Western European Union v Siedler, Belgian Court of Cassation, 21 December 2009
Relevance of the case
This decision was rendered on 21 December 2009 by the Belgian Court of Cassation, that is the Supreme Court in civil and penal matters, simultaneously with two other decisions concerning the immunity of jurisdiction and execution of international organizations established in Belgium. The three decisions concerned employment- related disputes between individuals and international organizations—the Western European Union (WEU) in the decision commented, the African, Caribbean, and Pacific Group of States (ACP Group) in the two other decisions. All three decisions are relevant, as only very few Supreme Courts in the world have tackled the question of the immunity of international organizations, and even fewer have examined the tension between the immunity of the organization and the individual’s right of access to a court. Moreover, the Belgian Supreme Court confirmed the Waite and Kennedy jurisprudence of the ECtHR, which set out a method to negotiate the said tension, and applied it in a concrete case. Among the three decisions, the judgment in Western European Union v Siedler is particularly relevant because the Court examined the quality of the dispute-settlement mechanism within the WEU, and proved willing to reject the immunity of the organization when such quality was insufficient. Furthermore, the Court ruled that, in case of rejection of immunity, the internal law of the organization was to be applied to the dispute, as opposed to domestic law.
I. The facts of the case
Ms Siedler had worked since 1991 for the WEU when her employment was terminated in 2000. In accordance with WEU staff rules, she petitioned the WEU internal appeals commission to obtain a compensation. However, the compensation granted by the internal appeals commission would have been substantially higher pursuant to Belgian labour legislation, which is why she subsequently sued the WEU at the Labour Tribunal of Brussels.
In its decision of 7 March 2002, this Tribunal granted higher compensation— equivalent to six months’ salary—but Ms Siedler appealed on grounds of insufficiency. The WEU filed an incidental appeal, invoking its immunity from jurisdiction before the Belgian courts and arguing alternatively that the Belgian Act on Labour Contracts was not applicable to this case. Indeed, civil servants whose position was governed by a personnel statute were excluded from its scope of application pursuant to art. 1 of the Act on Labour Contacts.
On 17 September 2003, the Labour Appeals Court set aside the WEU’s immunity from jurisdiction on the ground that it contradicted the right of access to justice enshrined in art. 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and art. 14(1) of the International Covenant on Civil and Political Rights (ICCPR). Although the WEU had made an internal procedure available to individuals aggrieved by its acts, the quality of that procedure did not correspond to the guarantees inherent in the notion of a fair trial, in particular an independent dispute-settlement mechanism. Furthermore, the Court of Appeals considered that the Council of the WEU did not have the power to adopt a personnel statute pursuant to the treaty for collaboration in economic, social, and cultural matters and for collective self-defence (17 March 1948) and the agreement on the status of WEU, national representatives and international staff (11 May 1955). Consequently, the WEU Staff Rules did not constitute a personnel statute and the Belgian Act on Labour Contracts was applicable.
The WEU subsequently brought the case to the Court of Cassation claiming that the Court of Appeals had wrongly rejected its immunity from jurisdiction and applied Belgian labour law. It asserted that the grant of immunities to international organizations before national jurisdictions pursued a legitimate goal and constituted an admissible limitation to art. 6(1) ECHR. Moreover, it considered that in its Waite and Kennedy jurisprudence, the ECtHR merely requested the existence of a reasonably available means—that is characterized by its constituent instrument as independent— to protect one’s rights without assessing its quality. Finally, the WEU argued that its Staff Rules were supranational and directly applicable rules in the Belgian legal order. Hence, WEU Staff Rules would prevail over the Belgian Act on Labour Contracts.
II. The legal question
In Western European Union v Siedler, the Belgian Court of Cassation was confronted with the conflict between the immunity from jurisdiction of an international organization and the right to a fair trial as contained in art. 6(1) of the ECHR. The specificity of this case was that an internal procedure was available for individuals aggrieved by WEU acts in employment related disputes—t he internal appeals commission. However, the question arose whether its quality corresponded to the guarantees inherent to the notion of a fair trial, notably with regard to its independence. Hence, the Court of Cassation had to decide whether the mere existence of a reasonably available means to protect one’s rights was sufficient to guarantee the right of access to justice or whether the latter required an assessment of the quality of this means in order to be effective. Finally, the Court had to decide which material rules apply to the conflict, which required a clarification as to whether the internal staff regulations had direct effect in the Belgian legal order.
The grant of privileges and immunities to international organizations is necessary to permit the good functioning of these organizations without any unilateral interference by a national government. The fact that states generally grant immunity from jurisdiction to international organizations in their constitutive instruments or in additional agreements constitutes a long-dated practice, aimed to ensure the good functioning of international organizations. The importance of this practice is reinforced by the tendency to enlarge and intensify international cooperation, which is illustrated in all domains of contemporary society. In these conditions, the rule of immunity from jurisdiction of international organizations pursues a legitimate aim (para. 47).
The question of whether the immunity was proportionate to the aim pursued should be evaluated in light of the particular circumstances of each case. To determine whether the restriction of fundamental rights flowing from such immunity was compatible with art. 6(1) of the ECHR, it was important to examine, in accordance with the jurisprudence of the ECtHR, whether the individual against whom such immunity was invoked had access to other reasonably available means to protect his or her rights. Article 6(1) of the ECHR did not prevail over the WEU’s immunity (paras. 48-9).
When determining whether the immunity invoked by the international organization could be reconciled with art. 6(1) of the ECHR, the court was not to limit itself to merely taking note of the characterization of an internal appeals commission as independent by the instrument which established that commission. The mode of designation—by an intergovernmental committee—and the short term of the mandate—two years—of the members of the commission were to be taken into account as well. These features of the internal appeals commission involved the risk that the members would be closely tied to the organization, thereby lacking independence (para. 53).
The WEU Staff Regulations that determined the mode of calculating the indemnity allowance in case of breach of contract had direct effect in the domestic legal order and therefore prevailed over any other applicable domestic law provisions of the Act on Labour Contracts (para. 61).
The immunity of the WEU before the Belgian court was rejected but the WEU Staff Regulations were applied.
In this case, the Court of Cassation acknowledged that certain limitations to the right of access to justice could be accepted, as long as they did not annihilate this right, as they had a legitimate purpose and as there was a reasonable proportionality. The
Court recognized the legitimate aim of immunities of international organizations in order to secure the good functioning of these organizations without any unilateral interference by a national government. The Court of Cassation also mentioned the long-standing practice that states generally grant immunity from jurisdiction to international organizations in their constitutive instruments or in additional agreements. This reference implicitly confirms the prior jurisprudence of the Belgian Court of Cassation that privileges and immunities of international organizations do not have a customary nature but are entirely treaty-based.
In order to examine the proportionality, the Court of Cassation referred to the Waite and Kennedy jurisprudence of the ECtHR and applied it to the concrete case. The ECtHR had declared that a material factor in determining if the immunity of an international organization before domestic courts was permissible was to examine whether individuals had available to them ‘reasonable alternative means to protect effectively [their] rights under the Convention’. This rather vague statement has given rise to intense debates among scholars as to its exact meaning.
The Court of Cassation considered that the mere existence of a dispute-settlement mechanism within the international organization was not sufficient to pass the Waite and Kennedy test. A number of qualitative due process criteria—especially to guarantee its independence—had to be met before the international organization could effectively rely on such a mechanism to justify its immunity. In the Court of Cassation’s view, the independence of the internal appeals commission could not be guaranteed since it was composed of members designated by the WEU’s intergovernmental committee and who only served for terms of two years, which was insufficient to secure their independence.
This finding may be open to criticism. As observed by Maarten Vidal in his comments on the appellate judgment in the Siedler v the Western European Union case, the Court ‘seems to have been overzealous in transposing the qualitative criteria of art. 6(1) of the ECHR to the level of international administrative tribunals’ when reviewing the WEU’s internal dispute-settlement mechanism. As noted by this author, the due process quality of the WEU’s procedure ‘is not substantially inferior to the general practice in international organizations’.   For instance, members of the former UN Administrative Tribunal and members of the Administrative Tribunal of the ILO were appointed to renewable three-year terms. Hence, the application of the Siedler review test could potentially lead to the rejection of immunity in most cases brought against international organizations before national jurisdictions.
However, certain international organizations have recently reviewed their dispute- settlement mechanisms, such as the new UN Dispute Tribunal, whose judges are appointed for a non-renewable term of seven years by the General Assembly on the recommendation of the Internal Justice Council, and may be removed by the General Assembly only in case of misconduct or incapacity. This evolution reinforces the independence of the members of the UN Dispute Tribunal in comparison to other administrative jurisdictions in international organizations. It should in principle be recognized under the Court of Cassation’s review standard. Yet, the Court did not clearly indicate the required minimum length of the mandate of judges sitting on an organization’s dispute-settlement mechanism. Hence, court rulings on this issue will be difficult to predict."
The Siedler case is not the only example in which a national jurisdiction has conducted a qualitative review of an internal mechanism in an international organization. In a 2007 case, the Italian Court of Cassation considered that the obligation of an international organization—She International Plant Genetic Resources Institute (IPGRI)—to provide an independent and impartial remedy was a conditio sine qua non for maintaining its immunity from jurisdiction. The IPGRI’s headquarters agreement stated that IPGRI had to ‘establish suitable procedures for resolving disputes with its employees"2 In accordance with this provision, IPGRI joined the ILO and engaged the jurisdiction of the ILO Administrative Tribunal in 1991, but the facts in this case predated its membership. Hence, employees were left with only an internal remedy that was not considered independent and impartial. In its decision, the Court of Cassation ruled that IPGRI was not entitled to immunity and that such disputes fell within Italian jurisdiction.
Yet, one must admit that these two examples are rather isolated and that the vast majority of national jurisdictions have adopted a much more cautious approach. This is equally true in Belgium, where lower tribunals have refrained from following the approach advocated by the Court of Cassation in Siedler. For instance, in its 2011 judgment in SA Energies Nouvelles et Environnement v Agence Spatiale Europeenne, the Brussels Court of Appeals found three reasonable alternative means, which could be combined, to effectively protect the plaintiff’s rights, that is seeking support from the national delegate within the ESA Industrial Policy Committee, resorting to the ombudsman procedure and launching a claim against other companies on grounds of civil liability and/or abuse of dominant position. The Court of Appeals did not analyze the quality of the internal dispute-settlement procedure, which only permitted the claimant to call for support from the Belgian representative to the organization’s committee on industrial policy and to resort to an ombudsman procedure. Instead, the Court concentrated most of its decision on examining the possible claims against the two companies instead of against the ESA. Hence, the Court of Appeals—as opposed to the Court of Cassation in the Siedler case— adopted a broad interpretation of the reasonable alternative test and took into consideration several means which did not all meet the guarantees prescribed by art. 6 of the ECHR. Indeed, the possibility to call for support from the Belgian delegation resembles a diplomatic means a far cry from the conditions of art. 6 of the ECHR and the Ombudsman had no competence to hear employment-related disputes and its decisions were non-binding. 
Furthermore, the ECtHR itself seems to reject the interpretation given by the Belgian Court of Cassation in Siedler to its reasonable alternative means test stated in Waite and Kennedy. In the Chapman v Belgium decision of 2013 concerning an employment- related dispute with NATO, the ECtHR decided that the national jurisdiction—the Brussels Labour Court of Appeals—had rightly considered the NATO Appeals Board as an effective internal mechanism/4
In this case, Mr Chapman had sued NATO before the Brussels Tribunal of First Instance without trying to solve the dispute before the NATO Appeals Board. The Tribunal accepted his claim and ordered his reinstatement as a NATO staff member. On appeal, the Belgian Government intervened and sustained that an alternative mechanism was available, that is the NATO Appeals Board. The Court of Appeals followed the Belgian Government and rejected Mr Chapman’s claim. After a negative opinion from an attorney at the Court of Cassation, Mr Chapman brought the case before the ECtHR. In March 2013, the latter confirmed the Belgian Labour Court of Appeals’ view that Mr Chapman would have had an effective internal procedure before the NATO Appeals Board. Mr Chapman had failed to use an available remedy and he was consequently unable to demonstrate how the failings he attributed to that procedure had deprived him of the safeguards of art. 6(1). For these reasons, the Court rejected his complaint. It is interesting to note that the Court did not analyze the Appeals Board but merely noted that the plaintiff did not demonstrate that the Appeals Board would not fulfill the guarantees of art. 6. This deferential approach contradicts the Court of Cassation’s interpretation in Siedler.
In another recent case at the ECtHR involving NATO, Gasparini v Italy and Belgium, the plaintiff asserted that the internal dispute-settlement mechanism was incompatible with the requirements of the ECHR, notably because the NAT O Appeals
Board sessions were not public. As a consequence, Belgium—host state of NATO— and Italy—the state of nationality of the plaintiff—had failed to ensure the creation of a dispute-settlement mechanism offering an equivalent protection when transferring competences to NATO. In its decision, the ECtHR held that it could review a structural lacuna in rights protection caused by the failure of the NATO Appeals Board to hold its sessions in public.15 However, it further explained that its power to determine whether the procedure before the NATO Appeals Board was manifestly deficient was necessarily less ample than its power to review the procedures before the contracting states’ domestic jurisdictions.
This analysis of recent jurisprudence of the ECtHR seems to indicate that the requirements of internal procedures within international organizations may not be strictly similar to the requirements of the European Court vis-a-vis its member states’ domestic jurisdictions/6 A certain level of ‘equivalent protection’ (although not necessarily identical) to the one of art. 6 ECHR seems to suffice to meet the requirements of the ECHR/7 This approach has already been adopted by certain national jurisdictions, such as a Dutch Court of Appeals which held in 2007 that it sufficed that the international organization, the European Patent Office, provided comparable legal protection, to meet the requirements of art. 6. This was guaranteed in the particular instance by the possibility of submitting the case to the ILO Administrative Tribunal/8 This requirement of a comparable or equivalent protection should prevent the claimant’s right of access to courts from becoming illu- sory.19 In a decision issued by the Court of Appeal in The Hague on 17 February 2015 in a case opposing trade unions of employees of the European Patent Office to the European Patent Organization, the Court of Appeal confirmed that the central question is whether alternative judicial process offers a ‘comparable’ protection to art. 6 ECHR. The determinant factor consists in the assessment of whether the right of access to court is impaired in its essence and that the protection of ECHR rights is ‘manifestly deficient’. In this case, the Court found such manifest deficiency as a result of the absence of any alternative judicial process to the plaintiffs, which did not result in a presumption of a violation of art. 6 ECHR per se except that it was combined with a number of additional factual circumstances including the assertion by the plaintiffs that their right to strike and their right to participate in collective
!5 cf. Gasparini v Italy and Belgium, App. No. 10750/03, 12 May 2009. For discussion, see C. Ryngaert, ‘The Responsibility of Member States in Connection with Acts of International Organizations: Assessing the Recent Case Law of the European Court of Human Rights’, (2011) 60 International Law and Comparative Law Quarterly 997.
‘6 See also E. De Brabandere (n. 8), p. 492.
‘7 cf. J. Wouters, C. Ryngaert, and P. Schmitt (n. 4), pp. 560-7.
‘8 cf. Bertrand v European Patent Organization, Dutch Court of Appeals of The Hague, 28 September 2007, No. BB5865, 06/1390.
‘9 cf. Stavrinou v United Nations and Commander of the United Nations Force in Cyprus, Supreme Court of Cyprus, ILDC 929 (CY 1992). In this decision, the Cyprus Court upheld the immunity of the United Nations Peacekeeping Force in Cyprus (UNFICYP) because a special dispute-settlement mechanism for local personnel was organized by the UNFICYP Agreement. Yet, as indicated by Artistotle Constantinides in his comments on the decision, the Court refrained from examining the mechanism which ‘was no more than an administrative procedure to be determined by the Commander of the UNFICYP’. Bertrand v European Patent Organization (n. 18), para. A6.
bargaining were systematically restricted. The Court concluded that there was a disproportionate restriction of the right of access to justice and ignored the organization’s immunity from jurisdiction. 
This being said, both the Gasparini and the Chapman case concerned NATO, which is an international organization whose members are not all state parties to the ECHR. Hence, one may not exclude a stricter application of the requirements with respect to an international organization whose members are all state parties to the ECHR, such as the WEU. However, even in this case, it seems hardly defendable to require that the dispute-settlement mechanisms established by international organizations should meet all the conditions of art. 6 since international organizations—with the possible exception in the future of the EU—are not parties to the ECHR.
Another interesting aspect of the Siedler case is that once the Court of Cassation had decided to reject the immunity and to take the case, it applied the internal law of the WEU to the conflict instead of Belgian labour law. Indeed, the WEU Staff Regulations had direct effect in the domestic legal order and therefore prevailed over any other applicable domestic law provisions of the Act on Labour Contracts. The Court of Cassation concluded that the WEU Staff Regulations would determine the amount of the indemnity allowance to which the claimant was entitled. For this particular aspect, the Court of Cassation disagreed with the Court of Appeals, which had applied the Belgian Act on Labour Contracts to the conflict. As a consequence, the Court of Cassation quashed the judgment of the Court of Appeals.
Given that only few national jurisdictions rejected the immunity from jurisdiction of an international organization, there is scarce jurisprudence on the applicable law to such conflict. In the literature, certain scholars have suggested that the host state’s (domestic) law should apply as the default position^1 Yet, if the international organization has developed its own rules with respect to a specific situation, those rules should apply. In the Siedler case, the WEU Staff Rules determined the mode of calculating the indemnity allowance for breach of contract very precisely.
To a certain degree, the application of the internal substantive law of the WEU by the Court of Cassation seems to counter-balance the rejection of the immunity of the international organization, as if the Court of Cassation had searched to find an equilibrium between, on the one hand, the autonomy of the international organization and, on the other hand, the individual’s right of access to a court. Nevertheless, one has to admit that the Court of Cassation has gone very far—probably too far in light of the other decisions of national jurisdictions and of the posterior jurisprudence of the ECtHR—in its qualitative review of the dispute-settlement procedures established within international organizations to handle employment related disputes.
-  Siedler v Western European Union, Brussels Labour Court of Appeals, 17 September 2003, Journaldes Tribunaux, 2004, p. 617; case note by E. David, ‘L’immunite de juridiction des organisations internationales’, Journal des Tribunaux, 2004, p. 619; ILDC 53 (BE 2003).
-  This excerpt has been translated by the author from French into English.
-  cf. Western European Union v Siedler, Belgian Court of Cassation, 21 December 2009, AppealJudgment, Cass No S 04 0129 F, ILDC 1625 (BE 2009).
-  For more information, see J. Wouters, C. Ryngaert, and P. Schmitt, ‘Case-Note to Belgian Courtof Cassation, Western European Union v Siedler; General Secretariat of the ACP Group v Lutchmaya;General Secretariat of the ACP Group v. B.D.’, (2011) 105 American Journal of International Law 560.
-  At the previous stage of the procedure, the Labour Court of Appeals noted that international organizations had a broader immunity than states because of several reasons: as opposed to states, internationalorganizations have only restricted competences as a result of their institutional functions. They have tofulfil these functions without any interference. Hence, their immunity from jurisdiction has no other limitthan the mandate that they have received. Moreover, international organizations are disarmed in front ofstates since they cannot invoke reciprocity when their immunity is impinged. Finally, the cases of abuseof immunity from jurisdiction are considered as theoretical and member states could revise the regime ofthe immunity. Siedler v Western European Union, Brussels Labour Court of Appeals, 17 September 2003,Journal des Tribunaux, 2004, p. 617; case note by E. David, ‘L’immunite de juridiction des organisationsinternationales’, (2004) Journal des Tribunaux 619; ILDC 53 (BE 2003).
-  cf. League of Arab States v TM, Belgian Court of Cassation, 12 March 2001, Journal des Tribunaux,2001, at 610, ILDC 42 (BE 2001).
-  Waite and Kennedy v Germany, European Court of Human Rights, 18 February 1999, App. No.26083/94, para 68; Beer and Regan v Germany, European Court of Human Rights, 18 February 1999,App. No. 28934/95, para. 59.
-  See for instance E. De Brabandere, ‘Belgian Courts and the Immunity of International Organizations’,(2013) 10 International Organizations Law Review 464-504; P. Sands and P. Klein, Bowett’s Law ofInternational Institutions (6th edn, London, Sweet & Maxwell 2009); A. Weerts and N. Angelet, ‘Lesimmunites des organisations internationales face a l’article 6 de la Convention europeenne des droits del’homme’, (2007) 134 Journal du droit international 21.
-  cf. M. Vidal, ILDC 53 (BE 2003), para. A5. ™ Ibid., para. A4.
-  11 J. Wouters, C. Ryngaert, and P. Schmitt (n. 4), at p. 565.
-  12 Drago v IPGRI, Italian Court of Cassation, 19 February 2007, No. 3718, ILDC 827 (IT 2007) (quoting
-  art. 17 of the headquarters agreement).
-  For further information, see SA Energies Nouvelles et Environnement v European Space Agency,Brussels Court of Appeals, 23 March 2011, Appeal judgment, No. 2011/2013, 2006/AR/1480, ILDC 1729(BE 2011).
-  cf. Richard Chapman v Belgium, App. No. 39619/06, 5 March 2013.
-  cf. Vakbondsunie van het Europees Octrooibureau (‘VEOB, The Hague Department) & SUEPO (StaffUnion of the European Patent Office) v European Patent Organization, Court of Appeal in The Hague,Case No. 200.020.173/01, 17 February 2015.
-  cf. J. Klabbers, An Introduction to International Institutional Law (2nd edn, Cambridge, CambridgeUniversity Press 2009), p. 137; A. Reinisch, ‘Accountability of International Organizations According toNational Law’, (2005) Netherlands Yearbook of International Law 119.