Opinion of the Advocate General — ECLI:EU:C:2011:564
Date: 2011-09-08
Language of the case: Dutch
Subject matter: Rome Convention of 19 June 1980
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary, it must be concluded that the country in which the place of business through which the employee was engaged is situated, within the meaning of Article 6(2)(b) of the Convention, means the country in which is situated the employer’s place of business through which the employee was engaged according to the employment contract. As the second question was clearly raised only in the event that the Court took a different view, in other words that that country means the country in which is situated the employer’s place of business at which the employee is actually employed, there is no need to comment on that question. 2. Third question 76. The third and fourth questions are essentially concerned with the legal requirements which a ‘place of business’ within the meaning of Article 6(2)(b) of the Convention must satisfy in order to be classified as such. 77. More specifically, by its third question, the referring court wishes to ascertain whether the employer’s place of business at which the employer is actually employed within the meaning of the first question must satisfy certain formal requirements such as the possession of its own legal personality or whether the existence of a de facto place of business is sufficient for that purpose. Although that question was obviously raised only in the event that the Court’s answer to the first question is different from that proposed here, I take the view that the referring court should none the less be given some useful guidance on interpretation in order to enable it to give judgment in the main proceedings, particularly since such guidance is still relevant. After all, it might be of use to the referring court in its assessment of whether Naviglobe can, if appropriate, be classified from a functional point of view as a place of business of the firm Navimer for the purposes of Article 6(2)(b) of the Convention. 78. It must be noted first of all in this regard that Article 6(2)(b) of the Convention, at least from the point of view of its wording, does not impose a requirement that a place of business within the meaning of that provision must always possess legal personality. This in itself indicates the need for a less formal interpretation of the term ‘place of business’. Taking into account also the aforementioned purpose of that provision and of the Rome Convention as a whole, (48) that is to say to secure greater legal certainty in relation to the question of which law is applicable, in the interests of the contracting parties, it would in all likelihood fail to achieve its purpose if the establishment of a connection with the law of a specific country depended ultimately on whether the place of business in question fulfils the conditions governing the acquisition of legal personality under the provisions of that legal system. In view of the differences between the legal systems and the minimum requirements conceivably connected with them, it would not always be easy for a national court faced with a foreign legal system also to determine whether those conditions have been fulfilled in relation to a particular branch or agency. 79. Given that, as I have already said, a place of business may in certain circumstances also operate as an ‘intermediary’ in the engagement of an employee, without needing to recruit on its own behalf, (49) the requirement that the place of business should have legal personality ultimately seems too strict for the purposes of meeting the need for legal certainty, on the one hand, while also taking into account the requirements of simple and flexible management, on the other. The requirement to understand the ‘place of business’ within the meaning of Article 6(2)(b) of the Convention as always referring to the company’s registered office itself should therefore be regarded as too restrictive. In any event, the requirements of legal certainty and flexibility would probably be satisfied immediately if that term were understood as referring also to a de facto place of business, for example the office of a representative of the employer. 80. In any event, however, it must be required that the employer exercises actual control over the place of business, so that the actions taken by the place of business are attributable to the employer as actions taken by him himself. This is likely to be the case not only in circumstances where a place of business in the broadest sense of the term, that is to say a branch without legal personality or even a subsidiary with legal personality, takes instructions from the management of the dominant undertaking but also in a situation such as that in the main proceedings, where two undertakings have the same management. Mr Voogsgeerd’s reference to the existence of one manager common to both undertakings (50) must therefore be regarded as relevant in this regard. After all, where the composition of the management structure is identical in this way, the differences between the two undertakings largely disappear, as both their decision-making and their actions are those of a single entity. 81. Although the acquisition of legal personality is not a mandatory condition for classification as a ‘place of business’ within the meaning of Article 6(2)(b) of the Convention, it is none the less necessary to lay down as a minimum requirement that – as Mr Voogsgeerd (51) and the Commission (52) rightly remark – the place of business of the company concerned has a degree of permanency in the place in question. This is intended to prevent the employer from taking advantage of a merely temporary presence in a particular country in order to secure the application of the law of that State, which may be characterised by a low level of employment protection. The fact that a representative of a foreign employer regularly presents himself at that place in order to recruit workers for employment abroad could not therefore be regarded as sufficient. (53) If, however, the same representative travels to a country in which the employer maintains a permanent establishment of his undertaking, it would be perfectly reasonable to suppose that that establishment is a ‘place of business’, within the meaning of Article 6(2)(b) of the Convention, in which the employee has been engaged. (54) 82. On the basis of my conclusions concerning the interpretation of the criterion of the place of engagement (55) and in accordance with the minimum requirement of permanency referred to above, the term ‘place of business’ within the meaning of Article 6(2)(b) of the Convention should be understood as referring first and foremost to the establishment which has overall responsibility for organising the employee’s working activities. However, the term is probably open to more extensive interpretation as also covering other organisational entities which carry out an activity on behalf of the employer, such as one of the undertaking’s business units or operational facilities, for example, but do not have to fulfil the requirements applicable to an establishment. (56) After all, the place of business must, in principle, be distinguished from the employer’s registered office, that is to say the legal person constituting the undertaking. Put in simple terms, for the purposes of classification as a place of business, it is sufficient that the employer carries on business from there and employs workers to that end. (57) 83. Support for such an interpretation can be found in the Court’s case-law concerning Article 5(5) of the Brussels Convention, which states that the concept of branch, agency or other establishment within the meaning of that provision implies ‘a place of business which has the appearance of permanency, such as the extension of a parent body, has a management and is materially equipped to negotiate business with third parties so that the latter, although knowing that there will if necessary be a legal link with the parent body, the head office of which is abroad, do not have to deal directly with such parent body but may transact business at the place of business constituting the extension’ (58) . As I explained at length in my Opinion in Koelzsch, (59) the connections between the Brussels Convention and the Rome Convention are numerous. Not least for that reason, the Court, in its case-law on the two conventions, has attempted to adopt a parallel interpretation of similarly worded provisions, in so far as the subject-matter of the relevant provisions made this possible. There is no reason to depart from that approach here. In the interests of securing an interpretation of the concepts of private international law which is as uniform as possible, it seems reasonable to transpose that definition of ‘place of business’ established by the Court in relation to Article 5(5) of the Brussels Convention to Article 6(2)(b) of the Rome Convention. 84. It follows from the foregoing submissions that a ‘place of business’ within the meaning of Article 6(2)(b) of the Convention may quite legitimately be legally dependent on the principal company. Consequently, if the referring court should conclude in its assessment of the facts of the main proceedings that Naviglobe is to be regarded as a branch or even a subsidiary of Navimer, any lack of legal personality on the part of Navimer does not preclude its classification as a ‘place of business’ within the meaning of Article 6(2)(b) of the Convention. 85. In the light of all the foregoing, I conclude that the possession of legal personality is not a requirement that must be fulfilled by a place of business of the employer, provided that that place of business has been set up in accordance with the relevant provisions of the State in which it is established and has a degree of permanency. (60) 3. Fourth question 86. By its last question, the referring court wishes to ascertain whether the place of business of another company with which the corporate employer is connected can serve as the ‘place of business’ within the meaning of Article 6(2)(b) of the Convention, even though the employer’s authority to issue instructions has not been transferred to that other company. 87. It should be made clear at the outset – as I have already explained in my observations on the first question (61) – that that provision takes as its point of reference the formal act of ‘engagement’ of the employee, not the factual criterion of where the work is carried out. The interpretation of that provision cannot therefore depend on who has authority to issue instructions in the case in question. As the possession of such authority is not a relevant criterion for the purposes of classification as a ‘place of business’, the question should therefore be answered in the affirmative. 88. An alternative examination of the legal characteristics of an employment relationship does not lead to a different conclusion. According to the Court’s case-law on the term ‘worker’ in Article 45 TFEU, which must be interpreted independently for the purposes of European Union law, ‘the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’. (62) It follows from this that the fact that the employee acts under direction is a characteristic feature of any employment relationship which, in essence, requires that the person concerned should work under the direction or supervision of another person who determines the services to be performed by him and/or his working hours and with whose instructions or rules the employee must comply. (63) That characteristic serves primarily to differentiate employees’ activities from the activities of self-employed persons, which are covered either by the freedom of establishment under Article 49 et seq. TFEU or by the freedom to provide services under Article 56 et seq. TFEU. 89. Although it can realistically be assumed that it will usually be the employer who exercises exclusive authority to issue instructions within the employment relationship, that definition does not in principle rule out the possibility that the employer may in certain circumstances delegate his authority, in whole or in part, to a third party. The scope of such a delegation of authority is subject to independent private agreement. In so far as it is contractually stipulated that the employee must provide services for a company with which the company employing him is connected, it is to be expected that the employer will also delegate to that company the authority to direct how the work is to be carried out. 90. The fact that the third party is entitled, with the employer’s consent, to control the employee’s activities by issuing instructions and carrying out supervisory duties does nothing, from a legal point of view, to alter the fact that the employee ultimately performs his contractual obligations for the employer. In so far as Mr Voogsgeerd usually took instructions directly from Naviglobe, he clearly did so in performance of his contractual obligations towards Navimer. Legally, however, the employer might just as conceivably retain or take back his authority to issue instructions to the employee where he considers this necessary. Again, in the final analysis, this does nothing to alter the fact that any delegation of such authority to a place of business is just one of the many options which the employer has at his disposal for the purpose of achieving his aims. However, such delegation cannot in itself have any bearing on the assessment of whether the third party must be classified as a ‘place of business’ of the employer within the meaning of Article 6(2)(b) of the Convention. 91. Consequently, the answer to the fourth question must be that the place of business of another company with which the company employing the worker is connected can also serve as the place of business within the meaning of Article 6(2)(b) of the Convention, even if the employer’s authority to issue instructions has not been delegated to that other company. VII – Conclusion 92. In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Hof van Cassatie as follows: 1. If, after examining all the circumstances of the situation in the main proceedings, the national court finds that the employee habitually carries out his work in a specific country, in performance of his contract, it must apply Article 6(2)(a) of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, even if the employee has been temporarily posted to another country. Recourse to Article 6(2)(b) is precluded in such circumstances. 2. Should the national court take the view that the conditions laid down in Article 6(2)(a) have not been fulfilled, Article 6(2)(b) is to be interpreted as follows: (a) The country in which the place of business through which the employer was engaged is situated means the country in which is situated the employer’s place of business which concluded the employment contract with the employee, the place of actual employment being in principle irrelevant in this regard. (b) The possession of legal personality is not a requirement that must be fulfilled by a place of business of the employer within the meaning of that provision, provided that that place of business has been set up in accordance with the relevant provisions of the State in which it is established and has a degree of permanency. (c) The place of business of another company with which the company employing the worker is connected can serve as the place of business within the meaning of Article 6(2)(b) of the Convention, even if the employer’s directive authority has not been delegated to that other company. 2 – Original language of the Opinion: German Language of the case: Dutch 3 – OJ 1980 L 266, p. 1. 4 – OJ 2008 L 177, p. 6. 5 – Case C‑29/10 Koelzsch [2011] ECR I-0000. 6 – OJ 1998 C 27, p. 47. 7 – The 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32), as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and – amended version – p. 77), the Convention of 25 October 1982 on the accession of the Hellenic Republic (OJ 1982 L 388, p. 1), the Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) and 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). 8 – Law of 9 November 1990 establishing a Luxembourg Public Maritime Register, Mémorial A‑No 58, Journal Officiel du Grand-Duché de Luxembourg, p. 807 et seq. 9 – Case 33/78 [1978] ECR 2183. 10 – See Déprez, J., ‘La loi applicable au contrat de travail dans les relations internationales’. Revue de jurisprudence sociale, 4/1994, p. 237. 11 – See Plender, R., The European Contracts Convention – The Rome Convention on the Choice of Law for Contracts, London 1991, p. 87, paragraph 5.01, Schneider, G., ‘Einfluss der Rom‑I‑VO auf die Arbeitsvertragsgestaltung mit Auslandsbezug’, Neue Zeitschrift für Arbeitsrecht, 2010, p. 1380, and Ofner, H., ‘Neuregelung des Internationalen Vertragsrechts: Römisches Schuldvertragsübereinkommen“, Recht der Wirtschaft, No. 1/1999, p. 5, who emphasise the special status of the free choice of law. Lein, E., ‘The new Rome I/Rome II/Brussel I synergy’, Yearbook of Private International Law, Volume 10, 2008, p. 179, goes so far as to take the view that the principle of freedom of choice, on which the free choice of law is based, constitutes one of the general principles of law recognised by civilised nations within the meaning of Article 38(1)(c) of the Statute of the International Court of Justice. 12 – Case 318/81 Commission v CODEMI [1985] ECR 3693, paragraph 21. 13 – See Van Eeckhoutte, W., ‘The Rome Convention on the law applicable to contractual obligations and labour law’, Freedom of services in the European Union – Labour and Social Security Law: The Bolkestein Initiative (ed. Roger Blanpain), The Hague 2006, p. 168, Wojewoda, M., ‘Mandatory rules in private international law: with special reference to the mandatory system under the Rome Convention on the law applicable to contractual obligations’, Maastricht journal of European and comparative law, No. 2/2000, p. 197, 201, Boskovic, O., ‘La protection de la partie faible dans le règlement Rome I’, Recueil Dalloz, 2008, p. 2175, Pfeiffer, T./Weller, M./Nordmeier, F., Recht der elektronischen Medien – Kommentar (ed. Gerald Spindler/Fabian Schuster), 2nd ed. Munich 2011, Rome I Article 8, paragraph 1, and Lein, E., cited above (footnote 10), p. 187, who view it as a special provision which, in the interests of protecting employees, limits the freedom of choice of law also available, in principle, in respect of employment contracts. 14 – See Juncker, A., ‘Gewöhnlicher Arbeitsort im Internationalen Privatrecht’, Festschrift für Andreas Heldrich zum 70. Geburtstag, Munich 2005, p. 722. 15 – See Ofner, H., cited above (footnote 10), p. 5, Magnus, U., ‘Die Rom I‑Verordnung’, Praxis des internationalen Privat- und Verfahrensrechts, No. 1/2010, p. 41, and Martiny, D., Internationales Vertragsrecht – Das internationale Privatrecht der Schuldverträge (ed. Christoph Reithmann/Dieter Martiny), Cologne 2010, p. 1431, who expressly refer to the provision contained in the last subparagraph of Article 6(2) as an ‘escape clause’. 16 – See Schäfer, K., Application of mandatory rules in the private international law of contracts, Frankfurt am Main 2010, p. 62 et seq., Wojewoda, M., cited above (footnote 12), p. 197, 201, and Boskovic, O., cited above (footnote 12), p. 2175, who point out the difficulty of determining which national provisions are more favourable and whether the provisions in question have mandatory status in law. 17 – See Schneider, G., cited above (footnote. 10), p. 1382. 18 – See Martiny, D., cited above (footnote 14), p. 1431 et seq. 19 – See Van Eeckhoutte, W., cited above (footnote 12), p. 173. 20 – See Déprez, J., ‘La loi applicable au contrat de travail dans les relations internationales’, Revue de jurisprudence sociale, 3/1999, p. 130, Pfeiffer, T./Weller, M./Nordmeier, F., cited above (footnote 12), paragraph 7, who takes the view that the favourability comparison must be based on the specific subject-matter of the dispute, Schäfer, K., cited above (footnote 15), p. 62 et seq., and Martiny, D., cited above (footnote 14), p. 1361, paragraph 1883, according to whom the conflict-of-law principle of the more favourable provision applies. The provisions of the legal systems in question must be compared. The provision that is more favourable to the employee takes precedence. The assessment compares what results the legal systems concerned would produce in the case in question. The comparison must not be extended to the entire legal system, but must be based on the substantive issue on which judgment is to be given. There should be no overall comparison. The more favourable solution is that which, quantitatively or qualitatively, best satisfies the employee’s claims under the employment relationship in question and affords him better protection, for example which best protects the maintenance of his employment relationship. The monetary values attaching to the legal positions under the different legal systems may also be compared. 21 – Schneider, G., cited above (footnote 10), p. 1382, and Schlachter, M., ‘Grenzüberschreitende Arbeitsverhältnisse’, Neue Zeitschrift für Arbeitsrecht, 2/2000, p. 61, takes the view that the assessment of which law contains the more favourable provisions may be carried out on the basis of comparable subject areas (e.g. right to leave, protection against dismissal and/or the protection of acquired rights). The subject-matter of this dispute (protection of employees against dismissal and actions to have that protection enforced by the courts) has been limited in accordance with the approach advocated by those authors. 22 – Report on the Convention on the law applicable to contractual obligations by M. Giuliano and P. Lagarde (OJ 1980 C 282, p. 1). 23 – .Koelzsch (cited in footnote 4, paragraph 42). 24 – .Koelzsch (cited in footnote 4, paragraph 43). 25 – See to this effect Van Eeckhoutte, W., cited above (footnote 12), p. 169, who points out that the purpose of that provision is to create legal certainty and to prevent manipulation in the event of a temporary posting abroad. 26 – OJ 2001 L 12, p. 1. 27 – There must generally be assumed to be a relationship of continuity between Regulation No 44/2001 and the Brussels Convention (‘continuity principle’). The importance of that principle in interpreting Regulation No 44/2001 is apparent from recital 19 in the preamble to that regulation, which states that continuity between the Brussels Convention and the Regulation should be ensured and also that the Court of Justice must ensure continuity in the interpretation of the Regulation. In its case-law, the Court has already made clear the importance of a uniform interpretation of the two acts (see in this regard my Opinion in Case C‑533/07 Falco Privatstiftung und Rabitsch [2009] ECR I-3327). 28 – Thus, Article 8(2) of Regulation (EC) No 593/2008 reads: ‘To the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract shall be governed by the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract. The country where the work is habitually carried out shall not be deemed to have changed if he is temporarily employed in another country’. 29 – The view expressed here, that Article 8(2) of Regulation (EC) No 593/2008 simply clarified the existing legal position, is consistent with that held by a number of authors to the effect that the objective of that new legal instrument was not to introduce new rules but to convert the existing Convention into a regulation. The changes were intended to modernise certain provisions of the Convention and give them a clearer or more precise wording with a view, ultimately, to enhancing legal certainty but without introducing new elements which would substantially change the existing legal position (see Ferrari, F., ‘From Rome to Rome via Brussels: remarks on the law applicable to contractual obligations absent of a choice by the parties’, Rabels Zeitschrift für ausländisches und internationales Privatrecht, No. 4/2009, p. 751 et seq.). See with specific reference to the criterion of habitual place of work Magnus, U., ‘Die Rom I‑Verordnung“, Praxis des internationalen Privat- und Verfahrensrechts, No. 1/2010, p. 27, 41, who considers the amendment to be no more than a clarification. In his view, the new addition ‘or from which’ is intended to make it clear that it is sufficient for the employee to have a centre of activity from which his work is organised, from which he starts, to which he returns and at which he occasionally carries out some of his activities. 30 – .Koelzsch (cited in footnote 4 above, paragraphs 48 to 50). 31 – See, in connection with the respective fields of application of the provisions of [Article 6(2)](a) and (b) of the Convention in the light of the clarification provided by Regulation (EC) No 593/2008, Boskovic, O., cited above (footnote 12), p. 2175, who refers to the aforementioned clarification from the legislature in Article 8(2) of Regulation (EC) No 593/2008 (‘from where’) and explains in this regard that that clarification will help to regulate the situation of crew who are assigned to a specific base. In the author’s view, this clarification will further limit the scope of Article 8(3) of Regulation (EC) No 593/2008 (the successor provision to Article 6(2)(b) of the Rome Convention). Martiny, D., cited above (footnote 14), p. 1434, paragraph 4848, states that that clarification extends the connecting factor of the place of work and diminishes the relevance of the criterion of the place of business through which the employer is engaged. Both authors agree that the scope of the criterion of the place of habitual activity has been extended, while the scope of the criterion of the place of engagement has been reduced. 32 – See Case C‑316/09 MSD Sharp [2011] ECR I-0000, paragraph 21, Joined Cases C‑376/05 and C‑377/05 Brünsteiner and Autohaus Hilgert [2006] ECR I-11383, paragraph 26, Case Korhonenand Others [2003] ECR I-5321, paragraph 19, Case C‑373/00 Adolf Truley [2003] ECR I-1931, paragraph 21, Case C‑390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 18, and Case C‑379/98 PreussenElektra [2001] ECR I-2099, paragraph 38. 33 – See Plender, R., cited above (footnote 10), paragraph 8.21, and Martiny, D., cited above (footnote 14), p. 1369, paragraph 1891. See to this effect Schneider, G., cited above (footnote 10), p. 1382, who takes the view that the applicable law is that of the State in which the place of the business through which the employee was engaged is situated, irrespective of whether the employee also fulfils his contractual obligations at that place of business. According to Martiny, D., cited above (footnote 14), p. 1439, paragraph 4859, the employee does not need to work at that place of business. 34 – See paragraph 14 of the Netherlands Government’s observations. 35 – See paragraph 20 of the Commission’s observations. 36 – See Plender, R., cited above (footnote 10), p. 144, paragraph 8.21. See also to similar effect Martiny, D., cited above (footnote 14), p. 1440, paragraph 4861, who points out that a subsequent relocation of the business through which the employee was engaged does not change the law applicable to the employment contract. 37 – See Martiny, D., cited above (footnote 14), p. 1438, paragraph 4857. 38 – See paragraph 5 of Mr Voogsgeerd’s observations. 39 – The other language versions do not in any way preclude this interpretation of Article 6(2)(b) of the Convention, as they leave both options open, that is to say whether the employee was engaged by the place of business acting on its own behalf or on behalf of the principal undertaking. See the German (‘Niederlassung …, die den Arbeitnehmer eingestellt hat’), French (‘établissement qui a embauché le travailleur’), Spanish (‘establecimiento que haya contratado al trabajador’), Dutch (‘vestiging … die de werknemer in dienst heeft genomen’), Italian (‘sede che ha proceduto ad assumere il lavoratore’) and Portuguese (‘estabelecimento que contratou o trabalhador’) versions. 40 – See Plender, R., cited above (footnote 10), p. 145, paragraph 8.22, who takes the view that the place of business through which the employee was engaged must be understood as referring not only to the head office a ‘letterbox’ company but also to the place of business which was actively involved in engaging the employee, for example, by entering into contractual negotiations with the employee. 41 – See Juncker, A., cited above (footnote 13), p. 731, who refers to a widespread practice in the recruitment of sailors. According to his information, sailors are often recruited by so-called ‘hire agencies’ or ‘crewing companies’ based in States with low minimum standards of employment law and low rates of pay. In those circumstances, the ‘place of business through which the employee was engaged’ is not the shipping company, but, for example, an employment agency in the island state of Antigua. 42 – See to this effect Van Eeckhoutte, W., cited above (footnote 12), p. 171, who points out that there must be an actual business at the place of the undertaking and that the employee must actually have been employed by a branch of that undertaking. It is not sufficient for the employment contract simply to have been concluded at the place of business. According to Schlachter, M., cited above (footnote 20), p. 60, the place of engagement must in principle be understood as being the place where the contract was concluded. In his view, the fear that, because a company has set up a branch with the sole purpose of recruiting employees, a legal system will be declared applicable which affords the lowest possible level of protection, can be allayed by attaching detailed conditions to the use of the term ‘place of business’. The author therefore considers that that term must be understood as referring only to establishments which, by at least controlling and organising the working activities of the persons recruited, served the commercial purpose of the undertaking, but not to mere recruitment agencies. 43 – See Déprez, J., cited above (footnote 19), p. 119. Juncker, A., cited above (footnote 13), p. 720, describes the provision in the last subparagraph of Article 6(2) as an escape clause which lends flexibility to the rigid system of standard connecting factors. Corneloup, S., ‘La loi applicable aux obligations contractuelles – Transformation de la Convention de Rome en règlement communautaire‚ Rome I’, La Semaine Juridique. Édition Générale, No. 44/2008, p. 26 et seq., paragraph 11, points out the advantages and disadvantages of rigid connecting rules. On the one hand, giving the courts extensive discretion does not always lead to foreseeable solutions. On the other hand, an excessively rigid rule does not always lead to the application of the law which is more closely connected with the employment contract. 44 – See Martiny, D., cited above (footnote 14), p. 1369, paragraph 1891. 45 – Ibid., p.1371, paragraph 1893, and Schneider, G., cited above (footnote 10), p. 1383. 46 – See Van Eeckhoutte, W., cited above (footnote 12), p. 171 et seq. 47 – See Juncker, A., loc. cit. (footnote 13), p. 720, who points out that direct recourse to that clause before examining the two basic connections in Article 6(2)(a) and (b) is methodically prohibited. 48 – See point 1 of this Opinion. 49 – See point 70 of this Opinion. 50 – See point I of Mr Voogsgeerd’s observations. 51 – See point IV. 3. of Mr Voogsgeerd’s observations. 52 – See paragraph 28 of the Commission’s observations. 53 – See Martiny, D., cited above (footnote. 14), p. 1439, paragraph 4859. Schneider, G., cited above (footnote 10), p. 1382, also considers the permanence of the place of business to be decisive. 54 – See to this effect Lagarde, P., ‘Le nouveau droit international privé des contrats après l’entrée en vigueur de la Convention de Rome du 19 juin 1980’, Revue critique de droit international privé, 1991, p. 318 et seq., who defines the characteristics of a place of business within the meaning of Article 6(2)(b) of the Convention by reference to these two scenarios. 55 – See point 70 of this Opinion. 56 – According to Schneider, G., cited above (footnote 10), p. 1382, place of business refers to an organisational unit of the undertaking which is set up for a certain period of time in order to pursue commercial activities but which does not have to satisfy the requirements applicable to an establishment. 57 – See Martiny, D., cited above (footnote 14), p. 1369, paragraph 1891. 58 – Cited in footnote 8, paragraph 12. 59 – See my Opinion in Koelzsch (cited in footnote 4 above), point 44 et seq. See also Lein, E., cited above (footnote 10), p. 178, who rightly remarks that Rome I, Rome II and Brussels I are characterised by the fact that they are intended to create a uniform scheme of private international law and pursue a number of common objectives in this regard: improving the foreseeability of the law, strengthening legal certainty within the European legal area and promoting transparency. The regulations form a uniform and autonomous set of rules and there are therefore synergies between them. 60 – See to this effect Martiny, D., cited above (footnote 14), p. 1369, paragraph 1891, and Schneider, G., cited above (footnote 10), p. 1382. 61 – See point 75 of this Opinion. 62 – See Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17, Case C‑3/90 Bernini [1992] ECR I-1071, paragraph 14, Case C‑85/96 Martínez Sala [1998] ECR I-2691, Case C‑337/97 Meeusen [1999] ECR I-3289, paragraph 13, Case C‑138/02 Collins [2004] ECR I-2703, paragraph 26, Case C‑456/02 Trojani [2004] ECR I-7573, paragraph 15, Case C‑109/04 Kranemann [2005] ECR I-2421, paragraph 12, and Case C‑10/05 Mattern [2006] ECR I-3145, paragraph 18. 63 – See Lawrie-Blum (cited in footnote 61 above, paragraph 18).