Opinion of the Advocate General — ECLI:EU:C:2022:331
Date: 2022-04-28
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-604/20 – 1 
Case C-604/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
16 November 2020 
Referring court or tribunal: 
Bundesarbeitsgericht (Germany) 
Date of the decision to refer: 
24 June 2020 
Defendant, respondent in first appeal and appellant in the appeal on a point 
of law: 
ROI Land Investments Ltd. 
Applicant, appellant in first appeal and respondent in the appeal on a point 
of law: 
FD 
  
Subject matter of the main proceedings 
International jurisdiction, determination of the applicable national law 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred 
1. Is Article 6(1) read in conjunction with Article 21(2) and Article 21(1)(b) of 
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 (‘Brussels I 
Regulation’) to be interpreted as meaning that an employee can sue a legal 
person – which is not his employer and which is not domiciled in a Member 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-604/20 
 
2  
State within the meaning of Article 63(1) of the Brussels I Regulation but 
which, by virtue of a letter of comfort, is directly liable to the employee for 
claims arising from an individual contract of employment with a third 
party – in the courts for the place where or from where the employee 
habitually carries out his work in the employment relationship with the third 
party or in the courts for the last place where he did so, if the contract of 
employment with the third party would not have come into being in the 
absence of the letter of comfort? 
2. Is Article 6(1) of the Brussels I Regulation to be interpreted as meaning that 
the reservation in respect of Article 21(2) of the Brussels I Regulation 
precludes the application of a rule of jurisdiction existing under the national 
law of the Member State which allows an employee to sue a legal person, 
which, in circumstances such as those described in the first question, is 
directly liable to him for claims arising from an individual contract of 
employment with a third party, as the ‘successor in title’ of the employer in 
the courts for the place where the employee habitually carries out his work, 
if no such jurisdiction exists under Article 21(2) read in conjunction with 
Article 21(1)(b)(i) of the Brussels I Regulation? 
3. If the first question is answered in the negative and the second question in 
the affirmative: 
(a) Is Article 17(1) of the Brussels I Regulation to be interpreted as 
meaning that the concept of ‘professional activities’ includes paid 
employment in an employment relationship? 
(b) If so, is Article 17(1) of the Brussels I Regulation to be interpreted as 
meaning that a letter of comfort on the basis of which a legal person is 
directly liable for claims of an employee arising from an individual 
contract of employment with a third party constitutes a contract 
concluded by the employee for a purpose which can be regarded as 
being within the scope of his professional activities? 
4. If, in answer to the above questions, the referring court is deemed to have 
international jurisdiction to rule on the dispute: 
(a) Is Article 6(1) of 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) to be interpreted as meaning that the 
concept of ‘professional activities’ includes paid employment in an 
employment relationship? 
(b) If so, is Article 6(1) of the Rome I Regulation to be interpreted as 
meaning that a letter of comfort on the basis of which a legal person is 
directly liable to an employee for claims arising from an individual 
contract of employment with a third party constitutes a contract 
ROI LAND INVESTMENTS 
 
3 
concluded by the employee for a purpose which can be regarded as 
being within the scope of his professional activities? 
Provisions of EU law cited 
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 (OJ 2012 L 351, p. 1; ‘Brussels I 
Regulation’), in particular Articles 17, 18, 20 and 21 
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) (OJ 2008 
L 177, p. 6, ‘Rome I Regulation’), in particular Article 6 
Provisions of national law cited 
Arbeitsgerichtsgesetz (Law on the labour courts, ‘ArbGG’), in particular 
Paragraphs 3 and 48 
Brief summary of the facts and proceedings 
1 The defendant is a company that operates in the real estate sector. The seat of its 
central administration is located in Canada. The applicant, who is domiciled in 
Germany, had been working for the defendant as the ‘Deputy Vice President 
Investors Relations’ on the basis of a ‘service agreement’ since the end of 
September 2015 and was essentially engaged in acquiring investors for the 
defendant’s real estate business. As the parties felt that there was uncertainty 
surrounding the applicant’s employment status, they decided ‘to transfer’ the 
contractual relationship to a Swiss company that was to be newly established. In 
mid-November 2015, they agreed to terminate the ‘service agreement’ with 
retroactive effect. An accompanying letter from the applicant states that he signed 
the agreement subject to the condition that an equivalent agreement be concluded 
in relation to an executive management contract in respect of the Swiss company 
to be established. 
2 On 14 January 2016, the defendant established a subsidiary, R Swiss AG, under 
Swiss law. On 12 February 2016, the applicant concluded a written contract of 
employment with R Swiss for a position as its director. Under that contract of 
employment, the applicant was to receive a starting bonus of 170 000 American 
dollars (USD) and a monthly salary of USD 42 500. The starting bonus was 
intended to cover the remuneration to which the applicant was entitled for 
4 months. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-604/20 
 
4  
3 Also on 12 February 2016, the parties signed a ‘patron agreement’ (as per the 
terminology used by the parties, commonly referred to as a ‘letter of comfort’). 
The letter of comfort reads as follows: 
‘Clause 1 
R has established a subsidiary, R Swiss AG[,] for sales in Europe. The 
director is responsible for the executive management of that company. In 
accordance with that assumption, R declares the following: 
Clause 2 
R has full responsibility for the fulfilment of the obligations relating to the 
contracts of R Swiss AG based on the cooperation of its director with R 
Swiss AG.’ 
4 On 1 April 2016, the applicant and R Swiss entered into a new contract of 
employment, which replaced the previous one and in which they agreed on the 
payment of a starting bonus of USD 255 000, whereby the contractual terms were 
essentially identical in all other respects. As was the case with the previous one, 
this contract of employment was to be subject to Swiss law. 
5 On 11 July 2016, R Swiss notified the applicant that the contract of employment 
was to be terminated. 
6 By judgment of 2 November 2016, the Arbeitsgericht Stuttgart (Stuttgart Labour 
Court, Germany) found that the termination was ineffective and ordered R Swiss 
to pay the applicant USD 255 000 as his starting bonus and USD 212 500 as his 
remuneration for April to August 2016. This judgment became final, but R Swiss 
did not discharge its payment obligation. 
7 At the beginning of March 2017, bankruptcy proceedings were opened in respect 
of the assets of R Swiss under Swiss law. At the beginning of May 2017, those 
proceedings were discontinued owing to a lack of insolvency assets. 
8 In the main proceedings, the applicant seeks, on the basis of the letter of comfort, 
payment from the defendant of the sums owed by R Swiss according to the 
aforementioned judgment of the Stuttgart Labour Court. Furthermore, he seeks 
payment for the failure to settle further remuneration claims to which he is entitled 
under his employment relationship with R Swiss for the period from September 
2016 to November 2017, in the total amount of USD 595 000. 
9 The action was dismissed at first instance on the ground that the German courts 
lack international jurisdiction. The Berufungsgericht (Court of Appeal), on the 
other hand, found that the German labour courts do have jurisdiction and upheld 
the action. By its appeal on a point of law brought before the referring court, the 
defendant seeks to have the decision at first instance restored. 
ROI LAND INVESTMENTS 
 
5 
Brief summary of the grounds for the request 
10 The success of the defendant’s appeal on a point of law depends crucially on 
whether the German courts have international jurisdiction. That jurisdiction could 
arise, first, from Article 21(2) read in conjunction with Article 21(1)(b)(i) of the 
Brussels I Regulation (question 1), second, from Paragraph 48(1a) read in 
conjunction with Paragraph 3 ArbGG, although the applicability of that national 
rule is unclear (question 2) and, third, from Article 18(1) of the Brussels I 
Regulation, if the applicant can be regarded as a ‘consumer’ within the meaning of 
that provision (question 3). If the German courts do in fact have jurisdiction, the 
question also arises as to which national law is applicable to the letter of comfort 
(question 4). 
Question 1 
11 Pursuant to Article 66(1) of the Brussels I Regulation, the latter is applicable 
ratione temporis, as the action was brought in March 2017 and thus after 
10 January 2015. The regulation is also applicable ratione materiae pursuant to the 
first sentence of Article 1(1) thereof. 
12 The foreign element that is always required for the applicability of the Brussels I 
Regulation exists because the defendant is a foreign company without a registered 
office in Germany. According to the findings of the Court of Appeal, its central 
administration within the meaning of Article 63(1)(b) of the Brussels I Regulation 
is located in Canada. In addition, the parties both consider that the company’s 
statutory seat within the meaning of Article 63(1)(a) of the Brussels I Regulation 
is also located there. 
13 As the defendant is not domiciled in a Member State, the international jurisdiction 
of the German courts is determined by Article 6(1) of the Brussels I Regulation, 
which refers to the law of the Member States but expressly leaves certain 
jurisdiction rules of the Brussels I Regulation unaffected. Paragraph 2 of that 
article has no relevance in the present case, because the German rules of 
jurisdiction do not differentiate according to nationality. 
14 There is no exclusive jurisdiction by virtue of Articles 24 or 25 of the Brussels I 
Regulation. Nor is Article 26 of the Brussels I Regulation relevant, since the 
defendant has invoked the lack of jurisdiction of the German courts at all 
instances. 
15 However, jurisdiction may exist under Article 21(2) read in conjunction with 
Article 21(1)(b)(i) of the Brussels I Regulation. In that regard, it is necessary to 
clarify whether those provisions are applicable even if – as in the present case – 
although the defendant is not the employer itself, it is liable, on the basis of a letter 
of comfort, for the claims against the employer arising from a contract of 
employment and the latter would not have come into being without the letter of 
comfort. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-604/20 
 
6  
16 The referring court considers that the contract of employment concluded between 
the applicant and R Swiss constitutes an ‘individual contract of employment’ 
within the meaning of Section 5 of Chapter II (‘Jurisdiction over individual 
contracts of employment’) of the Brussels I Regulation. However, claims arising 
from that contract of employment are only indirectly the subject matter of the 
main proceedings. The applicant is claiming against the defendant on the basis of 
the letter of comfort of 12 February 2016. 
17 According to Clause 2 of that document, the defendant assumed, by virtue of the 
letter of comfort, ‘full responsibility for the fulfilment of the obligations relating 
to the contracts’ that the applicant concludes with R Swiss by virtue of his activity 
as its director. The referring court understands that agreement to mean that the 
defendant assumed, in a legally binding manner, an obligation towards the 
applicant to provide R Swiss with financial resources in order that it can actually 
fulfil its financial obligations towards the applicant. Thus, in the present case, the 
letter of comfort is a unilaterally binding contract comparable to an assurance or 
guarantee. At least in the event of the insolvency of the company that is the 
subject of the letter of comfort – as demonstrated by the bankruptcy of R Swiss – 
it establishes an obligation on the part of the defendant to assume liability, from 
which the applicant can derive claims without the need for a prior, unsuccessful 
attempt to have recourse to R Swiss. 
18 However, the defendant did not adopt R Swiss’s legal status as an employer. Even 
though it was the parent company of R Swiss, it did not have the right to exert 
managerial authority over the applicant. 
19 The Court of Justice has not yet addressed the question of whether Article 21(2) of 
the Brussels I Regulation is applicable in such a case. Nor is the answer to the 
question so clear as to leave no scope for any reasonable doubt. 
20 Some authors in German legal writings take the view that the parties to a contract 
of employment are not subject to any jurisdiction other than that expressly 
provided for in Articles 20 to 23 of the Brussels I Regulation. Other authors argue 
that it cannot be ruled out from the outset that those provisions could also be 
applied where an action is brought against a third party in order to enforce claims 
arising from an employment relationship. 
Question 2 
21 The referring court assumes that the German courts have international jurisdiction 
under national law. The local jurisdiction of a labour court results from 
Paragraph 48(1a) read in conjunction with Paragraph 3 ArbGG, pursuant to which 
the court in the district of which the employee habitually carries out its work has 
jurisdiction, even if the action is not directed against the employer itself but 
against its legal successor. According to the referring court’s case-law, the 
concept of ‘successor in title’ must be interpreted broadly and also covers cases in 
which liability arises from a letter of comfort comparable to a guarantee. Under 
ROI LAND INVESTMENTS 
 
7 
German law, the thus existing local jurisdiction indicates the existence of 
international jurisdiction; a court is thus generally also considered to have 
international jurisdiction. 
22 However, it is unclear whether Paragraph 48(1a) ArbGG can be applied in 
addition to the jurisdiction rules provided for in Article 20 et seq. of the Brussels I 
Regulation. 
23 According to the case-law of the Court of Justice, the provisions featuring under 
Section 5 of Chapter II of the Brussels I Regulation are not only specific but also 
exhaustive (judgment of 14 September 2017, Nogueira and Others, C-168/16 and 
C-169/16, EU:C:2017:688, paragraph 51, and of 21 June 2018, Petronas 
Lubricants Italy, C-1/17, EU:C:2018:478, paragraph 25). Accordingly, Articles 20 
to 23 of the Brussels I Regulation definitively govern, within their scope of 
application, the possible jurisdictions in cases concerning a claim arising from an 
individual contract of employment. The fact that the interpretation of those 
provisions is a matter reserved for the Court of Justice ensures that they are 
applied uniformly in the Member States. This allows the plaintiff easily to identify 
the court before which he may bring an action and the defendant reasonably to 
foresee the court before which he may be sued (see judgment of 10 April 2003, 
Pugliese, C-437/00, EU:C:2003:219, paragraph 16). 
24 Against this background, the referring court considers that there is a strong 
argument in favour of not applying national rules of jurisdiction in addition to 
Article 21(2) of the Brussels I Regulation, even if they favour the employee. 
However, this outcome is not so clear as to leave no scope for any reasonable 
doubt. 
Question 3 
25 If the Court of Justice answers question 1 in the negative and question 2 in the 
affirmative, the decisive factor is whether, with regard to the assertion of claims 
on the basis of the letter of comfort, the applicant is to be regarded as a 
‘consumer’ within the meaning of Article 18(1) of the Brussels I Regulation (as 
assumed by the Court of Appeal). Pursuant to that provision – which is likewise 
left unaffected in Article 6(1) of the Brussels I Regulation – a consumer may bring 
proceedings against the other party to a contract either in the courts of the Member 
State in which that party is domiciled or, regardless of the domicile of the other 
party, in the courts for the place where the consumer is domiciled. 
26 The scope ratione materiae of Article 18(1) of the Brussels I Regulation arises 
from Article 17 of the Brussels I Regulation. The letter of comfort of 12 February 
2016 constitutes a ‘contract’ within the meaning of that provision. However, it is 
unclear whether the applicant is to be regarded as a ‘consumer’ in the present 
context. Pursuant to Article 17(1) of the Brussels I Regulation, this must be a 
person who has concluded the contract for a purpose which can be regarded as 
being outside his trade or profession. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-604/20 
 
8  
27 Whether the letter of comfort is a contract which can be regarded as being within 
the scope of the applicant’s professional activities depends on whether the term 
‘professional’ covers only activities carried out as a self-employed person or 
whether it also covers activities carried out as an employed person, in particular 
employment in an employment relationship. As far as can be seen, the Court of 
Justice has to date not ruled on this question of interpretation. There is controversy 
as to how it should be answered. 
28 Some take the view that ‘professional activities’ within the meaning of 
Article 17(1) of the Brussels I Regulation refer only to self-employed (including 
freelance) professional activities. Therefore, contracts concluded by an employee 
for his profession may well constitute consumer contracts, according to that view. 
According to another view, an employee is not a consumer within the meaning of 
EU law, meaning that Article 17 of the Brussels I Regulation does not apply by 
analogy to actions brought by employees and employers. 
29 The correct interpretation of Article 17(1) of the Brussels I Regulation with regard 
to the concept of ‘professional activities’ is not so obvious as to leave no room for 
reasonable doubt. 
30 The wording of the provision does not specify a clear outcome. In German, the 
term ‘beruflich’ (professional) covers, both in the sense used in common parlance 
and in its legal meaning, any permanent activity intended to create and maintain a 
livelihood, and therefore covers activities carried out both as a self-employed 
person and as an employed person. The French and English language versions do 
not contain anything to indicate otherwise. 
31 Furthermore, the referring court takes the view that the conditions laid down in 
Article 17(1)(c) of the Brussels I Regulation are satisfied. This is a case in which 
the consumer’s contractual partner ‘directs’ his professional or commercial 
activity to the Member State of the consumer’s domicile and the contract falls 
within the scope of such activity. 
32 The concept of ‘being directed’ requires that the trader must have in some way 
manifested its intention to establish commercial relations with consumers from 
one or more Member States, including that of the consumer’s domicile (see 
judgment of 7 December 2010, Pammer und Hotel Alpenhof, C-585/08 and 
C-144/09, EU:C:2010:740, paragraph 80 et seq.). According to the findings of the 
Court of Appeal, this is the case because the defendant engaged the applicant to 
acquire investors for its real estate projects on the European market, including 
Germany. The referring court takes the view that the fact that the letter of comfort 
does not constitute a real estate transaction is irrelevant. It is sufficient that the 
contract falls within the scope of business activity. In principle, this also includes 
the recruitment of staff to carry out business activities. 
ROI LAND INVESTMENTS 
 
9 
Question 4 
33 If the German courts do have international jurisdiction, the resolution of the 
dispute will depend on whether German substantive law is applicable to the letter 
of comfort. This depends on whether the letter of comfort is a ‘consumer contract’ 
within the meaning of Article 6 of the Rome I Regulation, that is to say a contract 
concluded by the parties for a purpose which can be regarded as being outside the 
applicant’s profession. 
34 Pursuant to Article 28 of the Rome I Regulation, the latter is applicable ratione 
temporis, as the letter of comfort was entered into after 17 December 2009. The 
letter of comfort also gives rise to a situation involving a conflict of laws 
(Article 1(1) of the Rome I Regulation), since the applicant and the defendant are 
domiciled in different States. There is no choice of law within the meaning of 
Article 3 of the Rome I Regulation. 
35 The applicable law in the absence of choice is determined in accordance with 
Article 4 of the Rome I Regulation, without prejudice to Articles 5 to 8 of that 
regulation. Of the provisions in Articles 5 to 8 of the Rome I Regulation, which 
take precedence over Article 4 in this respect, only the existence of a ‘consumer 
contract’ within the meaning of Article 6(1) of that regulation comes into 
consideration. Article 8 of the regulation is not relevant, since the letter of comfort 
is a legal transaction that has an intrinsic value and is separate from the contract of 
employment. 
36 Pursuant to Article 6(1)(b) of the Rome I Regulation, a contract concluded by a 
natural person for a purpose which can be regarded as being outside his profession 
(the consumer) with another person acting in the exercise of his trade or 
profession (the professional) is to be governed by the law of the country where the 
consumer has his habitual residence, provided that the professional directs, by any 
means, his commercial or professional activities to that country or to several 
countries including that country, and the contract falls within the scope of such 
activities. In that respect, the referring court considers – as already stated in 
relation to question 3 – that the defendant directed its commercial activities 
towards, inter alia, Germany and that the letter of comfort falls within the scope of 
those activities. However, the referring court is unable to determine, without prior 
clarification by the Court of Justice, whether the concept of ‘professional 
activities’ covers activities carried out as an employed person in an employment 
relationship and, if so, whether a letter of comfort that serves to secure claims 
arising from the paid employment can be regarded as being within the scope of 
professional activities. In this respect, even if the content of the provisions is not 
entirely identical, the same applies as that which applies within the framework of 
the provision of Article 17(1) of the Brussels I Regulation relevant to international 
jurisdiction.