Italian Trade Union for Embassy and Consular Staff v United States
| Jurisdiction | Italia |
| Date | 14 Aprile 1981 |
| Court | Examining Magistrate (Italy) |
Sovereign immunity Foreign States Consular staff Employees of receiving State Jurisdiction of municipal courts to State injunction restraining foreign State from interfering with exercise of trade union rights of inch employees Whether foreign State entitled to jurisdictional immunity Theory of restrictive immunity Principle of good faith, as basis of Distinction between acts iure imperii and iure gestionis Whether applicable where injunction applied for will interfere with State's power to organise consular offices The law of Italy
Summary: The facts:In 1981 SIDAC-CISL, an Italian trade union for the staff of foreign consulates in Italy, appealed to the Pretore of Milan, on behalf of Italian citizens working in an administrative and clerical capacity for the Consulate of the United States, The appeal asserted that the Consulate had violated Art. 28 of the Italian law governing the rights of workers (Statuto dei Lavoratori or workers' charter), being guilty of anti-trade union behaviour in the procedures followed for hiring the consular staff. The United States objected that Italian Courts had no jurisdiction in the matter.
Held:Italian courts had no jurisdiction,
(1) As far as the exemption of foreign States from jurisdiction was concerned, the principle of absolute immunity had been replaced by that of restricted immunity. The real basis for restricted immunity was the principle of good faith in the relations between members of the international community. By virtue of this principle each State was required to accord to other States the same treatment as that which it reserved to itself in its own municipal legal order.
(2) The employment relationships of Italian members of the administrative and clerical staff of a foreign consulate were of a private nature, or acts iure gestionis. Nevertheless the effective application by the Italian judge of the special Italian legislation protecting trade union rights required the judge to be able to impose mandatory orders for the termination of offending behaviour by employers and thereby impinged on the employer's prerogatives in their entirety. An order requiring a foreign State to modify the employment procedures at its consulate and to suppress those aspects considered harmful to the collective interests of trade unions would undoubtedly infringe upon the State's power to organise its own offices and act iure imperii. Such a decision would amount to judicial interference which was not allowed even vis--vis the Italian administration and would therefore violate the principle of good faith in international relations.
[The judge first ascertained whether the trade union had standing and then examined other procedural issues pertaining to Italian law.]
The following is the text of the relevant part of the judgment of the Court:
2. This Court must decide whether an Italian judge has jurisdiction ex Art. 28 of the Workers' Charter (Law No. 300 of May 20, 1970)[1] [over the action] brought by SIDAC-CISL against the United States of America.
It is therefore necessary first to examine the complex question of the jurisdictional immunity of a foreign State and to determine both the principles governing the subject and the exact area of activity to which the foreign State's exemption from the jurisdiction of Italian civil courts applies.
Secondly (after deciding which criteria to adopt in classifying the action) it is...
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