SEDELMAYER v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Franz J. Sedelmayer, is a German national who was born in 1963 and lives in Irschenhausen. From December 1994 to March 1996, assets of the applicant, who had made an investment in a Russian company in St. Petersburg, were expropriated by the Russian authorities without compensation. Relying on the Bilateral Investment Treaty between Germany and the former Union of Soviet Socialist Republics (USSR) of 1989, which remained in force between Germany and the Russian Federation after the disintegration of the USSR, the applicant complained to an international arbitral tribunal in Stockholm, Sweden, requesting compensation. On 7 July 1998 the arbitral tribunal awarded 235,000,000 United States dollars (USD) plus interest to the applicant. The Russian Federation refused to pay this arbitral award. It made a request before the Swedish courts that the arbitral award be declared void. On 18 December 2002 the Stockholm District Court dismissed the request; the Russian Federation’s appeals were to no avail. On 16 February 2001 the Berlin Regional Court declared the arbitral award enforceable. Relying on the Bilateral Investment Treaty of 1989 and the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, it observed that the Russian Federation could not rely on a general immunity from execution. The Regional Court added that it was not for it to decide, however, whether international law prohibited enforcement measures directed against specific assets such as assets serving a sovereign purpose. The applicant subsequently initiated execution proceedings in Germany. The applicant requested an execution order (Pfändungs- und Überweisungsbeschluss) for the Russian Federation’s claims against Germany concerning the reimbursement of VAT (Value Added Tax). The VAT owed by Germany stemmed from the Russian Embassy’s acquisitions of goods and services. In September 2002, the Berlin District Court granted the request, and attached and transferred the Russian Federation’s claims for VAT reimbursement. The Russian Federation objected to the order. On 27 December 2002 the District Court cancelled the order, holding that the attachment of the claims was not in accordance with international law. It observed that the Russian Federation had issued a declaration in which it had assured that the reimbursed VAT solely served to maintain the functioning of the diplomatic and consular missions. Therefore, the attached claims served sovereign purposes and were exempt from execution. Furthermore, the Russian Federation had not declared a waiver of immunity for the enforcement proceedings. On 3 December 2003 the Berlin Court of Appeal upheld the District Court’s decision. It found that an execution would be inadmissible under the rules of international law. The assurance given by the Russian Federation that the reimbursed VAT served solely to maintain the functioning of the diplomatic and consular missions was sufficient. On 4 October 2005 the Federal Court of Justice dismissed an appeal by the applicant on points of law (no. VII ZB 8/05). It found that the enforcement of the Russian Federation’s claims of VAT reimbursement was inadmissible. The Russian Federation enjoyed diplomatic immunity in relation to these claims as they served for the maintenance of the diplomatic missions’ sovereign functions. It was pertinent in that context that there was no need for an actual impediment of the diplomatic activities to have occurred; an abstract risk of impediment sufficed. This general rule of international law was also applicable to assets which did not – as in the present case – fall within the ambit of the Vienna Convention on Diplomatic Relations; rather, the protection extended to all assets serving for the functioning of diplomatic and consular missions. It was also of no relevance whether the Russian Federation was capable of assuring sufficient funds for its missions by other means; if it had been, diplomatic immunity would have to depend on a State’s financial capacity. In the present case, the Russian Federation’s assurance had been sufficient and it would have amounted to an illegal interference in matters of a foreign State to ask the Russian Federation to specify the purpose of the assets. The Federal Court of Justice also observed that diplomatic immunity was an essential element of effective international cooperation and had to be respected in order to be able to settle disputes by peaceful means. These principles prevailed over the applicant’s interest in attaching the assets. As to the Russian Federation’s alleged waiver of immunity, the Federal Court of Justice found that the Bilateral Investment Treaty, regulating the procedure on the merits, contained no waiver for enforcement proceedings. Such a waiver could also not be inferred from the Bilateral Investment Treaty (in particular its Article 4 § 2) or the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or any other treaty. According to the spirit and purpose of the Bilateral Investment Treaty, enforcement proceedings were generally permitted, but did not extend to assets serving a sovereign purpose. On 8 February 2006 the Federal Constitutional Court declared the constitutional complaint inadmissible without providing reasons. The applicant requested an execution order for the Russian Federation’s claims against the German airline Deutsche Lufthansa AG. Those claims allegedly arose from, inter alia, the granting of overflight, transit and landing permits. On 5 February 2002 the Cologne District Court granted the request. The Russian Federation and Deutsche Lufthansa AG objected to the order. On 29 May 2002 the District Court cancelled the order. It held that the claims in question could not be attached. They were of a sovereign nature and served a sovereign purpose, as they concerned the airspace over Russian territory. It observed that a measure enforcing those claims would only have been possible if the Russian Federation had consented to the execution. On 6 October 2003 the Cologne Court of Appeal dismissed the appeal. It observed that the international competence of German courts was doubtful. In any case, while execution on assets of the Russian Federation was not generally precluded, the attached claims could not be executed as they served a sovereign purpose and were thus subject to State immunity from execution. The Russian Federation had sufficiently demonstrated that the fees were to be used for sovereign purposes, namely for air traffic administration. On 4 October 2005 the Federal Court of Justice dismissed the appeal on points of law (no. VII ZB 9/05) on two alternative grounds. First, it held that German courts lacked international competence to execute claims like those in question. Relying on German law as the lex fori, the court held that the claims concerned fees governed by public law, which could not be executed since German courts were only internationally competent for execution in assets that were located on German territory. The obligation of Deutsche Lufthansa AG to pay the fees had arisen, however, within the sovereign territory of the Russian Federation, not in Germany. Second, the Federal Court of Justice held that, according to the rules of international law, the Russian Federation enjoyed immunity in relation to these claims as the fees for the air traffic served sovereign purposes. As the Court of Appeal had held, the receipts of the fees were directly devoted to the air traffic administration, which was a sovereign task. In addition, the Russian Federation had not waived its immunity from execution. The Federal Court of Justice found that the Bilateral Investment Treaty, which regulated the procedure on the merits, contained no waiver in respect of enforcement proceedings. Such a waiver could also not be inferred from the Bilateral Investment Treaty (in particular its Article 10 § 4) or the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or any other treaty. According to the spirit and purpose of the Bilateral Investment Treaty, enforcement proceedings were generally permitted, but did not extend to assets serving a sovereign purpose. On 23 February 2006 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication, without giving reasons. The applicant continued his attempts to execute the arbitral award in Germany. He requested an execution on a plot of land situated in Germany, which was owned by the Russian Federation. In 2006 the Cologne District Court ordered the judicial sale of the plot of land. The Russian Federation brought a civil action against the applicant, claiming that that the execution was illegal as the arbitral award had been obtained fraudulently. The courts rejected the claim. On 4 September 2008 the Federal Constitutional Court refused to admit the Russian Federation’s constitutional complaint. A state-owned Russian enterprise, which then owned the plot of land, lodged a complaint against the judicial sale of the plot, arguing that the execution conflicted with the international law principle of State immunity. The Frankfurt Court of Appeal rejected the complaint, finding that the plot of land did not serve a sovereign purpose and was therefore not exempt from execution by the principle of State immunity. On 15 December 2008 the Federal Constitutional Court refused to admit the constitutional complaint. The Bilateral Investment Treaty of 13 June 1989 between the Russian Federation and Germany reads in its Article 10 § 4 in fine: “The decisions of the arbitral tribunal shall be recognised and implemented in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958.” Article III of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 reads: “Each Contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.” The relevant provisions of international law instruments governing State immunity are referred to in various cases examined by the Court (see, among many other authorities, Treska v. Albania and Italy (dec.), no. 26937/04, ECHR 2006... (extracts)).