The Court of Justice has handed down its judgment in
Case C-292/05 Irini Lechouritou and Others v. Germany. We had noted the
Advocate General's Opinion back in November 2006.
The issue was whether claims for compensation brought by a number of Greek citizens against a Contracting State (Germany) as being liable under civil law for acts or omissions of its armed forces fall within the scope ratione materiae of the Brussels Convention in accordance with its Article 1 when those acts or omissions occurred during a military occupation of Greece, the plaintiffs' State of domicile, following a war of aggression on the part of the defendant, are manifestly contrary to the law of war and may also be considered to be crimes against humanity.
The Court decided in its judgment that the action brought by the plaintiffs was outside the scope of the Brussels Convention. The plaintiffs, it held, sought compensation for acts which not civil or commercial but were operations conducted by the German armed forces and were thus a characteristic emanation of State sovereignty.
The horrific story was the following. The German armed forces massacred civilians on December 13th, 1943 and of which 676 inhabitants of the municipality of Kalavrita (Greece) were victims. In 1995 Ms Lechouritou and other descendants of the victims brought an action before the Greek courts for compensation from the German State in respect of the financial loss, non-material damage and mental anguish caused to them by the acts perpetrated by the German armed forces.
The Greek courts at first instance dismissed the action, stating that they lacked jurisdiction to hear it because the
defendant country, a sovereign State, enjoyed the privilege of immunity.
The plaintiffs in the main proceedings appealed against that judgment to the Efetio Patron (Court of Appeal, Patras) (Greece) which stayed proceedings until the Anotato Idiko Dikastirio (Superior Special Court) (Greece) had ruled, in a parallel case, on the interpretation of the rules of international law concerning immunity of sovereign States from legal proceedings and on their categorization as rules generally recognized by the international community. More specifically, that case concerned, first, whether Article 11 of the European Convention on State Immunity – signed at Basle on May 16th, 1972, but to which Greece is not a party – according to which ‘a Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage occurred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred’, is to be regarded as a generally recognized rule of international law. Second, the further question was raised as to whether this exception to the immunity of the Contracting States covers, in accordance with international custom, claims for compensation in respect of wrongful acts which, while committed at the time of an armed conflict, adversely affected persons in a specific group or a particular place who had no connection with the armed clashes and did not participate in the military operations.
In 2002 the Anotato Idiko Dikastirio held in the case brought before it that, ‘as international law currently stands, a generally recognised rule of international law continues to exist, according to which it is not permitted that a State be sued in a court of another State for compensation in respect of a tort or delict of any kind which took place in the territory of the forum and in which armed forces of the State being sued are involved in any way, whether in wartime or peacetime’, so that the State being sued enjoys immunity in that instance.
The matter was referred to the Court of Justice because the plaintiffs claimed that the Brussels Convention, in particular Article 5(3) and (4), abolished States’ right of immunity in all cases of torts and delicts committed in the State of the court seised. Thus, the referring court had doubts, however, as to whether the proceedings brought before it fell within the scope of that Convention, observing in this regard that the question whether the defendant State enjoyed immunity and, consequently, the Greek courts lacked jurisdiction to hear the case before it turned on the answer to disputed questions of law.
In reaching its conclusion that the action was outside the scope of the Brussels Convention, the Court recalled that it has held that the concept of ‘civil and commercial matters’ within the meaning of the first sentence of the first paragraph of the Brussels Convention does not include an action brought by the State as agent responsible for administering public waterways against a person having liability in law in order to recover the costs incurred in the removal of a wreck, in performance of an international obligation, carried out by or at the instigation of that administering agent in the exercise of its public authority (Case 814/79 Rüffer, paragraphs 9 and 16). Disputes of that nature are the consequence of the exercise of public powers by one of the parties to the case, as it exercises powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals (see, to this effect, Case C-172/91 Sonntag, paragraph 22; Case C-167/00 Henkel, paragraph 30; Case C-266/01 Préservatrice foncière TIARD, paragraph 30; and Case C-265/02 Frahuil).
The Court specifically rejected the argument that it is the action for compensation which must be characterized as being of a civil nature and thus covered by Article 5(3) and (4) of the Brusssels Convention and not the act causing the loss and damage which must be characterized under the Convention. It held that 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. The Court also stated that the reference made to the rules governing jurisdiction specifically set out in Article 5(3) and (4) of the Brussels Convention is immaterial: The question whether the Convention applies to the main proceedings logically constitutes a prior question which, if answered in the negative as here, entirely relieves the court before which the case has been brought of the need to examine the substantive rules laid down by the Convention.
An interesting point of procedure also came up. The plaintiffs in the main action wrote to the Court and made observations on the Opinion of the Advocate General. They also requested the Court to ‘decide that the present case “is of exceptional importance” and to refer it to the full Court or a Grand Chamber, in accordance with Article 16 of the Statute of the Court of Justice’. The Court refused. It noted that the third paragraph of Article 16 makes clear that individuals do not have standing to make such a request because only a Member State or an institution of the Communities that is party to the proceedings can make such a request. In addition, apart from the cases listed in the fourth paragraph of Article 16, it is the Court alone which, pursuant to the fifth paragraph, has the power to decide, after hearing the Advocate General, to refer a case to the full Court, where it considers that case to be of exceptional importance. Nor did the Court consider that there were grounds to reopen the oral procedure of its own motion, on a proposal from the Advocate General or at the request of the parties under Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, inter alia Case C-309/99 Wouters and Others, paragraph 42; Case C-309/02 Radlberger Getränkegesellschaft and S. Spitz, paragraph 22; and Case C‑308/04 P SGL Carbon v Commission, paragraph 15).
