# C_2012039EN.01000402.xml

| 11.2.2012 | EN | Official Journal of the European Union | C 39/4 |
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11.2.2012

EN

Official Journal of the European Union

C 39/4

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Judgment of the Court (Fourth Chamber) of 15 December 2011 (reference for a preliminary ruling from the Hof van Cassatie van België (Belgium)) — Jan Voogsgeerd v Navimer SA

(Case C-384/10) (1)

(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)

(2012/C 39/06)

Language of the case: Dutch

Referring court

Hof van Cassatie van België

Parties to the main proceedings

Applicant: Jan Voogsgeerd

Defendant: Navimer SA

Re:

Reference for a preliminary ruling — Hof van Cassatie van België — Interpretation of Article 6(2)(b) of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1) — Law applicable in the absence of choice — Contract of employment — Worker not habitually carrying out his work in one single country — Chief marine engineer

Operative part of the judgment

| 1. | Article 6(2) of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, must be interpreted as meaning that 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 the same country, which is the country in which or from which, in the light of all the factors which characterise that activity, the employee performs the main part of his obligations towards his employer. |
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1.

Article 6(2) of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, must be interpreted as meaning that 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 the same country, which is the country in which or from which, in the light of all the factors which characterise that activity, the employee performs the main part of his obligations towards his employer.

| 2. | In the case where the national court takes the view that it cannot rule on the dispute before it under Article 6(2)(a) of that convention, Article 6(2)(b) of the Rome Convention 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; |
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2.

In the case where the national court takes the view that it cannot rule on the dispute before it under Article 6(2)(a) of that convention, Article 6(2)(b) of the Rome Convention must be interpreted as follows:

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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 which must be fulfilled by the place of business of the employer within the meaning of that provision; |
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the possession of legal personality does not constitute a requirement which must be fulfilled 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 enabling an actual situation to be established which differs 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. |
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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 enabling an actual situation to be established which differs 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.

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(1)  OJ C 317, 20.11.2010.

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