Supreme Court (“Cour de cassation”), Social Chamber, 25 January 2005, Appeal No. 04-41.012
Constitution of France
Article 54
If the Constitutional Council, at the request of the President of the Republic, the Prime Minister, the President of one or the other assembly or by sixty deputies or sixty senators, has declared that an international commitment contains a clause contrary to the Constitution, authorization to ratify or approve the international commitment in question may be given only after amendment of the Constitution.
Article 55
Duly ratified or approved treaties or agreements shall, upon publication, prevail over acts of Parliament, subject, in regard to each agreement or treaty, to its application by the other party.
France
Dismissal
Direct resolution of a dispute on the basis of international law
Ratified treaty;1 International public order
Worker employed by an international organization/ Termination of the contract of employment/ Immunity from jurisdiction/ Absence in the organization of an internal tribunal/ Access to justice as a rule of international public order/ Direct resolution of a dispute on the basis of international law
After termination of his employment contract by the African Development Bank, a French staff member of that international organization in Africa entered a claim in a French labour court for payment of compensation and bonuses. Despite the headquarters agreement signed between France and the African Development Bank providing for the Bank’s immunity from jurisdiction, the Court of Appeal hearing the case recognized its jurisdiction on the basis of the European Convention for the Protection of Human Rights and Fundamental Freedoms, whose Article 6 recognizes the right of all persons to a fair trial.2
The African Development Bank challenged that decision, specifically claiming that the European Convention for the Protection of Human Rights and Fundamental Freedoms was not applicable to that dispute because the employee had worked in Africa.
The Social Chamber of the Supreme Court was called to decide the competence of French courts concerning disputes involving employment relations between the African Development Bank and its French employees. The Court decided that the immunity from jurisdiction provided for in the headquarters agreement could take effect only if the Bank’s staff had recourse to a tribunal before which they could submit their disputes, this being a necessary condition to ensure that access to justice, defined as a rule of international public order was respected:
“But given that the African Development Bank cannot claim immunity from jurisdiction in the dispute with the employee that it dismissed since at that time it had not created an internal tribunal with jurisdiction to judge conflicts of that nature, the impossibility for a party to have access to the judge responsible for deciding his claim and to exercise a right which stems from international public order constituted a denial of justice, giving jurisdiction to the French court when there is a link with France.”
Having considered that access to justice was a rule of international public order, the French Supreme Court concluded that, in the absence of an internal tribunal at the Bank, the French courts were competent to judge conflicts opposing the African Development Bank and its French employees.
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