BAG; 2020-06-24; BAG 5 AZR 55/19 (A)
Decision by national courts in the field of European Union law — ECLI:DE:BAG:2020:240620.B.5AZR55.19A.0
Date: 2020-06-24
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0624(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Germany (hereinafter the ‘plaintiff’) filed an action against a real estate company domiciled in Canada (hereinafter the ‘defendant’) seeking the payment of money citing the failure to meet the performance obligations arising out of a contract of employment which the plaintiff had concluded with an insolvent company domiciled in Switzerland (hereinafter ‘R Swiss’).
Initially, the plaintiff had worked as department director with the defendant on the basis of an agreement for the provision of services. This agreement had later been terminated and the plaintiff concluded a contract of employment with R Swiss, a subsidiary of the defendant. On the same day, the plaintiff and the defendant made a letter-of-comfort type agreement aiming, amongst other things, to secure the financial claims of the plaintiff towards R Swiss resulting from the employment.
Within preliminary proceedings, the Arbeitsgericht Stuttgart (hereinafter ‘the Court of First Instance’) ordered R Swiss to pay the claims asserted by the plaintiff. R Swiss failed to do so and went bankrupt a few months later.
According to the plaintiff, the international jurisdiction of the German courts followed from the provisions regarding the special jurisdiction in consumer matters.
The Court of First Instance rejected the action citing a lack of international jurisdiction. Based on an appeal of the plaintiff, the Landesarbeitsgericht Baden-Württemberg changed this decision and allowed the action to be heard.
Subsequently, the defendant filed a revision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’). The Supreme Court decided to stay the proceedings and approached the Court of Justice of the European Union, asking for a preliminary ruling regarding the following questions:
Is Article 6(1) in connection with Article 21(2) and Article 21(1)(b)(i) of the Brussels I Regulation (recast) (1) to be interpreted in such a way that an employee may sue a legal entity who is not his employer and is not domiciled in a Member State but has provided a direct guarantee for the employee’s claims against a third party resulting from a contract of employment in the courts for the place where or from where the employee habitually carries out his work for the third person or in the courts for the last place where he did so if the contract of employment would have not have been entered into without the prior conclusion of the letter-of-comfort type agreement?
May a legal entity as a legal successor of the employer be sued in the courts for the place where or from where the employee habitually carries out his work if such jurisdiction does not follow from Article 21(2) and Article 21(1)(b)(i) of the Brussels I Regulation (recast)?
Should the answer to the first question be negative but positive with regard to the second question, is Article 17(1) of the Brussels I Regulation (recast) to be interpreted in the way that the expression ‘profession’ includes dependent employment within an employment relationship and is this provision to be interpreted in a way that a letter-of-comfort type agreement represents a contract which would fall into the scope of the professional activity of the employee?
Should, based on the answers to the above question, the Court of First Instance hold the international jurisdiction, is Article 6(1) of the Rome I Regulation (2) to be interpreted in a way that the expression ‘profession’ includes dependent employment within an employment relationship and is this provision to be interpreted in a way that a letter-of-comfort type agreement represents a contract which would fall into the scope of the professional activity of the employee?
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 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).