Brussels, 15/03/2011 (Agence Europe) - Where a worker carries out his activities in more than one member state, the law of the country where he performs the greater part of his professional obligations applies when resolving a dispute relating to his employment contract. The essential objective is to guarantee adequate protection for the employee as being the weaker party to the contract.
With this judgment delivered in Case C-29/10 on 15 March, the Court gave its answer to the Luxembourg Court of Appeal which had asked if, where an employee (in the case in point, it was an international transport driver who was challenging his termination of contract) carries out his work in several countries but returns systematically to one of them, the law of that country is to be considered as “the law of the country in which the employee habitually carries out his work”, as provided for in the 1980 Rome Convention, which applies to contractual obligations in civil and commercial situations, replaced by Regulation EC No 593/2008.
In responding, the Court interpreted Article 6 of this Convention, which lays down special conflict-of-law rules in relation to individual contracts of employment. The Article states that contracts of employment are, in principle, governed by the law chosen by the parties. That choice “may not, however, have the result of depriving the employee of the minimum protection afforded to him by the mandatory rules of the law which would have been applicable in the absence of choice”. These provisions may not be dispensed with by the parties when they sign an employment contract. Thus, where the parties have not chosen the law to be applied, the contract of employment is governed by the law of the country in which the employee “habitually carries out his work” or, in the alternative, if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business of the employer is situated. The contract may, exceptionally, be governed by the law of the country with which it is most closely connected.
Thus, the Court ruled that, where an employee works in more than one contracting state, Article 6 of the Convention must be construed as guaranteeing the applicability of the first criterion referring to “the law of the state in which the employee, in the performance of the contract, performs the greater part of his obligations towards his employer”.
It is, thus, for the national court to give a broad interpretation to that connecting criterion laid down by the Rome Convention in order to determine the state with which the work has a significant connection. In this particular case, because of the nature of work in the international transport sector, the Luxembourg Appeal Court must determine in which state is situated the place from which the employee carries out his transport tasks, receives instructions concerning his tasks and organises his work, and the place in which his work tools are situated. It must also determine the places where the transport is principally carried out, where the goods are unloaded and the place to which the employee returns after completion of his tasks. (F.G./transl.rt)