Peter Bosworth and Colin Hurley v Arcadia Petroleum Limited and Others.
Date: 2019-04-11
22


In the light of the identical wording of those provisions and the provisions of Section 5 of Chapter II (Articles 18 to 21) of Council Regulation (EC) No 44/2001 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 Court’s interpretation of the latter provisions is capable of being applied to those of Section 5 of Title II (Articles 18 to 21) of the Lugano II Convention (see, to that effect, judgment of 4 December 2014, H, C‑295/13, EU:C:2014:2410, paragraphs 31 and 32).
23


In order to determine whether the provisions of Section 5 of Title II (Articles 18 to 21) of the Lugano II Convention are applicable to a situation such as that at issue in the main proceedings, it is necessary to consider whether Mr Bosworth and Mr Hurley can be regarded as having been party to an ‘individual contract of employment’, within the meaning of Article 18(1) of that convention, with one of the companies in the Arcadia Group, and whether they can therefore be classified as ‘employees’, within the meaning of Article 18(2) of that convention (see, to that effect, judgment of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 34).
24


In that regard, it should be pointed out that that any such classification cannot be determined on the basis of national law (judgment of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 36) and that, in order to ensure that the Lugano II Convention, in particular Article 18 thereof, is fully effective, the legal concepts it uses must be given an independent interpretation common to all the contracting parties (see, to that effect, judgments of 19 July 2012, Mahamdia, C‑154/11, EU:C:2012:491, paragraph 42, and of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 37).
25


As regards the concept of ‘employee’, it must also be recalled that, as the Court has consistently held, that concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. 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 (see, in particular, judgment of 20 September 2007, Kiiski, C‑116/06, EU:C:2007:536, paragraph 25 and the case-law cited).
26


It follows that an employment relationship implies the existence of a hierarchical relationship between the worker and his employer, and that the issue whether such a relationship exists must, in each particular case, be assessed on the basis of all the factors and circumstances characterising the relationship between the parties (judgments of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 46, and of 20 November 2018, Sindicatul Familia Constanţa and Others, C‑147/17, EU:C:2018:926, paragraph 42).
31


In the circumstances, it appears that Mr Bosworth and Mr Hurley had an ability to influence Arcadia that was not negligible and that, therefore, it must be concluded that there was no relationship of subordination (see, to that effect, judgment of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 47), irrespective of whether or not they held part of the share capital of Arcadia.