VfGH: OPEC Headquarters Agreement in Part Unconstitutional

Oct 28, 2022 Benn-Ibler Rechtsanwälte

For the first time, the Austrian Constitutional Court (Verfassungsgerichtshof, VfGH) has found sections of an international treaty to be unconstitutional. Two provisions of the Agreement between the Republic of Austria and OPEC (Organisation of Petroleum Exporting Countries) regarding the headquarters of OPEC are incompatible with the fundamental right of access to a court.

The plaintiff in the main proceedings had been employed by OPEC and was terminated. He brought an action for dismissal before the Vienna Labour and Social Court (Arbeits- und Sozialgericht Wien, hereinafter ASG). However, the ASG dismissed the action because OPEC enjoys immunity from legal process of any kind under Art 9 of the Headquarters Agreement and had declared that it would not waive its immunity in the case at hand.

Consequently, the plaintiff argued before the Austrian Constitutional Court that Art 9 of the Headquarters Agreement violates the fundamental right to a fair trial under Art 6 (1) of the European Convention on Human Rights (ECHR).

The Austrian Constitutional Court agreed with this view as follows:

Art 6 (1) ECHR establishes the right to have (also) civil matters heard by a court within a reasonable period of time. Following the case law of the European Court of Human Rights (ECtHR) on comparable international organisations, however, this right can be limited provided that a legitimate aim is pursued and that there is a reasonable relationship between the means used and the aim pursued.

It is a legitimate objective that an international organisation such as OPEC should be able to function free from unilateral interference by host States. Nevertheless, restricting access to justice in employment disputes is not proportionate when no other adequate mechanisms are in place for resolving employment disputes and safeguarding employee rights.

OPEC's immunity will remain generally unchanged until the end of September 2024. By then, a new provision in Austrian law and in OPEC's statutes must be put in place.

VfGH SV 1/2021 (29 September 2022)