Opinion of the Advocate General — ECLI:EU:C:2013:241
Date: 2013-04-16
Language of the case: Dutch
Subject matter: Rome Convention of 19 June 1980
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary of the objectives pursued by the Rome Convention, see in particular ICF, paragraphs 22 and 23. 11 – Accordingly, it is stated in the Report on the Convention on the law applicable to contractual obligations, by Professor Mario Giuliano, University of Milan, and Professor Paul Lagarde, University of Paris I (OJ 1980 C 282, p. 1, ‘the Giuliano Lagarde Report’; see, in particular, pp. 25 and 26) that it was a question of ‘finding a more appropriate arrangement for matters in which the interests of one of the contracting parties are not the same as those of the other, and at the same time to secure thereby more adequate protection for the party who from the socio-economic point of view is regarded as the weaker in the contractual relationship’. 12 – The idea that it is appropriate to protect the weaker party by means of rules more favourable to his interests than the general rules is to be found more broadly in the provisions of private international law as a whole and is reflected in particular in the context of the interpretation of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), as amended by the Convention of 29 November 1996 on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1), (‘the Brussels Convention’) (see, in particular, Case 133/81 Ivenel ECR 1891, paragraph 14; Case C‑125/92 Mulox IBC [1993] ECR I‑4075, paragraph 18; Case C‑383/95 Rutten [1997] ECR I‑57, paragraph 22; Case C‑37/00 Weber [2002] ECR I‑2013, paragraph 40; Case C‑437/00 Pugliese [2003] ECR I‑3573, paragraph 18) and Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) (see, in particular, Case C‑154/11 Mahamdia [2012] ECR, paragraphs 44 and 46). 13 – See ICF, paragraph 26. 14 – See, in particular, Giuliano Lagarde Report, p. 25. 15 – See Koelzsch, paragraph 42. 16 – See the considerations set out in the Giuliano Lagarde Report, pp. 25 and 26. 17 – See, in that regard, Lagarde, P., ‘Convention de Rome’, Répertoire de droit communautaire Dalloz, 1992, paragraph 85. 18 – Pataut, É., ‘Conflits de loi en droit du travail’, Jurisclasseur droit international, fascicule 573-10, November 2008, paragraph 14. 19 – See Voogsgeerd, paragraph 32. 20 – See Koelzsch, paragraph 36. 21 – In that regard, it has been pointed out that, in accordance with the principle of proximity, the ‘fairest’ law is the ‘closest’ law and not the ‘best’ from the standpoint of its substantive content (Ballarino, T., and Romano, G.P., ‘Le principe de proximité chez Paul Lagarde’, Le droit international privé: esprit et methods — Mélanges en l’honneur de Paul Lagarde, Dalloz, 2005, p. 2). 22 – See Koelzsch, paragraphs 41 and 42. 23 – Evidenced, for example, by the facts which gave rise to Voogsgeerd, which concerned a dispute between a Netherlands national and a company established in Luxembourg, concerning an employment contract concluded in Belgium. In the performance of the contract, Mr Voogsgeerd received instructions from another company, closely connected with his employer, but established in Belgium. 24 – A very similar discussion has taken place with regard to the relationship between the presumptions provided for in Article 4(2) and (4) of the Rome Convention and the possibility, provided for in Article 4(5) of that convention, to disregard them if it appears from the circumstances as a whole that the contract is more closely connected with another country (see the Opinion of Advocate General Bot in ICF, points 71 to 73). 25 – See paragraph 42 of the judgment. 26 – Ibid., paragraph 43. 27 – See paragraphs 31 to 41 of the judgment. 28 – That ‘marginalisation’ of the place of engagement as a connecting criterion is explained, it seems to me, by the fortuitous or artificial nature that it may have, but in particular by the fact that the employer generally has full control over the determination of that place, which is likely to infringe the principle of protection of the employee. 29 – It is interesting to note that, in the Green Paper on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernisation (COM(2002) 654 final, p. 38)), it is stated that ‘whether or not the worker habitually carries out his work in the same country, the objective connection defined by the Convention can be overridden by an exception clause (end of Article 6(2)), which for the worker avoids the harmful consequences of rigid connection of the contract to the law of the place of performance’. 30 – See paragraph 19 of the judgment. 31 – For a summary of the arguments put forward in that regard, see paragraphs 50 to 52 of ICF. 32 – Ibid., paragraphs 58 to 62. 33 – Ibid., paragraph 64. 34 – Under that provision, ‘[w]here it is clear from all the circumstances of the case that the contract is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply’. 35 – Moreover, this is the case even though it has been argued that that difference in wording probably resulted, in the absence of explanation in the explanatory memorandum for that regulation, from an oversight (see Gaudemet-Tallon, H., Jurisclasseur Droit international, fascicule 552-15, 2009, paragraph 84). 36 – See the Green Paper on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernisation, p. 28. 37 – See paragraph 46 of the judgment. 38 – See the considerations set out in points 21 and 22 of this Opinion. 39 – As is clear from Koelzsch, paragraph 42, it is in the State in which the work is carried out that the employee performs his economic and social duties. 40 – See, in particular, Article 13(2)(a) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971(II), p. 416), as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1); Article 11(3)(a) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1), and Article 16(1) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1). 41 – In that regard, Article 18 of Regulation No 987/2009 states that ‘[a] request by the employer or the person concerned for exceptions to Articles 11 to 15 of the basic Regulation shall be submitted, whenever possible in advance, to the competent authority or the body designated by the authority of the Member State, whose legislation the employee or person concerned requests be applied’.