Jenni v Conseil d'Etat of Geneva

CourtFederal Tribunal (Switzerland)
Switzerland, Federal Tribunal (Public Law Chamber).
Jenni and Others
Conseil D'tat of the Canton of Geneva

International organizations Status International Air Transport Association (IATA) Whether a public international organization Non-governmental and quasi-governmental organizations IATA-Switzerland Headquarters Agreement, 1976 Agreements concerning fiscal exemption for public international organizations Requirement of approval by cantonal authorities Immunity Organization and its officials Fiscal immunity

States Federal States and confederations Agreement between federal government and international organization providing for immunity from cantonal taxes Requirement of cantonal approval Whether provision for referendum required

Treaties Conclusion and operation Constitutional limitations Requirement of approval by cantonal authorities The law of Switzerland

Summary: The facts:The International Air Transport Association (IATA) was founded in Havana in 1945. Its seat was fixed in Montreal and a subsidiary seat was established in Geneva. 287 persons were employed in Geneva, of whom only 48 were of Swiss nationality. In 1976 negotiations took place between the Swiss Federal authorities and IATA with a view to the conclusion of a new agreement concerning the fiscal exemption of the organization and its foreign personnel in Switzerland. A draft of the Headquarters Agreement was submitted to and approved by the Council of State of the Canton of Geneva. Under its provisions, non-Swiss nationals employed by IATA were exempted from taxation on their salaries paid by the Association. The approval of this exemption given by the Council of State was challenged in a public law appeal to the Federal Tribunal. The Federal Tribunal had to consider whether cantonal approval had been given properly and, in particular, whether that approval violated the right to vote of citizens since electors had not been given the possibility of resorting to a referendum on the matter, as provided for by the Cantonal Constitution.

Held:Cantonal approval for the Agreement had been given properly.

(1) The conclusion of an agreement between an international organization and the Swiss Confederation, providing for exemption from taxation at the cantonal level, was subject to the consent of the canton concerned. The fact that the federal authorities recognized the status as an international organization of the body in question did not in any way oblige the canton to give such consent.

(2) Neither federal legislation nor the cantonal constitution or legislation contained provisions with regard to the question of which authority was competent at the cantonal level to give the approval required by federal law. It was not disputed, however, that this competence belonged to the Council of State if IATA was an intergovernmental organization, that is to say a public international organization.

(3) Even accepting that the Council of State was not bound by the decision of the Federal Council to recognize IATA as having the status of an international organization, it had not made an arbitrary ruling by regarding IATA as a public international organization, taking account of the functions performed by IATA and the role which it played in an important sphere of inter-State relations. IATA had been considered by certain authors as a quasi-governmental organization. An analogy could be drawn with the Interparliamentary Union with its seat in Geneva, a semi-official body not created by inter-governmental agreement, with which a similar Headquarters Agreement had been concluded.

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