EN Official Journal of the European Union CE 78/883

(2004/C 78 E/0935)

WRITTEN QUESTION E-3935/03

by Bert Doorn (PPE-DE) to the Commission

(19 December 2003)

Subject: Court with jurisdiction in international civil and commercial matters under Regulation (EC) No 44/2001

In its report on civil and commercial matters (Wallis report — A5-0253/2003), adopted in plenary on 2 September, the European Parliament urged the Commission to evaluate and, if necessary, propose an amendment to Regulation (EC) No 44/2001 (1).

I recently again heard about a problem regarding the application of this regulation. An employee from Germany was working in the Netherlands under a Dutch employment contract. Under German law, an employment contract may be terminated by means of unilateral dismissal, but not under Netherlands law. When an employment dispute arose, the Dutch employer was required by Regulation (EC) No 44/2001 to ask a German court to dissolve the employment contract, a procedure completely unknown to the German court.

Does the Commission agree that the above leads to complicated procedures and places an unnecessary administrative and financial burden on businesses in border regions and their employees?

Will the Commission, as requested by Parliament, take measures to avoid such undesirable situations in future?

Answer given by Mr Vitorino on behalf of the Commission

(12 February 2004)

In its legislative resolution of 2 September 2003 the European Parliament, whilst rejecting the initiative of the Kingdom of the Netherlands, called upon the Commission to give proper consideration to the issue of problems resulting, particularly in border areas, from the exclusive jurisdiction of the courts of the Member State in which the employee is domiciled for legal action brought by the employer for judicial annulment of an employment contract.

The report adopted by the Committee on Legal Affairs and the Internal Market suggests firstly examining whether, and to what extent, problems have arisen or are likely to arise and secondly, depending on the outcome of that analysis, considering amending legislation.

Within its general responsibility for monitoring the implementation and functioning of adopted legislation the Commission can certainly look at the issue that the Honourable Member is raising, or at any other difficulty with Council Regulation (EC) No 44/2001 that may be brought to its attention. As regards the issue in question, it has to be noted that the relatively short period since the entry into force of Council Regulation (EC) No 44/2001 makes it somewhat difficult, due to the absence of much accessible case law, to shed light on the question of where and to what extent the jurisdictional rule of Article 20(1) has led to practical problems in cases such as those mentioned in the written question. However, the Commission database which will become operational at some point in 2004, providing access to decisions of the Member States' courts on the interpretation of the Regulation will be of considerable value in that respect. Furthermore, the European Judicial Network could certainly be an appropriate forum to look further into this matter. Note has to be taken of the fact, however, that even after the issue had been brought to the Member States' attention by the Netherlands initiative, no other Member State, including those sharing a border with the Netherlands, has reported any similar difficulties to the Commission or lent any support to the initiative.

As regards the underlying substantive issue, the Commission confirms that it is firmly attached to the principle of the protection of the employee as the weaker party and shares the view expressed in the report by the Committee on Legal Affairs and the Internal Market that this principle should be retained. In that context, it needs to be underscored that if it could be established that in very specific cases the application of Article 20 of Council Regulation (EC) No 44/2001 is not indispensable to protect the weaker party of an individual employment contract, several solutions would be conceivable, without necessarily creating a new jurisdictional rule. Some specific possibilities are already mentioned in the report of the Committee on Legal Affairs and the Internal Market. For example, the suggestion to require the employee's consent to the bringing of proceedings in the Member State where he habitually carries out his work would not require any change to the Regulation as that possibility already exists pursuant to Article 21. Thus, if it were demonstrated that the application of Article 20 of Council Regulation (EC) No 44/2001 creates practical problems in specific situations, all possible options would have to be carefully analysed, including the possibility that they could be successfully resolved within the current framework of Council Regulation (EC) No 44/2001, for example by resorting to choice-of-court agreements pursuant to Article 21.

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