Information Note on the Court’s case-law No. 154
July 2012
Wallishauser v. Austria - 156/04
Judgment 17.7.2012 [Section I]
Article 6
Civil proceedings
Article 6-1
Access to court
Refusal by domestic courts to acknowledge deemed service against foreign State made in accordance with rules of customary international law: violation
Facts – In 1998 the applicant, who had worked as a photographer for the American Embassy in Vienna, brought an action for unpaid wages against the United States. A staff member of the Austrian Embassy in Washington attempted service by handing the documents over to the United States Department of State, but these were returned with a note to the Austrian Ministry of Foreign Affairs stating that the United States wished to assert its immunity in any case brought by the applicant. The applicant then applied to the Austrian courts for judgment in default, but his application was dismissed on the grounds that the summons had not been duly served. A subsequent application by the applicant for deemed service, by publication or service on a court-appointed representative, was also refused on the grounds that domestic law required service through the Ministry of Foreign Affairs.
Law – Article 6 § 1: It was undisputed that the United States could not validly rely on jurisdictional immunity in the proceedings. However, unlike the position in Cudak v. Lithuania and Sabeh El Leil v. France,* each of which had concerned a decision by the respective domestic authorities to uphold an objection to jurisdiction based on State immunity, the issue in the instant case concerned the Austrian courts’ acceptance of the United States’ refusal to accept the summons that had been served on them. That acceptance was based on the Austrian courts’ view that the service of a summons in a civil action against a foreign State was in itself a sovereign act that had to be accepted irrespective of the nature of the underlying claim. The Court considered, however, that the rule that the service of documents instituting proceedings against a State was deemed to have been effected on their receipt by the Ministry of Foreign Affairs of the State concerned applied to Austria as a rule of customary international law.** The Austrian courts had not examined that eventuality. Instead, they had confined themselves to noting that no treaty regulating the issue had been adopted, and that there was no provision under domestic law for service to be effected on the foreign ministry of another State. Accordingly, by accepting the United States’ refusal to serve the summons in the applicant’s case as a sovereign act and by refusing to proceed with the applicant’s case, the Austrian courts had impaired the very essence of the applicant’s right of access to court.
Conclusion: violation (unanimously).
Article 41: EUR 12,000 in respect of non-pecuniary damage.
* Cudak v. Lithuania [GC], no. 15869/02, 23 March 2010, Information Note no. 128; Sabeh El Leil v. France [GC], no. 34869/05, 29 June 2011, Information Note no. 142.
** In the absence of any objection by Austria to Article 20 of the International Law Commission’s 1991 Draft Articles, which embodied the rule, or to a similar provision in the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property.
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This summary by the Registry does not bind the Court.
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