Chapter VIII. Decisions of National Tribunals

Chapter viii DeCisions oF nAtionAL tRiBUnALs italy

THE SUPREME COURT OF CASSATION

Civil Cassation, Combined Civil Divisions, 1

23 January 2004, No. 1237

Food and Agriculture Organization of the United Nations (FAO)—Question of immunity from jurisdiction of the organization—Headquarters Agreement (Agreement between the Government of the Italian Republic and the Food and Agriculture Organization of the United Nations regarding the Headquarters of the Food and Agriculture Organization of the United Nations)—Convention on the Privileges and Immunities of Specialized Agencies, 1947

The Supreme Court of Cassation, Combined Civil Divisions, pronounced the following decision:

In the appeal brought by:

Giuliana Carretti, who elects domicile at 11 Viale dell’Università, Rome, at the law firm of attorney Francesco Fabbri, who is representing her and defending her interests by virtue of a power of attorney appearing in the margin of the appeal—Appellant

Versus

The Food and Agriculture Organization of the United Nations (FAO), in the person of its legal representative pro tempore, domiciled at 12 Via dei Portoghesi, Rome, at the Office of the State Attorney General, which is representing and defending it as stipulated by law—Respondent

Against decision No. 1613 of the Court of Appeal of Rome, deposited on 20 September 2001;

Having heard the Rapporteur’s summary of the case given in public hearing on 6 November 2003 by Dr. Erminio Ravagnani, Counsellor;

Having heard Attorney Francesco Fabbri;

Having heard the public prosecutor’s office in the person of Dr. Antonio Martone, Deputy General Prosecutor, who argued for the rejection of the appeal.

Dr. Vittorio Carbone, Acting First President; Dr. Giovanni Olla, Division President; Dr. Erminio Ravagnani, Rapporteur and Counsellor; and Counsellors Dr. Enrico Altieri, Dr. Michele Varrone, Dr. Ugo Vitrone, Dr. Roberto Michaele Triola and Dr. Giuseppe Marziale.

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The facts

Ms. Giuliana Carretti brought an action before the Rome Labour Tribunal, petitioning, as her principal plea, that the termination of her employment, of which she was notified on 21 April 1993, by the Food and Agriculture Organization of the United Nations (FAO) should be reversed and that FAO should be ordered to pay her the remuneration due her and to pay the related contributions into the United Nations pension fund. She petitioned, as a subordinate plea, that FAO should be ordered to pay certain sums on various scores as well as compensation for material loss and moral damage.

The Rome Tribunal declared that Italian judges lacked jurisdiction.

Ms. Carretti filed an appeal, which was contested by the opposing party.

The Court of Appeal rejected the appeal, on the following grounds:

Considering that the principal object of the dispute is the petition that the termination of employment should be held to be unlawful, with a consequent petition for compensation for damages and the payment of the omitted contributions, while the subordinate object is the petition for payment, on various scores, of certain sums of money and compensation of injury, including moral damage, Italian judges must be held to be without jurisdiction, since a decision on the dispute, even though it would extend to claims of a material nature, would nonetheless presuppose an evaluation of the conduct of the employer and would thus bear upon the public law structure or the realization of the aims of the international organization. However, the employment relationship of FAO staff members is governed by an extensive and autonomous set of regulations covering a wide variety of matters, including disputes concerning administrative decisions, for which jurisdiction is accorded to the Administrative Tribunal of the International Labour Organization (ILO). Moreover, the question of constitutional lawfulness raised by Ms. Carretti is clearly unfounded, since, under the Convention on Privileges and Immunities of Specialized Agencies of 21 November 1947 (Act No. 1740 of 24 July 1951), a FAO staff member is effectively guaranteed the right to bring an action against FAO for the protection of his or her rights before that Tribunal, and a possible interference in the rights of citizens constituting a violation of constitutional guarantees does not arise. Nor do the unsuccessful outcome of the proceedings brought before that tribunal, the alleged non-recognition of the proceedings by Ms. Carretti, which is belied by the facts as alleged and verified, or the shortness of the time limits for bringing an action appear to be relevant.

Against that decision Ms. Carretti filed an appeal for review of that decision, arguing that there were ample, clear grounds for overturning it.

FAO submitted a counter-appeal.

The law

The Appellant, alleging violation and misapplication of article 382 of the Code of Civil Procedure and other legal rules relating to the jurisdiction of Italian judges with reference to the international instruments rendered enforceable by Act No. 1740 of 24 July 1951 and Act No. 11 of 9 January 1951, and articles 3, 11 and 24 of the Constitution with reference to the legal rules relating to the ILO Tribunal, and further alleging defects in the statement of grounds, contends that the jurisdiction of Italian judges should have been upheld at least with respect to the subordinate pleas, inasmuch as they concerned claims

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of an exclusively material nature. She contends, in fact, that her action is limited to the claim for purely material remuneration or relief, upon a finding of unlawful conduct on the part of her employer, without, however, putting forward a “request for the reversal of a prejudicial act of an alleged administrative nature”. Moreover, she argues that excluding the jurisdiction of Italian judges would allow the non-appealable decisions of the ILO Tribunal to have an inadmissible effect on the rights claimed by Ms. Carretti under articles 36 and 38 of the Constitution, while the provision for the lapse of the action before that Tribunal and the Convention rendered enforceable by Act No. 1740 of 24 July 1951, as well as the Headquarters Agreement rendered enforceable by Act No. 11 of 9 January 1951, as interpreted by the Court of Appeal, should have led to the conclusion that the question of lawfulness raised in relation to the above-mentioned articles of the Constitution was not manifestly unfounded.

The appeal is unfounded.

The Combined Civil Divisions have already had occasion to hold that disputes brought against FAO concerning employment relationships in Italy involving Italian citizens employed by the organization are outside the jurisdiction of Italian judges (see decision Cass. SU No. 5942 of 18 May 1992); that the waiver of jurisdiction applies to any judgement that would entail rulings bearing upon the public law structure or the realization of the aims of the international organization (Cass. SU No. 1150 of 7 November 2000); and that the waiver extends to any petition that a termination of employment should be found unlawful with consequent claims for reinstatement and compensation for damage (Cass. SU No. 531 of 3 August 2000; No. 331 of 12 June 1999; No. 120 of 12 March 1999; No. 12771 of 28 November 1991).

No valid reasons are apparent, and none were presented, for departing from that jurisprudence. Moreover, the Appellant herself, while offering extensive arguments in support of her contentions, stresses the material aspect of the dispute, presenting it, inaccurately, as her only point at issue, thus seeming to support the position expressed in the jurisprudence whereby Italian judges do not have jurisdiction with respect to a petition for a termination of employment to be declared unlawful, with the consequent claims for reinstatement and compensation, whereas they do have jurisdiction with respect to a claim for payment of disputed amounts of remuneration, since such a claim has to do with purely material aspects of the relationship and does not require a ruling on the public law powers of the international organization (Cass. SU No. 120 of 12 March 1999). Clearly, that is not the case here, in view of the content of the principal plea.

As the Court held in its judgement No. 5942 of 1992 and reiterates here, the immunity of FAO from the jurisdiction of Italian judges, that is, judges of the Host Country, is based on article VIII, section 16, of the Agreement between the Government of the Italian Republic and the Food and Agriculture Organization of the United Nations regarding the Headquarters of the Food and Agriculture Organizations of the United Nations (known as the “Headquarters Agreement”) signed at Washington on 31 October 1950 and rendered enforceable in Italy by Act No. 11 of 9 January 1951, which provides that “FAO and its property, wherever located and by whomsoever held, shall enjoy immunity from every form of legal process. . .”.

The treaty origin of the legal text means that attention can be directed not only to the literal wording of the provision itself but also to the spontaneous conduct of the parties in applying it, here in particular the exchange of notes between FAO and the Permanent

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Diplomatic Representation of Italy to FAO concerning “the modes of settlement of disputes adopted by the Organization as provided in Article IX, Section 31 (a), of the Convention on the Privileges and Immunities of Specialized Agencies” approved by the General Assembly of the United Nations on 21 November 1947 and rendered enforceable in Italy by Act No. 1740 of 24 July 1951. In giving effect to the obligation under article IX, section 31 (a), of the Convention, FAO declared, and Italy recognized, that none of the institutional purposes of FAO could be achieved if the organization were not to have its own staff, in employment relationships governed by its own staff regulations. With respect to the settlement of disputes...

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