Opinion of the Advocate General — ECLI:EU:C:2020:875
Date: 2020-10-29
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Austria

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Translation  C-804/19 — 1 
Case C-804/19 
Request for a preliminary ruling 
Date lodged: 
31 October 2019 
Referring court: 
Landesgericht Salzburg (Austria) 
Date of the decision to refer: 
23 October 2019 
Applicant: 
BU 
Defendant: 
Markt24 GmbH 
  
[…] 
REPUBLIC OF AUSTRIA 
LANDESGERICHT SALZBURG (REGIONAL COURT, SALZBURG, 
AUSTRIA) […] 
SITTING AS A LABOUR AND SOCIAL COURT […] 
[…] 
ORDER 
CASE: 
Applicant […] 
BU  […] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 23. 10. 2019 — CASE C-804/19 
 
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[…] 
[AUSTRIA] 
[…] 
Defendant […] 
Markt24 GmbH […] 
[…] 
85716 Unterschleißheim […] 
GERMANY […] 
Concerning: 
EUR 2 962.80 plus associated amounts and interest (regular pay) 
I. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 of the Treaty on the 
Functioning of the European Union: 
1. Is Article 21 of Regulation (EU) No 1215/2012 applicable to an employment 
relationship in which, although an employment contract was entered into in 
Austria for the performance of work in Germany, the female employee, who 
remained in Austria and was prepared for several months to work, did not perform 
any work? 
In the event that the first question is answered in the affirmative 
2. Is Article 21 of Regulation (EU) No 1215/2012 to be interpreted as meaning 
that it is possible to apply a national provision which enables an employee to bring 
an action in the place where she was resident during the employment relationship 
or at the time when the employment relationship ended (thus facilitating the 
process of bringing an action), as is the case with Paragraph 4(1)(a) [Or. 2] of the 
Arbeits- und Sozialgerichtsgesetz (Law on the labour and social courts; ‘the 
ASGG’)? 
3. Is Article 21 of Regulation (EU) No 1215/2012 to be interpreted as meaning 
that it is possible to apply a national provision which enables an employee to bring 
an action in the place where the remuneration is to be paid or was to be paid upon 
termination of his employment relationship (thus facilitating the process of 
bringing an action), as is the case with Paragraph 4(1)(d) of the ASGG? 
4. In the event that Questions 2 and 3 are answered in the negative: 
MARKT24 
 
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4.1. Is Article 21 of Regulation (EU) No 1215/2012 to be interpreted as meaning 
that, in the case of an employment relationship in which the female employee has 
not performed any work, the action must be brought in the Member State in which 
the employee remained prepared to work? 
4.2. Is Article 21 of Regulation (EU) No 1215/2012 to be interpreted as meaning 
that, in the case of an employment relationship in which the female employee has 
not performed any work, the action must be brought in the Member State in which 
the employment contract was initiated and entered into, even if the performance of 
work in another Member State had been agreed or envisaged in that employment 
contract? 
In the event that the first question is answered in the negative 
5. Is Article 7(1) of Regulation (EU) No 1215/2012 applicable to an 
employment relationship in which, although an employment contract was entered 
into in Austria for the performance of work in Germany, the female employee, 
who remained in Austria and was prepared for several months to work, did not 
perform any work, if it is possible to apply a national provision which enables an 
employee to bring an action in the place where she was resident during the 
employment relationship or at the time when the employment relationship ended 
(thus facilitating the process of bringing an action), as is the case with 
Paragraph 4(1)(a) of the ASGG, or if it is possible to apply a national provision 
which enables an employee to bring an action in the place where the remuneration 
is to be paid or was to be paid upon termination of the employment relationship 
(thus facilitating the process of bringing an action), as is the case with 
Paragraph 4(1)(d) of the ASGG? 
II. The proceedings are stayed pending the ruling the Court of Justice 
(Paragraph 90a of the Gerichtsorganisationsgesetz (Law on the organisation of the 
courts; ‘the GOG’). 
Grounds: 
1. Arguments and facts 
By an action of 27 April 2018, the applicant sought to recover from the defendant 
outstanding wage payments, aliquot special payments, and annual leave payments 
in the total amount of EUR 2 962.80 gross for the period from 6 September 2017 
to 15 December 2017. In terms of the substance of the action, she argued that the 
defendant had employed her as a cleaner in the period from 6 September 2017 to 
15 December 2017 [Or. 3]. It had been agreed that she would receive 
remuneration of EUR 753.42 gross per month, being EUR 639.15 net per month, 
in respect of part-time employment. The defendant ended the employment 
relationship by terminating the employment contract. The court seised, the 
REQUEST FOR A PRELIMINARY RULING OF 23. 10. 2019 — CASE C-804/19 
 
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applicant argued, had jurisdiction, as the defendant had had an office in Salzburg 
at the beginning of the employment relationship. The applicant also produced 
three pay slips for the months of September to November 2017. The defendant is 
specified in those pay slips as the employer, and they contain a gross sum of 
EUR 626.40 (EUR 531.69 net) for September, a gross sum of EUR 753.42 
(EUR 639.50 net) for October, and a gross sum of EUR 753.42 (EUR 628.15 net) 
for November. 
Since the [documents initiating the] action could not be served on the 
defendant — notwithstanding several attempts at service at different addresses by 
post and via the Amtsgericht (local court) — and the place of residence of the 
defendant’s representatives is unknown, a temporary representative for purposes 
of service (procedural representative in absentia) was appointed for the defendant 
pursuant to Paragraph 116 of the Zivilprozessordnung (Code of Civil Procedure; 
‘the ZPO’) by order of 26 December 2018 […]. By written submission of 
7 January 2019 […], the representative contested both national justiciability and 
national jurisdiction. 
According to an extract from the commercial register HRB 233607 of the 
Amtsgericht München (local court, Munich), the defendant’s registered office is 
located in Unterschleißheim, Landkreis München (administrative district of 
Munich) […]. The applicant’s place of residence is in [Austria]. The applicant was 
approached by a man who claimed that he knew of a good company that was 
looking for workers. The applicant subsequently signed the employment contract 
for carrying out cleaning work. The contract was not signed at the offices on the 
premises of the defendant, but in a bakery located at 5020 Salzburg. It was agreed 
that she would start working on 6 September 2017, but she was not allocated any 
work by the defendant. However, she could be contacted by telephone and was 
prepared to work. She did not in fact carry out any cleaning work or any other 
work for the defendant. It was agreed that the applicant was to perform her work 
in Munich. The applicant did not have a telephone number for the employee of the 
defendant with whom she had entered into the employment contract. An Austrian 
telephone number and a German address are specified in the defendant’s stamp on 
the employment contract. The applicant received neither remuneration nor a pay 
slip during the employment relationship. She was registered with the Austrian 
social security institution as an employee with a salary of EUR 753.42 up until 
15 December 2017, as were three other employees of the defendant. 
A total of three sets of labour-law proceedings are/were (together with the 
proceedings [Or. 4] brought by the applicant) pending against the defendant 
before the Landesgericht Salzburg, sitting as a labour and social court. The other 
proceedings ended with a judgment in which it was found, inter alia, that at least 
one other employee of the defendant worked in the construction industry in the 
Province of Salzburg. 
MARKT24 
 
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3. National law 
‘Paragraph 4 (1) [of the Arbeits- und Sozialgerichtsgesetz] For the disputes 
referred to in Paragraph 50(1), territorial jurisdiction also lies with, at the choice 
of the applicant 
1. in the cases in points 1 to 3, the court within the area of jurisdiction of which 
(a) the employee has his place of residence or usual abode during the employment 
relationship or where he had his place of residence or usual abode at the time 
when the employment relationship ended, 
… 
(d) the remuneration is to be paid, or, if the employment relationship has ended, 
was to be paid when the relationship was last in effect, or 
…’ 
4. Grounds for the order for reference 
The provisions of the Arbeits- und Sozialgerichtsgesetz (Law on the labour and 
social courts; ‘the ASGG’) must be interpreted in accordance with [EU law]. 
4.1. The first question 
Firstly, the general question arises as to whether Article 21 of Regulation (EU) 
No 1215/2012 is also applicable to employment relationships in which, although 
an employment contract was entered into in Austria, the female employee, who 
remained prepared to work, did not subsequently perform any work in either 
Austria or Germany. 
According to national case-law and academic writing, the following has been 
established (as at 2008): If an employee has entered into an employment contract 
but has not taken up employment duties, the relevant place, in accordance with 
Article 5(1) of Regulation (EU) No 1215/2012, is the place where the employment 
contract was to have been performed by the employee (Auer in Geimer/Schütze, 
Rechtsverkehr 540 Art. 18 EuGVVO, paragraph 12; Burgstaller, DRdA 1999, 
470; Ganglberger, RdW 2000, 160 and 161; Kropholler, Zivilprozeßrecht8 Art. 19 
EuGWO, paragraph 9, and Corte di cassazione [I] Riv dir int priv proc 2004, 661 
and 14 Ob 81/86 [concerning Paragraph 44 of the Law on international private 
law (‘IPRG’)] SZ 59/91 = Arb 10.537 = DRdA 1988, 343 [Kerschner] = 
ZAS 1987, 50 [Beck-Managetta/Mayer-Maly]). 
According to other national case-law on the Lugano Convention, a certain element 
of duration and [Or. 5] permanence was required. Where an employee residing in 
Germany has entered into an employment contract with an undertaking 
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established in Austria but has not taken up employment duties, the second and 
third parts of the first sentence of Article 5(1) of the Lugano Convention are not 
applicable. There must be an element of duration and permanence inherent in the 
performance of work serving as a basis for jurisdiction pursuant to the second and 
third parts of the first sentence of Article 5(1) of the Lugano Convention (OGH 8 
ObA 154/98z). 
The referring court takes the view that the employment relationship from 
6 September 2017 to 15 December 2017, which thus lasted for several months, 
had such duration and permanence. In addition, the employment contract was 
initiated and entered into in Austria. Registration for social-security purposes took 
place in Austria. 
The aforementioned question also relates to the protection of particular groups of 
persons under EU law, including, for example, consumers, in respect of whom 
Article 18(1) of Regulation (EU) No 1215/2012 provides, in relation to consumer 
contracts, that a consumer may bring proceedings against the other party to a 
contract either in the courts of the Member State in which that party is domiciled 
or, regardless of the domicile of the other party, in the courts for the place where 
the consumer is domiciled. It can be assumed that, as is the case with consumers, 
employees constitute a group of persons in need of protection, who should not be 
placed in a worse position by EU legislation as compared with national 
legislation. In this regard, reference should be made, in particular, to the financial 
situation resulting from the low pay of the employee, which makes it more 
difficult for her to assert her claims in another Member State. 
4.2. The second and third questions 
In the event that Article 21 of Regulation (EU) No 1215/2012 is deemed to be 
applicable, in principle, the questions then arise as to whether national law, which 
provides an employee with facilitated access to legal proceedings within national 
territory, may apply in the light of the European legislation, which provides for 
less favourable rules for employees in this regard. 
In the present case, the employer would be able, by allocating work or not 
allocating work, in whichever Member State, to impede the national rules on 
jurisdiction pursuant to Paragraph 4 of the ASGG — which are more favourable 
to the applicant. Furthermore, a female employee who waits for work assignments 
for a long period of time and is unable to accept other work in the meantime 
would subsequently also be placed at a disadvantage from the perspective of 
procedural law, because, contrary to the more favourable national provisions, she 
would have to bring the action for the outstanding wages in another Member 
State. [Or. 6] 
MARKT24 
 
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4.4. The fourth question 
In the event that the national law, which is more favourable to the female 
employee, is not applicable, questions arise as to how Article 21 of Regulation 
(EU) No 1215/2012 can be interpreted. 
4.5. The fifth question 
In the event that, in principle, Article 21 of Regulation (EU) No 1215/2012 is not 
applicable to the present case, the other provisions of Regulation (EU) 
No 1215/2012 must be taken into account and the interpretation must be analysed 
in the context of the present circumstances. To avoid repetition, reference in this 
regard is made, in a comparative manner, to the considerations already set out 
above. 
5. The interpretative jurisdiction of the Court of Justice 
In the present case, there is no case-law of the Court of Justice of the European 
Union concerning jurisdiction in relation to Article 21 of Regulation (EU) 
No 1215/2012 in cases where an employment contract is entered into without any 
work being performed. There is a need for interpretation, particularly with regard 
to fundamental questions of jurisdiction pursuant to Article 21 of Regulation (EU) 
No 1215/2012 in comparison with the more favourable national legislation on the 
vindication of the female employee’s legal rights. 
In view of the case-law of the Court of Justice of the European Union to date, the 
correct application of EU law is not so obvious as to leave no scope whatsoever 
for reasonable doubt as to how the questions posed must be answered (‘acte 
clair’). 
II. The staying of the labour-court proceedings until the preliminary ruling 
proceedings have been concluded is based on Paragraph 90a of the 
Gerichtsorganisationsgesetz (GOG). 
[Note regarding official copies and signature] […]