WRITTEN QUESTION E-0785/02

by Bartho Pronk (PPE-DE), Ria Oomen-Ruijten (PPE-DE)and Toine Manders (ELDR) to the Commission

(19 March 2002)

Subject: Regulation (EC) No 44/2001

Regulation (EC) No 44/2001(1) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters entered into force on 1 March 2002. Article 20(1) of the regulation says that:

1. An employer may bring proceedings only in the courts of the Member State in which the employee is domiciled.

In view of the substantial differences in the area of labour law, social security law and tax law between the various Member States, it seems on the face of it that lengthy, cumbersome and costly procedures may arise. The judge in the Member State of the employee always first has to consider the relevant law of the employer's Member State in the event of a dispute. In addition, the case documents have to be translated, which may entail a great deal of time and substantial costs. This would be justified if the worker actually carried out his activities in the territory of the Member State in which he is domiciled, but this is far from always being the case. The provision therefore seems extremely rigid.

1. Will the Commission clarify the interpretation, background and implications of this provision, bearing in mind the concerns set out above? Would it not be better to apply the criterion that only the courts in the Member State in which the work is actually done would have jurisdiction?

2. Does the present system not result in unnecessarily high translation costs? Can the Commission explain which party is responsible for paying the additional translation costs and does it not consider that this imposes an extra and unnecessary burden on citizens and/or undertakings in the European Union?

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

Answer given by Mr Vitorino on behalf of the Commission

(21 May 2002)

The sound administration of justice is an essential concern when drafting the rules of private international law. However, this law is also a reflection of other objectives of general interest, such as connection between the dispute, the court at which the case is to be heard, the applicable law and the protection of the weaker party.

Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters(1) entered into force on 1 March 2002. The provisions on the contract of employment have been amended with the specific purpose of protecting the weaker party by means of rules of jurisdiction which are more favourable to his interests than the general rules which would have tended to favour a tribunal closer to the employer. Article 20 therefore states that an employer may bring proceedings only in the courts of the Member State in which the employee is domiciled. The employee, on the other hand, may sue the employer in the courts of the Member State in which he is domiciled, or, in another Member State, in the courts for the place where the employee habitually carries out his work or in the courts for the last place where he did so.

On the matter of applicable law, the Rome Convention of 19 June 1980, which is binding in all the Member States, requires the court to apply the law chosen by the parties, although this choice should not have the result of depriving the worker of the protection afforded to him by the mandatory rules of the law of the country in which he habitually carries out his work, as a matter of principle. If no choice is made, the applicable law is that of the country in which the worker habitually carries out his work. There is, then, in certain cross-border situations covered only by Regulation (EC) No 44/2001, a degree of separation between the law applied and the law of the court seised. This solution is justified, however, firstly, by the need to ensure that all employees of the same company are subject to the same law, and secondly, because the law of the place where the work is carried out, and especially its mandatory rules on the protection of workers, has the closest links with the dispute. For information, the Commission is currently working on a Green Paper on the

conversion of the 1980 Rome Convention into a Community instrument and its modernisation. It cannot be ruled out that the provisions of this Convention relating to contracts of employment will be subjected to critical review.

In addition, Article 73 of the Regulation requires the Commission to report to the European Parliament on its application no later than five years after its entry into force. Thus, even if the situation described by the Honourable Member, which already existed at the time of the adoption by the Council of Regulation (EC) No 44/2001, has neither been raised nor given rise to the tabling of amendments in the course of negotiations, the Commission could still examine it in this report should it prove in the course of its application in the Member States that Article 20 of the Regulation was causing problems, in particular as regards increasing costs.

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

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