Organic Law 16/2015

No, Organic Law 16/2015 does not apply to embassies

In the field of diplomatic and consular relations in Spain, Organic Law 16/2015, of October 27, on privileges and immunities of foreign states, has generated various interpretations.

However, it is essential to clarify a key point: this regulation is not applicable to embassies and consulates regarding their labor relations with local employees.

Despite the confusion that may have arisen in some quarters, the Vienna Convention on Diplomatic Relations remains the predominant legal framework in these matters.

The purpose of Organic Law 16/2015

Organic Law 16/2015 was conceived to regulate the privileges and immunities of foreign states, international organizations and international conferences in Spain. Its objective is to provide legal certainty to the relations between Spain and these international actors, establishing clear criteria on immunity from jurisdiction and execution.

However, its content is not oriented to diplomatic missions, which already have their own international regime. In fact, the law expressly mentions that its provisions apply to foreign states in general, but not to their diplomatic representations, which are mainly governed by the Vienna Convention of 1961.

The regulatory framework applicable to embassies and consulates

Embassies and consulates in Spain operate under the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations (1963). These treaties establish the immunity from jurisdiction of diplomatic missions and their personnel, as well as the inviolability of their premises and documentation.

In labor matters, the Vienna Convention allows embassies and consulates to hire local personnel, but these employees do not enjoy diplomatic immunity or the exceptions that do apply to diplomatic and consular officials.

Therefore, local employees are subject to Spanish labor legislation regarding salaries, social security and other labor rights.

The mistake: confusing Embassies with foreign states

One of the most frequent mistakes is to assume that embassies and consulates in Spain should be treated as the foreign State they represent.

However, Organic Law 16/2015, in its explanatory memorandum and in its articles, makes it clear that the provisions therein are without prejudice to the privileges and immunities recognized in the international diplomatic regime.

This means that embassies continue to enjoy immunity, particularly with regard to absolute immunity from execution.

In practice, this implies that Spanish courts cannot apply coercive measures against an embassy, such as attachments on its assets or bank accounts.

Impossibility of enforcing judgments against embassies in Spain

The immunity from execution of embassies covers property essential to the performance of their functions, such as:

• Diplomatic mission buildings.
• Official vehicles.
• Embassy bank accounts.

In practice, this immunity means that even if a Spanish court issues a judgment against an embassy in a labor dispute, it cannot be enforced within Spain.

This is because embassies are protected against any type of attachment or other forced execution measure.

Consequences for employees and courts

For local embassy employees, this means that, although Spanish courts may admit claims and issue judgments in labor matters, any type of forced execution will be unfeasible if the embassy refuses to comply voluntarily with the resolution.

This is a key point that both employees and their legal advisors should bear in mind before initiating any claim.

On the other hand, Spanish courts are limited in their ability to enforce their own resolutions when dealing with diplomatic missions, which generates a special protection framework for embassies within Spanish territory.

Although Organic Law 16/2015 strengthens the regime of immunities in Spain, it is important to highlight that it does not affect the immunity of enforcement of embassies, as they enjoy an absolute protection regime in this area.

Consequently, although Spanish courts may issue judgments against embassies in labor cases, these judgments cannot be enforced within Spain, since the immunity extends to their assets and bank accounts.

Embassies should be aware of this regulatory framework and local employees should understand its implications before taking legal action which, in practice, may not be enforceable.

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