15

In those circumstances, the Supreme Court of the United Kingdom decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) What is the correct test for determining whether a claim advanced by an employer against an employee or former employee (“an employee”) constitutes a “matter relating to” an individual contract of employment within the meaning of Section 5 to Title II (Articles 18 to 21) of the Lugano [II] Convention? (a) Is it sufficient for a claim advanced by an employer against an employee to fall within Articles 18 to 21 [of the Lugano II Convention] that the conduct complained of could also have been pleaded by the employer as a breach of the employee’s individual contract of employment — even if the claim actually advanced by the employer does not rely on, complain of, or plead any breach of that contract, but is (for example) advanced on one or more of the different bases indicated in paragraphs 26 and 27 of the Statement of Facts and Issues? (b) Alternatively, is the correct test that a claim advanced by an employer against an employee falls within Articles 18 to 21 [of the Lugano II Convention] only if the obligation on which the claim is actually based is an obligation in the contract of employment? If this is the correct test, does it follow that a claim which is based only on breach of an obligation which arose independently of the contract of employment (and, if relevant, is not an obligation which was “freely consented to” by the employee) does not fall within Section 5? (c) If neither of the above is the correct test, what is the correct test? (2) If a company and an individual enter into a “contract” (within the meaning of Article 5(1) of the [Lugano II] Convention), to what extent is it necessary for there to be a relationship of subordination between the company and the individual for that contract to constitute an “individual contract of employment” for the purposes of Section 5 [of that convention]? Can such a relationship exist where the individual is able to determine (and does determine) the terms of his contract with the company and has control and autonomy over the day-to-day operation of the company’s business and the performance of his own duties, but the shareholder(s) of the company have the power to procure the termination of the relationship? (3) If Section 5 to Title II of the Lugano [II] Convention only applies to claims which, but for Section 5, would fall within Article 5(1) of the Lugano [II] Convention, what is the correct test to determine whether a claim falls within Article 5(1)? (a) Is the correct test that a claim falls within Article 5(1) if the conduct complained of could be pleaded as a breach of contract, even if the claim actually pleaded by the employer does not rely on, complain of, or plead any breach of that contract? (b) Alternatively, is the correct test that a claim falls within Article 5(1) [of the Lugano II Convention] only if the obligation on which it is actually based is a contractual obligation? If that is the correct test, does it follow that a claim which is based only on breach of an obligation which arose independently of the contract (and, if relevant, is not an obligation “freely consented to” by the defendant) does not fall within Article 5(1)? (c) If neither of the above is the correct test, what is the correct test? (4) In circumstances in which: – Companies A and B both form part of a group of companies; – Defendant X performs, de facto, the role of CEO of that group of companies (as Mr Bosworth did for the Arcadia Group of companies: Statement of Facts and Issues, paragraph 14); X is employed by one group company, company A (and so is an employee of company A) (as Mr Bosworth was from time to time in circumstances set out in the Statement of Facts and Issues, paragraph 15); and is not, as a matter of domestic law, employed by company B; – Company A brings claims against X, and those claims fall within Articles 18 to 21 [of the Lugano II Convention]; and – The other group company, company B, also brings claims against X in respect of like conduct to that which forms the basis of company A’s claims against X; what is the correct test for determining whether company B’s claim falls within Section 5 [of the Lugano II Convention]? In particular: (a) Does the answer depend on whether there was, as between X and company B, an “individual contract of employment” within the meaning of Section 5 [of the Lugano II Convention] and, if so, what is the correct test for determining whether there was such a contract? (b) Is company B to be treated as the “employer” of X for the purposes of Section 5 to Title II of the [Lugano II] Convention, and/or do company B’s claims against X (in [the fourth indent of paragraph 4] above) fall within Articles 18 to 21 [of the Lugano II Convention] in the same way that company A’s claims against X fall within Articles 18 to 21? In particular: (i) Does company B’s claim fall within Article 18 [of the Lugano II Convention] only if the obligation on which it is actually based is an obligation in the contract of employment between company B and X? (ii) Alternatively, does the claim fall within Article 18 [of the Lugano II Convention] if the conduct complained of in the claim would have constituted a breach of an obligation in the contract of employment between company A and X? (c) If neither of the foregoing is the correct test, what is the correct test?’