CJEC, November 13, 1979, No 25-79

The court

1 By a judgment dated 10 january 1979, received at the court registry on 12 february 1979, the french cour de cassation (social chamber) referred to the court of justice under the protocol of 3 june 1971 on the interpretation by the court of justice of the convention of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (hereinafter referred to as ' ' the convention ' ') a question relating to the interpretation of articles 17 and 54 of the said convention which, in accordance with article 62 thereof, entered into force on 1 february 1973.

This question is raised in the course of an action, concerned with the breach - on 8 december 1971 - of a contract of employment containing a clause conferring jurisdiction upon a german court, between a french worker, resident in france, and a german company which had engaged him to work in the federal republic of germany, independently of any establishment.

This contract of employment was concluded on 27 october 1971 and the court proceedings were commenced on 27 november 1973.

2 In view of these facts the cour de cassation asks whether the clause conferring jurisdiction is effective in the case of contracts of employment concluded prior to the convention or whether ' ' in so far as they concern the protection of employed workers those provisions relate to the very substance of agreements and must be given effect only in relation to subsequent contracts ' '. The cour de cassation accordingly framed the following question:

' ' Whether, in application of article 54 of the brussels convention, article 17 of that convention must be interpreted to mean that, when proceedings have been commenced after 1 february 1973, clauses conferring jurisdiction inserted into a contract of employment concluded before 1 february 1973 which would have been regarded as void by the internal legislation in force at that time must henceforward be deemed to be valid, regardless of the date of the agreements between the parties and the date of the performance of the work in question. ' '

3 It follows from this questions that the cour de cassation rightly accepts that employment law comes within the substantive field of application of the convention and that litigation arising out of a contract of employment concluded after 1 february 1973 is subject to the convention and particularly to article 17 thereof relating to prorogation of jurisdiction.

4 In view of the fact that the contract of employment was broken off on 8 december 1971 and that the judicial proceedings were not commenced until 27 november 1973, that is, after the convention had come into force, the cour de cassation is concerned as to the meaning of article 54 of the convention which provides that ' ' the provisions of this convention shall apply only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after its entry into force ' ' and asks whether the clause in the contract of employment conferring jurisdiction, which could have been regarded under french legislation prior to 1 february 1973 as being void, recovers its validity at the date of the entry into force of the convention.

5 It is appropriate to answer this point by stating, on the one hand, that the convention does not affect rules of substantive law and, on the other hand, that, as the convention seeks to determine the jurisdiction of the courts of the contracting states in the intra-community legal order in regard to matters of civil jurisdiction, the national procedural laws applicable to the cases concerned are set aside in the matters governed by the convention in favour of the provisions thereof.

6 By its nature a clause in writing conferring jurisdiction and occurring in a contract of employment is a choice of jurisdiction; such a choice has no legal effect for so long as no judicial proceedings have been commenced and only becomes of consequence at the date when judicial proceedings are set in motion.

That is therefore the relevant date for the purposes of an appreciation of the scope of such a clause in relation to the legal rules applying at that time.

The judicial proceedings were instituted on 27 november 1973 and the convention thus applies in pursuance of article 54 thereof.

The effect of that article indeed is that the only essential for the rules of the convention to be applicable to litigation relating to legal relationships created before the date of the coming into force of the convention is that the judicial proceedings should have been instituted subsequently to that date, which is the position in the present instance.

7 Consequently the answer to the question raised by the french cour de cassation (social chamber) must be that articles 17 and 54 of the convention must be interpreted to mean that, in judicial proceedings instituted after the coming into force of the convention, clauses conferring jurisdiction included in contracts of employment concluded prior to that date must be considered valid even in cases in which they would have been regarded as void under the national law in force at the time when the contract was entered into.

Costs

8 The costs incurred by the commission of the european communities, which has submitted observations to the court, are not recoverable.

On those grounds,

The court,

In answer to the question referred to it by the cour de cassation (social chamber) by a judgment of 10 january 1979, hereby rules:

Articles 17 and 54 of the convention of brussels of 27 september 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters must be interpreted to mean that, in judicial proceedings instituted after the coming into force of the convention, clauses conferring jurisdiction included in contracts of employment concluded prior to that date must be considered valid even in cases in which they would have been regarded as void under the national law in force at the time when the contract was entered into.