Keywords

Summary



Keywords

1. Convention on the law applicable to contractual obligations – Applicable law in the absence of choice – Connecting criteria – Contract of employment – Country in which the work is habitually carried out – Independent interpretation

(Rome Convention of 19 June 1980, Art. 6(2))

2. Convention on the law applicable to contractual obligations – Applicable law in the absence of choice – Connecting criteria – Contract of employment – Country in which the work is habitually carried out – Concept – Activity in more than one Contracting State – Country in which or from which the employee mainly carries out his obligations

(Rome Convention of 19 June 1980, Art. 6(2))

Summary

1. The rule set out in Article 6(2)(a) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations and, in particular, 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 renvoi rule cannot be established on the basis of the applicable national law in accordance with the rules on conflict of laws 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.

Moreover, such an interpretation must not disregard that relating to the criteria set out in Article 5(1) of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters when 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.

(see paras 31-33)

2. Article 6(2)(a) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations 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 greater part of his obligations towards his employer.

The criterion in Article 6(2)(a) of the Rome Convention is also to apply in a situation in which 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.

In the light of the objective of Article 6 of the Rome Convention, which is to guarantee adequate protection for the employee, the criterion of the country in which the work is habitually carried out, set out in Article 6(2)(a), must be interpreted broadly. As in the Court’s interpretation of Article 5(1) of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, the criterion of the country in which the work is habitually carried out must be understood as referring to the place in which or from which the employee actually carries out his working activities and, failing a centre of activities, to the place where he carries out the majority of his activities. 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 on the law applicable to contractual obligations (Rome I), and in particular with Article 8 thereof.

As regards work in the international transport sector, in order to determine the State in which the employee habitually carries out his work, the referring court must take account of all the factors specific to that activity. To that end, it must, in particular, determine in which State the place is situated from which the employee carries out his transport tasks, receives instructions concerning his tasks and arranges 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 completing his tasks.

(see paras 42-50, operative part)