Opinion of the Advocate General — ECLI:EU:C:2023:118
Date: 2023-02-16
Language of the case: French
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: France

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Translation C-567/21 – 1 
Case C-567/21 
Request for a preliminary ruling 
Date lodged:  
15 September 2021 
Referring court:  
Cour de cassation (France) 
Date of the decision to refer:  
8 September 2021 
Appellant:  
BNP Paribas SA 
Respondent:  
TR 
  
[…] 
COUR DE CASSATION 
[…] 
JUDGMENT OF THE COUR DE CASSATION (COURT OF CASSATION, 
FRANCE), SOCIAL CHAMBER 
OF 8 SEPTEMBER 2021 
BNP Paribas, a public limited company, […] Paris, has lodged an appeal […] 
against the judgment delivered on 22 May 2019 by the cour d’appel de Paris 
(Court of Appeal, Paris, France) […], in the proceedings brought against it by TR, 
[…] Paris, respondent to the appeal on a point of law. 
TR has lodged a cross-appeal against that judgment. 
EN 
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[…]. [procedural aspects] 
Facts and procedure 
1 According to the judgment under appeal (Paris, 22 May 2019), TR was employed 
on 25 August 1998 by BNP, which became BNP Paribas (also ‘the Bank’), 
established in France, under a contract governed by English law, and assigned to 
the post of ‘Senior Dealer’ in London. 
2 On 2 April 2009, he signed a contract of indefinite duration with the Bank, 
governed by French law, under which he was seconded to Singapore. By an 
amendment to his contract of employment dated 16 August 2010, he was attached 
to the London branch of BNP Paribas with effect from 1 September 2010. 
3 He was dismissed by letter of 30 September 2013 when he held the post of ‘Head 
of Trading, Credit for CEEMA’ in London, on the ground of serious misconduct 
relating to events that had occurred while he was on secondment in Singapore. 
4 Upon application by TR on 20 December 2013, the Central London Employment 
Tribunal (United Kingdom), by decision of 8 July 2014, upheld his complaint of 
unfair dismissal as well founded, pursuant to the Employments Rights Act 1996 
(‘the 1996 Act’), and reduced any compensatory award by 75%, in accordance 
with the principles laid down in the judgment in Polkey v. A. E. Dayton Services 
Ltd [1988] ICR 142 HL. Also pursuant to the 1996 Act, it rejected any reduction 
of the basic award or compensatory award on account of the applicant’s conduct 
and adjourned sine die the other points, including the question whether the basic 
award might be increased on the ground of the employer’s breach of the Advisory, 
Conciliation and Arbitration Service Code of Practice on Disciplinary and 
Grievance Procedures (‘the ACAS Code’), in the absence of agreement between 
the parties, to a compensation hearing. The employee was also awarded the sum 
of GBP 81 175 by way of a compensatory award. 
5 As regards the application of the UK law to the case, the Employment Judge 
stated: ‘I have mentioned an unusual feature of the case, namely that the 
respondents dismissed the claimant in accordance with the French Labour Code. 
That was deemed to be appropriate, according to what I was told, since the 
claimant was employed under a French contract of employment. In my view, that 
does not raise any legal issue. […] [Counsel for BNP Paribas] inevitably agreed 
that the case must be resolved in accordance with the 1996 Act and English case-
law.’ 
6 By application of 27 November 2014, TR brought an action before the conseil de 
prud’hommes de Paris (Labour Tribunal, Paris), seeking payment of bonuses, 
allowances and various heads of compensation relating to his dismissal without 
actual and serious cause and to specific heads of damage. 
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7 By decision of 17 May 2016, the Labour Tribunal declared those claims 
inadmissible on the ground of res judicata. 
8 On appeal by TR, the cour d’appel de Paris (Court of Appeal, Paris), by judgment 
of 22 May 2019, set aside the decision under appeal in its entirety, held that the 
Employment Tribunal’s decision of 8 July 2014 constituted res judicata inasmuch 
as it had held that the employee’s dismissal for misconduct by BNP Paribas had 
not been based on an actual and serious cause, declared that the claims which the 
employee had raised before it were admissible, and ordered BNP Paribas to pay 
him the following sums: 
– EUR 540 457.96 in respect of the DCS Plus 2011 shares due for 2013 and 
2014, 
– EUR 214 577.45 in respect of the DCS Plus 2012 shares due for 2013 and 
2014, 
– EUR 539 996.67 in respect of the DCS Plus 2013 shares due for 2013 and 
2014, 
– EUR 475 939.45 in respect of the CMIP 2009 A shares payable in June 
2012, 
– EUR 73 379.06 by way of compensation in lieu of notice, 
– EUR 7 338 in respect of related paid leave. 
– EUR 595 595.24 by way of compensation for dismissal. 
– EUR 2 081 000 by way of compensation for dismissal without actual and 
serious cause. 
9 BNP Paribas has lodged a main appeal and the employee has lodged a cross-
appeal. 
10 In its judgment of 22 May 2019, the Court of Appeal made the following points: 
‘TR submits that, after his professional licence was withdrawn by the English 
regulator, the FCA, following his dismissal for serious misconduct, he was no 
longer authorised to exercise his profession in England and that, in order to 
recover his licence, he had to secure a decision from the Employment Tribunal, 
London, declaring that his dismissal was “unfair” … since that tribunal has 
exclusive jurisdiction in “unfair dismissal” matters, a procedure which is aimed at 
having a dismissal declared unfair and at a decision on whether the procedure 
followed by the employer when dismissing the employee was lawful under 
English public-policy rules. He states that he brought the action for “unfair 
dismissal” before the Employment Tribunal in order to challenge the grounds of 
his dismissal in the light of the provisions of the [ACAS Code] and [the 1996 
Act], which are matters of public policy in the United Kingdom and which BNP 
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Paribas agreed should be applied, adding that in his application of 20 December 
2013 he expressly reserved all other claims arising from the termination pursuant 
to his contract of employment and French employment law and the payment of his 
deferred bonuses. He adds that, by decision of 26 September 2014, the 
Employment Tribunal recognised that his dismissal was unfair and did not reduce 
the maximum amount of the awards made in the “unfair dismissal” proceedings, 
namely the sum of GBP 81 175 (around EUR 96 517.05) and that BNP Paribas 
has paid him that sum without lodging an appeal against the decision. He 
maintains that his action before the Labour Tribunal covers the claims which he 
expressly excluded before the tribunal in London. He therefore maintains that res 
judicata applies only to the Employment Tribunal’s finding that he was not guilty 
of misconduct and that his dismissal was unfair and not based on conclusive 
evidence, which means that he is permitted to seek compensation and arrears of 
salary in accordance with the provisions of French employment law and his 
contract of employment.’ 
11 The Court of Appeal observed that BNP Paribas for its part maintained that the 
Employment Tribunal had applied English law as the law chosen by the parties, 
referring to an implicit agreement between them; that the decision had been 
implemented and that the French courts could not call into question the role of the 
English tribunal and its application of English law. BNP Paribas states that ‘unfair 
dismissal’ proceedings cover both the dismissal procedure and the grounds of 
termination, that, unlike actions for ‘wrongful dismissal’, where the question is 
whether the employer broke the terms of the contract, actions for ‘unfair 
dismissal’ aim to ascertain whether the employer’s decision to dismiss the 
employee and/or the procedure which the employer followed when dismissing 
him were reasonable. In addition, the Bank maintains that, contrary to TR’s 
contention, the English tribunal did not consider that the dismissal had no actual 
and serious cause but, on the contrary, it disputed the procedure applied, although 
it was consistent with French law, and took issue with the Bank for not having 
complied with the procedure which, according to the Employment Tribunal, was 
applicable under English law to a dismissal carried out in England. Consequently, 
BNP Paribas maintains that the English tribunal has definitively settled the dispute 
and that TR is not entitled to request that the French court settle the dispute on the 
basis of French law. 
12 The Court of Appeal noted that it was common ground between the parties that in 
the ‘unfair dismissal’ proceedings the Employment Tribunal had examined the 
lawfulness of the dismissal procedure followed by the employer but had also 
assessed the alleged misconduct by the employee while, in his application before 
the Labour Tribunal, he had not sought a ruling on the merits of his dismissal, 
being of the view, like BNP Paribas, that the issue of the merits of his dismissal 
had been settled by the Employment Tribunal; that the position was, however, that 
although TR asserted that the Employment Tribunal had held that his dismissal 
was unfounded, BNP Paribas contended, on the contrary, that that tribunal had 
decided the case by considering that ‘the ground of the dismissal was potentially 
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fair but that the procedure ought to have complied with the rules of the ACAS 
Code’. 
13 The Court of Appeal decided that although the Employment Tribunal had actually 
ruled that the ground of dismissal was potentially fair, it had not however 
concluded that in this instance TR’s dismissal was well founded; that, contrary to 
BNP Paribas’ contention, the Employment Tribunal had considered that the 
dismissal was unlawful, not only in the light of the public-policy provisions of the 
ACAS Code but also, on the substance, that no finding of misconduct on the 
applicant’s part could be made and that his dismissal had therefore not been based 
on an actual and serious cause; and that, consequently, it had to be held that the 
Employment Tribunal’s decision was res judicata inasmuch as it had held that the 
dismissal had not been based on an actual and serious cause. 
14 As regards the financial claims which TR had submitted on the basis of the French 
Labour Code and his contract of employment, on the other hand, the Court of 
Appeal held that BNP Paribas had adduced no conclusive evidence to call into 
question the fact that, according to the terms of the ‘complaint’ lodged on 
20 December 2013, TR had brought an action for ‘unfair dismissal’ before the 
Employment Tribunal, seeking a declaration that his dismissal was unfair, a basic 
and compensatory award, and also an additional award on the ground of the 
Bank’s failure to comply with the ACAS Code; that it was expressly stated in his 
application to the Employment Tribunal that he was not seeking compensation 
and employment-related benefits in connection with the termination of his 
contract of employment, and that he would submit such claims before a different 
court. The Court of Appeal further stated that the Bank’s argument that TR had 
ticked the ‘other payments’ box on the claim form could not substantiate the 
conclusion that he was seeking payments other than compensation for breach of 
the public-policy rules constituted by the ACAS Code. In fact, having regard to 
his application, ‘other payments’ was the only heading suitable for the claim. 
15 The Court of Appeal therefore held that the claims for payment of the 
compensation due for dismissal without actual and serious cause, arrears of salary 
and damages under various heads had not been made before the UK court and that 
the claims were thus not the same as those submitted to the Employment Tribunal; 
that, in addition, it followed that the claims did not have the same cause of action; 
that the cause of the action before the English tribunal had been the unlawfulness 
of the dismissal in view of the breach of the public-policy rules of the ACAS 
Code, whereas the claims at hand related to the financial consequences of a 
dismissal that had not only been unfair but also unfounded, as was clear from the 
decision of the English tribunal. 
16 The Court of Appeal concluded that res judicata could not be pleaded against the 
claims submitted by TR to the Labour Tribunal, that the decision under appeal 
was therefore to be set aside inasmuch as it had held that the employee’s claims 
for compensation in lieu of notice, for related paid leave, for compensation for 
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dismissal and compensation for dismissal without actual and serious cause were 
inadmissible on the ground of res judicata. 
The grounds of appeal 
17 By the second part of its first ground of appeal, BNP Paribas complains that the 
judgment declares that TR’s claims are admissible, orders the Bank to pay him 
various sums by way of compensation in lieu of notice and for related paid leave, 
compensation for dismissal, compensation for dismissal without actual and serious 
cause, and in respect of the DCS Plus 2011 shares remaining due for 2013 and 
2014, the DCS Plus 2012 shares remaining due for 2013 and 2014, the DCS Plus 
2013 shares remaining due for 2013 and 2014 and the CMIP 2009 A shares 
payable in June 2012, and orders the Bank to issue a certificate of employment, a 
statement for the employment centre and payslips in accordance with the 
judgment, even though ‘a plea that a foreign decision is res judicata, raised before 
a French court, must be assessed in the light of the authority and effectiveness 
which that decision enjoys in the Member State in which it was delivered; by 
failing to ascertain whether the force of res judicata attaching to the decision 
delivered by the Employment Tribunal on 26 September 2014 precluded new 
proceedings being brought before another Member State for the determination of 
claims which could have been raised in the proceedings brought before the 
English tribunal, the Court of Appeal deprived its decision of a legal basis, in the 
light of Article 33 of Council Regulation (EC) No 44/2001 of 22 December 2000 
on jurisdiction and the recognition and enforcement of judgments in civil and 
commercial matters’. 
18 By the first part of its second ground of appeal, BNP Paribas complains that the 
judgment declares TR’s claims admissible and orders it to pay him various sums 
by way of compensation in lieu of notice, related rights to paid leave, 
compensation for dismissal and compensation for dismissal without actual and 
serious cause, even though ‘the force of res judicata attaching to a judicial 
decision delivered by a Member State of the European Union precludes an action 
having the same subject matter and the same cause of action and involving the 
same parties being brought in another Member State; that whereas the action 
brought by TR in France has the same subject matter, namely compensation for 
the consequences of his dismissal, and the same cause of action, namely the 
contract of employment of 2 April 2009, as those already dealt with by the 
English tribunal, they came up against res judicata, within the meaning of 
Community law, attaching to the decision of the English tribunal of 26 September 
2014; that by deciding to the contrary, the Court of Appeal infringed Article 33 of 
Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters’. 
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Applicable legislation  
European Union law 
19 According to Article 33(1) of Council Regulation (EC) No 44/2001 of 
22 December 2000 on jurisdiction and the recognition and enforcement of 
judgments in civil and commercial matters, which was then applicable, a 
judgment given in a Member State is to be recognised in the other Member States 
without any special procedure being required. 
20 Article 36 of that regulation provides that under no circumstances may a foreign 
judgment be reviewed as to its substance. 
21 According to Article 27(1) of that regulation, where proceedings involving the 
same cause of action and between the same parties are brought in the courts of 
different Member States, any court other than the court first seised is of its own 
motion to stay its proceedings until such time as the jurisdiction of the court first 
seised is established. 
United Kingdom law 
22 Section 98 of the 1996 Act provides: 
‘(1) In determining for the purposes of this Part whether the dismissal of an 
employee is fair or unfair, it is for the employer to show – 
(a) the reason (or, if more than one, the principal reason) for the dismissal, and 
(b) that it is either a reason falling within subsection (2) or some other 
substantial reason of a kind such as to justify the dismissal of an employee holding 
the position which the employee held. 
(2) A reason falls within this subsection if it – 
… 
(b) relates to the conduct of the employee. 
… 
(4) Where the employer has fulfilled the requirements of subsection (1), the 
determination of the question whether the dismissal is fair or unfair (having regard 
to the reason shown by the employer) – 
(a) depends on whether in the circumstances (including the size and 
administrative resources of the employer’s undertaking) the employer acted 
reasonably or unreasonably in treating it as a sufficient reason for dismissing the 
employee, and  
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(b) shall be determined in accordance with equity and the substantial merits of 
the case. 
…’ 
23 Section 118 of the 1996 Act provides that where a tribunal makes an award of 
compensation for unfair dismissal under section 112(4) or 117(3) the award is to 
consist of (a) a basic award (calculated in accordance with sections 119 to 122 and 
126) and (b) a compensatory award (calculated in accordance with sections 123, 
124, 124A and 126). 
National law 
24 Under Article L. 1234-5, paragraph 1, of the Labour Code, where an employee 
does not work his or her notice, he or she is to be entitled to compensation, unless 
he or she is guilty of serious misconduct. 
25 According to Article L. 1234-9, paragraph 1, of that code, an employee with a 
contract of employment of indefinite duration who is dismissed when he has 
worked for eight continuous months for the same employer is to be entitled, 
except in the case of serious misconduct, to compensation for dismissal. 
26 According to Article L. 1235-3 of the Labour Code, if an employee’s dismissal is 
not based on an actual and serious cause, the court may propose that he be 
reinstated in the undertaking and that the advantages acquired be maintained. If 
either of the parties objects to reinstatement, the court is to award the employee 
compensation to be borne by the employer. 
27 Article R. 1452-6 of the Labour Code, in the version in force prior to Decree 
No 2016-660 of 20 May 2016, provided: 
‘All claims linked with a contract of employment between the same parties shall, 
whether made by the claimant or the defendant, be the subject matter of a single 
set of proceedings. 
This rule shall not apply where the basis of the claims arises or comes to light 
after the matter has been brought before the Labour Tribunal.’ 
Reasons for the reference for a preliminary ruling  
28 Under Article 33(1) of Regulation No 44/2001, which was then in force, a 
judgment given in a Member State is to be recognised in the other Member States 
without any special procedure being required. 
29 According to Article 36 of that regulation, in no circumstances may a foreign 
judgment be reviewed as to its substance. 
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30 Under Article 27(1) of that regulation, where proceedings involving the same 
cause of action and between the same parties are brought in the courts of different 
Member States, any court other than the court first seised is of its own motion to 
stay its proceedings until such time as the jurisdiction of the court first seised is 
established. 
31 According to the consistent case-law of the Court of Justice of the European 
Union, the principle of res judicata is of the utmost importance both in the 
European Union legal order and in the national legal orders. In order to ensure 
stability of the law and legal relations, as well as the sound administration of 
justice, it is important that judicial decisions which have become definitive after 
all rights of appeal have been exhausted, or after expiry of the time limits 
provided to exercise those rights, can no longer be called into question (CJEC, 
judgment of 16 March 2006, Kapferer, C-234/04, paragraph 20; CJEU, judgments 
of 29 June 2010, Commission v Luxembourg, C-526/08, paragraph 26; of 
29 March 2011, ThyssenKrupp Nirosta v Commission, C-352/09 P, 
paragraph 123; and of 19 April 2012, Artegodan v Commission, C-221/10 P, 
paragraph 86). 
32 The concept of recognition, for the purposes of Article 33 of Regulation 
No 44/2001, which leads to that of res judicata, is to be interpreted independently 
(CJEU, judgment of 15 November 2012, Gothaer Allgemeine Versicherung and 
Others, C-456/11, paragraph 25). 
33 First of all, the rule requiring recognition of judgments given in a Member State, 
set out in Article 33 of Regulation No 44/2001, and Article 36 of that regulation 
preclude an application concerning the same subject matter and between the same 
parties as an application upon which judgment has already been given by a court 
in another Member State (by analogy, CJEC, judgment of 30 November 1976, De 
Wolf, 42/76, paragraphs 7 to 10). It also follows from Article 27 of that regulation, 
which covers cases in which proceedings ‘involving the same cause of action and 
between the same parties are brought in the courts of different Member States’ 
and requires that any court other than the court first seised is to decline 
jurisdiction in favour of that latter court, that such proceedings are incompatible 
with that regulation (by analogy, CJEC, judgment of 30 November 1976, De Wolf, 
42/76, paragraph 11). 
34 Next, the Court of Justice has held that two legal proceedings brought by the 
parties in different Contracting States which are based on the same contractual 
relationship have ‘the same cause of action’ (CJEC, 8 December. 1987, Gubisch 
Maschinenfrabrik, Case 144/86, paragraph 15). 
35 Lastly, according to the case-law of the Court of Justice of the European Union, 
the concept of res judicata extends only to the matters of fact and law actually or 
necessarily settled by the judicial decision in question (CJEU, judgment of 
19 April 2012, Artegodan v Commission, C-221/10 P, paragraph 87) and, 
moreover, attaches not only to the operative part of the judicial decision in 
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question, but also to the ratio decidendi of that decision which is inseparable from 
it (CJEU, judgments of 19 April 2012, Artegodan v Commission, C-221/10 P, 
paragraph 87, and of 15 November 2012, Gothaer Allgemeine Versicherung and 
Others, C-456/11, paragraph 40]. 
36 However, when questioned by national courts adjudicating in main proceedings 
concerning the enforcement of foreign decisions, the Court of Justice has held that 
such a decision recognised under Article 33 of Regulation No 44/2001 must in 
principle have the same effects in the State in which enforcement is sought as it 
does in the State in which judgment was given (by analogy, CJEC, judgment of 
4 February 1988, Hoffmann, 145/86, paragraph 11). 
37 The further pleadings lodged by BNP Paribas mention the ‘abuse of process’ rule 
established in the judgment of 20 July 1843 of the Court of Chancery (England 
and Wales) (United Kingdom) in Henderson v. Henderson, which requires the 
parties, when their question becomes the subject matter of proceedings before a 
competent court, to plead their entire case before that court so that all aspects of 
that question may be settled, subject to appeal, once and for all. 
38 […] [considerations taken from the literature] 
39 It follows from the case-law of the Court of Justice, moreover, that there is 
however no reason for granting to a judgment, when it is enforced, rights which it 
does not have in the Member State of origin or effects that a similar judgment 
given directly in the Member State in which enforcement is sought would not 
have (CJEU, judgment of 28 April 2009, Apostolides, C-420/07, paragraph 66). 
40 However, in French law, Article R. 1452-6 of the Labour Code required that all 
claims linked with the contract of employment between the parties, whether made 
by the claimant or the defendant, be the subject matter of the same set of 
proceedings and that that rule should not apply where the basis of the claims arises 
or comes to light after the matter has been brought before the Labour Tribunal. 
That provision was repealed, with effect from 1 August 2016, by Decree No 2016-
660 of 20 May 2016. Since the proceedings were brought before the Labour Court 
of Paris by the employee on 27 November 2014, in French law that rule, known as 
the ‘single forum’ rule, was still applicable and could have been applied as against 
the employee if he had initially brought proceedings before a different French 
court instead of making application to the Employment Tribunal in London. 
41 Admittedly, it follows from a consistent line of decisions by the Social Chamber 
of the Court of Cassation that the single forum principle cannot be pleaded before 
the French Labour Tribunal on the ground of an action brought before a foreign 
court […]. Nonetheless, if the employee had first brought before a French Labour 
Tribunal the claims which he brought before the Employment Tribunal, the claims 
for compensation, both those provided for by law and those based on dismissal 
without actual and serious cause, and his claims relating to bonuses based on the 
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terms of his contract of employment, the basis of which arose before the matter 
was brought before the first court, would have been declared inadmissible. 
42 Since the judgments in Hoffmann (CJEC, judgment of 4 February 1988, 145/86) 
and Apostolides (CJEU, judgment of 28 April 2009, C-420/07) relate to the effects 
of foreign decisions as regards their enforcement in the Member State in which 
enforcement is sought, a doubt persists as to whether such decisions may also 
have an effect related either to the procedural order of the issuing Member State or 
to that of the Member State in which enforcement is sought of such a kind as to 
govern the admissibility of subsequent actions brought before the courts of the 
latter Member State by the same parties, on the basis of the same contract of 
employment, irrespective of the subject matter or the aim pursued by those 
actions. Where necessary, therefore, it would be appropriate to determine whether 
the fact that an obligation to concentrate claims in employment matters, such as 
that laid down in Article R. 1452-6 of the Labour Code, is similar to a rule which 
prevails before the courts of the Member State of origin, such as that laid down in 
the decision in Henderson v. Henderson, is decisive for the purpose of assessing 
the effects of the foreign judgment on the admissibility of such actions before the 
courts of the Member State in which enforcement is sought. 
43 If it were considered that foreign judgments have no effect on the admissibility of 
actions brought between the same parties and based on the same cause of action 
but differing as regards their subject matter, it would be necessary to address the 
concepts of subject matter and cause of action for the purposes of Articles 33 and 
36 of Regulation No 44/2001. It would be necessary, in particular, to determine 
whether all claims which seek to impose financial penalties for failure to fulfil 
obligations arising under the same contract of employment have the same subject 
matter or whether they must be distinguished according to whether they relate 
either to obligations implicit in the performance of the contract of employment or 
to obligations specific to the breach of that contract. 
44 Furthermore, under Articles L. 1234-5, paragraph 1, and L. 1234-9, paragraph 1, 
of the Labour Code an employee whose dismissal is well founded and is not the 
consequence of serious misconduct is to be entitled to compensation in lieu of 
notice and to compensation for dismissal. Compensation under those two heads, 
where the dismissal is without actual and serious cause, is payable in addition to 
the compensation for dismissal without actual and serious cause provided for in 
Article L. 1235-3 of that Code. 
45 However, the compensatory and basic awards made by the Employment Tribunal 
under the 1996 Act penalise unfair dismissal of the employee. 
46 While it is possible that the subject matter of the compensation provided for in 
Article L. 1235-3 of the Labour Code is the same as the subject matter of the 
compensatory and basic awards, doubts remain as to whether the subject matter of 
those latter awards is the same as the subject matter of compensation of the types 
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provided for in Articles L. 1234-5, paragraph 1, and L. 1234-9, paragraph 1, of 
that Code. 
47 Accordingly, in the first place, the question arises whether Articles 33 and 36 of 
Council Regulation No 44/2001 of 22 December 2000 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters must 
be interpreted as meaning that, where the legislation of the Member State of origin 
of the judgment confers on that judgment authority such as to preclude a new 
action being brought by the same parties for a determination of the claims that 
could have been raised in the initial proceedings, the effects which that judgment 
has in the Member State in which enforcement is sought preclude a court of that 
latter State, whose legislation, applicable ratione temporis, provided in 
employment law for a similar obligation to concentrate the claims, from 
adjudicating on such claims. 
48 If the first question is answered in the negative, the question arises, in the second 
place, whether Articles 33 and 36 of Council Regulation No 44/2001 must be 
interpreted as meaning that an action such as that for unfair dismissal in the 
United Kingdom has the same cause of action and the same subject matter as an 
action such as that for dismissal without actual and serious cause in French law, so 
that the employee’s claims for damages for dismissal without actual and serious 
cause, compensation in lieu of notice and compensation for dismissal before the 
French courts, after the employee has obtained a decision in the United Kingdom 
declaring that there has been an unfair dismissal and making a compensatory 
award, are inadmissible. It must be ascertained in that regard whether it is 
necessary to distinguish between the damages for dismissal without actual and 
serious cause that might have the same cause of action and the same subject 
matter as the compensatory award and the compensation for dismissal and in lieu 
of notice which, in French law, are payable where the dismissal is based on an 
actual and serious cause, but are not payable in the event of dismissal based on 
serious misconduct. 
49 Likewise, in the third place the question arises whether Articles 33 and 36 of 
Council Regulation No 44/2001 must be interpreted as meaning that an action 
such as that for unfair dismissal in the United Kingdom and an action for payment 
of bonuses or allowances provided for in the contract of employment have the 
same cause of action and the same subject matter where those actions are based on 
the same contractual relationship between the parties. 
ON THOSE GROUNDS, the Court: 
Having regard to Article 267 of the Treaty on the Functioning of the European 
Union: 
REFERS the following questions to the Court of Justice of the European Union: 
‘1. Must Articles 33 and 36 of Council Regulation (EC) No 44/2001 of 
22 December 2000 on jurisdiction and the recognition and enforcement of 
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judgments in civil and commercial matters be interpreted as meaning that, where 
the legislation of the Member State of origin of the judgment confers on that 
judgment authority such as to preclude a new action being brought by the same 
parties for determining the claims that could have been raised in the initial 
proceedings, the effects which that judgment has in the Member State in which 
enforcement is sought preclude a court of that latter State, whose legislation, as 
applicable ratione temporis, provided in employment law for a similar obligation 
of concentration of claims, from adjudicating on such claims? 
2. If the first question is answered in the negative, must Articles 33 and 36 of 
Council Regulation No 44/2001 be interpreted as meaning that an action such as a 
claim of unfair dismissal in the United Kingdom has the same cause of action and 
the same subject matter as an action such as a claim of dismissal without actual 
and serious cause in French law, so that the employee’s claims for damages for 
dismissal without actual and serious cause, compensation in lieu of notice, and 
compensation for dismissal before the French courts are inadmissible after the 
employee has obtained a decision in the United Kingdom declaring that there has 
been an unfair dismissal and making a compensatory award in that respect? Is it 
necessary in that regard to distinguish between, on the one hand, the damages for 
dismissal without actual and serious cause that might have the same cause of 
action and the same subject matter as the compensatory award and, on the other, 
the compensation for dismissal and compensation in lieu of notice which, in 
French law, are payable where the dismissal is based on an actual and serious 
cause, but are not payable in the event of dismissal based on serious misconduct? 
3. Likewise, must Articles 33 and 36 of Council Regulation No 44/2001 be 
interpreted as meaning that an action such as a claim of unfair dismissal in the 
United Kingdom and an action for payment of bonuses or allowances provided for 
in the contract of employment have the same cause of action and the same subject 
matter when those actions are based on the same contractual relationship between 
the parties?’ 
STAYS the proceedings pending the decision of the Court of Justice of the 
European Union; 
[…] [grounds of appeal of the parties annexed to the judgment]