British Embassy Driver Case

JurisdictionAustria
CourtCourt of Appeal of Vienna (Austria)
Austria, Superior Provincial Court (Oberlandesgericht) of Vienna.
British Embassy Driver Case1

Sovereign immunity foreign States Action to enforce maintenance order against driver employed by embassy of foreign State Immunity from execution Whether attachment of earnings can be ordered where garnishee is a foreign State Whether conclusion of contract of employment an act iure gestionis Whether embassy driver entitled to diplomatic immunity Vienna Convention on Diplomatic Relations 1961, Articles 37 and 38 The law of Austria

Summary: The facts:The applicant, the beneficiary of a maintenance order made in the Federal Republic of Germany, sought leave from the District Court (Kreisgericht) of Korneuburg to enforce in Austria a German default judgment awarding arrears under the maintenance order, by attaching the earnings of the addressee of the order, a driver, in the hands of his employer, the British Embassy in Vienna, The District Court refused the leave sought on the ground that the garnishee was a foreign State entitled to sovereign immunity, The applicant appealed against this refusal to the Superior Provincial Court (Oberlandesgericht) of Vienna.

Held:The appeal was allowed.

(1) The fact that the garnishee in whose hands earnings were attached was a foreign State did not render an attachment of earnings order inadmissible as a violation of sovereign immunity, The relationship between the foreign State and its embassy driver had arisen from a contract of employment which had not been concluded by that State in the exerise of its sovereign rights so that the latter was subject to domestic jurisdiction in respect of claims arising from the employment relationship.

(2) Articles 37 and 38 of the Vienna Convention on Diplomatic Immunity 1981 made it clear that the embassy driver himself was not entitled to diplomatic immunity in respect of the claim in question and there was therefore no obstacle to prevent his earnings from being forcibly attached.

(3) In these circumstances international law did not prevent the levying of execution on the earnings in question and the foreign State was required to comply with the court order in the same way as it was bound to respect a lawful disposal by its employee of the income from his employment.

The following is a summary of the formal opening paragraph of the judgment:

C.W., born on 13 November 1969 and represented by her mother E.H., having instituted execution proceedings against H.J.W., who had been held liable...

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