I have reported earlier on the Commisimpex case and the various decisions of the French Supreme Court on civil and criminal matters (Cour de cassation) which have eventually excluded from the scope of the waiver of immunities of the Republic of Congo assets protected by diplomatic immunity.
On 8 June 2020, Commisimpex attached a Falcon 7X business jet belonging to the presidency of Congo on the French airport of Bordeaux-Merignac where it was undergoing maintenance. Rumour has it that the markers of the aircraft were off for several years, but they were mysteriously turned on recently, allowing Congo’s creditors to track it down …
Congo immediately initiated proceedings before the Paris enforcement court to set aside the attachement on the ground that the jet was covered by diplomatic immunity.
In a judgment of 29 June 2020, the Paris Enforcement Court rejected all arguments of the Republic of Congo and confirmed the validity of the attachement.
The first argument of Congo in favour of the extension of diplomatic immunity to the jet was that it was a State Aircraft in the meaning of the Chicago Convention on International Civil Aviation and could not, as such, fly over French territory without being authorised to do so. Indeed, it had received “diplomatic clearance” (DIC) from the French Ministry of Foreign Affairs to that effect.
The Paris Court found, however, that the only reason why the various authorisations that the French Ministry could grant were labelled “diplomatic” was that they were issued by the Ministry of Foreign Affairs. The label was unrelated to the use of the aircraft, and did not create any presumtion that the aircraft was used for diplomatic activities. Indeed, it did not even imply that the owner of the relevant aircaft was a state.
Sovereign Immunity, but Which One?
The Paris Court recognised that State Aircrafts must be protected by an immunity against enforcement. The crucial issue, however, was not so much whether the aircraft was covered by some sovereign immunity, but by diplomatic immunity. The Paris Court underscored that French courts have ruled that while the diplomatic immunity of Congo remains intact after its general waiver, Congo has waived all other enforcement immunities.
The Court noted that the 2016 French statute which has established a special regime for diplomatic immunity refers to “assets used (…) in the exercise of the diplomatic mission of foreign states” (French Code of Civil Enforcement Proceedings, Art L. 111-1-3). It further noted that the 1961 Vienna Convention on Diplomatic Relations also referred to the “diplomatic mission”. The Court concluded that Congo enjoyed diplomatic immunity in France only over assets affected to the Congolese Embassy in Paris.
Congo put forward an additional argument. It argued that the aircraft was used by the presidency of Congo, and was thus used by President Sassou Nguesso for his diplomatic activities. The Court noted that the logbook of the aircraft showed that it had been essentially used for domestic flights within Congo. It was also used once to fly to Madagascar, in order to bring back “Covid Organics CVO”, which was not a diplomatic activity.
In truth, the Court found, in the last two years, each time President Nguesso had travelled internationally for official visits, he had used another plane, a Boeing 787.
In the absence of any evidence of diplomatic use of the Falcon 7X business jet, the Court concluded, it is not protected by diplomatic immunity, and could thus be attached.
The general press has reported that President Nguesso is really upset. One trusts that the fight over this asset, which is worth over € 20 million, is only beginning. Congo has lodged an appeal against the judgment, but it should not suspend its enforcement, which means that a sale by auction can be immediately organised.