Curtea de Apel Bacau; 2019-06-14; 1413/103/2015
Decision by national courts in the field of European Union law — ECLI:RO:CABAC:2019:002.000488
Date: 2019-06-14
Subject matter: Judicial cooperation in civil matters
Origin: Romania

82019RO0614(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff, a Romanian national domiciled in Romania, lodged an application for damages, with the object of payment of wages due and unpaid for undeclared work in Belgium, for an uninterrupted period of more than 3 and a half years without a valid individual employment contract, against his real employer, a private legal person with its registered office in Genk, Belgium. The Cour of First Instance dismissed this claim as being brought against a person lacking passive procedural capacity. Only the plaintiff appealed against the civil decision issued by the Cour of First Instance. On appeal, the Bacau Court of Appeal, Civil decision (hereinafter ‘the Court of Appeal’) invoked ex officio the preliminary motion on lack of the international jurisdiction of the Romanian courts in resolving this claim.
The Court ruled previously that during the time deduced to the trial the real beneficiary of the individual employment contract concluded by the plaintiff was the parent company headquartered in Belgium, not the company based in Romania which it was in fact its subsidiary. The specific facts which formed the Court's conviction that it was in the presence of a simulation concerning the plaintiff's true employer were the following: the Belgian company controlled and fully controls the activity of the Romanian company, as its single associate; almost all the transport expeditions were carried out by the plaintiff in Belgium and its neighbouring countries, not in Romania; for Romania there are no roadmaps and documents regarding the plaintiff's activity; the formalities for handing over the truck driven by the plaintiff were made in the Belgian town of Genk, not in Romania; the salary slips were delivered at the office in the city of Genk and the fact that during the time deduced to the trial (29.4.2012 - 29.4.2015) the plaintiff stayed in an external delegation for 743 days, a fact not disputed by the two defendants.
Noting that the plaintiff's real employer was a private legal person in Belgium, the Court also found, in accordance with the provisions of Article 107 of the Code of Civil Procedure and of Articles 20 and 21 of the Brussels I Regulation (recast) (1), that the Romanian courts have not international jurisdiction to resolve the dispute brought before the court which has an extraneous element in the person of the real employer of the plaintiff. Consequently, it allowed the appeal and partially changed the appealed decision delivered by the Court of First Instance, in the sense that it admitted the preliminary motion on lack of the international jurisdiction of the Romanian courts regarding the application filed against the employer based in Belgium and declared the application inadmissible.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.