Sandra Nogueira and Others v Crewlink Ireland Ltd and Miguel José Moreno Osacar v Ryanair Designated Activity Company.
Date: 2017-09-14
32


In those circumstances, the cour du travail de Mons (Mons Higher Labour Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Taking into account:





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the need for predictability of approach and legal certainty, which governed the adoption of the rules on jurisdiction and the enforcement of judgments in civil and commercial proceedings laid down in the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by [successive conventions on the accession of new Member States to that convention] and the [Brussels I Regulation] (see, in particular, the judgment of 19 July 2012, Mahamdia, C‑154/11, EU:C:2012:491, paragraphs 44 and 46).








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the particular features of the European air navigation sector, in which air crews working for airlines whose registered office is in one of the Member States of the European Union fly over, on a daily basis, the territory of the European Union, departing from a home base that may, as in the present case, be located in another Member State,








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the particular circumstances of the present case as described in the grounds of the … order for reference,








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the criterion derived from the concept of “home base” (as defined in Annex III to Regulation No 3922/91), which is used in Regulation No 883/2004 to determine which social security legislation applies, with effect from 28 June 2012, to airline flight crews and cabin crews,








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the approach taken in the case-law of the Court of Justice of the European Union, in the terms of the judgments cited in the grounds of the present order for reference,
may the concept of the “place where the employee habitually carries out his work” referred to in Article 19(2) of the [Brussels I Regulation] be interpreted as being comparable to that of “home base”, defined in Annex III to [Regulation No 3922/91] as “the location nominated by the operator to the crew member from where the crew member normally starts and ends a duty period or a series of duty periods and where, under normal conditions, the operator is not responsible for the accommodation of the crew member concerned”, for the purpose of determining the Contracting State (and thus the jurisdiction) on whose territory an employee habitually carries out his work where the employee is employed as a member of the air crew of an airline, subject to the laws of a Member State of the European Union, that transports passengers internationally by air throughout the territory of the European Union, since that criterion of connection, based on the “home base”, in the sense of “the effective centre of the work relationship”, inasmuch as the employee systematically begins and ends his working day at that place, organises his daily work there and, throughout the period of his contractual relationship maintains his residence there, is the criterion which both indicates the closest connection with a Contracting State and ensures the most satisfactory protection of the weaker party in the contractual relationship?’
45


As a preliminary point, it must be pointed out that, in the first place, as is apparent from recital 19 of the Brussels I Regulation and in so far as that regulation replaces the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by successive conventions on the accession of new Member States to that convention (‘the Brussels Convention’), in the relations between Member States, the interpretation given by the Court in respect of the provisions of that convention is also valid for those of that regulation whenever the provisions of those instruments may be regarded as equivalent (judgment of 7 July 2016, Hőszig, C‑222/15, EU:C:2016:525, paragraph 30 and the case-law cited).
47


In addition, as regards an individual contract of employment, the place of performance of the obligation in question, referred to in the second part of the sentence of Article 5(1) of the Brussels Convention, must be determined on the basis of uniform criteria which it is for the Court to lay down on the basis of the scheme and objectives of that convention. The Court has thus stressed that such an autonomous interpretation alone is capable of ensuring uniform application of that convention, the objectives of which include unification of the rules on jurisdiction of the Contracting States, so as to avoid as far as possible the multiplication of the bases of jurisdiction in relation to one and the same legal relationship and to reinforce the legal protection available to persons established in the Community by, at the same time, allowing the plaintiff easily to identify the court before which he may bring an action and the defendant reasonably to foresee the court before which he may be sued (judgment of 10 April 2003, Pugliese, C‑437/00, EU:C:2003:219, paragraph 16 and the case-law cited).
48


It follows that the requirement of autonomous interpretation applies to Article 19(2) of the Brussels I Regulation also (see, to that effect, judgment of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 37 and the case-law cited).
49


In the second place, it follows from the settled case-law of the Court that, first, for disputes related to contracts of employment, Section 5 of Chapter II of the Brussels I Regulation lays down a series of rules whose objective, as is stated in Recital 13 of that regulation, is to protect the weaker party to the contract by means of rules of jurisdiction that are more favourable to his interests (see, to that effect, judgments of 19 July 2012, Mahamdia, C‑154/11, EU:C:2012:491, paragraph 44 and the case-law cited, and of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 43).
50


Those rules enable inter alia an employee to sue his employer before the court which he regards as closest to his interests, by giving him the option of proceeding before the courts of the Member State in which the employer is domiciled or the courts of the place in which the employee habitually carries out his work or, where that work is not carried out in any one country, before the courts of the place where the business which hired the employee is situated. The provisions of that section also limit the choice of jurisdiction by an employer suing an employee, and the possibility of derogating from the rules of jurisdiction laid down by that regulation (judgment of 19 July 2012, Mahamdia, C‑154/11, EU:C:2012:491, paragraph 45 and the case-law cited).
51


Second, the provisions featuring under Section 5 of Chapter II of the Brussels I Regulation are not only specific but also exhaustive (see, to that effect, judgment of 10 September 2015, Holterman Ferho Exploitatie and Others, C‑47/14, EU:C:2015:574, paragraph 44 and the case-law cited).
52


In the third place, Article 21 of the Brussels I Regulation restricts the conclusion by the parties to a contract of employment of an agreement on jurisdiction. Such an agreement must thus be concluded after the dispute has arisen or, if it was concluded beforehand, must allow the employee to bring proceedings before courts other than those on which those rules confer jurisdiction (judgment of 19 July 2012, Mahamdia, C‑154/11, EU:C:2012:491, paragraph 61).
53


Consequently, that provision cannot be interpreted as meaning that a jurisdiction clause could apply exclusively and thus prohibit the employee from bringing proceedings before the courts which have jurisdiction under Articles 18 and 19 of the Brussels I Regulation (see, to that effect, judgment of 19 July 2012, Mahamdia, C‑154/11, EU:C:2012:491, paragraph 63).
57


As regards the determination of the ‘place where the employee habitually carries out his work’, within the meaning of Article 19(2)(a) of the Brussels I Regulation, the Court has repeatedly held that the criterion of the Member State where the employee habitually carries out his work must be interpreted broadly (see, by analogy, judgment of 12 September 2013, Schlecker, C‑64/12, EU:C:2013:551, paragraph 31 and the case-law cited).
58


As regards an employment contract performed in the territory of several Contracting States and where there is no effective centre of professional activities from which an employee performs the essential part of his duties vis-à-vis his employer, the Court has held that Article 5(1) of the Brussels Convention must — in view of the need to establish the place with which the dispute has the most significant link, so that it is possible to identify the courts best placed to decide the case in order to afford proper protection to the employee as the weaker party to the contract and to avoid multiplication of the courts having jurisdiction — be interpreted as referring to the place where, or from which, the employee actually performs the essential part of his duties vis-à-vis his employer. That is the place where it is least expensive for the employee to commence proceedings against his employer or to defend such proceedings and where the courts best suited to resolving disputes relating to the contract of employment are situated (see, to that effect, judgment of 27 February 2002, Weber, C‑37/00, EU:C:2002:122, paragraph 49 and the case-law cited).
59


Thus, in such circumstances, the concept of ‘place where the employee habitually carries out his work’ enshrined in Article 19(2)(a) of the Brussels I Regulation must be interpreted as referring to the place where, or from which, the employee in fact performs the essential part of his duties vis-à-vis his employer.
62


That circumstantial method makes it possible not only to reflect the true nature of legal relationships, in that it must take account of all the factors which characterise the activity of the employee (see, by analogy, judgment of 15 March 2011, Koelzsch, C‑29/10, EU:C:2011:151, paragraph 48), but also to prevent a concept such as that of ‘place where, or from which, the employee habitually performs his work’ from being exploited or contributing to the achievement of circumvention strategies (see, by analogy, judgment of 27 October 2016, D’Oultremont andOthers, C‑290/15, EU:C:2016:816, paragraph 48 and the case-law cited).
63


As observed by the Advocate General in point 85 of his Opinion, as regards work relationships in the transport sector, the Court, in the judgments of 15 March 2011, Koelzsch (C‑29/10, EU:C:2011:151, paragraph 49), and of 15 December 2011, Voogsgeerd (C‑384/10, EU:C:2011:842, paragraphs 38 to 41), mentioned several indicia that might be taken into consideration by the national courts. Those courts must, in particular, determine in which Member State is situated (i) the place from which the employee carries out his transport-related tasks, (ii) the place where he returns after his tasks, receives instructions concerning his tasks and organises his work, and (iii) the place where his work tools are to be found.
73


It would only be if, taking account of the facts of each of the present cases, applications, such as those at issue in the main proceedings, were to display closer connections with a place other than the ‘home base’ that the relevance of the latter for the identification of ‘the place from which employees habitually carry out their work’ would be undermined (see, to that effect, judgment of 27 February 2002, Weber, C‑37/00, EU:C:2002:122, paragraph 53, as well as, by analogy, judgment of 12 September 2013, Schlecker, C‑64/12, EU:C:2013:551, paragraph 38 and the case-law cited).