Vrhovno sodišče Republike Slovenije; 2017-06-06; VIII Ips 311/2016
Decision by national courts in the field of European Union law — ECLI:SI:VSRS:2017:VIII.IPS.311.2016
Date: 2017-06-06
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82017SI0606(51)_ENG_SUMJURE
JURE summary
JURE summary
A Bulgarian citizen (hereinafter ‘the plaintiff’) had worked for the Bulgarian Embassy in the Republic of Slovenia (hereinafter ‘the defendant’). The work - cleaning services - was regularly paid, it was carried out in the personal capacity of the plaintiff under the instructions of the defendant, in a total amount of 25 hours per week. The contract between the parties referred the settlement of future disputes according to Bulgarian law. The dispute between the parties arose due to the termination of the contract, which the plaintiff regarded to be invalid.
The Delovno in socialno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) considered the plaintiff to be an employee, held the termination of the employment as being void and ordered the defendant to reimburse the plaintiff for lost pay and related financial benefits.
The Višje delovno in socialno sodišče (hereinafter ‘the Court of Appeal’) dismissed a substantial part of the defendant’s appeal and upheld most of the first instance decision (except for some minor financial benefits).
The defendant appealed to the Vrhovno sodišče Republike Slovenije (hereinafter ‘the Supreme Court’), which assessed four main objections raised by the defendant:
a)  the substance of the relationship between the parties: the Supreme Court invoked the Brussels I Regulation (1) and Article 8 of the Rome I Regulation (2), which provides special provisions governing individual employment contracts, supported in its view by the case law of the Court of Justice of the European Union (CJEU), assessed the factual background of this dispute and confirmed that the relationship between the parties corresponds to the definition of an employment contract,
b) the capacity of the defendant to be a party to these proceedings: Article 5 of the ZDR (3) provides that an employer is a legal or natural person or other entity, including diplomatic and consular representation, which employs a worker on the basis of a contract of employment. Such definition applies not only to domestic diplomatic missions, but also to foreign ones. Therefore, the capacity of the defendant to be a party to these proceedings was established without any doubt,
c) the right of the defendant to invoke the immunity provided by the Vienna Convention on Diplomatic Relations: the Supreme Court cited Articles 18 and 19 of the Brussels I Regulation and case law of the CJEU and European Court of Human Rights, and pointed out that the parties had entered into contract for cleaning services and therefore there no connection to exercise of public authority could be established. Such a contract cannot be subsumed under the protection and immunity provided by the Vienna Convention to the diplomatic staff of embassies.
d) which law shall be applicable to this dispute: The Supreme Court cited Article 8 of the Rome I Regulation in conjunction with several provisions of the ZDR and concluded that it was the Slovenian law which should be applied in this case, despite the agreement contained in the contracts between the parties, since the plaintiff carried out the work in Slovenia. The application of Bulgarian law would deprive the plaintiff from the protection given by the Slovenian laws. Moreover, based on Bulgarian law, the relationship would not even be considered an employment contract.
The Supreme Court dismissed the appeal as unfounded.
(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) 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).
(3) Zakon o delovnih razmerjih (Labour Relations Act).