By Jan Dop.
Introduction
Embassies and Consulates have to deal with the Dutch when they represent their country in the Netherlands. Embassies and Consulates, however, enjoy a special status because they are considered to rule under their own flag and not under that of the country of residency. Nevertheless, on occasion they do have to deal with Dutch law, for example with regard to their locally hired personnel working in the Netherlands, when buying or selling property (residence, Embassy) or concluding any other commercial contract.
This chapter will discuss the limits of diplomatic immunity and how said limits are defined, the consequences of the diplomatic status and the situations in which Dutch law will apply.
Definitions
Embassy
An Embassy is the representation of a particular state in another state. Most states have their Embassy in the Netherlands located in The Hague, where the Dutch government is seated.
The Ambassador
The Ambassador is a diplomatic official, assigned (and recognized) to serve as the official representative of a particular state in a foreign state or an international organization. He holds the highest rank in the diplomatic hierarchy. A diplomatic mission headed by an Ambassador is known as an Embassy.
Consulate
A Consulate (or Consular Office) is predominantly in charge of issues relating to individual people and businesses, in other words, issues outside the scope of inter-governmental diplomacy. A country may have several Consulates or Consulates General in major economic centres to support their economic interests.
Diplomatic corps
The collective body of all diplomats residing in a particular country is called a diplomatic corps.
State immunity
Scope of immunity
The independent character of a sovereign state conflicts with being subjected to the laws and jurisdiction of another state. For this reason, but also in order to enable states to carry out their public functions effectively, states have (state) immunity. State immunity refers to the right or privilege of being exempted from the existing power or jurisdiction of another state. National courts do not have jurisdiction over claims against a foreign state, its diplomats and/or diplomatic services.
There is no uniform law on state immunity, but there are several conventions, such as the European Convention on State Immunity (ECSI 1972).
Immunity of jurisdiction only applies to activities of governmental or public nature, the so-called acta iure imperii. It is not applicable to activities of a private or commercial nature, the so-called acta iure gestionis. This distinction is widely accepted.
When immunity cannot be invoked, this does not necessarily mean that a judgement can be executed or property can be seized in full. According to the ECSI for example, a convicted member state will have to comply with the judgement by choice. However, it is not possible to seize property meant for public services. It is not permitted either to attach any goods or financial assets of the foreign state that are intended for public services. It is not clear however, whether bank accounts of diplomatic missions and consular posts can be attached. From numerous court decisions it can be concluded that, in case the bank account only serves the purpose of allowing the diplomatic mission or consular post to function, it cannot be attached.
Waiving immunity
Immunity from jurisdiction is not absolute. Therefore, the question of immunity only arises when the foreign state refuses to submit to the jurisdiction of the local court. A state is considered to waive its immunity when it appears in court, when it acts as plaintiff or starts a counterclaim, unless, of course, it appears in court to invoke immunity. Foreign states can waive their immunity voluntarily (in advance), both explicitly and silently. When immunity is waived or not applicable, the substantial rules of law applicable by the local or territorial court are fully effective.
Immunity of jurisdiction with regard to employment law
Almost all employment law issues are considered as acta iure gestionis of the Embassy if the work is performed in the receiving state and the employee has the nationality of the receiving state. Therefore, in most employment matters, state immunity cannot be invoked. This might be different with regard to diplomatic staff or personnel employed directly with the Ambassador.
With regard to a state that is not a party to the ECSI, the court will apply international customary law, which considers the conclusion of an employment agreement an actus iure gestionis. Case law shows that the employing state cannot invoke its immunity if the employee has the nationality of the receiving state, if he has permanent residency in the receiving state, and/or if there are convincing connections between the employment and the receiving state.
Dutch employment law can therefore also apply to diplomatic missions. The exception with regard to the legal obligation of Dutch employers to obtain a UWV (Employee Insurance Agency) permit in case they want to dismiss an employee, has lapsed since 1 July 2015. Thus, in the event of dismissal of an employee, depending on the reason for the dismissal, either the UWV or the Subdistrict Court will have to be addressed. For more information on Dutch employment law see Chapter 3.
Finally, a state can invoke immunity in legal proceedings with regard to the termination of a private (employment) contract if these proceedings interfere with state security.
Immunity of jurisdiction with regard to social security
Locally hired staff will not be exempt from national insurance and employee insurance, such as state pension (AOW), incapacity for work benefits (WIA), sickness benefits and unemployment benefits (WW). Social security is also compulsory for technical staff, administrative staff and operating staff staying permanently (for longer than ten years) in the Netherlands. Diplomatic staff and staff that don’t have the Dutch nationality and are already insured in the country of origin are exempt from the insurance requirement.
The social security requirement also includes the employer’s obligation to comply with the Dutch regulations regarding guidance and reintegration of sick employees. This includes regular contact with the occupational health and safety physician. Failing this, the paying institution, the UWV, may decide that the employer has acted inadequately and thus has to pay the wages of the sick employee not only during the first two years of sickness but also during the third year.
Immunity of jurisdiction with regard to commercial contracts
A state’s conclusion of a commercial contract is, in principle, an actus iure gestionis and therefore not subject to state immunity. Such contracts may be so closely linked to the interests of a state that they nevertheless fall under state immunity, which is not very common, however. Thus, for instance, an agreement for the supply of computer equipment for the Embassy will, in principle, not fall under state immunity. One exception is, in particular, state security, as a result of which immunity may indeed be applicable to a security software agreement.
Immunity of jurisdiction with regard to real estate
Embassies and the premises of Ambassadors are inviolable, even if they are not yet utilized. They are on Dutch territory however, and thus Dutch law is applicable to these premises, including real estate law. This is all the more so if the Embassy owns real estate which is not used for diplomatic services.
Therefore, it is important to verify in advance whether your intended use of the premises corresponds with the zoning plan (not all villas in Wassenaar may be used as an office) and whether municipal permits are required. Changes to the building that have an effect on the appearance of the premises (cleaning/painting the facade or changing single glazing into double glazing!) require a permit, especially if the premises are a registered monument or part of a conservation area, as is the case with most Embassies. Security measures for Embassies, such as alarms, cameras, fences and/or roll-down shutters, often require a permit. If premises are leased, the owner has to agree to changes before they can be made.
The same rules as to other commercial contracts apply to real estate contracts. Disputes with lessees, sellers, contractors and maintenance companies will be examined by a Dutch court according to Dutch law, unless specifically agreed otherwise.
Diplomatic immunity
Diplomatic immunity is a form of legal immunity to ensure that diplomats are given safe passage and are considered exempt from lawsuit or prosecution under the laws of the receiving state. The rules concerning diplomatic relations are laid down in the Vienna Convention on Diplomatic Relations (VCDR 1961), which also applies in the Netherlands.
The VCDR is an international treaty on diplomatic relations and the privileges and immunities of a diplomatic mission. According to the Convention diplomatic relations between states and permanent diplomatic missions are determined by mutual consent. The functions of a diplomatic mission include:
- Representing the sending state in the receiving state
- protecting the interests of the sending state and of its nationals in the receiving state
- promoting friendly relations between the sending state and the receiving state
- developing economic, cultural and scientific relations.In general, diplomatic missions and their members and families must respect the principles of Dutch law because their immunity does not extend to legislation itself. Diplomatic immunity only restricts the Dutch authorities in exercising their power with regard to the diplomats’ compliance with Dutch legislation.In addition, according to the VCDR, the territory of the diplomatic mission is inviolable and immune from investigation or taxes (extraterritoriality). Representatives of the receiving state can only enter the diplomatic mission’s territory with consent from the head of the diplomatic mission.The diplomat is also inviolable. The private residence of a diplomat receives the same protection as the premises of the diplomatic mission. In addition, a diplomat is immune from the criminal, civil and administrative jurisdiction (not relating to private immovable property or succession) of the receiving state. Immunity does not apply to the diplomat’s professional and commercial activities outside his official functions. The sending state can waive the diplomat’s immunity.Finally, even members of the administrative and technical staff and family members of the diplomatic mission enjoy some immunity, if they are not nationals of or residing permanently in the receiving state.Consular immunity Although Embassies and Consulates, and especially diplomats, enjoy immunity in the Netherlands, there are several situations in which they have to deal with Dutch law. The scope of their immunity depends on the diplomatic nature of their work and the nationality of their employees. Dutch employees are more likely to be subject to Dutch law than foreigners. In general, employees of diplomatic missions enjoy immunity with regard to their official acts, but not with regard to their personal conduct.
Conclusion
The VCDR is not applicable to foreign Consuls and members of their staff. The consular mission falls within the scope of the Vienna Convention on Consular Relations (VCCR 1963), which confirms that Consuls and their staff enjoy immunity with regard to their official acts, but not with regard to their private acts.
About the author:
Jan Dop is partner and Head of the Embassy Desk at Russell Advocaten. He advises and represents corporations, entrepreneurs and HR departments in corporate and commercial matters.
Jan Dop, LL.M. (jan.dop@russell.nl).
