OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 29 October 2020 ( 1 )

Case C‑804/19

BU

v

Markt24 GmbH

(Request for a preliminary ruling from the Landesgericht Salzburg (Regional Court, Salzburg, Austria))

(Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in civil and commercial matters – Regulation (EU) No 1215/2012 – Chapter II, Section 5 (Articles 20 to 23) – Jurisdiction over individual contracts of employment – Contract of employment concluded, in Member State A, between a worker domiciled in that State and an employer domiciled in Member State B, for work to be performed in Member State B – Unperformed contract of employment – Action brought by the worker against the employer to recover contractual remuneration – Exclusion of the rules of jurisdiction existing in the national law of the court seised – Article 21(1)(b)(i) – Concept of ‘place where or from where the employee habitually carries out his work’ – Place where the worker was to carry out his work as agreed in the contract)

I. Introduction

1. BU, a natural person domiciled in Austria, concluded a contract of employment with Markt24 GmbH, a German company. Under that contract, BU was to perform cleaning work in Germany, for and under the direction of that company. In actual fact, however, the contract remained a dead letter for several months, until Markt24 terminated it by dismissing BU. During that period that company did not allocate any duties to the worker, even though she remained, at home, prepared to work. Nor has the company paid her the contractual remuneration.

2. Against that background, BU brought proceedings against Markt24 seeking recovery of that remuneration, before the Landesgericht Salzburg (Regional Court, Salzburg, Austria), the court in whose area of jurisdiction she is domiciled. That court has in turn referred this request for a preliminary ruling to the Court of Justice seeking interpretation of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( 2 ) (‘the Brussels Ia Regulation’).

3. By its various questions, the referring court seeks, in essence, to determine whether it has jurisdiction to hear the action brought by BU or whether that action should have been brought before a German court. That depends, first of all, on whether the rules of jurisdiction in the Brussels Ia Regulation, in particular Article 21 on actions brought by workers against their employers, apply to such an action; thereafter on whether, if those rules do apply, Article 21 allows workers, in circumstances such as those of the present case, to bring proceedings in the courts of the place where they are domiciled; and lastly on whether, if it does not allow them to do so, that regulation precludes the courts of that place from finding themselves to have jurisdiction under national rules according to which workers have that option.

4. In this Opinion, I will demonstrate that an action such as that brought by BU does fall under the Brussels Ia Regulation with the effect that the courts with jurisdiction to hear that action must be determined in the light of the provisions of that regulation to the exclusion of the national rules of jurisdiction. I will also demonstrate that, where a contract of employment has not been performed, for any reason whatsoever, the worker may sue the employer, under Article 21 of that regulation, either in the courts of the Member State where the employer is domiciled, or in the courts of the place where the worker was to carry out the work, as agreed in that contract.

II. Legal context

A. Brussels Ia Regulation

5. Recital 18 of the Brussels Ia Regulation states that ‘in relation to insurance, consumer contracts and employment, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules’ provide for.

6. Section 5 of Chapter II of that regulation, entitled ‘Jurisdiction over individual contracts of employment’, consists of Articles 20 to 23. Article 20(1) provides: ‘In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Article 6, point 5 of Article 7 and, in the case of proceedings brought against an employer, point 1 of Article 8.’

7. Article 21(1) of the Brussels Ia Regulation provides: ‘An employer domiciled in a Member State may be sued: (a) in the courts of the Member State in which he is domiciled; or (b) in another Member State: (i) in the courts for the place where or from where the employee habitually carries out his work or in the courts for the last place where he did so; or (ii) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.’

B. Austrian law

8. Paragraph 4(1)(a) and (d) of the Bundesgesetz über die Arbeits- und Sozialgerichtsbarkeit (Arbeits- und Sozialgerichtsgesetz) (Federal Law of 7 March 1985 on access to the labour and social courts (Law on the labour and social courts)) (‘ASGG’) provides: ‘For the disputes referred to in Paragraph 50(1), territorial jurisdiction also lies with, at the choice of the applicant (1) in the cases in points 1 to 3, the court within the area of jurisdiction of which (a) the employee has his place of residence or usual abode during the employment relationship or where he had his place of residence or usual abode at the time when the employment relationship ended, … (d) the remuneration is to be paid, or, if the employment relationship has ended, was to be paid when the relationship was last in effect …’

III. The dispute in the main proceedings, the questions referred and the procedure before the Court

9. BU is a natural person domiciled in Salzburg, Austria. Markt24 is a German company with registered office at Unterschleißheim, Germany.

10. On a particular date, BU was approached by a man who told her that Markt24 was looking for workers, and subsequently signed a contract with that man, in a bakery in Salzburg. The contract bore the stamp of that company, an Austrian telephone number and a German address. Under that contract, BU was employed part-time as a maintenance operative to carry out cleaning tasks in Munich, Germany, for a monthly salary.

11. It was envisaged that BU would begin work on 6 September 2017. However, she never began work. Markt24 in fact never allocated any work to her. Although BU remained contactable by telephone and remained, at her home, prepared for work, she did not carry out any cleaning work or other work for that company. BU did not have a telephone number for the man with whom she had entered into the contract of employment. BU did not receive any remuneration during the employment relationship. Along with three other employees of that company, she was nevertheless registered as an employee with the Austrian social security institution.

12. Markt24 dismissed BU on 15 December 2017.

13. On 27 April 2018 BU brought proceedings against Markt24 before the Landesgericht Salzburg (Regional Court, Salzburg) seeking to recover outstanding wage payments, aliquot special payments and annual leave payments for the period from 6 September to 15 December 2017. According to the applicant in the main proceedings, that court has jurisdiction because the defendant company had an office in Salzburg at the beginning of their employment relationship.

14. Since Markt24 could not be served with the documents requiring it to appear and since the place of residence of its representatives was unknown, the Landesgericht Salzburg (Regional Court, Salzburg) appointed a temporary representative to represent it in absentia. By a document of 7 January 2019, that representative claimed that the court seised lacked both international and territorial jurisdiction.

15. In those circumstances, the Landesgericht Salzburg (Regional Court, Salzburg) stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 21 of [the Brussels Ia Regulation] applicable to an employment relationship in which, although an employment contract was entered into in Austria for the performance of work in Germany, the female employee, who remained in Austria and was prepared for several months to work, did not perform any work? In the event that the first question is answered in the affirmative: (2) Is Article 21 of [the Brussels Ia Regulation] to be interpreted as meaning that it is possible to apply a national provision which enables an employee to bring an action in the place where she was resident during the employment relationship or at the time when the employment relationship ended (thus facilitating the process of bringing an action), as is the case with Paragraph 4(1)(a) of the [ASGG]? (3) Is Article 21 of [the Brussels Ia Regulation] to be interpreted as meaning that it is possible to apply a national provision which enables an employee to bring an action in the place where the remuneration is to be paid or was to be paid upon termination of his employment relationship (thus facilitating the process of bringing an action), as is the case with Paragraph 4(1)(d) of the ASGG? In the event that the second and the third questions are answered in the negative: (4) (a) Is Article 21 of [the Brussels Ia Regulation] to be interpreted as meaning that, in the case of an employment relationship in which the female employee has not performed any work, the action must be brought in the Member State in which the employee remained prepared to work? (b) Is Article 21 of [the Brussels Ia Regulation] to be interpreted as meaning that, in the case of an employment relationship in which the female employee has not performed any work, the action must be brought in the Member State in which the employment contract was initiated and entered into, even if the performance of work in another Member State had been agreed or envisaged in that employment contract? In the event that the first question is answered in the negative: (5) Is Article 7(1) of [the Brussels Ia Regulation] applicable to an employment relationship in which, although an employment contract was entered into in Austria for the performance of work in Germany, the female employee, who remained in Austria and was prepared for several months to work, did not perform any work, if it is possible to apply a national provision which enables an employee to bring an action in the place where she was resident during the employment relationship or at the time when the employment relationship ended (thus facilitating the process of bringing an action), as is the case with Paragraph 4(1)(a) of the ASGG, or if it is possible to apply a national provision which enables an employee to bring an action in the place where the remuneration is to be paid or was to be paid upon termination of the employment relationship (thus facilitating the process of bringing an action), as is the case with Paragraph 4(1)(d) of the ASGG?’

16. The request for a preliminary ruling, of 23 October 2019, was received by the Court on 31 October 2019. Markt24, the Czech Government and the European Commission submitted written observations to the Court. No hearing was held in the case.

IV. Analysis

17. This case concerns the international jurisdiction of the courts of the EU Member States to hear an action brought by a worker against her employer to recover the remuneration established in the contract of employment between them in circumstances – which can be described as particular at the very least – in which the employee has not actually carried out any work under that contract because the employer did not allocate the agreed tasks to her. As I stated in the introduction to this Opinion, that contract remained a dead letter, to put it that way, from the date on which it was signed until the date on which the employer ended it by dismissing the worker.

18. That action has been brought in the context of a cross-border dispute. The worker in question, BU, is domiciled in Salzburg, whilst the employer company, Markt24, has its registered office in Germany, although that company may, in addition, have had an office in Salzburg when their contractual relationship began. ( 3 ) Moreover, the contract of employment in question was concluded in Salzburg, whereas the work agreed upon, that is to say cleaning tasks, was to be carried out in Munich.

19. Accordingly, the referring court’s first question seeks, in essence, to determine whether the rules of jurisdiction laid down in the Brussels Ia Regulation, in particular those in Chapter II, Section 5, apply to an action such as that brought by BU against Markt24.

20. It should be noted at this stage that that section contains rules specific to proceedings concerning ‘individual contracts of employment’. Those rules, which have already given rise to consistent case-law of the Court of Justice, ( 4 ) are intended, inter alia, ( 5 ) to protect workers, regarded as the weaker parties to contracts of employment. ( 6 ) In that context, Article 21 of the Brussels Ia Regulation affords various options of jurisdiction for a worker who wishes to bring an action against an employer. First, under Article 21(1)(a), the worker may sue the employer in the courts of the Member State in which the employer is domiciled, but not, importantly, in the courts where the worker has his own domicile. Secondly, under Article 21(1)(b), the worker can bring proceedings either (i) in the courts for the ‘place where or from where [he] habitually carries out his work’ or in the courts for the ‘last place where he did so’, or| (ii) if the employee does not or did not habitually carry out his work in any one country, in the courts for the ‘place where the business which engaged [him] is or was situated’.

21. The referring court is uncertain whether those rules apply to the action it is hearing because, although BU had entered into a contract of employment with Markt24, in actual fact she carried out no work in performance of that contract. However, I will set out, in Section A, the reasons why those rules do apply to such an action, irrespective of the fact that the contract of employment at issue was not performed.

22. By its second and third questions, the referring court seeks to ascertain whether it can find itself to have jurisdiction to hear BU’s action under the rules laid down in its national law – specifically Paragraph 4(1)(a) and (d) of the ASGG – on the grounds that those rules, either directly or indirectly, ( 7 ) entitle Austrian workers to bring proceedings before the court of their own place of residence in Austria and are, in that respect, more favourable to those workers than those under the Brussels Ia Regulation. However, I will set out in Section B the reasons why only the rules of jurisdiction in the Brussels Ia Regulation apply to such an action, to the exclusion of similar national rules, even where those national rules are more favourable to workers.

23. The fourth question concerns in essence, the rule under Article 21(1)(b)(i) of the Brussels Ia Regulation. That question seeks to ascertain whether it is possible to identify a ‘place where or from where the employee habitually carries out his work’, within the meaning of that article, in circumstances where the worker has not carried out any work. As the referring court emphasises, up to now the Court of Justice has never been required to rule on how that article should be interpreted in such a situation. In Section C I will set out the reasons why, even in those circumstances, that ‘place’ can be identified and is not the place where the contract of employment was concluded or the place where the worker remained prepared to work, as the referring court suggests, but the place where the worker was to carry out her work, as agreed in that contract.

A. Applicability of the Brussels Ia Regulation and, specifically, Chapter II, Section 5 (first question)

24. First, there is to my mind no doubt that an action such as that brought by BU does fall within the Brussels Ia Regulation considered as a whole. The action is manifestly within the scope ratione materiae of that regulation. ( 8 ) It is also within its scope ratione personae, since the rules of jurisdiction it contains apply, in principle, where the defendant is domiciled in the territory of a Member State, ( 9 ) and Markt24 is domiciled in Germany. ( 10 ) Lastly, although there must, by definition, be a foreign element in order for those rules to apply, ( 11 ) I would point out that the action relates to a cross-border dispute. ( 12 )

25. Secondly, it is equally clear in my view that this action falls specifically within Chapter II, Section 5 of the Brussels Ia Regulation.

26. I note in that respect that, under Article 20(1) of that regulation, Section 5 applies to proceedings concerning ‘matters relating to individual contracts of employment’. Two conditions flow from that wording: first, there must be an ‘individual contract of employment’ between the parties in the proceedings and, secondly, the action must relate to that ‘contract’.

27. In respect of the first condition, the Court has repeatedly held that the concept of ‘individual contract of employment’ does not refer to the categories laid down in the national law of the court seised (the lex fori), but must be given an independent interpretation, in the interests of ensuring uniform application of the rules of jurisdiction laid down by the Brussels Ia Regulation in all the Member States. ( 13 )

28. The Court has therefore defined an ‘individual contract of employment’ independently by reference to the concept of an employment relationship. According to consistent case-law, the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. ( 14 )

29. A contract must therefore be classified as an ‘individual contract of employment’, within the meaning of Article 20(1) of the Brussels Ia Regulation where it gives rise to obligations corresponding to an employment relationship so defined between the contracting parties. In the present case, it is common ground that the contract that BU concluded with Markt24 did, in the light of its terms, involve obligations of that nature and must therefore be classified as an individual contract of employment. ( 15 )

30. The second condition is quite clearly satisfied in the present case, since BU’s action is based on the non-performance of obligations arising under the contract of employment at issue. ( 16 )

31. The referring court nevertheless enquires whether, in order for an action to fall under Chapter II, Section 5 of the Brussels Ia Regulation, a certain element of duration and permanence must inhere in the employment relationship at issue, a condition which, if not fulfilled, could preclude application of that section, in particular in a situation, such as that in the main proceedings, where the worker has not begun to work.

32. In common with Markt24, the Czech Government and the Commission, I do not believe that it does. As I have indicated, for Chapter II, Section 5 of the Brussels Ia Regulation to apply it is necessary that the action in question concerns an ‘individual contract of employment’ between the parties to the proceedings. How long ago that contract was concluded ( 17 ) and whether or not it was performed are, in contrast, irrelevant.

33. As the Czech Government submits, that outcome flows from the very purpose of Section 5, which is to establish rules of jurisdiction for disputes ‘in matters relating to individual contracts of employment’. Obviously, such disputes can arise soon after an individual contract of employment has been concluded, ( 18 ) and indeed before it has been performed. ( 19 ) I would note here that very often it is precisely a failure to perform some or all of the obligations under a contract of employment that gives rise to proceedings under that section.

34. To find otherwise would moreover conflict with the objective pursued by the Brussels Ia Regulation that the rules of jurisdiction should be highly predictable. As the Commission observes, according to that objective, each party to the contract must be reasonably able to anticipate, from the time the contract is concluded, the court or courts before which it may sue, or be sued by, the other party.

35. Such an interpretation would also jeopardise the objective of protecting workers that underlies Chapter II, Section 5 of that regulation. I would point out that if that section did not apply to proceedings such as those brought by BU against Markt24, those proceedings would be subject to the general rules laid down by that regulation which are, for the most part, ( 20 ) less favourable to workers. Specifically, the worker would lose the benefit of only being able to be sued in the courts of the Member State in which he is domiciled ( 21 ) and of the fact that an agreement conferring jurisdiction to his detriment may not be relied upon against him. ( 22 )

36. Accordingly, in view of the disputes to which such a contract can give rise, the fact that a contract of employment has only recently been concluded or has not been performed in practice can hardly justify non-application of the rules laid down in that section. Even where a worker terminates the contract of employment immediately after entering into it, or at the very start of performance, the worker deserves protection, especially since that termination could be attributable to the employer. Likewise, where, as in the present case, a worker brings an action against the employer on the grounds that the contract was not performed on account of fault by the employer, it makes no sense that the employer should be able to rely against the worker on an agreement conferring jurisdiction contrary to the worker’s interests. ( 23 )

37. In the light of the foregoing, I suggest that the Court should reply to the first question that proceedings brought by a worker domiciled in a Member State against an employer domiciled in another Member State, seeking to recover remuneration agreed in a contract of employment, does fall under the Brussels Ia Regulation, and specifically Chapter II, Section 5 thereof, even where that worker did not actually carry out any work in performance of the contract at issue.

B. Exclusion of national rules of jurisdiction (second and third questions)

38. In the event that the Court answers the first question, as I suggest, to the effect that an action such as that brought by BU does fall under the Brussels Ia Regulation, and specifically Chapter II, Section 5 thereof, the referring court, by its second and third questions, enquires, in essence, whether that regulation precludes application of rules of jurisdiction laid down in that court’s national law which enable a worker to bring an action in the courts within the area of jurisdiction of which he has his place of residence or usual abode during the employment relationship or in the court within the area of jurisdiction of which the remuneration is payable.

39. It is common ground, in this case, that according to the rules under Article 4(1)(a) and (d) of the ASGG, or at least the first of those rules, jurisdiction to hear BU’s action would lie with the referring court. Nevertheless, together with Markt24, the Czech Government and the Commission, I have no doubt that the Brussels Ia Regulation precludes application of those national rules of jurisdiction.

40. It emerges from reading Article 4(1) in conjunction with Article 6(1) of the Brussels Ia Regulation that, for cross-border disputes relating to ‘civil and commercial matters’, the rules of jurisdiction laid down in that regulation apply where the defendant is domiciled in a Member State, whilst the national rules of jurisdiction are, in principle, relevant only where the defendant is domiciled in a third State. ( 24 )

41. In addition, where the rules of jurisdiction established by the Brussels Ia Regulation apply, they quite simply exclude those laid down in the national law of the court seised. That is clear from Article 5(1) of that regulation, according to which the only exceptions to the rule of principle, contained in Article 4(1), that jurisdiction lies with the courts of the Member State of the place where the defendant is domiciled, are those set out in Sections 2 to 7 of Chapter II of that regulation. ( 25 )

42. Since the action brought by BU against Markt24 falls under the Brussels Ia Regulation, as I have indicated in point 24 of this Opinion, and specifically Chapter II, Section 5 thereof, the referring court cannot apply the rules laid down in Paragraph 4(1)(a) or (d) of the ASGG. ( 26 ) It must, on the contrary, determine whether it has jurisdiction in the light of the provisions of that regulation alone.

43. The fact that the national rules at issue are more favourable to workers does not undermine that interpretation.

44. It should be noted that the provisions of Chapter II, Section 5 of the Brussels Ia Regulation do not constitute ‘minimum requirements’ of worker protection like those laid down by certain directives harmonising labour and social law. ( 27 ) That regulation does not harmonise minimum standards in that way: it lays down a unified regime of rules of jurisdiction in order to facilitate the free circulation of judgments in civil and commercial matters and, thereby, the smooth working of the internal market, to ensure certainty in the allocation of jurisdiction among the courts of the Member States and, by doing so, to provide greater legal certainty. ( 28 )

45. The Member States are therefore not entitled to replace or supplement the rules of jurisdiction established in the Brussels Ia Regulation with national rules more favourable to workers. Such a right would, as Markt24 contends, disrupt the unification of law intended by the EU legislature. It would also compromise legal certainty, as the Czech Government observes, because it would be more difficult for employers to predict the courts in which they may be sued by the workers they employ. ( 29 )

46. In the light of the foregoing, I suggest that the Court should reply to the second and third questions to the effect that the Brussels Ia Regulation precludes application of rules of jurisdiction laid down in the national law of the court seised which enable a worker to bring an action in the courts within the area of jurisdiction of which he has his place of residence or usual abode during the employment relationship or in the courts within the area of jurisdiction of which the remuneration is payable.

C. Determining the habitual place of work for the purposes of Article 21(1)(b)(i) of the Brussels Ia Regulation (fourth question)

47. Assuming that the Court finds, in reply to the first question, as I suggest, that an action such as that brought by BU against Markt24 does fall under the Brussels Ia Regulation, and specifically Chapter II, Section 5 thereof, the referring court will need to determine whether it has jurisdiction in the light of the rules contained in that section.

48. Article 21(1)(a) of the Brussels Ia Regulation provides, I reiterate, that a worker may sue his employer in the courts of the Member State in which the employer is domiciled. It is common ground in the present case that Markt24 is domiciled in Germany. The German courts therefore have jurisdiction under that article.

49. The referring court’s uncertainty therefore concerns the interpretation of Article 21(1)(b) of that regulation. I would recall that under that article the worker can also bring his action against the employer: – (i) in the courts for the ‘place where or from where the employee habitually carries out his work’ or in the courts ‘for the last place where he did so’; or – (ii) if the employee does not or did not habitually carry out his work in any one country, in the courts for the ‘place where the business which engaged the employee is or was situated’.

50. The habitual place of work is therefore the main criterion determining jurisdiction under that article, whilst the place of the business through which the employee was engaged is a secondary criterion. The first criterion must therefore be examined in priority in each case. ( 30 )

51. According to the Court’s consistent case-law, the habitual place of work, for the purposes of Article 21(1)(b)(i), must be determined not by reference to the law applicable to the contract of employment at issue (the lex contractus) but on the basis of autonomous criteria defined by the Court in the light of the scheme and objectives of the Brussels Ia Regulation, with the aim, once again, of ensuring uniform application of the rules of jurisdiction laid down by that regulation in all the Member States. ( 31 )

52. According to that case-law, the habitual place of work is the place ‘where the employee actually performs the work covered by the contract with his employer’. ( 32 ) Identifying that place is therefore fundamentally a question of fact. It falls to the national courts to determine the place in question in the light of the circumstances of each case brought before them, in accordance with criteria defined by the Court.

53. I would note here that the peculiarity of the case in the main proceedings is precisely that, although it was envisaged under the contract of employment at issue that BU would carry out work in Munich, in actual fact she performed no work for Markt24.

54. That being so, it might seem at first glance that Article 21(1)(b)(i) should be disapplied in favour of Article 21(1)(b)(ii). Indeed, both the wording of Article 21(1)(b)(i) and the Court’s case-law referred to in point 52 of this Opinion on a first analysis presuppose that the worker has actually carried out work.

55. Nevertheless, in common with the Commission, I believe that such an interpretation would be pointlessly restrictive and contrary to the purpose of that article.

56. As the Court has explained in its case-law, the habitual place of work criterion identifies the court which is, as a general rule, most closely related to the contract of employment and proceedings related to it. ( 33 ) That criterion is also seen as affording adequate protection for workers since, in most cases, this is the place where it is least expensive for a worker to commence proceedings against his employer. ( 34 ) In contrast, the criterion of the place of the business through which the employee was engaged does not always identify a court with such a close connection with the contract – since that business may be fortuitous – and does not afford workers the same protection – since the employer generally has full control over the determination of the place of engagement. ( 35 ) According to that case-law, therefore, the first criterion must be interpreted broadly and is only supplanted by the second in the (exceptional) situations in which the court seised is unable to determine a habitual place of work. ( 36 )

57. Accordingly, together with the Czech Government, I believe that, in a case such as that in the main proceedings, even though the worker has not, in practice, carried out any work, her habitual place of work, for the purposes of Article 21(1)(b)(i) of the Brussels Ia Regulation, can be determined on the basis of the contract concluded by the parties. In particular, I see no reason why, in all situations in which, for any reason whatsoever, their contract of employment has not, or not yet, been performed, workers should be deprived of an alternative jurisdiction considered to be favourable to their interests. The criterion of the place of the business which engaged the employee, as set out in Article 21(1)(b)(ii), therefore does not apply to the situation under analysis. ( 37 )

58. I share the unanimous view of Markt24, the Czech Government and the Commission that, in all situations in which a dispute arises between the worker and the employer at a time when the contract of employment has not, or not yet, been performed, the habitual place of work should be the place where the worker is, or was, obliged to perform his work, as agreed, in principle, in that contract. ( 38 ) In the case under analysis, I therefore find that according to Article 21(1)(b)(i) of the Brussels Ia Regulation jurisdiction lies not with the referring court but with the courts of the city of Munich, the place of work which the parties to the main proceedings agreed in their contract.

59. I will set out, in subsection 1, why that interpretation is correct and will then, in subsection 2, reject the alternative outcomes advanced by the referring court.

1. Merits of the proposed interpretation

60. First, although identifying the habitual place of work is fundamentally a matter of fact, as I stated in point 52 of this Opinion, the intention of the parties to the contract of employment as regards that place is not for that reason irrelevant. On the contrary, it is necessary to have regard to how those parties envisaged their contract would be performed. ( 39 ) The Court has moreover already had regard to that intention in its case-law. ( 40 )

61. I would clarify that this is not a matter of allowing an employer artificially to determine the courts that have jurisdiction by stipulating a fictitious place of work in the contract of employment. Indeed, first, the place of work stipulated in the contract is only relevant to the extent that it reflects the genuine intention of the parties. If the worker demonstrates, by means of objective evidence, that he should in reality work somewhere else, that consideration will prevail. ( 41 )Secondly, there is no doubt that, wherever a contract of employment has been performed, the way it was performed is decisive. Where the place of work stipulated in that contract is not the same as the place where, in practice, the worker performed his activities, the actual facts take precedence, in order to prevent the employer from manipulating jurisdiction in any way, in line with the worker protection objective underlying Article 21(1)(b)(i) of the Brussels Ia Regulation. ( 42 ) However, where the contract of employment has not been performed, the intention that the parties expressed in that contract is, prima facie, the only factor on the basis of which it is genuinely possible to determine a habitual place of work for the purposes of that article. In short, the terms of the contract are decisive in particular when, because the contract has not been performed or has been performed for only a very short time, that place cannot be identified having regard to the way in which the relationship takes place in practice.

62. That leads me to the observation that, secondly, the proposed interpretation is to my mind consistent with the objective of protecting workers. In particular, the reasoning, mentioned in point 56 of this Opinion, to the effect that the habitual place of work is where, as a general rule, it is least expensive for the worker to bring an action against his employer, obtains equally where the contract of employment at issue has not, or not yet, been performed in practice.

63. Thirdly, in my view that interpretation ensures that the rules of jurisdiction are highly predictable, as the Czech Government observes. The place of work envisaged by the parties is, in principle, easily identifiable from the contract of employment. As soon as the contract is concluded the worker can therefore easily determine the courts in which he can potentially bring an action, and the employer can predict the courts in which it may be sued. ( 43 ) Moreover, that solution can be generalised to all situations in which a contract of employment has not been performed for any reason whatsoever, ( 44 ) thereby also contributing to legal certainty. ( 45 )

64. Fourthly, that interpretation upholds the principle of proximity, referred to in point 56 of this Opinion, which underlies Article 21(1)(b)(i) of the Brussels Ia Regulation. Proximity is understood in terms of the legal relationship established by the contract and the issues to which it is likely to give rise. From that perspective, the courts of the habitual place of work, as envisaged by the parties to the contract of employment, are close to the proceedings relating to that contract, even where that contract has not, or not yet, been performed.

65. Furthermore, there is a historical argument that supports the interpretation I am suggesting. It should be recalled that the rules of jurisdiction applicable to disputes concerning contracts of employment originally appeared in Article 5(1) of the Brussels Convention. Specifically, that article, in its amended version resulting from the Convention of San Sebastián, ( 46 ) conferred jurisdiction on the courts for ‘the place of performance of the obligation in question’ [literal translation of the French version: ‘the place where the obligation underlying the claim has been or is to be performed’] and stated that ‘in matters relating to individual contracts of employment, this place is that where the employee habitually carries out his work’. It was therefore sufficient to read those two phrases together in order to appreciate, without the slightest doubt, that, in matters relating to individual contracts of employment, jurisdiction lay with the courts of the place where the work has been or is to be carried out. ( 47 ) There is nothing to suggest that the EU legislature intended to revisit that outcome when it moved the rules of jurisdiction in matters relating to individual contracts to an independent section. ( 48 )

2. Rejection of the alternative solutions

66. In the various parts of its fourth question, the referring court envisages two alternative solutions to that suggested in this Opinion. That court is uncertain, in essence, whether, in a situation where no work has actually been carried out in performance of the contract of employment at issue, because the employer has not allocated the agreed tasks to the worker, it is possible for jurisdiction to lie, by virtue of Article 21(1)(b)(i) of the Brussels Ia Regulation, (1) with the court for the place where the worker remained prepared to work or (2) with the court for the place where the contract of employment was initiated and entered into.

67. In the present case, either interpretation would in fact confer jurisdiction on the referring court, since both the places referred to in the preceding point are within its area of jurisdiction: on the one hand, BU remained prepared to work, at her home, in Salzburg; on the other, the contract of employment at issue was initiated and entered into in that city.

68. However, in common with Markt24, the Czech Government and the Commission, I have serious reservations about those alternative outcomes. To my mind, they depart significantly from the rule of jurisdiction laid down in Article 21(1)(b)(i) of the Brussels Ia Regulation and the type of examination required in order to identify a habitual place of work. It is not simply any circumstance of the dispute that should be taken into account but, by definition, those circumstances that relate to the work in question.

69. Specifically, as regards the first solution suggested by the referring court, my view is that the place where the worker remained prepared to work is not relevant for the purposes of Article 21(1)(b)(i).

70. Accordingly, first, that place cannot be the ‘place where … the employee habitually carries out his work’ within the meaning of that article. Even adopting a particularly broad interpretation of what constitutes ‘work’, the mere fact of waiting to be allocated the agreed tasks cannot be considered to be ‘work’. ( 49 ) Moreover, I would recall that the underlying premiss of this case is that no work was carried out in performance of the contract.

71. Secondly, in the present case, BU’s home, where she remained, prepared to work, cannot be regarded as the ‘place … from where the employee habitually carries out his work’ within the meaning of Article 21(1)(b)(i) of the Brussels Ia Regulation, since, for example, BU would have had to leave her home in order to carry out her work in Munich and would have returned there once the tasks had been performed.

72. I note that this clause, which was added in the Brussels Ia Regulation by the EU legislature, ( 50 ) is intended to codify the Court’s consistent case-law according to which, where a worker’s activity is carried out in more than one place – as occurs in the case of occupational travellers, air crew and road transport personnel, for example – in order to determine his habitual place of work, if it is impossible to identify a place ‘where’ the work in question is principally carried out, it is necessary to look at the place ‘from which’ that worker in practice performs the greater part of his obligations towards his employer. ( 51 ) In other words, in such a situation, the court must attempt to identify a ‘base’ from which the worker organises his activity which may, in some cases, be the same place as his home. ( 52 )

73. However, that case-law cannot be transposed to a case such as that in the main proceedings. This is not a matter of work carried out in more than one place. The contractual work was to be performed, on the contrary, in a single place. BU’s home was not a ‘base’ from which she was to organise her activities for her employer.

74. Moreover, adopting an interpretation of the ‘place … from where the employee habitually carries out his work’ such as that referred to in point 71 of this Opinion would suggest that any cross-border worker who lives in Member State A and goes every morning to Member State B to carry out his occupational activity, in a habitual place, and returns in the evening to Member State A, has the option of bringing proceedings in the courts of the place where he is domiciled, whereas in actual fact he discharges the greater part of his obligations to his employer in Member State B. That outcome would run counter to the very rationale behind Article 21(1)(b)(i) of the Brussels Ia Regulation.

75. In addition, an interpretation of that article to the effect that, in a situation such as that in the main proceedings, jurisdiction lies with the courts of the place where the worker remained prepared to work would be incompatible with the objective that the rules of jurisdiction should be highly predictable. It would in fact denote a singularly case-by-case approach, based on an at least creative and, accordingly, unexpected, interpretation of the habitual place of work criterion and one which, furthermore, could not be generalised to include other situations where a contract of employment has not been performed.

76. Nor does the objective of protecting workers sanction such a solution. Such a solution would undeniably be more favourable to workers since, in many cases, it would have the effect of providing them with a forum actoris. However, Article 21(1)(b) of the Brussels Ia Regulation does not provide workers with the greatest possible protection. In particular, the EU legislature did not establish a right for workers to bring proceedings in the courts for the place where they reside, as such, ( 53 ) even though it did so for consumers. ( 54 ) As that regulation currently stands, the courts for the place where the worker has his home may have jurisdiction, under Article 21(1)(b)(i), only to the extent that his home is actually the same as his habitual place of work. ( 55 ) The issue cannot be evaded by distorting that criterion. It is not possible to dispense with the clear terms of that article, even if that would be in line with the objective of protection. ( 56 )

77. In relation to the second solution suggested by the referring court, I would merely observe that the place where the contract of employment was initiated or entered into is, likewise, not the factor determining jurisdiction selected by the EU legislature in Article 21(1)(b)(i) of the Brussels Ia Regulation. ( 57 ) Moreover, for the purposes of identifying the habitual place of work in accordance with that article, as I stated in point 68 of this Opinion, it is necessary to look at the circumstances relating to the work at issue, and not those surrounding negotiation and conclusion of the contract of employment. ( 58 )

78. One last objection, concerning the principle of proximity, needs to be examined before concluding this section. As I have repeatedly stated in this Opinion, that principle underpins the habitual place of work criterion. The courts of that place are regarded as being those closest to proceedings relating to the contract of employment. However, the specific circumstances of the case in the main proceedings, considered overall, suggest a different place: BU is domiciled in Salzburg; in that city, she was approached by a man quite clearly acting for and on behalf of Markt24; that company may have had an office in that city; the contract was initiated and entered into in that city; and BU registered with the Austrian social security institution. Should jurisdiction not lie with the referring court on the grounds that, in the light of all those circumstances, it is the court closest to the proceedings?

79. The answer is plainly in the negative. The habitual place of work criterion, as laid down in Article 21(1)(b)(i) of the Brussels Ia Regulation, embodies a balance struck in the abstract by the EU legislature between the requirements of predictability, proximity and worker protection. Jurisdiction is accordingly conferred on the court for the habitual place of work because it is, as a general rule, the court closest to the proceedings relating to individual contracts of employment. It is inappropriate, on the other hand, to verify whether that is actually so in each case. A court other than that of the habitual place of work cannot therefore find itself to have jurisdiction, under that provision, on the grounds that, in the light of all the circumstances put before it, it is the court closest to the proceedings in question. ( 59 )

80. A comparison of that article with Article 8 of the Rome I Regulation confirms that interpretation.

81. Although Article 8(2) and (3) of that regulation lays down criteria for determining the law applicable to a contract of employment similar to those in Article 21(1)(b) of the Brussels Ia Regulation, ( 60 ) Article 8(4) contains an ‘exception clause’ that has no equivalent in Article 21. Article 8(4) of the Rome I Regulation provides that ‘where it appears from the circumstances as a whole that the contract is more closely connected with a country other than that indicated in paragraphs 2 or 3, the law of that other country shall apply’. The ‘exception clause’ therefore allows a court, in relation to a contract of employment brought before it, to apply the law of a country other than that in which the worker habitually works where, in the light of the circumstances as a whole – such as the nationality of the parties, the place of engagement, the place where the remuneration is payable and that where the worker is registered for social security – that other law appears to be closer to the contract in question. ( 61 )

82. However, although Article 21 of the Brussels Ia Regulation and Article 8 of the Rome I Regulation must be interpreted consistently, ( 62 ) that is only so to the extent that their provisions are equivalent. No such ‘exception clause’ can therefore be included, by dint of interpretation, in Article 21, merely because there is one in Article 8. ( 63 ) Once again, the issue, in a case such as that at hand, cannot be evaded by determining the habitual place of work, as established in Article 21(1)(b)(i), in the light of circumstances – the worker’s residence, place where the contract was concluded and so on – which, in themselves, have no bearing on the work at issue. Such an interpretation would, as indicated in point 68 of this Opinion, undermine the criterion of jurisdiction, and would furthermore give rise to inconsistencies with the Rome I Regulation because it would disrupt the scheme based on standard factors and an exception clause established by that regulation in Article 8(2) to (4).

83. In the light of the foregoing, I suggest that the Court should answer the fourth question to the effect that, where a worker and an employer have entered into a contract of employment and, for any reason whatsoever, no work has in actual fact been carried out by that worker in performance of the contract, the ‘place where or from where the employee habitually carries out his work’, within the meaning of Article 21(1)(b)(i) of the Brussels Ia Regulation is, in principle, the place of work agreed in that contract.

84. Nevertheless, since the place where BU was to carry out her work, under the contract of employment at issue, is not in the area of jurisdiction of the referring court, and even though that court has not referred a question on that point, I believe it is appropriate, in order to provide it with a reply of use, to set out, in Section D, why the referring court is likely to have jurisdiction under Article 7(5) of the Brussels Ia Regulation.

D. Potential application of Article 7(5) of the Brussels Ia Regulation

85. It should be noted that, ‘in matters relating to individual contracts of employment’, Article 20(1) of the Brussels Ia Regulation is to apply without prejudice to Article 7(5) of that regulation.

86. Article 7(5) provides an alternative jurisdiction for any applicant. Under that article an applicant is able to sue ‘as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated’.

87. Two requirements are apparent from that wording: first, the defendant must have a ‘branch’, ‘agency’, or ‘other establishment’ in the area of jurisdiction of the court seised; secondly, the action must ‘[arise] out of the operations’ of that entity.

88. In respect of the first requirement, the Court has interpreted the concepts of ‘branch’, ‘agency’ and ‘other establishment’ autonomously as implying a centre of operations which has the appearance of permanency, such as the extension of a parent body. That entity must have a management and be materially equipped to negotiate business with third parties, so that they do not have to deal directly with the parent body. ( 64 ) To summarise, those concepts cover every stable structure of an undertaking, including offices, even if that structure does not have legal personality. ( 65 )

89. In respect of the second requirement, the concept of the ‘operations’ of a branch, agency or other establishment includes disputes relating to the contractual commitments entered into by the entity at issue on behalf of the parent company. ( 66 ) The Court has held that this requirement means that the entity in question must have negotiated and/or concluded the contract, and not that the obligations arising under the contract are to be performed in the Member State where it is established. ( 67 )

90. It follows that, in matters concerning individual contracts of employment, a worker may sue his employer, under Article 7(5) of the Brussels Ia Regulation, in the courts of the place where the employer has a branch, agency or other establishment, provided that entity was involved in negotiating and/or concluding the contract of employment at issue – that is to say, in practice, that the worker was engaged by or through that entity – even where the worker carried out, or was to carry out, the work elsewhere. ( 68 ) Accordingly, only the circumstances surrounding negotiation and conclusion of the contract of employment are relevant for the purposes of that article.

91. In the situation under analysis, I would recall that BU negotiated and entered into the contract of employment at issue, in the area of jurisdiction of the referring court, with a man who was manifestly acting for and on behalf of Markt24.

92. If that man was only in Salzburg on a purely transient basis in order to engage BU, that fact would not be a sufficient basis for the referring court to have jurisdiction under Article 7(5) of the Brussels Ia Regulation. In contrast, if Markt24 had an office in that city it could conceivably be found that the office was involved in negotiating and/or concluding the contract of employment and that, therefore, Article 7(5) does apply. ( 69 ) BU asserts that Markt24 did indeed have an office in Salzburg when the employment relationship began, ( 70 ) although the temporary representative acting for that company in absentia disputes that claim. It will be for the referring court to determine that circumstance.

93. To my mind, whether that office still exists now is of less significance than whether it existed at the time BU was engaged. In addition, whether or not the man who approached BU was employed by that office is not to my mind decisive here. The employer’s internal organisation is in practice less important than how its undertaking appeared to third parties. Rather, the issue is whether BU could legitimately believe that this man came from, or acted in concert with, the same office. I believe that the fact that the contract of employment at issue was concluded not at the office in question but in a bakery in Salzburg should neither be decisive as regards application of Article 7(5). It would otherwise be too easy for a defendant to circumvent the head of jurisdiction laid down under that provision, since it would be sufficient for those acting on its behalf simply to conclude contracts outside its premises.

E. Fifth question

94. The fifth question, concerning interpretation of Article 7(1) of the Brussels Ia Regulation, is only relevant in the event that the Court, when examining the first question, finds that an action such as that brought by BU does not fall under Chapter II, Section 5 of that regulation. ( 71 ) Since, as I have set out in this Opinion, that section undeniably does apply to such an action, it is unnecessary to answer that question.

V. Conclusion

95. In the light of the foregoing, I suggest that the Court should answer the questions referred by the Landesgericht Salzburg (Regional Court, Salzburg, Austria) as follows: (1) Proceedings brought by a worker domiciled in a Member State against an employer domiciled in another Member State, seeking to recover remuneration agreed in a contract of employment, do fall under 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, and specifically Chapter II, Section 5 thereof, even where that worker did not actually carry out any work in performance of the contract at issue. (2) Regulation No 1215/2012 precludes application of rules of jurisdiction laid down in the national law of the court seised which enable a worker to bring an action in the courts within the area of jurisdiction of which he has his place of residence or usual abode during the employment relationship or in the courts within the area of jurisdiction of which the remuneration is payable. (3) Where a worker and an employer have entered into a contract of employment and, for any reason whatsoever, no work has in actual fact been carried out by that worker in performance of the contract, the ‘place where or from where the employee habitually carries out his work’, within the meaning of Article 21(1)(b)(i) of Regulation No 1215/2012, is, in principle, the place of work agreed in that contract.

( 1 ) Original language: French.

( 2 ) Regulation of the European Parliament and of the Council of 12 December 2012 (OJ 2012 L 351, p. 1).

( 3 ) That point has been the subject of debate between the parties in the main proceedings (see points 85 to 93 of this Opinion).

( 4 ) I would recall that the Brussels Ia Regulation replaced Regulation (EC) No 44/2001 of the Council of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) (‘the Brussels I Regulation’), which had in turn replaced the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed in Brussels on 27 September 1968 (OJ 1972 l 299, p. 32) (‘the Brussels Convention’). According to consistent case-law of the Court, its interpretation of the provisions of the Brussels Convention and of the Brussels I Regulation can be applied to the equivalent provisions of the Brussels Ia Regulation. Specifically, the Court’s interpretation in matters of individual contracts of employment, in Article 5(1) of the Brussels Convention, can be transposed to Article 19(2) of the Brussels I Regulation (see judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688, paragraphs 45 and 46)), and the case-law on both those articles is also valid in respect of Article 21(1) of the Brussels Ia Regulation. For ease of reference, therefore, I will refer in this Opinion only to the Brussels Ia Regulation and will cite judgments and opinions relating to the preceding instruments interchangeably. I will distinguish between those instruments only where necessary.

( 5 ) The rules of jurisdiction laid down in the Brussels Ia Regulation aim, broadly, to ensure legal certainty and, in that context, to strengthen the legal protection of persons established in the territory of the Member States. Those rules must, therefore, be highly predictable: claimants must be able to identify easily the court before which they may bring an action and defendants must be able reasonably to expect in which courts they might be sued. Those rules also seek to ensure the sound administration of justice. See recitals 15 and 16 of that regulation and, among others, judgment of 4 October 2018, Feniks (C‑337/17, EU:C:2018:805, paragraph 34 and the case-law cited).

( 6 ) Recital 18 of the Brussels Ia Regulation and, among others, judgment of 21 June 2018, Petronas Lubricants Italy (C‑1/17, EU:C:2018:478, paragraph 23 and the case-law cited).

( 7 ) To my understanding, under Paragraph 4(1)(d) of the ASGG jurisdiction lies with the court of the worker’s place of residence where, according to the law applicable to the contract of employment, the remuneration is payable directly at the worker’s place of residence and must, therefore, be paid by the employer at that place of residence.

( 8 ) I would point out that, even before specific rules in matters of individual contracts of employment were introduced in the Brussels Convention, the Court had held that litigation relating to contracts of employment fall within ‘civil and commercial matters’, within the meaning of Article 1(1) of the Brussels Ia Regulation. See judgment of 13 November 1979, Sanicentral (25/79, EU:C:1979:255, paragraph 3).

( 9 ) Recital 13 and Article 4(1) of the Brussels Ia Regulation. Nevertheless, a number of provisions of that regulation apply even where the defendant is domiciled in a third State. See, among others, Articles 20(2) and 21(2) of that regulation.

( 10 ) Under Article 63(1) of the Brussels Ia Regulation, for the purposes of that regulation, companies are domiciled, inter alia, at the place where they have their statutory seat.

( 11 ) Among others, judgment of 19 December 2013, Corman-Collins (C‑9/12, EU:C:2013:860, paragraph 18 and the case-law cited).

( 12 ) See point 18 of this Opinion.

( 13 ) See judgment of 10 September 2015, Holterman Ferho Exploitatie and Others (C‑47/14, EU:C:2015:574, paragraphs 35 to 37), and, by analogy, judgment of 11 April 2019, Bosworth and Hurley (C‑603/17, EU:C:2019:310, paragraph 24).

( 14 ) See judgment of 10 September 2015, Holterman Ferho Exploitatie and Others (C‑47/14, EU:C:2015:574, paragraph 41), and, by analogy, judgment of 11 April 2019, Bosworth and Hurley (C‑603/17, EU:C:2019:310, paragraph 25).

( 15 ) I do not mean to suggest that a contract is classified, for the purposes of Article 20(1) of the Brussels Ia Regulation, solely on the basis of its terms. Indeed, where those terms do not reflect how that relationship is conducted in practice, the factual reality prevails (see point 61 of this Opinion). Specifically, a contract held out as being an ‘individual contract of employment’ will not be classified as such if, in actual fact, one party is not subordinated to the other, and vice versa (see, by analogy, judgment of 11 April 2019, Bosworth and Hurley (C‑603/17, EU:C:2019:310, paragraph 34)). However, that issue does not arise in the present case. The court hearing the case is entitled to determine how to classify the contract at issue – which, moreover, has not been contested by anyone – in the light of its terms, even though the nature of the relationship cannot be confirmed on the basis of the facts, since the contract was not performed.

( 16 ) In addition, I note that, for that second condition to be satisfied, there merely needs to be a material link between the action and the individual contract of employment in question. That applies if the action relates to a dispute arising in connection with its performance, even though it is not based on an obligation arising from that contract. See my Opinion in Bosworth and Hurley (C‑603/17, EU:C:2019:65, points 92 to 98).

( 17 ) I would clarify however that in order for Chapter II, Section 5 of the Brussels Ia Regulation to apply a contract does not need to have been formally concluded between the parties, since that section also applies to de facto employment relationships (see, by analogy, judgment of 11 April 2019, Bosworth and Hurley (C‑603/17, EU:C:2019:310, paragraph 27)). I would note also that there must be a contract of employment or an employment relationship between the parties at the time of the facts, and that the circumstance that the action was brought after that contract or relationship had ended, as in the present case, is immaterial.

( 18 ) I do not intend to opine on whether Chapter II, Section 5 of the Brussels Ia Regulation applies to disputes arising before, or relating to, conclusion of a contract of employment, such as an action for discrimination at the time of engagement.

( 19 ) There are many reasons why a dispute might arise before a contract of employment has even been performed. A worker could fall ill immediately after entering into the contract, for example. If the employer dismissed that worker before he returned from sick leave, a dispute could arise in relation to that dismissal. Both worker and employer might also conclude a contract of employment setting a distant date for starting work, to enable the worker to finish working for a previous employer. If the worker terminated the contract before even starting work, the employer might want to sue the worker.

( 20 ) For a nuanced comparative analysis of the rules of jurisdiction in Sections 1, 2 and 5 of Chapter II of the Brussels Ia Regulation, see Grušić, U., The European Private International Law of Employment, Cambridge University Press, 2015, pp. 106-129.

( 21 ) See Article 22(1) of the Brussels Ia Regulation.

( 22 ) See Article 23 of the Brussels Ia Regulation.

( 23 ) In addition, if Chapter II, Section 5 of the Brussels Ia Regulation only applied subject to a condition relating to the duration and stability of the employment relationship, it would be likely not to apply to disputes concerning ‘atypical’ contracts of employment, such as those of workers engaged for a fixed period, which may be very short (one event), even though those workers are especially deserving of protection. See my Opinion in Bosworth and Hurley (C‑603/17, EU:C:2019:65, footnote 20).

( 24 ) See also recitals 13 and 14 of the Brussels Ia Regulation. That notwithstanding, as I indicated in footnote 9 of this Opinion, a number of provisions of that regulation apply even where the defendant is domiciled in a third State.

( 25 ) See judgment of 19 December 2013, Corman-Collins (C‑9/12, EU:C:2013:860, paragraphs 20 to 22).

( 26 ) In contrast to what the referring court implies, I do not believe that this interpretation would enable an employer to circumvent the rules in the ASGG merely by stipulating in a contract of employment concluded by it with an Austrian worker that the worker’s habitual place of work was in another Member State. Whether or not the Brussels Ia Regulation applies depends in fact on objective circumstances such as the defendant’s domicile and the actual habitual place of work (see point 61 of this Opinion). Moreover, the main proceedings relate to a cross-border dispute and would therefore be covered by that regulation even if the contract had contemplated a habitual place of work in Austria, since BU and Markt24 are not domiciled in the same Member State.

( 27 ) For example, Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).

( 28 ) Recitals 4 and 6 of the Brussels Ia Regulation and, among others, judgment of 1 March 2005, Owusu (C‑281/02, EU:C:2005:120, paragraphs 39 and 43).

( 29 ) Furthermore, according to the Court, Chapter II, Section 5 of the Brussels Ia Regulation ‘[is] not only specific but also exhaustive’ (among others, judgment of 22 May 2008, Glaxosmithkline and Laboratoires Glaxosmithkline (C‑462/06, EU:C:2008:299, paragraph 18)). To my mind that statement goes too far since various provisions of that regulation apply to individual contracts of employment even though they are not referred to in that section, and that section does not expressly stipulate that they will apply notwithstanding other provisions (see, for example, Article 26 of that regulation). That statement nevertheless underscores once more that the court seised cannot apply rules of jurisdiction laid down in its own national law, in particular in relation to actions falling under that section.

( 30 ) In my view, the specific situation based on the ‘last place where he did so’ within the meaning of Article 21(1)(b)(i) of the Brussels Ia Regulation is irrelevant in the present case.

( 31 ) See, among others, judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688, paragraphs 47 and 48 and the case-law cited).

( 32 ) See among others, judgment of 10 April 2003, Pugliese (C‑437/00, EU:C:2003:219, paragraph 19 and the case-law cited).

( 33 ) It is the courts of the place where the obligation to carry out the work has to be performed which are best suited to resolving proceedings relating to contracts of employment. See, among others, judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688, paragraph 58 and the case-law cited).

( 34 ) See among others, judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688, paragraph 58 and the case-law cited).

( 35 ) See to that effect, judgment of 15 February 1989, Six Constructions (32/88, EU:C:1989:68, paragraphs 13 and 14). See also, by analogy, judgment of 15 March 2011, Koelzsch (C‑29/10, EU:C:2011:151, paragraph 43), and Opinion of Advocate General Wahl in Schlecker (C‑64/12, EU:C:2013:241, footnote 27).

( 36 ) See among others, judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688, paragraph 57). See also, by analogy, judgment of 15 March 2011, Koelzsch (C‑29/10, EU:C:2011:151, paragraph 43).

( 37 ) Nevertheless, the forum for the place of the business which engaged the employee, as set out in Article 21(1)(b)(ii) of the Brussels Ia Regulation, is, in principle, the same as that identified by applying Article 7(5) of that regulation. In practice, the forum for that place is therefore generally available to the worker by virtue of Article 7(5) (see points 85 to 92 of this Opinion).

( 38 ) In other words, where the contract of employment has not been performed, the relevant place is the place where the worker should have carried out his activity under the terms of that contract. Where more than one place of work has been agreed in the contract of employment, the case-law according to which a principal place of work must be determined, and the criteria developed by the Court for that purpose, apply mutatis mutandis. It may then be necessary to determine a place ‘from which’ the employee was to carry (or should have carried) out his activity. (see point 72 of this Opinion). However, such a situation is not at issue in the present case (see point 73 of this Opinion).

( 39 ) See to that effect, judgment of 15 February 1989, Six Constructions (32/88, EU:C:1989:68, paragraph 20), and, by analogy, Opinion of Advocate General Trstenjak in Koelzsch (C‑29/10, EU:C:2010:789, point 91).

( 40 ) The Court has held, for example, that, where a worker, having worked for a certain time in one place, then begins to carry on his activities in a different place, that latter place is a decisive factor where ‘the clear intention of the parties is for [that] place to become a new habitual place of work’ (judgment of 27 February 2002, Weber (C‑37/00, EU:C:2002:122, paragraph 54)).

( 41 ) I would clarify that in the case under analysis, BU is not disputing that she should have worked in Munich.

( 42 ) See to that effect, judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688, paragraph 62). See also, by analogy, judgment of 4 October 2012, Format Urządzenia i Montaże Przemysłowe (C‑115/11, EU:C:2012:606, paragraphs 41 to 46), and judgment of 15 December 2011, Voogsgeerd (C‑384/10, EU:C:2011:842, paragraph 62). See also footnote 15 of this Opinion.

( 43 ) See, in that respect, point 34 of this Opinion. By analogy, out of the same concern for legal certainty, in the field of the conflict of laws the law applicable to a contract must, so far as possible, be identifiable at the outset. The proposed solution, transposed to 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 (OJ 2008 L 177, p. 6) (‘Rome I Regulation’) also facilitates that outcome.

( 44 ) See, for various examples, footnote 19 of this Opinion.

( 45 ) Although identifying the habitual place of work is fundamentally a matter of fact and can differ from one case to another, the Court’s case-law must enable outcomes to be generalised to a certain extent since it would otherwise find itself pursuing a purely case-by-case approach, thereby eliminating any predictability for litigants. The case-law established by the Court thus far does in fact allow solutions to be applied generally. I am thinking, for example, of the assumption that, when a worker performs his work in several Member States, but has an office from which he organises his work, the place where that office is located is treated, unless there is evidence to the contrary, as the place where he habitually performs his activity for the employer (see point 72 of this Opinion).

( 46 ) Convention of 26 May 1989 on the accession of the Kingdom of Spain and the Portuguese Republic to the Brussels Convention (OJ 1989 L 285, p. 1).

( 47 ) Moreover, when the rules in matters relating to individual contracts of employment still formed an integral part of Article 5(1) of the Brussels Convention, the Court referred expressly to the place where the work has been or is to be carried out. See judgments of 15 January 1987, Shenavai (266/85, EU:C:1987:11, paragraph 16); of 15 February 1989, Six Constructions (32/88, EU:C:1989:68, paragraphs 14, 19 and 22); of 13 July 1993, Mulox IBC (C‑125/92, EU:C:1993:306, paragraph 17); of 9 January 1997, Rutten (C‑383/95, EU:C:1997:7, paragraph 16); and of 10 April 2003, Pugliese (C‑437/00, EU:C:2003:219, paragraph 17).

( 48 ) That outcome is still in fact expressly laid down, for contracts in general, in Article 7(1) of the Brussels Ia Regulation.

( 49 ) I would note that the case in the main proceedings does not on the face of it concern stand-by duty, as defined in labour law, that is to say, a period during which the worker, without being at the permanent and immediate disposal of his employer, is however obliged to be physically present at or in the vicinity of his home, to respond at any time to possible calls from the employer and, where appropriate, to go quickly to his place of work or on a callout in order to perform work (see, among others, judgment of 21 February 2018, Matzak (C‑518/15, EU:C:2018:82, paragraph 61)). The order for reference in fact contains nothing to suggest that BU was obliged to do any of those things under the contract at issue. Although that order mentions that BU could be contacted by telephone and remained at home prepared to work (see point 11 of this Opinion), to my mind that merely means that she remained generally available to carry out the work agreed, rather than that she was obliged to be physically present at her home, to respond at any time to calls from her employer or to be ready at all times to leave for Munich at short notice in order to carry out a possibly urgent cleaning task. In any event, even in the case of a stand-by duty, in my view, the home of a worker shall not be regarded as his habitual place of work for the purposes of Article 21(1)(b)(i) of the Brussels Ia Regulation on the sole ground that it is the place where a worker waits to be contacted by his employer in order to go to his place of work or on a callout.

( 50 ) Article 19(2)(a) of the Brussels I Regulation referred only to the ‘place where the employee habitually carries out his work’.

( 51 ) See among others, judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688, paragraph 58 and the case-law cited).

( 52 ) The place where a worker’s home is located may also in some circumstances be circumstantial evidence of the place where he has his principal place of employment, since most workers carry on their occupational activity close to their home. The Member State in which the worker has registered with a social security body may also be circumstantial evidence in that respect (see Opinion of Advocate General Jacobs in Mulox IBC (C‑125/92, not published, EU:C:1993:217, point 35)). However, although BU did in fact register with the Austrian social security institution (see point 11 of this Opinion), that circumstance cannot take precedence over the fact that the work was not to be carried out, and indeed was not carried out in practice, in Austria.

( 53 ) Even where, as occurs in the present case, the action brought by the worker concerns performance of remuneration obligations which, in accordance with the lex contractus, must potentially be performed at the worker’s home. Indeed, Article 21(1)(b)(i) of the Brussels Ia Regulation confers jurisdiction on the courts for the habitual place of work irrespective of the obligation arising under the contract of employment at issue.

( 54 ) See Article 18(1) of the Brussels Ia Regulation.

( 55 ) I note incidentally that in a good number of cases the habitual place of work criterion does itself enable workers to bring an action in the courts of the place where they reside, since most workers carry on their occupational activity close to their home or even at home. In the circumstances of the case in the main proceedings, the disadvantage for BU of having to bring proceedings in a German court, under Article 21(1)(b)(i) of the Brussels Ia Regulation would be caused purely and simply by the fact that when she entered into the contract of employment at issue she undertook to work in another Member State. That article would not therefore, under any circumstances, have enabled her to bring an action relating to that contract in Austria, and the mere fact that the contract was not performed cannot be grounds for distorting the criterion of jurisdiction under that article.

( 56 ) See my Opinion in Bosworth and Hurley (C‑603/17, EU:C:2019:65, point 100).

( 57 ) See, by analogy, judgment of 15 December 2011, Voogsgeerd (C‑384/10, EU:C:2011:842, paragraph 55).

( 58 ) Those circumstances are, conversely, relevant for the purposes of applying Article 7(5) and Article 21(1)(b)(ii) of the Brussels Ia Regulation, as I will set out in point 90 of this Opinion.

( 59 ) Nor is it open to the court identified by that article to refuse jurisdiction on the grounds that a different court is better placed, in the light of all the circumstances of the case, to hear the dispute (see, by analogy, judgment of 29 June 1994, Custom Made Commercial (C‑288/92, EU:C:1994:268, paragraph 21)).

( 60 ) More exactly, Article 8(1) and (3) of the Rome I Regulation provides: ‘1. An individual employment contract shall be governed by the law chosen by the parties in accordance with Article 3. Such a choice of law may not, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable pursuant to paragraphs 2, 3 and 4 of this Article. 2. To the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract shall 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. The country where the work is habitually carried out shall not be deemed to have changed if he is temporarily employed in another country. 3. Where the law applicable cannot be determined pursuant to paragraph 2, the contract shall be governed by the law of the country where the place of business through which the employee was engaged is situated’.

( 61 ) In other words, whereas Article 21(1)(b)(i) of the Brussels Ia Regulation lays down a rigid rule of jurisdiction, Article 8(2) of the Rome I Regulation establishes a rebuttable presumption as to the applicable law.

( 62 ) See judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688, paragraphs 55 and 56).

( 63 ) I have reservations, in that respect, about the reasoning adopted by the Court in paragraph 73 of the judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688). After noting, correctly, that, in relation to air transport, the ‘place … from which’ air crew habitually carry out their work is, in principle, the same as their ‘home base’, that is to say, the airport from which they start and end their work, the Court held, in that paragraph, that the courts for that place should only lack jurisdiction ‘if, taking account of the facts of each of the present cases, applications, such as those at issue in the main proceedings, were to display closer connections with [another] place’, referring, in particular, ‘by analogy’ to the judgment of 12 September 2013, Schlecker (C‑64/12, EU:C:2013:551, paragraph 38). However, Schlecker concerned which law was applicable to a contract of employment and whether the court could avail itself of the ‘exception clause’ described above (in its earlier version under the last part of Article 6(2) of the Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1)). Paragraph 73 of the judgment cannot to my mind be understood as suggesting that the work can in itself be more closely connected with a place other than that of the ‘home base’ (for example, because the worker had a more significant base in a different Member State) and that, in consequence, the place where the work is principally performed is in that other Member State. It cannot be a matter of taking into account all the factual circumstances of the case, including those that have no bearing on performance of that work, to determine the court closest to the proceedings.

( 64 ) See among others, judgment of 11 April 2019, Ryanair (C‑464/18, EU:C:2019:311, paragraph 33 and the case-law cited).

( 65 ) In my view, the concepts of ‘branch’, ‘agency’, and ‘other establishment’ referred to in Article 7(5) of the Brussels Ia Regulation have the same meaning as the concept of the ‘business’ which engaged the employee, in Article 21(1)(b)(ii) of that regulation. See, by analogy, judgment of 15 December 2011, Voogsgeerd (C‑384/10, EU:C:2011:842, paragraphs 54 and 58).

( 66 ) See judgment of 22 November 1978, Somafer (33/78, EU:C:1978:205, paragraph 13).

( 67 ) See judgment of 6 April 1995, Lloyd’s Register of Shipping (C‑439/93, EU:C:1995:104, paragraph 22).

( 68 ) See, by analogy, judgment of 15 December 2011, Voogsgeerd (C‑384/10, EU:C:2011:842, paragraphs 43 to 52). As I indicated in footnote 37 of this Opinion, the forum established in Article 7(5) of the Brussels Ia Regulation is, in principle, the same as that for the ‘business which engaged the employee’, within the meaning of Article 21(1)(b)(ii) of that regulation. The difference between those two rules is that the former always applies, whereas the second only applies where there is no habitual place of work. See Grušić, U., op. cit., p. 125.

( 69 ) See, by analogy, judgment of 15 December 2011, Voogsgeerd (C‑384/10, EU:C:2011:842, paragraphs 55 and 56).

( 70 ) See point 13 of this Opinion.

( 71 ) Indeed, Chapter II, Section 5 of the Brussels Ia Regulation excludes application of Article 7(1) of that regulation. See among others, judgment of 10 September 2015, Holterman Ferho Exploitatieand Others (C‑47/14, EU:C:2015:574, paragraph 51).