WRITTEN QUESTION E-1517/02

by Miet Smet (PPE-DE) to the Commission

(29 May 2002)

Subject: Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

Chapter II, Section 5, Articles 18-21 of Regulation (EC) No 44/2001(1) contains special provisions concerning jurisdiction over individual contracts of employment. Under these provisions, if an employee is a defendant in a case, proceedings may be brought against him or her only in his/her Member State of residence. Exceptions to this rule are strictly regulated. Labour law, social insurance law and fiscal law are crucial to the substantive assessment by courts of disputes concerning employment, but fundamental differences exist between the Member States of the Union in these fields.

Can the Commission understand the fear that Regulation No 44/2001 may make it difficult or even impossible for a court to correctly appraise a dispute concerning an employment contract concluded under the law of another Member State and to give judgment on it within a reasonable period of time?

Does the Commission agree that legal proceedings become very expensive and subject to long delays if courts need to obtain information, either within their own country or from a court in the country where the employee performs his work?

Under the existing legislation, would it be possible to ensure in a quick and simple manner that judgment is given on a dispute by a court which is familiar with the law applicable to the contract, namely a court in the country where the work is performed?

Might it be possible for the Commission to take measures in future to resolve this situation satisfactorily?

(1) OJ L 12, 16.1.2001, p. 1.

Answer given by Mr Vitorino on behalf of the Commission

(10 July 2002)

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters entered into force on 1 March 2002(1). The provisions on contracts of employment set out in Chapter II, Section 5, were amended for the express purpose of protecting the weaker party. The rules they lay down concerning the judicial authority responsible are more favourable to the weaker party than the general rules, which would have favoured bringing the case before a court closer to the employer. Article 20 thus stipulates that the employer may bring proceedings only in the courts of the Member State in which the employee is domiciled. The worker, however, can sue the employer in another Member State, provided that the case is brought before the courts of the state in which the latter is domiciled, or before the courts of the worker's habitual or former place of work.

The Rome Convention of 19 June 1980, which is binding on all Member States, stipulates that the court before which the case is brought must apply the law chosen by the parties, although this choice cannot, in principle, deprive the worker of the protection of the applicable legal provisions in his usual place of work. Where there is no choice, the law of the Member State where the worker habitually works is applicable. In trans-border cases covered only by Regulation (EC) No 44/2001, there is thus something of a disparity between

the law actually applied and the law of the court before which the case is brought. However, this solution is justified firstly by the need to ensure that all the employees of a given company are subject to the same law, and secondly by the fact that it is the law applicable in the worker's place of work and particularly its binding provisions on the protection of workers which is mostly closely linked with the case. For your information, the Commission is currently drawing up a Green Paper on the conversion of the Rome Convention into a Community instrument and its modernisation. It is thus possible that the Convention's provisions on contracts of employment may be subjected to critical appraisal.

Moreover, Article 73 of the Regulation stipulates that the Commission must present a report on its application to Parliament at the latest five years after its entry into force. Even if the situation described by the Honourable Member, which was already in existence when Regulation (EC) No 44/2001 was adopted by the Council, was not mentioned and did not lead to the tabling of amendments during the negotiations, the Commission could examine it when drawing up its report if it were to transpire, in the light of the application in the Member States of the Regulation referred to by the Honourable Member, that its articles raise difficulties, particularly as regards an increase in the cost of proceedings.

The Commission does not, therefore, intend at this stage to propose a revision of Regulation (EC) No 44/2001, which has only just entered into force.

(1) OJ L 12, 16.1.2001.