New Protocol grants CERN privileges and immunities

A new agreement extends the privileges and immunities granted to CERN by its Host States by providing similar facilities in the other Member States of the Organization.

At the 18 March 2004 Protocol-signing ceremony. From left to right: Dutch Ambassador Ian de Jong, CERN Director-General Robert Aymar, Greek Ambassador Tassos Kriekoukis, CERN Deputy Legal Counsel Maarten Wilbers, Secretary General Maximilian Metzger, German Ambassador Michael Schneider, CERN Legal Counsel Eva-Maria Gröniger-Voss.

Dutch Ambassador Ian de Jong signs the Protocol at the 18 March 2004 ceremony. Background: Italian Ambassador Paolo Bruni (left) and German Ambassador Michael Schneider.

Thanks to a new agreement, CERN now has at its disposal a set of privileges and immunities aimed at facilitating the Laboratory's operations outside its Host States Switzerland and France. The agreement's official title, 'Protocol on the privileges and immunities of the European Organization for Nuclear Research', does not exactly suggest an easy read. The Bulletin has therefore invited Eva-Maria Gröniger-Voss, the CERN Legal Counsel who negotiated the Protocol on CERN's behalf, to explain its practical implications.

The Bulletin: Why do States grant privileges and immunities to organisations such as CERN?

Eva-Maria Gröniger-Voss: Well CERN, as you know, is an international organisation, and by that I mean a body that governments have created to do work that really can only be performed properly in a collaboration between them. CERN's creation, for example, reflected a common European desire born from the ruins of World War II to push the frontiers of our knowledge of particle physics for peaceful purposes. This ambitious goal can only be realised through the combined know-how of our national research institutions and requires a budget too high to be sustained by that of a single State.

By their nature, international organisations such as CERN require the kind of facilities laid down in the Protocol. Without the protection offered by the privileges and immunities granted by the individual States in which the international organisation operates, those States could decide whom to give to, and whom to refuse work permits; they could impose entry restrictions on personnel, and levy taxes on the Organization's income--that is, on the membership contributions paid by the other Member States. Such national interference would contravene the very motive behind the Organization's creation as an international organisation and pose a threat to its autonomy. The Protocol is designed to take care of these issues.

CERN is more than fifty years old; how did we get by without the facilities offered by the Protocol?

Actually, we did get by - until the system broke. Originally, CERN's site was exclusively in Swiss territory, and all of its work was done there, so privileges and immunities were first granted by Switzerland alone. With the extension of our site to France, back in 1965, CERN was granted similar facilities by France. These are laid down in what are called the 'Host State Agreements.'

Then we started building the LHC. While the construction work for the SPS and the LEP was still largely confined to the CERN site and involved a limited number of contract partners, the LHC provoked a veritable explosion of international collaboration. For example, the 1232 dipole magnets, each made up of some twenty major components manufactured and assembled by more than twenty firms spread over some ten countries, were moved continuously across EU borders on their way to CERN. This led to costly fiscal problems that could no longer be remedied by the customs facilities granted by our two Host States only. And with the continued globalisation of particle physics, the same will be true for any future project.

So how did the Protocol come into being?

Alerted to our problems, Council agreed in 2001 to mandate a Working Group with the task of drafting a detailed Protocol which effectively would extend the protection already granted by Switzerland and France to the territories of the other 18 Member States of our Organization. After two years of detailed negotiations, the Working Group, which included specialised legal experts from the various Ministries of Foreign Affairs, came up with a draft text that was approved by our Council in December 2003, and which set in motion the process which recently culminated in the Protocol's entry into force. I should mention that Switzerland and France are not parties to the Protocol since the two Host State Agreements continue to be valid today.

The Protocol was adopted by Council back in December 2003. Why has it entered into force only now?

Council's adoption of the Protocol was only the first step in a long formal process that required, in most cases, that the document be submitted by each Member State for approval by its Parliament. Twelve ratifications were necessary for the Protocol to become valid. With the ratification on 23 January by the United Kingdom-the twelfth Member State to accept the document-the Protocol has become law in those twelve countries1). By the way, two more States2) have ratified the Protocol since that time, and we have good hope that the others will complete their own acceptance procedures within the next few months.

What are these privileges and immunities granted through the Protocol?

It's a long list so I'll take you through the key points.

The Protocol recognises, for example, the Organization's capacity to 'contract, to acquire and to dispose of movable and immovable property and to participate in legal proceedings.' It may sound odd that an international organisation would not have such basic facilities, but in fact, before the Protocol was adopted, it was only the Host States that had officially granted them to CERN. Among other things, the new recognition means that our Pension Fund - which is an integral part of CERN without a legal status of its own - can now enter into investment operations in markets that were previously hard to access.

The Protocol also grants us immunity from jurisdiction of the national courts, to ensure our independence from individual Member States. Mind you, this doesn't mean we operate in some kind of legal vacuum: the Protocol requires that CERN settle its disputes by other means. This is why claims by the members of our personnel against the Organization should be submitted to the Administrative Tribunal of the International Labour Organization, and why conflicts between CERN and its contractors are decided not by the national courts but by independent experts appointed by the disputing parties.

These are all facilities for the Organization itself. Does the Protocol have an impact on the individual members of the personnel?

Certainly. For instance, one article extends the Organization's immunity from jurisdiction to the members of the personnel, as far as acts committed in the exercise of their functions are concerned. It also exempts the personnel and the members of their families from immigration restrictions, and from taxation on their CERN income.

The exemption from immigration restrictions is particularly welcome whenever CERN needs to detach personnel to one of its suppliers. Previously, the nationality of the member of the personnel and the planned duration of the detachment represented major obstacles, to the point where we would receive phone calls from CERN personnel held up at border posts....

Also welcome is the exemption, outside the Host States, from taxation of payments made by CERN to personnel. In exchange for exemption from national taxation, the Protocol requires the introduction of a system of internal taxation, for the benefit of the Organization. This system has been recognised by the Host States as well, making life a lot easier for those people whose CERN income was taxed previously-that is, Swiss nationals in Switzerland and French nationals in France. And for CERN, which had to reimburse the personnel for taxes paid by them, and then seek reimbursement from the national tax authorities, that recognition means a lot less 'red tape'.

I should emphasise that the privileges and immunities that apply to the personnel are granted 'solely to ensure the unimpeded functioning of the Organization' and not 'for the personal benefit of the individuals concerned'. If CERN should be asked to lift the immunity of a member of the personnel-in, say, a criminal case-the Laboratory will consider that request solely from the perspective of the Organization's interest.

Is there anything else you want to say about the Protocol?

Just this: with the major involvement in LHC construction of the USA, the Russian Federation, India and a number of other contributors, it would only be natural if those countries too would accede to the Protocol. Efforts in this direction are under preparation today.

For the full text of the Protocol:

Other privileges in the Protocol

The Protocol also:

1) Germany, Austria, Bulgaria, Denmark, Spain, Finland, Greece, Hungary, the Netherlands, Poland, the Czech Republic and the United Kingdom.
2) Italy and Portugal.