Anton Schlecker v Melitta Josefa Boedeker.
Date: 2013-09-12
22. It should be noted at the outset that Article 6 of the Rome Convention lays down special conflict rules relating to individual contracts of employment and that those rules derogate from the general rules laid down in Articles 3 and 4 of that convention concerning, respectively, the freedom to choose the applicable law and the criteria for determining that law in the absence of such a choice (see, to that effect, Case C‑29/10 Koelzsch [2011] ECR I‑1595, paragraph 34, and Case C‑384/10 Voogsgeerd [2011] ECR I‑0000, paragraph 24).
24. However, Article 6(2) of the Rome Convention identifies the specific connecting factors which, in the absence of a choice made by the parties, enable the lex contractus to be determined (see Voogsgeerd , paragraph 25).
25. Those factors are, first and foremost, the country in which the employee ‘habitually carries out his work’, as indicated in Article 6(2)(a) of the Rome Convention, failing which, in the absence of such a place, ‘the place of business through which he was engaged’, as indicated in Article 6(2)(b) of that convention (see Voogsgeerd , paragraph 26).
26. Furthermore, under the concluding part of Article 6(2), those two connecting factors do not apply where it appears from the circumstances as a whole that the contract of employment is more closely connected with another country, in which case the law of that other country is to apply (see Voogsgeerd , paragraph 27).
31. In that regard, it should be borne in mind that, in analysing the relationship between the rules set out in Article 6(2)(a) and (b) of the Rome Convention, the Court has held that the criterion of the country in which the employee ‘habitually carries out his work’, referred to in Article 6(2)(a) of that convention, must be broadly construed, whereas the criterion of ‘the place of business through which [the employee] was engaged’, referred to in Article 6(2)(b) of the convention, can apply only in cases where the court hearing the case is not in a position to determine the country in which the work is habitually carried out (see Koelzsch , paragraph 43, and Voogsgeerd , paragraph 35).
32. Thus, for the purposes of determining the applicable law, priority must be given to the nexus between the employment contract at issue and the country where the employee habitually carries out his work; the application of that criterion precludes consideration of the secondary criterion of the country in which the place of business through which the employer was engaged is situated (see, to that effect, Koelzsch , paragraph 43, and Voogsgeerd , paragraphs 32, 35 and 39).
33. A different interpretation would be contrary to the objective of Article 6 of the Rome Convention, which is to guarantee adequate protection to the employee. As emerges from the Giuliano and Lagarde Report on the Convention on the law applicable to contractual obligations (OJ 1980 C 282, p. 1), Article 6 of the Rome Convention was intended to provide ‘a more appropriate arrangement for matters in which the interests of one of the contracting parties are not the same as those of the other, and … more adequate protection for the party who from the socio-economic point of view is regarded as the weaker in the contractual relationship’ (see Koelzsch , paragraphs 40 and 42, and Voogsgeerd , paragraph 35).
35. As is apparent from the wording of Article 6 of the Rome Convention and from its objective, the court must first determine the applicable law by reference to the specific connecting factors under Article 6(2)(a) and (b) respectively, which satisfy the general requirement of predictability of the law and accordingly of legal certainty in contractual relationships (see, by analogy, Case C‑133/08 ICF  [2009] ECR I‑9687, paragraph 62).
38. That interpretation is consistent also with the wording of the new provision on the conflict rules relating to contracts of employment, introduced by the Rome I Regulation, although that regulation is not applicable to the main proceedings ratione temporis . Under Article 8(4) of that regulation, where it appears from the circumstances as a whole that the contract is more closely connected with a country other than that referred to in Article 8(2) or 8(3), the law of that other country is to apply (see, by analogy, Koelzsch , paragraph 46).
40. Accordingly, the referring court must take account of all the elements which define the employment relationship and single out one or more as being, in its view, the most significant. Nevertheless, as the Commission emphasised and the Advocate General pointed out in point 66 of his Opinion, the court called upon to rule in a particular case cannot automatically conclude that the rule laid down in Article 6(2)(a) of the Rome Convention must be disregarded solely because, by dint of their number, the other relevant circumstances – apart from the actual place of work – would result in the selection of another country.