LAG Düsseldorf; 2020-11-17; 3 Sa 285/19
Decision by national courts in the field of European Union law — ECLI:DE:LAGD:2020:1117.3SA285.19.00
Date: 2020-11-17
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE1117(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Germany (hereinafter the ‘plaintiff’) filed an action against a company domiciled in Dubai, United Arab Emirates, which provided services relating to the development of gas and oil storage facilities (hereinafter the ‘defendant’), seeking the payment of compensation.
The plaintiff worked for the defendant in Turkmenistan. Following an extraordinary immediate notice of termination by the defendant, the Arbeitsgericht Düsseldorf (hereinafter ‘the Court of First Instance’), which was the agreed place of jurisdiction, declared that both notices of termination were not effective. The defendant was ordered to continue the employment of the plaintiff in Turkmenistan until the action against wrongful dismissal had been settled with final effect. The defendant, however, did not continue the employment of the plaintiff in Turkmenistan and later gave him another notice of termination.
According to the tax assessment of the Tax Office Berlin Mitte/Tiergarten, the plaintiff was obliged to pay an additional tax of EUR 51,000 in Germany. The Tax Office claimed that the salary the defendant had paid to the plaintiff in 2011 was subject to taxation in Germany due to the fact that the plaintiff stayed in Turkmenistan solely in January and February 2011, thus not exceeding the 183 day-limit under Article 12 of the double taxation treaty with the USSR. The objection of the plaintiff was dismissed by the Tax Office.
The plaintiff demanded that the defendant compensate him for the additional tax payment.
The Court of First Instance dismissed the action citing its inadmissibility due to the ineffectiveness of the agreement on the place of jurisdiction under Article 23(2) of the Brussels I Regulation (1). The international jurisdiction of German courts resulted from the fact that the defendant participated in court proceedings without objecting to the court’s lack of jurisdiction under Article 39 ZPO (2). The action, however, was found unjustified. Even though it was true that the non-employment of the plaintiff in Turkmenistan constituted a breach of obligations, the plaintiff suffered no harm regarding the claimed amount as the tax assessment had not become finally effective to that time.
The appeal lodged by the plaintiff with the Landesarbeitsgericht Düsseldorf (hereinafter ‘the Court of Appeal’) was successful.
The Court of Appeal found the action admissible stating that the agreement on the place of jurisdiction met the requirements under Article 23(1) of the Brussels I Regulation. Contrary to the defendant, the plaintiff was domiciled in a Member State. The requirement regarding the written form of the agreement was also met.
The choice of applicable law made between the parties was also effective under Article 4(1)(1) of the Rome I Regulation (3). German law was expressly agreed upon to be the applicable law.
In addition, the action was found justified. The ineffective notices of termination resulting in the non-employment and the refusal to issue an invitation to Turkmenistan which was necessary for a new entry to the country were the reasons why the plaintiff stopped receiving his remuneration. The applicable tax law for the outstanding remuneration for the period between March and October 2011 was not the law of Turkmenistan but Germany. Had the defendant not breached its obligations under the contract of employment, the plaintiff would have received his remuneration for work for March and the following months in Turkmenistan.
The Court of Appeal modified the decision of the Court of First Instance and ordered the defendant to pay the required compensation to the plaintiff.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Zivilprozessordnung (Code of Civil Procedure).
(3)  Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).