Case C-384/10
Jan Voogsgeerd
v
Navimer SA
(Reference for a preliminary ruling from the Hof van Cassatie)
(Rome Convention on the law applicable to contractual obligations – Contract of employment – Choice made by the parties – Mandatory rules of the law applicable in the absence of choice – Determination of that law – Employee carrying out his work in more than one Contracting State)
Summary of the Judgment
1.Convention on the law applicable to contractual obligations – Law applicable in the absence of choice – Linking factors – Contract of employment – Hierarchy of linking factors – Country in which the work is habitually carried out – Linking factor having priority
(Rome Convention of 19 June 1980, Art. 6(2)(a) and (b))
2.Convention on the law applicable to contractual obligations – Law applicable in the absence of choice – Linking factors – Contract of employment – Place of business through which the employee was engaged – Concept – Place where the employee is actually employed – Excluded – Requirement that the place of business should possess legal personality – None
(Rome Convention of 19 June 1980, Art. 6(2)(b))
1.It follows from the wording of Article6(2) of the Rome Convention of 19June 1980 on the law applicable to contractual obligations that it was the legislator’s intention to establish a hierarchy of the criteria to be taken into account for the determination of the law applicable to the contract of employment. It follows that, on a proper construction of Article6(2) of that convention, the national court seised of the case must first establish whether the employee, in the performance of his contract, habitually carries out his work in any one country, which is that in which or from which, in the light of all the aspects characterising that activity, the employee performs the main part of his duties to his employer.
For that purpose, the aspects characterising the employment relationship, namely, the place of actual employment, the place where the employee receives instructions or where he must report before discharging his tasks, are relevant for the determination of the law applicable to that employment relationship in that, when those places are situated in the same country, the court seised may take the view that the situation falls within the case provided for by Article6(2)(a) of the Rome Convention.
Thus, the factor of the country in which the employee ‘habitually carries out his work’, in Article 6(2)(a) of that convention, must be given a broad interpretation, while the factor of ‘the place of business through which [the employee] was engaged’, set out in Article 6(2)(b) thereof, can apply only if the court seised is not in a position to determine the country in which the work is habitually carried out.
(see paras 34-35, 40-41, operative part 1)
2.Article6(2)(b) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations must be interpreted as follows:
- the concept of ‘the place of business through which the employee was engaged’ must be understood as referring exclusively to the place of business which engaged the employee and not to that with which the employee is connected by his actual employment;
- the possession of legal personality does not constitute a requirement that must be met by the place of business of the employer within the meaning of that provision;
- the place of business of an undertaking other than that which is formally referred to as the employer, with which that undertaking has connections, may be classified as a ‘place of business’, within the meaning of Article 6(2)(b) of that convention, if there are objective factors making it possible to establish that there exists a real situation different from that which appears from the terms of the contract, and even though the authority of the employer has not been formally transferred to that other undertaking. Thus, if matters relating to the engagement procedure should support the conclusion that the undertaking which concluded the contract in actual fact acted in the name of and on behalf of another undertaking, the referring court might consider that the linking factor in Article6(2)(b) of the Rome Convention makes a renvoi to the law of the country in which the latter undertaking’s place of business is situated.
(see paras 49, 52, 58, 65, operative part 2)