Opinion of the Advocate General — ECLI:EU:C:2025:528
Date: 2025-07-03
Language of the case: French

Summary C-485/24 – 1 
Case C-485/24 
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: 
10 July 2024 
Referring court: 
Cour de cassation – Chambre sociale (Court of Cassation, Social 
Chamber, France) 
Date of the decision to refer: 
10 July 2024 
Appellant: 
Locatrans Sarl 
Respondent: 
ES 
  
Question for a preliminary ruling 
1 ‘Are Articles 3 and 6 of the Convention on the law applicable to contractual 
obligations, opened for signature in Rome on 19 June 1980, to be interpreted as 
meaning that, in the case where the employee carries out the same activities for 
his employer in more than one Contracting State, the full duration of the 
employment relationship should, in order to determine the law which would be 
applicable in the absence of a choice made by the parties, be taken into account in 
order to determine the place where the person concerned habitually carried out his 
work or should the most recent period of work be taken into account where the 
employee, having worked for a certain time in one place, then carries out his 
activities in a lasting manner in a different place which is clearly intended by the 
parties to become a new habitual place of work?’ 
EN 
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Provisions of EU law relied on 
2 Articles 3 and 6 of the Convention on the law applicable to contractual 
obligations, opened for signature in Rome on 19 June 1980. 
3 Article 8(2) 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) (OJ 2008 L 177, p. 6). 
4 Article 5 of the Brussels Convention of 27 September 1968 on jurisdiction and the 
enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32), 
as amended by 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, ‘the Brussels Convention’). 
5 Article 19 of Council Regulation (EC) No 44/2001 of 22 December 2000 on 
jurisdiction and the recognition and enforcement of judgments in civil and 
commercial matters (OJ 2001 L 12, p. 1). 
6 Article 21(1) 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 (OJ 2012 L 351, p. 1). 
National provisions relied on 
Luxembourg law 
7 Article L. 121-7 of the Luxembourg Labour Code, on the procedure applicable in 
the event of a change to the detriment of the employee relating to an essential term 
of the contract. 
8 Article L. 124-11 of the Luxembourg Labour Code, relating to dismissal. 
French law 
9 Under Article 1134 of the Civil Code, in the version prior to Order No 2016-131 
of 10 February 2016, ‘agreements lawfully entered into shall be legally binding on 
the parties thereto. They may be revoked only by mutual consent or on grounds 
authorised by law. They must be performed in good faith’. 
10 Under the first paragraph of Article L. 1231-1 of the Labour Code, ‘the 
employment contract of indefinite duration may be terminated on the initiative of 
the employer or the employee, or by mutual agreement, under the conditions set 
out in the provisions of this Title’. 
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11 Under Article L. 1232-1 of the Labour Code, ‘any dismissal on personal grounds 
shall be justified under the conditions laid down in this Chapter. It shall be 
justified by a genuine and serious reason’. 
12 Under Article L. 1233-2 of the Labour Code, ‘any dismissal on economic grounds 
shall be justified under the conditions laid down in this Chapter. It shall be 
justified by a genuine and serious reason’. 
13 Under paragraphs 3 to 5 of Article L. 1235-1 of the Labour Code, in the version 
prior to Law No 2015-990 of 6 August 2015, ‘in the absence of an agreement, the 
court called upon to assess the regularity of the procedure followed and the 
genuine and serious nature of the grounds relied on by the employer shall reach its 
decision in the light of the evidence submitted by the parties after ordering, where 
necessary, all the measures of inquiry that it deems appropriate. It shall justify in 
the judgment which it delivers the amount of compensation granted. If any doubt 
remains, the employee shall benefit’. 
14 According to settled case-law of the Court of Cassation, the employer cannot 
impose any change to the employee’s contract without the employee’s agreement 
and the termination of the employment contract resulting from the employee’s 
refusal to accept a change to his contract constitutes a dismissal. The employee’s 
refusal to accept a change to his employment contract is not a wrongful act and 
dismissal justified only by the employee’s refusal to accept a change to his 
employment contract is not for a genuine and serious reason (Soc. 7 July1998, 
Appeals Nos 96-40.256, 96-45.047, Bull. 1998, V, No 367; Soc., 15 July1998, 
Appeal No 97-43.985, Bull. 1998, V, No 381; Soc., 16 December 1998, Appeal 
No 96-41.845, Bull. 1998, \Z, No 557; Soc., 24 November 1999, Appeal No 97-
45.202, Bull. 1999, V, No 456). 
Succinct presentation of the facts and procedure in the main proceedings  
15 ES was employed as a driver under an employment contract concluded on 
15 October 2002, starting from the following 21 October, by the company 
Locatrans (‘Locatrans’), whose registered office is in Luxembourg. His monthly 
working time was fixed at 166 hours. The employment contract stipulated that the 
law applicable was Luxembourg law and that the countries essentially covered by 
the transport business were Germany, the Benelux countries, Italy, Spain, Portugal 
and Austria. 
16 By letter of 14 January 2014, the employer informed the employee of its decision 
to reduce his number of weekly working hours to 35 hours, that is to say, 
151.55 hours per month from 16 July 2014. 
17 By letter of 7 February 2014, the employee informed his employer of his 
opposition to the change to his employment contract. 
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18 By letter of 31 March 2014, the employer informed the employee that, after 
analysing his activity over the last 18 months, it had found that he had carried out 
a substantial part of his employment activity (over 50%) in France and that it was 
obliged to register him with the French social security. 
19 The employer confirmed an offer of employment to the employee in a French 
company by letter of 17 April 2014 and informed him that he would no longer 
form part of the staff of Locatrans from 16 July 2014 following his refusal of the 
reduction in his working time. 
20 On 8 January 2015, the employee, disputing the termination of his employment 
contract, brought proceedings before the Conseil de Prud’hommes de Dijon 
(Labour Tribunal, Dijon) involving several claims for compensation. 
21 By judgment of 4 April 2017, the Labour Tribunal stated that Luxembourg law 
was applicable to the performance and termination of the employee’s employment 
contract, that his dismissal was clear and unambiguous and that there was no 
reason to reclassify it as wrongful termination and dismissed the employee’s 
claims. 
22 On the appeal lodged by the employee, the cour d’appel de Dijon (Court of 
Appeal, Dijon), by judgment of 2 May 2019, set aside the judgment under appeal, 
held that, pursuant to Article 6 of the Rome Convention of 19 June 1980, the 
choice of Luxembourg law made by the parties could not have the result of 
depriving the employee of the protection afforded to him by the mandatory rules 
of French law applicable to the dispute, reclassified the termination of the 
employment contract as dismissal, held that the dismissal was not based on a 
genuine and serious reason, ordered the employer to pay to the employee certain 
sums as compensation for dismissal without a genuine and serious reason, an 
indemnity in lieu of notice and of the related paid leave, the statutory redundancy 
payment and non-recoverable expenses. 
23 In its judgment of 2 May 2019, the appeal court noted that the parties had 
concluded in Luxembourg, on 15 October 2002, an employment contract of 
indefinite duration and that it necessarily and expressly followed from the 
provisions of the contract that the parties had chosen to apply Luxembourg law to 
the employment relationship. 
24 The appeal court also noted that ES claimed that contractual freedom should not, 
however, deprive him of the protection of the mandatory rules of the law which 
would be applicable to the contract in the absence of choice and that, in the 
absence of choice, French law would have been applied on the basis of the place 
where the employee habitually carries out his work. 
25 The appeal court then held that, by letter of 31 March 2014, Locatrans had 
recognised that the employee was carrying out most of his work in France in the 
following terms: ‘As explained to your staff delegation at the last two meetings of 
7 December 2013 and 1 February 2014, we have had occasion to analyse all your 
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activity over the last 18 months. In so doing, we have now found that you carry 
out a substantial part of your employment activity (over 50%) in the territory of 
your State of residence, namely France. In these circumstances, we are obliged to 
register you with the French social security’. The appeal court also held that it was 
apparent from the salary slips of ES that he had contributed to the French social 
security scheme since April 2014, that the employee had provided the evidence 
that he performed the essential part of his duties vis-à-vis his employer in France, 
that therefore, French law, in the absence of a choice made by the parties, would 
be applicable on the basis of the place where the employee habitually carries out 
his work and that it followed that the choice by the parties of Luxembourg law 
could not result in ES being deprived of the protection afforded to him by the 
mandatory rules of French law. 
26 The appeal court finally held that provisions from which it was not possible to 
derogate by contract constituted mandatory rules, that in particular the provisions 
of French law concerning the alteration and termination of the employment 
contract constituted mandatory rules of French law intended to protect employees 
and that, therefore, French law was applicable to the dispute. 
27 Locatrans appealed on a point of law. 
Essential arguments of the parties in the main proceedings 
28 The employer criticises the judgment for holding that, pursuant to Article 6 of the 
Rome Convention of 19 June 1980, the choice of Luxembourg law made by the 
parties cannot have the result of depriving the employee of the protection afforded 
to him by the mandatory rules of French law applicable to the present dispute, for 
reclassifying the termination of the employee’s employment contract as dismissal, 
for holding that the dismissal was not based on a genuine and serious reason, and 
for ordering the employer to pay various subsequent sums. 
29 The employer claims that the habitual place of work is the place where the worker 
spends most of his working time for his employer taking into account the full 
period of the worker’s activity; that in the case of stable periods of work in 
different successive places, the last place of activity should be chosen since, 
according to the clear will of the parties, it was decided that the worker would 
carry out his activities there in a stable and durable manner. According to the 
employer, in order to rule that the parties’ choice of Luxembourg law could not 
result in the employee being deprived of the protection afforded to him by the 
mandatory rules of French law, the appeal court held that, first, by letter of 
31 March 2014, the employer had recognised that the employee, who had been 
engaged on 15 October 2002 as a truck driver in order to transport goods in 
several countries, had carried out over the last 18 months a substantial part of his 
employment activity (over 50%) in the territory of his State of residence, namely 
France, and that, in those circumstances, it was obliged to register him with the 
French social security, and that, second, it was apparent from the salary slips that 
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the employee had contributed to the French social security scheme since April 
2014. 
30 The employer argues that, by so ruling, without establishing that France was the 
habitual country of work where the employee had spent most of his working time 
for his employer taking into account the full period of his activity or that it had 
been decided according to the clear will of the parties that the employee would 
carry on his activities there in a stable and durable manner, the appeal court 
deprived its decision of any legal basis in the light of Articles 3 and 6 of the Rome 
Convention of 19 June 1980 on the law applicable to contractual obligations. 
Succinct presentation of the reasoning in the reference for a preliminary 
ruling 
31 Article 6 of the Rome Convention lays down special conflict rules relating to 
individual contracts of employment which derogate from the rules of a general 
nature contained in Articles 3 and 4 of that convention, which concern, 
respectively, the freedom of choice of the applicable law and the criteria for 
determining that law in the absence of such a choice. 
32 Thus, Article 6(1) of the Rome Convention provides that the choice of law made 
by the parties applicable to the employment contract cannot have the result of 
depriving the employee of the protection afforded to him by the mandatory rules 
of the law which would be applicable to the contract in the absence of such a 
choice. Paragraph 2 of that article sets out the connecting criteria of the 
employment contract on the basis of which the lex contractus is to be determined, 
in the absence of a choice made by the parties. 
33 Those criteria are, in the first place, that of the country in which the employee 
‘habitually carries out his work’ [Article 6(2)(a)], and, alternatively, in the 
absence of such a place, that of the ‘place of business through which he was 
engaged’[Article 6(2)(b)]. 
34 Moreover, according to the last sentence of that paragraph 2, those two connecting 
criteria are not applicable where it appears from the circumstances as a whole that 
the employment contract is more closely connected with another country, in which 
case the contract will be governed by the law of that country. 
35 The Court of Justice of the European Union has set out the criteria for interpreting 
the concept of place where the employee habitually carries out his work, in the 
case where the employee carries out his activities in more than one Contracting 
State, within the meaning of the Rome Convention, in the judgments in Heiko 
Koelzsch of 15 March 2011 (judgment of 15 March 2011, Heiko Koelzsch, 
C-29/10) and Voogsgeerd of 15 December 2011 (judgment of 15 December 2011, 
Voogsgeerd, C-384/10). 
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36 It held in the judgment in Heiko Koelzsch that Article 6(2)(a) of the Convention 
on the law applicable to contractual obligations, opened for signature in Rome on 
19 June 1980, must be interpreted as meaning that, in a situation in which an 
employee carries out his activities in more than one Contracting State, the country 
in which the employee habitually carries out his work in performance of the 
contract, within the meaning of that provision, is that in which or from which, in 
the light of all the factors which characterise that activity, the employee performs 
the essential part of his obligations towards his employer. 
37 The Court of Justice of the European Union held in the judgment in Voogsgeerd 
that Article 6(2) of the Convention on the law applicable to contractual 
obligations, opened for signature in Rome on 19 June 1980, must be interpreted as 
meaning that the national court seised of the case must first establish whether the 
employee, in the performance of his contract, habitually carries out his work in 
any one country, which is that in which or from which, in the light of all the 
aspects characterising that activity, the employee performs the essential part of his 
duties vis-à-vis his employer. 
38 The Court of Justice of the European Union has stated that the criterion of the 
country in which the employee ‘habitually carries out his work’ must be 
interpreted autonomously, in the sense that the meaning and scope of that 
referential rule cannot be established on the basis of the law of the court seised, 
but must be established according to consistent and independent criteria in order 
to guarantee the full effectiveness of the Rome Convention in view of the 
objectives which it pursues (judgment of 15 March 2011, Heiko Koelzsch, 
C-29/10, paragraph 32). 
39 Moreover, such an interpretation must not disregard that relating to the criteria set 
out in Article 5(1) of the Brussels Convention where they lay down the rules for 
determining jurisdiction for the same matters and set out similar concepts. It 
follows from the preamble to the Rome Convention that it was concluded in order 
to continue, in the field of private international law, the work of unification of law 
set in motion by the adoption of the Brussels Convention (judgment of 15 March 
2011, Heiko Koelzsch, C-29/10, paragraph 33). 
40 In that regard, it is apparent from the Giuliano and Lagarde Report on the 
Convention on the law applicable to contractual obligations (OJ 1980 C 282, p. 1) 
that Article 6 thereof was intended to ‘provide a more appropriate arrangement for 
matters in which the interests of one of the contracting parties are not the same as 
those of the other, and … more adequate protection for the party who from the 
socio-economic point of view is regarded as the weaker in the contractual 
relationship’ (judgment of 15 March 2011, Heiko Koelzsch, C-29/10, 
paragraph 40). 
41 The Court of Justice has also been guided by those principles in the interpretation 
of the rules of jurisdiction relating to employment contracts which are laid down 
by the Brussels Convention. It has held that, in a situation in which the employee 
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carries out his working activities in more than one Contracting State, it is 
necessary to take due account of the need to guarantee adequate protection to the 
employee as the weaker of the contracting parties (judgment of 15 March 2011, 
Heiko Koelzsch, C-29/10, paragraph 41). 
42 It follows that, in so far as the objective of Article 6 of the Rome Convention is to 
guarantee adequate protection for the employee, that provision must be 
understood as guaranteeing the applicability of the law of the State in which he 
carries out his working activities rather than that of the State in which the 
employer is established. It is in the former State that the employee performs his 
economic and social duties and that the business and political environment affects 
employment activities. Therefore, compliance with the employment protection 
rules provided for by the law of that country must, so far as is possible, be 
guaranteed (judgment of 15 March 2011, Heiko Koelzsch, C-29/10, paragraph 42). 
43 Consequently, in the light of the objective of Article 6 of the Rome Convention, it 
must be held that the criterion of the country in which the employee ‘habitually 
carries out his work’, set out in Article 6(2)(a) thereof, must be given a broad 
interpretation, while the criterion of ‘the place of business through which [the 
employee] was engaged’, set out in Article 6(2)(b) thereof, ought to apply in cases 
where the court dealing with the case is not in a position to determine the country 
in which the work is habitually carried out (judgment of 15 March 2011, Heiko 
Koelzsch, C-29/10, paragraph 43; judgment of 15 December 2011, Voogsgeerd, 
C-384/10, paragraph 35). 
44 It follows from the foregoing that the criterion in Article 6(2)(a) of the Rome 
Convention can apply also in a situation where the employee carries out his 
activities in more than one Contracting State, if it is possible, for the court seised, 
to determine the State with which the work has a significant connection (judgment 
of 15 March 2011, Heiko Koelzsch, C-29/10, paragraph 44; judgment of 
15 December 2011, Voogsgeerd, C-384/10, paragraph 36). 
45 According to the case-law of the Court of Justice on Article 5(1) of the Brussels 
Convention (judgment of 15 July 1993, MuloxIBC, C-125/92, ECR 1-4075, 
paragraphs 21 to 23; judgment of 9 January 1997, Rutten, C-383/95, ECR 1-57, 
paragraph 23; judgment of 27 February 2002, Weber, C-37/00, ECR 1-2013, 
paragraph 42), which remains relevant to the analysis of Article 6(2) of the Rome 
Convention, where work is carried out in more than one Member State, the 
criterion of the country in which the work is habitually carried out must be given a 
broad interpretation and be understood as referring to the place in which or from 
which the employee actually carries out his working activities and, in the absence 
of a centre of activities, to the place where he carries out the majority of his 
activities (judgment of 15 March 2011, Heiko Koelzsch, C-29/10, paragraph 45). 
46 Moreover, that interpretation is consistent also with the wording of the new 
provision on the conflict-of-law rules relating to individual contracts of 
employment, introduced by Regulation No 593/2008, which is not applicable to 
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the present case ratione temporis. According to Article 8 of that regulation, to the 
extent that the law applicable to the individual employment contract has not been 
chosen by the parties, the contract is to 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. That law remains applicable also where the employee 
carries out duties temporarily in another State. Furthermore, as stated in recital 23 
in the preamble to that regulation, the interpretation of that provision must be 
prompted by the principles of favor laboratoris in that the weaker parties to 
contracts must be protected ‘by conflict-of-law rules that are more favourable’ 
(judgment of 15 March 2011, Heiko Koelzsch, C-29/10, paragraph 46). 
47 It follows from the foregoing that the referring court must give a broad 
interpretation to the connecting criterion laid down in Article 6(2)(a) of the Rome 
Convention in order to establish whether the appellant in the main proceedings 
habitually carried out his work in one of the Contracting States and, if so, to 
determine which one (judgment of 15 March 2011, Heiko Koelzsch, C-29/10, 
paragraph 47). 
48 Accordingly, in the light of the nature of work in the international transport sector, 
such as that at issue in the main proceedings, the referring court must take account 
of all the factors which characterise the activity of the employee (judgment of 
15 March 2011, Heiko Koelzsch, C-29/10, paragraph 48). 
49 It must, in particular, determine in which State is situated the place from which the 
employee carries out his transport tasks, receives instructions concerning his tasks 
and organises his work, and the place where his work tools are situated. It must 
also determine the places where the transport is principally carried out, where the 
goods are unloaded and the place to which the employee returns after completion 
of his tasks (judgment of 15 March 2011, Heiko Koelzsch, C-29/10, paragraph 49; 
judgment of 15 December 2011, Voogsgeerd, C-384/10, paragraph 38). 
50 If it is apparent from these findings that the place from which the employee carries 
out his transport tasks and also receives the instructions concerning his tasks is 
always the same, that place must be considered to be the place where he habitually 
carries out his work, within the meaning of Article 6(2)(a). The factor of the place 
where the employee habitually carries out his work is applied in priority 
(judgment of 15 December 2011, Voogsgeerd, C-384/10, paragraph 39). 
51  Consequently, the aspects characterising the employment relationship, namely, 
the place of actual employment, the place where the employee receives 
instructions or where he must report before discharging his tasks, are relevant for 
the determination of the law applicable to that employment relationship in that, 
when those places are situated in the same country, the court seised may take the 
view that the situation falls within the case provided for in Article 6(2)(a) of the 
Rome Convention (judgment of 15 December 2011, Voogsgeerd, C-384/10, 
paragraph 40). 
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52 In disputes concerning an employee assigned to a mobile international air 
transport activity and a mechanical technician employee made available to a 
company incorporated under French law operating a barge in foreign territorial or 
international waters, the Court of Cassation has applied the criterion of the place 
in which the employee habitually carries out his work, as interpreted by the Court 
of Justice of the European Union where the Rome Convention is applicable and 
held that the criterion contained in Article 6(2)(a) of the Rome Convention could 
also be applied in a case where the employee carries out his activities in more than 
one Contracting State where it is possible for the court seised to determine the 
State with which the work has a significant connection (Soc., 11 April 2012, 
Appeals Nos 11-17.096, 11-17.097, Bull. 2012, V, No 119; Soc., 13 January 
2016, Appeal No 14-14.019). 
53 The Court of Justice has also referred in the judgment in Heiko Koelzsch to its 
case-law on Article 5(1) of the Brussels Convention (judgment of 13 July 1993, 
Mulox IBC, C-125/92, paragraphs 21 to 23; judgment of 9 January 1997, Rutten, 
C-383/95, paragraph 23; judgment of 27 February 2002, Weber, C-37/00, 
paragraph 42) and held that, according to that case-law, which remains relevant to 
the analysis of Article 6(2) of the Rome Convention, where work is carried out in 
more than one Member State, the criterion of the country in which the work is 
habitually carried out must be given a broad interpretation and be understood as 
referring to the place in which or from which the employee actually carries out his 
working activities and, in the absence of a centre of activities, to the place where 
he carries out the majority of his activities (judgment of 15 March 2011, Heiko 
Koelzsch, C-29/10, paragraph 45). 
54 The Court of Justice also stated in the judgment in Nogueira of 14 September 
2017 that the autonomous interpretation of Article 19(2) of the Brussels I 
Regulation does not preclude the corresponding provisions in the Rome 
Convention from being taken into account, since that convention, as is apparent 
from its preamble, also aims to continue, in the field of private international law, 
the work of unification of law which has already been done within the Union, in 
particular in the field of jurisdiction and enforcement of judgments (judgment of 
14 September 2017, Nogueira, C-168/16 et C-169/16, paragraph 55). 
55 The Court of Cassation therefore finds that the reference which the Court of 
Justice makes to its case-law in connection with the Brussels Convention on the 
determination of the court with jurisdiction, when dealing with a question for a 
preliminary ruling concerning the Rome Convention on the law applicable, shows 
that the Court of Justice intends to give an unequivocal interpretation of the 
connection criteria concerning conflict of jurisdiction and conflict of laws. 
56 The Court of Justice ruled in the judgment in Weber of 27 February 2002 
(judgment of 27 February 2002, Weber, C-37/00) that Article 5(1) of that 
convention must be interpreted as meaning that, where an employee performs the 
obligations arising under his contract of employment in several Contracting States 
the place where he habitually works, within the meaning of that provision, is the 
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place where, or from which, taking account of all the circumstances of the case, he 
in fact performs the essential part of his duties vis-à-vis his employer. 
57 In the case of an employment contract in the performance of which the employee 
carries out the same activities for his employer in more than one Contracting 
State, the full duration of the employment relationship must, in principle, be taken 
into account in order to determine the place where the person concerned habitually 
carried out his work, within the meaning of that provision. 
58 In the absence of other criteria, that place is the place where the worker spent the 
greatest part of his working time. 
59 It would be otherwise only if, in the light of the facts of the present case, the 
subject matter of the dispute were more closely connected with a different place of 
work, in which case that place would be relevant for the purposes of applying 
Article 5(1) of that convention. 
60 In the event that the criteria laid down by the Court do not permit the national 
court to determine the habitual place of work referred to in Article 5(1) of that 
convention, the worker will have the choice of suing his employer either in the 
court of the place of the establishment which engaged him or in the courts of the 
Contracting State in whose territory the employer is domiciled. 
61 The Court of Justice has stated that weight will be given to the most recent period 
of work where the employee, after having worked for a certain time in one place, 
then takes up his work activities on a permanent basis in a different place, since 
the clear intention of the parties is for the latter place to become a new habitual 
place of work within the meaning of Article 5(1) of the Brussels Convention 
(judgment of 27 February 2002, Weber, C-37/00, paragraph 54). 
62 In the present case, Locatrans claims in essence that the criteria laid down in the 
judgment in Weber are also applicable in the event of a conflict of laws requiring 
application of the Rome Convention and that the courts adjudicating on the 
substance deprived their decision of a legal basis by applying French law without 
ascertaining whether France was the habitual country of work where ES had spent 
most of his working time for his employer taking into account his full period of 
activity, nor whether it had been decided according to the clear will of the parties 
that the employee would carry out his activities there in a stable and durable 
manner. 
63 ES contends in essence that the appeal court precisely characterised the law of the 
country from which, in performance of the employment contract, he habitually 
carried out his work by finding that the employment contract was more closely 
connected with France, in particular because the employee actually carried out the 
majority of his tasks in France and because the same applied with regard to social 
security. He argues that the provisions of Articles 3 and 6 of the Rome 
Convention do not require the court to take into account the full period of activity 
in order to determine the place where the work is habitually carried out. 
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64 The Court of Cassation considers that reasonable doubt remains on that point. 
65 The Court of Justice of the European Union, in the judgment in Nogueira of 
14 September 2017 (judgment of 14 September 2017, Nogueira, C-168/16, 
paragraph 58), has held that Article 5(1) of the Brussels Convention must, in view 
of the need to establish the place with which the dispute has the most significant 
link, so that it is possible to identify the courts best placed to decide the case in 
order to afford proper protection to the employee as the weaker party to the 
contract and to avoid multiplication of the courts having jurisdiction, be 
interpreted as referring to the place where, or from which, the employee actually 
performs the essential part of his duties vis-à-vis his employer. That is the place 
where it is least expensive for the employee to commence proceedings against his 
employer or to defend such proceedings and where the courts best suited to 
resolving disputes relating to the contract of employment are situated. 
66 However, it is not certain that the criterion of the last place where the employee 
habitually carries out his work, relevant to determining the court before which the 
employee must bring proceedings since that enables him to bring such 
proceedings at least expense, is also relevant to determining the law applicable in 
the absence of choice. That would, moreover, lead to one and the same 
employment contract being successively subject to different mandatory rules 
depending on changes occurring to the place of work. 
67 Although the clarifications provided by the Court of Justice of the European 
Union in the judgment in Heiko Koelzsch (judgment of 15 March 2011, Heiko 
Koelzsch, C-29/10, paragraphs 40 and 46) on the interpretation of the concept of 
the place where the employee habitually carries out his work might lead, in 
accordance with the principle of favor laboratoris, to the adoption of the criterion 
of the last place where the employee habitually carries out his work, in the ruling 
of the judgment in Weber, the Court of Justice expressly refers to the taking into 
account of ‘the full duration of the employment relationship’ without mentioning 
the criterion of the last place where the employee habitually carries out his work 
stated in paragraph 54 of the judgment in Weber. 
68 Since then, the criterion of the last place where the employee habitually carries out 
his work has been enshrined by the EU legislature, when the Brussels I Regulation 
was recast, in Article 21 of Regulation No 1215/2012 of 12 December 2012 on 
jurisdiction and the recognition and enforcement of judgments in civil and 
commercial matters. 
69 However, it could be inferred from the judgment in Voogsgeerd that if the 
employee, in the performance of the contract, does not habitually carry out his 
work in the same country, then the national court must apply the alternative 
criterion of the place where the business engaged the employee. 
70 Finally, Article 8(2) of the Rome I Regulation provides that the country where the 
work is habitually carried out must not be deemed to have changed if the 
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employee is temporarily employed in another country. That provision is clarified 
by recital 36 of that regulation: ‘As regards individual employment contracts, 
work carried out in another country should be regarded as temporary if the 
employee is expected to resume working in the country of origin after carrying out 
his tasks abroad’. 
71 Therefore, the question arises whether Articles 3 and 6 of the Convention on the 
law applicable to contractual obligations, opened for signature in Rome on 
19 June 1980, must be interpreted as meaning that, in the case where the employee 
carries out the same activities for his employer in more than one Contracting 
State, the full duration of the employment relationship must, in order to determine 
the law which would be applicable in the absence of a choice made by the parties, 
be taken into account in order to determine the place where the person concerned 
habitually carried out his work or whether the most recent period of work should 
be taken into account where the employee, having worked for a certain time in 
one place, then carries out his activities in a lasting manner in a different place 
which is clearly intended by the parties to become a new habitual place of work.