Foley Hoag LLP secured a victory for the North Atlantic Treaty Organization (NATO) before the Labour Division of the Brussels Court of Appeal on 28 October 2020 in a case initiated by a medical doctor who had concluded successive contracts with NATO to serve as in-house occupational physician at NATO's Brussels headquarters. The plaintiff claimed an entitlement under NATO’s Civilian Personnel Regulation (CPR) to an indefinite contract, and damages for more than 600.000 EUR.
NATO’s administrative tribunal declared itself without jurisdiction to entertain such claim on the ground that the contracts were sui generis and did not trigger the application of the CPR while its jurisdiction was limited to it, both ratione personae and materiae.
The plaintiff argued on the basis of ECtHR case-law relating to the interplay between the right to a judge (Art 6 ECHR) and International Organizations’ immunity (Waite & Kennedy, Beer & Regan cases), that NATO’s immunity must be set aside because plaintiff did not have access to an effective remedy within NATO’s legal system.
The Brussels Labour Court of Appeal agreed with Foley Hoag special counsel, Pierre d’Argent who represented NATO, that the argument was based on a wrong premise: the right to a judge under Art 6 ECHR is only triggered if the plaintiff has a plausible right. This was not the case as decided by NATO’s administrative tribunal who authoritatively ruled that the contracts did not trigger the CPR. Moreover, the Court agreed that the CPR did not confer any right – but only a discretionary possibility – to see temporary contracts transformed into an indefinite contract and it recognized that NATO may hire services under contracts not governed by the CPR. The Court found that the internal justice system within NATO was effective and independent and that the plaintiff was heard and received an articulated legal answer to the claim following due process. The Court also found that the plaintiff could have used the arbitration contract clause but failed to do so. As a result, the Court was able to uphold NATO’s immunity under the 1951 Ottawa Convention without breaching Art 6 ECHR.
"It was very important for NATO that the host nation’s courts would not interfere in its autonomous hiring policy and justice system," said d’Argent. "Needless to say, the client is extremely happy with this result."
This case was the very first time in NATO’s history that it was represented in court by outside counsel. NATO typically turns to the host state that intervenes in the procedure and appoints a lawyer to argue in favor of NATO’s immunity, which happened in two prior cases where Foley Hoag was also successful.