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European Business Law

Initially, the Brussels Convention did not provide for any specific jurisdiction rule and disputes relating to contracts of employment fell within the special jurisdiction rules laid down in matters relating to a contract by Article 5(1), which made it possible to sue the defendant - employer or employee - domiciled in the territory of another Member State in the court of the place in which the ob …

Employment contracts 

Initially, the Brussels Convention did not provide for any specific jurisdiction rule and disputes relating to contracts of employment fell within the special jurisdiction rules laid down in matters relating to a contract by Article 5(1), which made it possible to sue the defendant - employer or employee - domiciled in the territory of another Member State in the court of the place in which the obligation had been or was to be performed. The Saint Sebastian Convention of 26 May 1989 amended the Brussels Convention and included in Article 5(1) provisions specific to contracts of employment. Now, Regulation No 1215/2012, which repealed and replaced Regulation No 44/2001, includes provisions which are especially applicable to the individual contract of employment which have as their object the protection of the worker, who is a weaker party from a social standpoint . 

Thus, an employee may sue his employer who is domiciled in a Member State and has a branch in another Member State, in the court of that State , in the court of the Member State in which he is domiciled , or, in another Member State , a) in the courts for the place where the employee habitually carries out his work or in the court for the last place where he habitually carried out his work, or b) where the employee does not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee was or is now situated. Regulation No 1215/2012, since January 2015, which reiterates the options of jurisdiction of Article 19(2) of Regulation No 44/2001, is more favorable to employees who can now assert them even when the employer is domiciled outside the EU . An employer may bring proceedings only in the courts of the Member State in which the employee is domiciled (Article 22(1)) . He is now deprived of the possibility, which was allowed by Article 5(1) of the Brussels Convention, to bring proceedings in the court of the place in which the employee habitually carries out his work, where this place is situated in the territory of a Member State.

As for insurance and consumer contracts, the prorogation by contract is prohibited as a principle, unless the clause conferring jurisdiction is agreed upon after the dispute has arisen between the employee and the employer or it makes other jurisdiction options available to the employee .

2) Usual place of performance of the work . 

At first, the European court determined the jurisdiction in matters relating to contracts of employment in view of the criterion of the place of performance of the obligation which characterizes the contract , consisting in carrying out the agreed work . In effect, the court of the place in which the characteristic obligation is to be performed is considered best suited to resolving the disputes which may arise out thereof, insofar as the applicable law in the place of performance of the work which constitutes the service characterizing the contract includes provisions which protect the employee . Since the regulation refers to the “place where the employee habitually carries out his work”, the discussion has then moved to the “place where the work is habitually carried out”. 

The independent concept  of “place where the employee habitually carries out his work” mainly raises difficulties of interpretation in case of plurality of places of performance. In order to define the place of performance of the contractual obligation of an employee whose work is performed in the territory of more than one Member State, it is necessary to retain the place from which the employee principally discharges his obligations towards his employer , in other words, the place where he has established the effective centre of his working activities . In order to determine the place from which the employee habitually carried out his work, account may be taken of the fact that the work entrusted to the employee was carried out from an office in a Member State, where the employee had established his residence, from which he performed his work, to which he returned after each business trip and, when the dispute arose, where he was carrying out his work on an exclusive basis , and of the whole term of employment, given that failing any other criterion, this place is that where the employee has carried out the most significant part of his period of work . However, where the employee, after having worked for a certain time in one place, then takes up his work activities on a permanent basis in a different place, it is not necessary to take account of his whole term of employment in establishing the place where he has carried out the most significant part of his work, but only the most recent period of work, where the clear intention of the parties is for the latter place to become his new habitual place of work . Where it is impossible to identify the employee's habitual place of work - because there are two or more places of work of equal importance or because none of the various places has a sufficiently permanent and close connection with the work done -, the employee has the choice of suing his employer either in the courts for the place where the business which engaged him is situated, or in the courts of the Member State in whose territory the defendant is domiciled .

Determining the “place where the employee habitually carries out his work” may also be difficult where the employee has entered into two successive contracts of employment with two different employers, the first employer having agreed upon the suspension of the first contract. According to the Court of Justice, in such a case, the first employer may be sued before the courts of place where the employee carries out his work for the second employer only when, at the time of the conclusion of the second contract, the first employer has an interest in the employee's performance of the service in a place decided on by the second employer. The existence of that interest must be determined in an overall manner taking into consideration relevant factors, such as the fact that the second contract was envisaged or amended when the first was being concluded, or that there is an organizational or economic link between the two employers, or an agreement between those two employers providing a framework for the coexistence of the two contracts, or that the first employer retains management powers in respect of the employee, or decides the duration of the employee's work for the second employer .

Case 32/88 Six Constructions v Humbert [1989] ECR 341, LawLex200900002334JBJ.

Pursuant to Article 18(2), the employee whose employer, domiciled outside the Union, has a branch in a Member State, may bring proceedings before the courts of that State.

Case 133/81 Ivenel v Schwab [1982] ECR 1891, LawLex200900001539JBJ; Case 266/85 Shenavai v Kreischer [1987] ECR 239, LawLex200900001792JBJ; C-437/00 Pugliese [2003] ECR I-3573, LawLex200900000810JBJ: in matters relating to contracts of employment, the place of performance of an obligation other than that of carrying out the agreed activities, such as the employer's obligation to pay rental costs in another country and travel costs to the country of origin cannot be used to found the jurisdiction of the court. 

Case C-37/00 Weber [2002] ECR I-2013, LawLex200900000557JBJ.

Case C-125/92 Mulox IBC v Geels [1993] ECR I-4075, LawLex200900000440JBJ. 

Case C-383/95 Rutten v Cross Medical [1997] ECR I-57, LawLex200900000610JBJ.

Case C-125/92 Mulox IBC v Geels [1993] ECR I-4075, LawLex200900000440JBJ; Case C-383/95 Rutten v Cross Medical [1997] ECR I-57, LawLex200900000610JBJ.

Case C-383/95 Rutten v Cross Medical [1997] ECR I-57, LawLex200900000610JBJ; Case C-37/00 Weber [2002] ECR I-2013, LawLex200900000557JBJ.

Case C-437/00 Pugliese [2003] ECR I-3573, LawLex200900000810JBJ.

An employer not domiciled in a Member State may be sued in a court of a Member State in accordance with point (b) of paragraph 1 - in the courts for the place where or from where the employee habitually carries out his work or in the courts for the last place where he did so - or if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated (Regulation No 1215/2012, Art. 21(2)).

See, along the same lines, Case 32/88 Six Constructions v Humbert [1989] ECR 341, LawLex200900002334JBJ, rendered under the Brussels Convention, not amended by the San Sebastian Convention: where, in the case of a contract of employment, the obligation of the employee to carry out the agreed work is performed outside the territory of the Member States, the employer's action may be brought only in the courts where the employee is domiciled, since the court's jurisdiction cannot be determined based on the place where the registered office of the business having hired the employee is located, where the employer is the plaintiff, because this would amount to set aside the objective of protection of the contracting party which is socially weaker and to accept the jurisdiction of the courts where the plaintiff is established, where the cases in which that jurisdiction is recognized are strictly limited.

An agreement on jurisdiction concluded before a dispute arises falls within Article 23(2) of Regulation No1215/2012 insofar as it gives the employee the possibility of bringing proceedings, not only before the courts ordinarily having jurisdiction under the special rules in Articles 20 and 21 of that regulation, but also before other courts, which may include courts outside the European Union: see Case C-154/11 Ahmed Mahamdia v People's Democratic Republic of Algeria, Judgment of 19 July 2012, LawLex201200001757JBJ.

Cases C-168/16 and C-169/16 Sandra Nogueira and others v Crewlink Ireland Ltd and Ryanair Designated Activity Company, Judgment of 14 September 2017,  : the concept of "place where the employee habitually carries out his work", within the meaning of Article 21(b)(i) of Regulation No 1215/2012, cannot be equated with that of "home base", within the meaning of Annex III to Council Regulation (EEC) No 3922/91 on the harmonization of technical requirements and administrative procedures in the field of civil aviation. The concept of "home base" constitutes nevertheless a significant indicium for the purposes of determining the "place where the employee habitually carries out his work".

Case 133/81 Ivenel v Schwab [1982] ECR 1891, LawLex200900001539JBJ; Case 266/85 Shenavai v Kreischer [1987] ECR 239, LawLex200900001792JBJ. 

European Business Law

350. Employment contracts

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Les décisions de justice citées dans ce paragraphe :

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350. Employment contracts

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise