is usually supplemented by a final possibility of judicial review before an international tribunal such as the ILOAT in Geneva.
These parallel legal systems have developed because of a general recognition that the immunity of an international organisation could be problematic from the rule of law perspective.
The risk of a “denial of justice” arises because – unlike employees in the national domain – staff of an international organisation have no access to a domestic court of law in the case of a dispute with their employer.
As a workaround, an approach to dispute resolution has been developed which relies on what are called “internal justice systems”.
“As a workaround, an approach to dispute resolution has been developed which relies on what are called “internal justice systems”.”The legal scholar Anne-Marie Thévenot-Werner – a professor of law at the Sorbonne University in France – has written extensively on the topic, for example in an article entitled “The Right of Staff Members to a Tribunal as a Limit to the Jurisdictional Immunity of International Organisations in Europe” which was published in 2014.
In this article Thévenot-Werner explains how national courts in Europe have come to recognise that the immunity from national jurisdiction accorded to an international organisation cannot be considered absolute because this could lead to a “denial of justice”.
Such immunity is contingent on the guarantee of an effective legal remedy being available to staff in the form of an internal dispute settlement mechanism which provides “equivalent protection” to that provided by a national legal system.
This principle is echoed in the case law of the European Court of Human Rights (ECtHR) which monitors compliance with the European Convention on Human Rights (ECHR).
“In this way – or so the theory goes – even when states transfer certain competences to international organisations, human rights supervisory bodies such as the ECtHR can continue to hold states to account for the use of those powers.”The ECtHR has found that the ECHR does not exclude states from transferring competences to international organisations. However, states which are signatories of the ECHR have a responsibility to ensure that their human rights obligations will receive an “equivalent protection” within the context of those international organisations in which they participate.
In this way – or so the theory goes – even when states transfer certain competences to international organisations, human rights supervisory bodies such as the ECtHR can continue to hold states to account for the use of those powers.
The Court’s position is based on the consideration that if the contracting states of the ECHR, were permitted to use their membership of an international organisation as an “excuse” for evading their responsibilities under the Convention this would lead to a “loophole” in human rights protection which would be incompatible with the object and purpose of the ECHR.
According to the Court’s jurisprudence, the alternative means of legal process on which staff of international organisations are obliged to rely must provide “reasonable alternative means to protect effectively their rights under the [European] Convention [on Human Rights]“.
In its landmark judgment delivered in 1999 the ECtHR confirmed that international organisations are obliged to provide their staff with “reasonable alternative means” to protect their fundamental rights under the ECHR.
This was spelt out by the Court in the landmark judgments delivered in 1999 in the cases of “Waite and Kennedy v. Germany” and “Beer and Regan v. Germany”.
Those judgments and their implications for international organisations are discussed in some detail in the article In the Shadow of Waite and Kennedy: The Jurisdictional Immunity of International Organisations, the individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement” published in 2004. This article was co-authored by August Reinisch, Professor of International and European Law at the University of Vienna, and Ulf Andreas Weber, a practicing attorney in Berlin specializing in employment law focusing on staff disputes in international organizations.
All of this sounds fine in theory.
“…some subsequent judgments of the ECtHR delivered in 2015 indicate that the Court is extremely reluctant to pursue alleged breaches of fundamental rights involving international organisations.”However, in practice, the internal dispute resolution mechanisms of international organisations are rarely fit for purpose and this often leads to a de facto denial of justice.
Moreover, as we shall see in the next part, some subsequent judgments of the ECtHR delivered in 2015 indicate that the Court is extremely reluctant to pursue alleged breaches of fundamental rights involving international organisations. █
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