1 Hereafter “the Court.”Google Scholar

2 Case C-292/05, Lechouritou and others v. the State of the Federal Republic of Germany, OJ C 243, 1 October 2005 (Lechouritou).Google Scholar

3 Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, OJ 1978 L 304, 36, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, OJ 1978 L 304, 1, 77, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, OJ 1982 L 388, 1, and by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, OJ 1989 L 285, 1.Google Scholar

4 Brussels Convention, Art. 1 reads as follows: “This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters. The Convention shall not apply to: the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession; bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings; social security; arbitration.”Google Scholar

5 For the history of the case see: Lechouritou, note 2, paras. 9-16 as well the opinion of AG Ruiz-Jarabo Colomer, paras. 12-16.Google Scholar

6 Lechouritou, note 2, 8.Google Scholar

7 Id. (opinion of AG Ruiz-Jarabo Colomer).Google Scholar

8 Id., para. 48.Google Scholar

9 Id., para. 37.Google Scholar

10 Id., para. 31-39.Google Scholar

11 Case 29/76, LTU Lufttransportunternehmen GmbH & Co. KG v. Eurocontrol, 1976 E.C.R. 1541 (Eurocontrol); Cases 9/77 and 10/77, Bavaria Fluggesellschaft Schwabe & Co. KG and Germanair Bedarfsluftfahrt GmbH & Co. KG v. Eurocontrol, 1977 E.C.R. 1517; Case 814/79, Netherlands State v. Reinhold Rüffer, 1980 E.C.R. 3807 (Rüffer); Case C-172/91, Volker Sonntag v. Hans Waidmann, Elisabeth Waidmann and Stefan Waidmann, 1993 E.C.R. I-1963 (Sonntag); Case C-167/00, Verein für Konsumenteninformation v. Karl Heinz Henkel, 2002 E.C.R. I-8111 (Henkel); Case C-271/00, Gemeente Steenbergen v. Luc Baten, 2002 E.C.R. I-10489 (Luc Baten); Case C-266/01, Préservatrice foncière TIARD SA v. Staat der Nederlanden, 2003 E.C.R. I-4867 (Préservatrice); Case C-433/01, Freistaat Bayern v. Jan Blijdenstein, 2004 E.C.R. I-981 (Blijdenstein); Case C-265/02, Frahuil SA v. Assitalia SpA, 2004 E.C.R. I-1543 (Frahuil).Google Scholar

12 A clear review of the Court's case law on civil matters is given by Alexander Layton & Hugh Mercer, Art. 1 (1): Applicability of the Brussels-Lugano Regime, in European Civil Practice Vol. 1 (2nd ed., 2004), para. 12.011-12.021.Google Scholar

13 See supra, note 2, para. 28; Jenard Report on the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters signed at Brussels, 27 September 1968, OJ 1979 C 59/9.Google Scholar

14 See supra, note 2, para. 24 (opinion of AG Ruiz-Jarabo Colomer) with reference to the Schlosser Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice, signed at Luxembourg, 9 October 1978 (see also OJ 1978 C 59/82). For further reference see also Peter Schlosser, Art. 1 EuGVVO, in EU-Ztvtlprozessrecht (2nd ed., 2003), para. 3. This situation however had changed with the accession of the United Kingdom and Ireland since these (common law) countries do not know the traditional civil law distinction between public and private law to the extent as civil law countries, which led to the insertion of Art. 1 s. 2 of the Convention, expressly excluding revenue, customs and administrative matters (see Schlosser Report, OJ 1979 C 59/82).Google Scholar

15 Eurocontrol, note 11, para. 3. See also the assenting case note by Reinhold Geimer, Neue Juristische Wochenschrift (NJW) 492 (1977).Google Scholar

16 Eurocontrol, note 11, para. 4. These criteria will be reverted to later, see infra D. I.Google Scholar

17 See further Ulrich Soltész, Der Begriff der Zivilsache im Europäischen Zivilprozessrecht 41 (1998).Google Scholar

18 Eurocontrol, note 11, para. 4.Google Scholar

19 For instance, see Geimer, note 15, 492. However, with regard to its reasoning it is regarded as insufficient, in particular since it does not contain any comparative remarks describing the situation in the different Member States which however would have been necessary for an independent interpretation. See further Peter Schlosser, Zum Begriff „Zivil- und Handelssachen“ in Art. 1 Abs. 1 EuGVÜ, Praxis des Internationalen Privat-und Verfahrensrechts (IPRax) 154, 155 (1981); Peter Schlosser, Der EuGH und das Europäische Gerichtsstands- und Vollstreckungsübereinkommen, NJW 457, 461 (1977). This criticism is reminiscent also in the case note by Hartmut Linke, Recht der internationalen Wirtschaft (RIW) 43, 45 (1977).Google Scholar

20 Sonntag, note 11, para. 22.Google Scholar

21 See Thomas Rauscher & Steffen Pabst, Art. 2 EG-VollstrTitelVO, in Europäisches Zivilprozessrecht Vol. II (Thomas Rauscher ed., 2nd ed., 2006), para. 5 (fn. 9). With the demarcation between these two type of acts, the Court had followed the settled case law with regard to immunity. In the context of State immunity it had already been affirmed before that States could only plead immunity if they had acted in the exercise of public powers (i.e. with regard to acta iure imperii), not however with regard to acta iure gestionis. For further reference, see Hess, Burkhard, Amtshaftung als “Zivilsache” im Sinne von Art.1 Abs.1 EuGVÜ, IPRax 10, 12 (1994).Google Scholar

22 Lechouritou, note 2, para. 40.Google Scholar

23 Lechouritou, note 2, para. 41: “First of all, the Court has already held that the fact that the plaintiff acts on the basis of a claim which arises from an act in the exercise of public powers is sufficient for his action, whatever the nature of the proceedings afforded by national law for that purpose, to be treated as being outside the scope of the Brussels Convention […]. The fact that the proceedings brought before the referring court are presented as being of a civil nature in so far as they seek financial compensation for the material loss and non-material damage caused to the plaintiffs in the main proceedings is consequently entirely irrelevant.”Google Scholar

24 Lechouritou, note 2, para. 38.Google Scholar

25 See supra C.Google Scholar

26 Emphasis added.Google Scholar

27 Eurocontrol, note 11, para. 4.Google Scholar

28 See for an analysis of this case law: Robert Freitag, Anwendung von EuGVÜ, EuGVO und LugÜ auf öffentlich-rechtliche Forderungen? IPRax 305, 307 (2004).Google Scholar

29 Each of these two conditions is regarded as self-sufficient, i.e. it is sufficient for the exclusion of the action from the scope of the Convention if either the subject matter or the nature of the legal relationship between the parties is qualified as a public matter (see Préservatrice, note 11, para. 42 (opinion of AG Léger). However, as the existing case law shows, the Court has, so far, based the exclusion of an action from the scope of the Convention only on the public nature of the underlying relationship (e.g., Rüffer and Sonntag), not however on the public nature of the subject matter in a case where the underlying relationship has been classified as being of a civil nature (in contrast to the Advocate General in Préservatrice). It might be – but this only as a passing comment – doubted whether such a constellation is conceivable at all.Google Scholar

30 Préservatrice, note 11. It will be reverted to this case later on.Google Scholar

31 However, the Court (rightly) did not follow his assessment on the merits (see infra).Google Scholar

32 Supra, note 11, para. 22-24 (opinion of AG Léger). See with regard to the distinction between “subject matter” and “cause of action” in a different context also Case 144/86, Gubisch Maschinenfabrik KG v. Giulio Palumbo, 1987 E.C.R. 4861, paras. 14, 15 and Case C-406/92, The owners of the cargo lately laden on board the ship “Tatry” v the owners of the ship “Maciej Rataj”, 1994 E.C.R., I-5439. For more on this approach, see also Soltész, note 17, 51.Google Scholar

33 Supra, note 11, para. 23 (opinion of AG Léger).Google Scholar

34 Eurocontrol, note 11, para. 4. The Court referred, in order to ascertain whether Eurocontrol had exercised powers deriving from its status as a public authority to the fact that the rate of charges as well as the place of performance of the obligation had been fixed unilaterally and thus was in a different position than a private party.Google Scholar

35 Rüffer, note 11. This case concerned an action brought by the Netherlands State against a German, Mr. Rüffer, for the recovery of costs which had arisen from the removal of a motor vessel belonging to Mr. Rüffer which had sunk in a public waterway for the administration of which the Netherlands were responsible.Google Scholar

36 Préservatrice, note 11, para. 42 (opinion of AG Léger). Advocate General Léger apparently regarded the situation in Préservatrice to be just inverse to the situation in Rüffer when stating at para. 51 “[…] that the fact that the action for payment of customs debts is brought on the basis of a private-law guarantee contract cannot affect the exclusion of that action from the scope of the Brussels Convention on account of its subject matter.”Google Scholar

37 Supra, note 11, para. 15. In order to ascertain whether the public authority had exercised public powers, the Court referred in Rüffer to national, i.e. in this case Dutch, law (para. 10) and concluded that “[…] the Netherlands State acted in the instant case in the exercise of public authority [and that therefore] the action brought by the Netherlands State before the national court must be regarded as outside the ambit of the Brussels Convention […]” (para. 12). This approach has been compared to the German “Kehrseitentheorie“ in administrative law. See also Soltész, note 17, 51–53.Google Scholar

This decision has raised some skepticism based on two different lines of argument: Partly it has been argued that the fact that it has not been distinguished clearly enough between the claim for redress and the removal of the wreck led to some uncertainty (Soltész, note 17, 51). Further it has been criticized that the Court did refer, in order to ascertain the legal nature of the wreck's removal, to national law and not to the comparative analysis prepared by the Advocate General with regard to the claim for redress (Schlosser, note 19, 155). This has been regarded as a breach of the principle of independent interpretation (Schlosser, id.).Google Scholar

However, is appears that both levels have been considered in the ruling: The subject matter as well as the cause of action. Only, the Court regarded it – as it had been already indicated in Eurocontrol – sufficient for the exclusion of the action from the scope of the Convention, if the underlying act is qualified as being carried out by a public authority in exercise of sovereign powers, “[…] whatever the nature of the proceedings […].” (Rüffer, note 11, para. 15).Google Scholar

38 Sonntag, note 11, para. 19.Google Scholar

39 Id., para. 20.Google Scholar

40 Id., paras. 19, 20.Google Scholar

41 Henkel, note 11. Here, the Court set forth (para. 30) that “[…] the subject-matter of the main proceedings is not an exercise of public powers, since those proceedings do not in any way concern the exercise of powers derogating from the rules of law applicable to relations between private individuals.” Here the Court regarded the claimant in the main proceedings, a consumer protection organization, as a private body (para. 30) with the result that two private parties (the defendant, Mr. Henkel, was a trader, the consumer protection organization was seeking an injunction against) were opposing each other. Thus, the applicability of the Convention was rather suggesting – even though not self-evident (see further the remarks on Frahuil). However, the qualification of the consumer protection organization as a private body is doubted by Chrisoula Michailidou, Internationale Zuständigkeit bei vorbeugenden Verbandsklagen, IPRax 223 (2003).Google Scholar

42 Luc Baten, note 11; Préservatrice, note 11; Blijdenstein, note 11; Frahuil, note 11.Google Scholar

43 Luc Baten, note 11.Google Scholar

44 Blijdenstei, note 11.Google Scholar

45 See the case note by Dieter Martiny, Unterhaltsrückgriff durch öffentliche Träger im europäischen internationalen Privat- und Verfahrensrecht, IPRax 195, 200 (2004) who points out that only the claim for recovery constitutes the subject matter of the litigation.Google Scholar

46 The relationship between the recipient of the social services and the State will usually be of a public nature, see Martiny, note 45, 200. However, as pointed out by Martiny, this relationship is not referred to.Google Scholar

47 Luc Baten, note 11, para. 33, (opinion of AG Tizzano).Google Scholar

48 The Court referred in its reasoning to the rules governing the bringing of the action (paras. 31, 32), the fact that the action in the present case had to be brought before the civil courts and was governed by the rules of civil procedure (para. 33). The fact however, that the case had to be brought before the civil courts cannot be regarded as a relevant criteria which shows already the wording of Art. 1 Brussels Convention (“This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal”). Thus, it was also stressed by Martiny, note 45, 200 that this cannot be the decisive argument.Google Scholar

49 Approvingly referring to this case: Advocate Léger in his opinion in Préservatrice, note 11, para. 48-50.Google Scholar

50 Luc Baten, note 11, para. 34.Google Scholar

51 Following the Court's ruling – with regard to the applicability (in principle) of the Lugano Convention as well as the non-applicability of Art. 5 (2) in respect to an action for recovery brought by a public body: See Oberlandesgericht (OLG – Higher Regional Court) Dresden, 28 September 2006, NJW 446 (2007) (here, the applicability of the Lugano Convention has obviously not been discussed, but has been assumed in view of Blijdenstein).Google Scholar

52 Frahuil, note 11, para. 21. See with regard to the raised concerns: Freitag, note 28, 305, 307.Google Scholar

53 Frauil, id., para. 20.Google Scholar

54 Préservatrice, note 11. The case concerned the question of whether an action brought by the Netherlands State against a private party seeking the enforcement of a private-law guarantee contract which was concluded in order to enable a third person to supply a guarantee required and defined by the Netherlands State, falls within the scope of the Brussels Convention. See regarding this case: Reinhold Geimer, Öfffentlich-rechtliche Streitgegenstände, IPRax 512 (2003).Google Scholar

55 Préservatrice, note 11, para. 61, (opinion of AG Léger).Google Scholar

56 Thus, he regarded the cause of the action as immaterial.Google Scholar

57 Préservatrice, note 11, para. 36.Google Scholar

58 Id., para. 42 (opinion of AG Léger).Google Scholar

59 Id., para. 22 (opinion of AG Léger). Thus, the subject matter is classified as a “manifestation of the exercise of public powers,” para. 40.Google Scholar

60 Id., para. 26. See with regard to this aspect Freitag note 28, 307 who points out the differences to the Frahuil decision.Google Scholar

61 Préservatrice, note 11, para 28. See also Geimer, note 54, 514.Google Scholar

62 Lechouritou, note 2, para. 34.Google Scholar

63 Id., para. 34 as well as the opinion of AG Ruiz-Jarabo Colomer, para. 52.Google Scholar

64 Hess, note 21, 10.Google Scholar

65 Sonntag, note 11, para. 22.Google Scholar

66 Sonntag, note 11, para. 23; Hess, note 21, 12.Google Scholar

67 Lechouritou, note 2, para. 37.Google Scholar

68 Lechouritou, note 2, paras. 54-55 (opinion of AG Ruiz-Jarabo Colomer) where the Advocate General points out, with reference to the Netherlands Government that acts of war were typical expressions of State power.Google Scholar

69 Eur. Court H.R., McElhinney v. Ireland, Judgment of 21 November 2001, Reports of Judgments and Decisions 2001-XI, 763, para. 38: “[…] matters relating to the core area of State sovereignty such as the acts of a soldier on foreign territory […].”Google Scholar

70 See also Bundesgerichtshof (BGH – Federal Supreme Court), judgment of 26 June 2003, BGHZ 155, 279, 281 in the “Distomo case” where the Bundesgerichtshof regarded operations conducted by armed forces as emanations of State sovereignty and thus not included in the scope of the Brussels Convention as well. The court refused in this decision to recognize a judgment of the Regional Court Livadeia (Greece) ordering the Federal Republic of Germany to pay compensation to victims of the so called “Distomo massacre” on the basis that this judgment infringed the principle of State immunity (see with regard to this aspect infra note 93). See for an affirmative case note Geimer, Reinhold, Völkerrechtliche Staatenimmunität gegenüber Amtshaftungsansprüchen ausländischer Opfer von Kriegsexzessen, LMK 215, 216 (2003). See also Mankowski, Peter, Entwicklungen im Internationalen Privat- und Prozessrecht 2003/2004 (Teil 2), RIW 587, 595 (2004); Pittrof, Sabine, Compensation Claims for Human Rights Breaches Committed by German Armed Forces Abroad During the Second World War: Federal Court of Justice Hands Down Decision in the Distomo Case, 5 German Law Journal 15 (2004), available at: http://www.germanlawjournal.com/Art%php?id=359. This judgment has been upheld by the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court), 2 BvR 1476/03 (15 February 2006), available at: http://www.bverfg.de/entscheidungen/rk20060215_2bvr147603.html. See with regard to the latter decision the case note by Markus Rau, State Liability for Violations of International Humanitarian Law – The Distomo Case before the German Federal Constitutional Court, 7 German Law Journal 701 (2006), available at: http://www.germanlawjournal.com/Art‥php?id=743.Google Scholar

See regarding the classification of military acts as the emanation of State authority furthermore: Lord Millet in Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (no. 3), [2000] 1 A.C. 147, 269. In this context the judgment of the International Court of Justice (ICJ) of 26 February 2007 in the case Bosnia and Herzegovina v. Serbia and Montenegro, available at: http://www.icj-cij.org/icjwww/idocket/ibhy/ibhyjudgment/ibhy_ijudgment_20070226_frame.htm, is very instructive: The ICJ had to deal in this case with the massacre of Srebrenica, where about 8000 Bosnians, mainly men an boys, have been killed. The ICJ held that Serbia had violated its obligation under the Genocide Convention to prevent genocide in Srebrenica, but was, however, not responsible for the genocide. The ICJ's reasoning in this respect is very illustrative with regard to the present case since it elucidates the differences between both cases: So the ICJ explained first the basic rules of customary law with regard to State responsibility and set forth “that the conduct of any State organ is to be considered an act of the State under international law, and therefore gives rise to the responsibility of the State if it constitutes a breach of an international obligation of the State” (para. 385). The term “State organ” is described by the Court by reference to customary international law as well as Art. 4 of the International Law Commission's (ILC) Articles on State Responsibility according to which this term refers to one or other of the individual or collective entities which make up the organization of the State and act on its behalf (para. 388). With regard to the pertinent case the ICJ held that there was no evidence that the genocide “committed in Srebrenica was perpetrated by ‘persons or entities’ having the status of organs of the Federal Republic of Yugoslavia (as the Respondent was known at the time) under its internal law, as then in force” (para. 386). As reasons for this holding the ICJ cites inter alia the fact that it has not been shown that the army of the Federal Republic of Yugoslavia took part in the massacres (para. 386). This clearly illustrates the difference to Lechouritou since here the massacre has been perpetrated by soldiers belonging to the German army and thus, in the sense of the ruling of the ICJ, by a State organ.Google Scholar

71 See with regard to this argumentation: Lechouritou, note 2, para. 67 (opinion of AG Ruiz-Jarabo Colomer).Google Scholar

72 This is the general rule under public international law, see Eur. Court H.R., Kalogeropoulou and others v. Greece and Germany, 12 December 2002, NJW 273, 275 (2004) (Kalogeropoulou).Google Scholar

73 Lechouritou, note 2, para. 69 (opinion of AG Ruiz-Jarabo Colomer).Google Scholar

74 Kalogeropoulou, note 72, with reference to further case law.Google Scholar

75 BGH, judgment of 26 June 2003, BGHZ 155, 279 (in particular 293). See also Oberster Gerichtshof (OGH – Austrian Federal Supreme Court) decision of 11 April 1995, IPRax 41. (1996) with case note by Ignaz Seidl-Hohenveldern, Staatenimmunität bei Kriegshandlungen, IPRax 52 (1996).Google Scholar

76 Lechouritou, note 2, para. 40.Google Scholar

77 It should be noted here, that in the following it is not examined as to whether there is State immunity in the present case. This question is – as pointed out by the Advocate General in his opinion (para. 78) – not within the powers of the Court. Rather, the opinions held in the context of immunity are referred to in order to determine whether the existence of acta iure imperii, and thus the exclusion of the action from the scope of the Convention, could be rejected due to the wrongfulness of the acts.Google Scholar

78 See Ian Brownlie, Principles of Public International Law 323 (6th ed. 2003); Kay Hailbronner, Der Staat und der Einzelne als Völkerrechtssubjekte, in Völkerrecht, Vol. III 94 (Wolfgang Graf Vitzthum ed., 2nd ed. 2001). Initially, the plea of immunity constituted an absolute bar. This however, has changed with the increasing participation of States in trade which led to the distinction between acta iure imperii and acta iure gestionis. See further Hazel Fox QC, The Law of State Immunity 21, 272 (2002).Google Scholar

79 BVerfG, 30 April 1963, BVerfGE 16, 27 (61 f.); OGH, 11 April 1995, IPRax 41 (1996); Michael Bothe, Die strafrechtliche Immunität fremder Staatsorgane, 31 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 246, 257 (1971); Wolfram Cremer, Entschädigungsklagen wegen schwerer Menschenrechtsverletzungen und Staatenimmunität vor nationaler Zivilgerichtsbarkeit, 41 Archiv des Völkerrechts 137, 140 (2003); Oliver Dörr, Staatenimmunität als Anerkennungs- und Vollstreckungshindernis in Völkerrecht und IPR 175, 180 (Stefan Leible & Matthias Ruffert eds., 2006); Fox QC, note 78, 22; Burkhard Hess, Staatenimmunität bei Distanzdelikten 39 (1998); Hess, note 21, 12; Burkhard Hess, Kriegsentschädigungen aus kollisionsrechtlicher und rechtsvergleichender Sicht, in Entschädigung nach bewaffneten Konflikte 107, 127 (Wolfgang Heintschel von Heinegg et al. ed., 2003).Google Scholar

80 The approach to (further) restrict immunity is not really new, but has already been advocated with regard to the Nuremberg Trials in the aftermath of World War II (Bothe, 79, 252): Bothe describes the Nuremberg Trial as the “Markstein” of the further restriction of the Act of State-Doctrine where restrictions of immunity have been - based on the increasing interest in human rights - discussed and also been accepted: The Charter of the International Military Tribunal had excluded the objection of immunity in its Art. 7.Google Scholar

81 See for an overview of these approaches: Cremer, note 79, 137.Google Scholar

82 See further with regard to this approach, Cremer, note 79, 143. See with regard to alleged waivers for human rights violations, Fox QC, note 78, 268. This argument has, however, been rejected by US courts which require that the respective foreign government has indicated its amenability to suit.Google Scholar

83 Juliane Kokott, Mißbrauch und Verwirkung von Souveränitätsrechten bei gravierenden Völkerrechtsverstößen, in Recht zwischen Umbruch und Bewahrung, Festschrift für Rudolf Bernhardt 135, 148 (Ulrich Beyerlin et al. eds., 1995).Google Scholar

84 See for instance the dissenting opinion of the judges Rozakis and Calfisch in Eur. Court H.R., Al-Adsani v. The United Kingdom, Judgment of 21 November 2001, Reports of Judgments and Decisions 2001-XI, 761 who state that “[t]he prohibition of torture, being a rule of jus cogens, acts in the international sphere and deprives the rule of sovereign immunity of all its legal effects in that sphere.” Further, the same approach can be found by Lord Millett in Regina v. Bow Street Metropolitan Stipendiary Magistrate And Others, Ex Parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147, 275–276.Google Scholar

85 “Kein Widerspruch zum Völkerrecht kann sich aber daraus ergeben, dass die örtliche Jurisdiktion dem grob völkerrechtswidrigen Handeln fremder Organe die Anerkennung als einem amtlichen Handeln versagt. Denn die Zuordnung des Hoheitsaktes zu dem Staat, um dessen Organ es sich handelt, setzt eine entsprechende Rechtsnorm voraus. Wenn aber die Norm, auf der die Beziehung beruht, dem Völkerrecht grob widerspricht, so sind jedenfalls ausländische Staaten nicht völkerrechtlich verpflichtet, sie als Rechtsnorm gelten zu lassen und damit das Handeln des Organs statt ihm persönlich, dem Staat zuzurechnen, auf dessen Befehl oder mit dessen Ermächtigung das Organ seine Tätigkeit ausgeübt hat.” See further, Georg Dahm, Völkerrechtliche Grenzen der inländischen Gerichtsbarkeit gegenüber ausländischen Staaten, in Festschrift für Arthur Nikisch 153, 170 (1958).Google Scholar

86 Regional Court Livadeia, Judgment of 30 October 1997.Google Scholar

87 See further BGHZ 155, 279 (283). See with regard to the “Distomo case” Dörr, note 79, 182.Google Scholar

88 Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte [2000] 1 A.C. 61, 115 (Lord Steyn). However, the third Pinochet decision (House of Lords, Judgment of 24 March 1999 in Regina v. Bow Street Metropolitan Stpendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147) differs in its approach (see, supra, note 84). Even though immunity was refused – as in the first decision – the reasoning is different: Here it was held that torture as an international crime was prohibited by ius cogens. Since the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, adopted on 10 December 1984 had created a universal criminal jurisdiction for acts of torture by public officials, it was held that it was not intended by the State parties that an immunity for former heads of State for official acts of torture would continue to exist. See for instance Lord Hutton (at 262): “The alleged acts of torture by Senator Pinochet were carried out under colour of his position as head of state, but they cannot be regarded as functions of a head of state under international law when international law expressly prohibits torture […].” See further on this judgment: Fox QC, note 78, 444. However, it has to be taken into consideration that the Pinochet decisions concern immunity from criminal proceedings, which has – as pointed out by Lord Millet – to be distinguished from immunity in civil proceedings. He has, arguably, pronounced against the application of this jurisprudence with regard to immunity in civil proceedings. See also Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex Parte Pinochet Ugarte (No. 3), [2000] 1 A.C. 147, 278. See further with regard to the Pinochet judgments given by the House of Lords: Burkhard Hess, Staatenimmunität bei Menschenrechtsverletzungen, in Wege zur Globalisierung des Rechts – Festschrift für Rolf A. Schütze zum 65. Geburtstag 269, 278 (Reinhold Geimer ed., 1999).Google Scholar

89 In contrast to the Advocate General, the Court did not state its position explicitly on the question whether also wrongful acts constitute acta iure imperii, but rather pointed out, inter alia, that accepting this argument “would be such as to raise preliminary questions of substance even before the scope of the Brussels Convention can be determined with certainty.” This would lead to legal uncertainty, which was incompatible with the objective of the Convention. See further Lechouritou, note 2, para. 44.Google Scholar

90 Lechouritou, note 2, para. 65 (opinion of AG Ruiz-Jarabo Colomer). See also Bothe, note 79, 255.Google Scholar

91 The cited authorities do not all affirm the existence of an act iure imperii in case of a human rights violation explicitly. However, from the fact that immunity has been assumed, it can be deduced, that the respective acts have been classified as acta iure imperii.Google Scholar

92 As stated by Bothe, note 79, 262, the damnability of the respective act should not have any influence on its classification as an act iure imperii. In contrast, this approach would lead to the undesirable and illogical result of acquitting the State from the liability for particular cruel acts, Bothe, note 79, 269. See also Cremer, note 79, 157 for classification of human rights violations perpetrated or ordered by holders of a public office as acta iure imperii. See further, Dörr, note 79, 183; Burkhard Hess, note 88, 281, 285; Arndt Scheffler, Die Bewältigung hoheitlich begangenen Unrechts durch fremde Zivilgerichte 311 (1997).Google Scholar

93 See further for Germany: BVerfG, 2 BvR 1476/03, 15 February 2006, http://www.bverfg.de/entscheidungen/rk20060215_2bvr147603.html, para. 18; BGH, Judgment of 26 June 2003, BGHZ 155, 279 (283), where this point of view is rejected; see also with regard to Austria the judgment of the OGH of 11 April 1995, IPRax 41 (1996) with annotation by Seidl-Hohenveldern, note 75, 52. For further cases where the plea of sovereign immunity has succeeded see the cases referred to in the Report of the Working Group on International Immunitites of States and Their Property, Yearbook of the International Law Commission, 1999, Vol. II, Part Two, 172 (fn. 143). Further, also the Anotato Eidiko Dikastirio held in its judgment No. 6/2002 of 17 September 2002 that States can rely on the principle of immunity even in cases of a breach of ius cogens (see also the annotation to the judgment of the BGH of 26 June 2003 by Geimer, note 70, 216. See also Lord Lloyd of Berwick, House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte, [2000] 1 A.C. 61, 101, 102, who affirmed an act iure imperii in this case (however, the House of Lords had rejected the plea of immunity by a majority three to two, see regarding this case supra, note 88).Google Scholar

94 See further Eur. Court H.R., Al-Adsani v. The United Kingdom, Judgment of 21 November, Reports of Judgments and Decisions 2001-XI, 761, para. 66, where the plea of sovereign immunity has succeeded (at para. 23); and Eur. Court H.R., Kalogeropoulou, note 72.Google Scholar

95 “Da die am Geschehen in Distomo beteiligte SS-Einheit den Streitkräften des Deutschen Reiches eingegliedert war, sind die Übergriffe, unabhängig von der Frage ihrer Völkerrechtswidrigkeit, als Hoheitsakte einzuordnen”. (BVerfG, 2 BvR 1476/03, 15 February 2006, para. 18; available at: http://www.bverfg.de/entscheidungen/rk20060215_2bvr147603.html). Affirmed byGeimer, note 54, 514.Google Scholar

96 In principle, the Community is bound by public international law (see Dörr, note 79, 189; Case C-162/96, A. Racke GmbH & Co. v. Hauptzollamt Mainz, 1998 E.C.R. I-3655, para. 45), thus European procedural law has to be consistent with public international law. See with regard to the intertwining between these two areas of law, infra, note 115.Google Scholar

97 And thus not as acta iure imperii in case of the existence of which immunity can be pleaded.Google Scholar

98 See with regard to the increasing protection of human rights be international criminal law and its influence on the restriction of immunity: Kai Ambos, Der Fall Pinochet und das anwendbare Recht, Juristenzeitung (JZ) 16, especially 20-23 (1999); see further Bothe, note 79, 256. This development is illustrated for instance by the adoption of the Draft Articles on Responsibility for Internationally Wrongful Acts (available at: http://untreaty.un.org/ilc/reports/2001/english/chp4.pdf).Google Scholar

99 See Jenard Report, OJ 1979, C 59/3.Google Scholar

100 See regarding the differences between public and private matters (with regard to the Brussels I Regulation): Peter Mankowsi, Art. 1 Brüssel I-VO, in Europäisches Zivilprozessrecht, Vol. I; (Thomas Rauscher ed., 2nd ed., 2006), para. 2a.Google Scholar

101 These thoughts outlined above might have been, arguably, underlying one of the arguments stated by the Court when rejecting the objection, wrongful acts did not constitute acta iure imperii: “Finally, the question as to whether or not the acts carried out in the exercise of public powers that constitute the basis for the main proceedings are lawful, concerns the nature of those acts, but not the field within they fall.” (Lechouritou, note 2, para. 43).Google Scholar

102 Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims.Google Scholar

103 Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European Order for payment procedure.Google Scholar

104 The aforementioned provision in the Regulation creating a European Enforcement Order for uncontested claims traces back to the German delegation in the European Council who wished to clarify that titles on the liability of the Federal Republic of Germany for war crimes committed during World War II should not be certified as a European Enforcement Order (Jan Kropholler, Art. 2 EuVTVO, in Europäisches Zivilprozessrecht (Jan Kropholler ed., 8th ed., 2005), para. 2; Rauscher & Pabst, note 21 para. 5). See further Rat der Europäischen Union, Vermerk der deutschen Delegation, 11813/03, JUSTCIV 122; Rat der Europäischen Union, Vermerk des Vorsitzes, 10660/03, JUSTCIV 92.Google Scholar

105 Lechouritou, note 2, para. 45. The Advocate General referred in his opinion in addition to Article 1 (1) (g) of the Amended proposal for a European Parliament and Council Regulation on the law applicable to non-contractual obligations (‘Rome II’), COM(2006) 83 final which also excludes acta iure imperii (for more, see Lechouritou case, note 27 (opinion of AG Ruiz-Jarabo Colomer)). Whether, and to which extent, the reference to preparatory acts is possible is judged differently. In favour of a consideration: Burkhard Hess, Intertemporales Recht 498 (1998); critical: Karl Riesenhuber, Die Auslegung, in Europäische Methodenlehre, Vol. 2, 197 (Karl Riesenhuber ed., 2004) (however, in the result, both approaches do not differ significantly).Google Scholar

106 And in particular, with regard to the interpretation of Community measures enacted on the basis of Art. 65 EC to parallel measures. As Hess points out, these legal instruments are coordinated. See further Burkhard Hess, Methoden der Rechtsfindung im Europäischen Zivilprozessrecht, IPRax 348, 355 (2006).Google Scholar

107 Luc Baten, note 11, para. 42.Google Scholar

108 Case C-398/92, Mund & Fester v. Hatrex International Transport, 1994 E.C.R., I-467, and approved by Martiny, note 45, 202.Google Scholar

109 Case C-7/98, Dieter Krombach v. André Bamberski, 2000 E.C.R. I-1935.Google Scholar

110 Luc Baten, note 11, para. 43.Google Scholar

111 See further Hess, note 106, 351.Google Scholar

112 Id., 353.Google Scholar

113 See regarding the specific methods of interpretation of Community law used by the Court, Rüdiger Stotz, Die Rechtsprechung des EuGH, in Europäische Methodenlehre, Vol. 2, 409, 414 (Karl Riesenhuber ed., 2006) and in particular with regard to the method of interpretation aiming to enhance integration Hess, note 106, 358.Google Scholar

114 This would have been in particular desirable since it is, at least by applying the four “classical” methods of interpretation - and not taking account of the methods of interpretation developed by the Court specially-tailored for the interpretation of Community law - not self-evident that conclusions can be drawn from European Regulations with regard to the interpretation of the Brussels Convention. Here some concerns shall only be outlined briefly: For instance with respect to the historical-genetical interpretation it seems to be difficult to refer to the legislative intent since the instruments have not been enacted by the same legislator: While the Brussels Convention is an international treaty concluded by the (then) Member States, the consulted instruments constitute European Regulations enacted by the European Parliament and the Council on a different legal basis than the Brussels Convention, which has not been “enacted” at all, but rather concluded by the (then) Member States on the basis of Art. 220 EC. Further, the classification of the Brussels Convention as a Community measure itself has been doubted (see further, Francesco Capotorti, The Task of the Court of Justice and the System of the Brussels Convention, in Civil Jurisdiction and Judgments in Europe, 13, 15 (Harry Duintjer Tebbens, consultant ed., 1992), which might be supported for instance in view of the fact that the Court does not, when interpreting the Brussels Convention, act as an institution of the European Community, but rather as a court constituted by the Contracting States under international law (see further Reinhold Geimer, Einl. EuGVVO, in Europäisches Zivilverfahrensrecht (Reinhold Geimer/Rolf A. Schütze eds., 2nd ed., 2004, para. 177) since its jurisdiction to give preliminary rulings on the Convention has not been established by Art. 177 EC, but rather by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters. Thus, there seems to be at least some evidence which might impede the argumentation, the Convention was a part of Community law - which might complicate also a systematical interpretation.Google Scholar

115 If the definition of acta iure imperii is regarded as corresponding to the law of immunity and here acta iure imperii would per se be defined as sovereign acts to the exclusion of serious violations of human rights, this could arguably lead to the result that such acts would not fall under the term acta iure imperii in the Regulation. See Dörr, note 79, 190, where it is argued that Art. 2 of the Regulation creating a European Enforcement Order was linked to the law of State immunity – which in turn suggests that the definition of acta iure imperii can be applied.Google Scholar

116 Even though this has not been stated explicitly in the recitals of the Regulations as well as preparatory acts – here it has only been stated that “Article 2 has been amended to clarify that the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii) does not constitute a civil and commercial matter and does therefore not fall within the scope of this Regulation.” (see COM/2004/0090 final) – this suggests that the exclusion should be as extensive as possible (and thus not restricted to lawful acts). Further, conclusions can be drawn from the fact that the scope of application of these Regulations follows the one of the Brussels Regulation/Convention and the case law on these instruments – also with regard to the demarcation between public and private law matters. (See with regard to the European Enforcement Order Regulation: Kropholler, note 104, para. 2; Rauscher & Pabst, note 21, para. 5).Google Scholar

117 See further Jenard Report, OJ 1979 C 59/3.Google Scholar

118 Geimer, note 70, 216.Google Scholar

119 Hess, note 88, 285.Google Scholar