LAG Niedersachsen; 2021-07-12; 12 Sa 1341/20
Decision by national courts in the field of European Union law — ECLI:DE:LAGNI:2021:0712.12SA1341.20.00
Date: 2021-07-12
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0712(51)_ENG_SUMJURE
JURE summary
JURE summary
A Portuguese citizen with a permanent residence in Emden in Germany (hereinafter the ‘plaintiff’) filed an action against a joint-stock company domiciled in Portugal (hereinafter the ‘defendant’) demanding that the defendant pay the outstanding remuneration.
The plaintiff worked for the defendant as head of the sales department. The contract of employment stipulated that the plaintiff’s place of work was at the head office of the defendant in Portugal and that Portuguese courts should be the courts to hold jurisdiction.
After the board of management informed the plaintiff on the phone that he could not continue his activities due to a shortage of orders, the plaintiff filed an action with the Arbeitsgericht Emden, in Germany (hereinafter ‘the Court of First Instance’) seeking the payment of the outstanding remuneration for the period from April 2012 to February 2018 (1) exceeding EUR 400,000. The plaintiff argued that the place of performance of work in Portugal had been agreed only formally, that he had not lived in Portugal since 1970, could not perform work at the place of work agreed in the contract of employment and had his own office at his home in Emden as Emden was the actual centre of his professional activities. The defendant also paid partial costs for maintaining his office in Emden which could be proven by bank account statements.
The defendant contested the international jurisdiction of the German courts.
The Court of First Instance decided to deal separately with the question of the admissibility, thus also the international jurisdiction. By an interim judgment, the Court of First Instance found itself to hold the international jurisdiction. The plaintiff had comprehensibly and credibly described the activities he performed from his place of residency.
The appeal against the interim judgment lodged by the defendant with the Landesarbeitsgericht Niedersachsen (hereinafter ‘the Court of Appeal’) was not successful.
The international jurisdiction of German courts followed from Article 21(1)(b)(i) of the Brussels I Regulation (recast) (2).
The plaintiff had the centre of professional activities relating to the respective contract of employment in Emden. Under the established case-law, the courts for the place where the work is to be performed are most suitable to decided legal disputes. One of the purposes is the protection of the weaker party, thus the employee in this case. The stipulated place of performance of work at the defendant’s head of was not decisive as the usual place of performance of work was to be determined under consideration of the actual and objective circumstances. The well-founded argumentation of the plaintiff was sufficient for the determination that German courts did hold international jurisdiction.
The Court of Appeal dismissed the appeal of the defendant against the interim judgment of the Court of First Instance.
(1) Including charge for late payment, holiday entitlement and Christmas bonus.
(2) 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.