Landano v United States of America
| Jurisdiction | Suiza |
| Court | Labour Court (Switzerland) |
| Date | 16 avril 1987 |
State immunity Jurisdictional immunity Employment dispute Locally recruited telephonist employed by mission of foreign State Employee having nationality of receiving State Claim for payment arrears Distinction between sovereign and non-sovereign activities Distinction between senior and subordinate employees The law of Switzerland
Summary: The facts:Ms Landano, a Swiss citizen, was employed from 1969 as a telephonist by the Permanent Mission of the United States to the United Nations in Geneva. In 1986 a dispute arose and she instituted proceedings against her employers for payment arrears. The United States entered a plea of jurisdictional immunity.
Held:The plea of immunity was unfounded.
(1) According to the settled jurisprudence of the Swiss Federal Tribunal, the principle of jurisdictional immunity of foreign States was not an absolute rule. On the contrary, a distinction was to be made according to whether the foreign State acted in exercise of its sovereignty (jure imperii) or as the holder of private rights (jure gestionis). Only in the former case could the State invoke jurisdictional immunity. In addition, the Swiss courts would only exercise jurisdiction if the relationship of private law at issue had a territorial connection with Switzerland in the sense that it had arisen or was to be performed in that country.
(2) Contracts of employment were to be placed in the same category as contracts of sale or leases, that is to say as commercial activities. Although it was true that the sending State had a certain interest in ensuring that legal disputes involving the members of its mission with relatively senior functions were not subject to the jurisdiction of foreign courts, the situation was quite different in respect of subordinate employees. In the latter case, the exercise of jurisdiction by local courts was permissible if the employee did not enjoy the nationality of the sending State and had been locally recruited. In such a case the sending State was in no way impeded in the performance of its tasks. A telephonist was to be regarded as a subordinate employee. Furthermore, the fact that the sending State had paid social security contributions and affiliated the employee to a professional provident fund provided clear evidence that the relationship had been concluded and performed jure gestionis.
The following is the text of the relevant part of the judgment of the Court:
In June 1969 the United States, represented by the Department of State, and Batrice Landano, a Swiss citizen, concluded an employment contract. Ms Landano was engaged to work as a telephonist at the Permanent Mission of the United States in Geneva. No written contract was signed by the parties. Nevertheless, the plaintiff received a letter of engagement. She never received or was notified of Service Regulations. She held an identity card S, in white with a vertical green bar, issued by the Federal Department for Foreign Affairs and intended for the use of officials of Swiss nationality of Permanent Missions to international organizations established in Switzerland.
The defendant State deducted from the salary of Ms Landano the amount of national insurance contributions payable by the employee and forwarded that amount, together with the employers contributions, to the Caisse de compensation cantonale AVS. In addition, Ms Landano was affiliated by her employer for some twelve years to a professional provident fund managed by the Winterthur Insurance Company.
In 1986 a dispute arose between the parties. Ms Landano instituted proceedings before the Labour Court of Geneva on 15 December 1986, issuing a summons against the United States of America, represented by their Permanent Mission in Geneva, for payment of a certain amount. The claim as well as the summons to appear before the Court were forwarded to the defendant through diplomatic channels on 9 February 1987.
A. It is undisputed that in this case the parties were bound by an employment relationship. The subject matter of the dispute arising from a contract of employment is within the jurisdiction of this Tribunal.
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