Jan Voogsgeerd v Navimer SA.
Date: 2011-12-15
24. It should be borne in mind at the outset that Article 6 of the Rome Convention lays down special conflict of laws rules concerning individual employment contracts which derogate from the general rules contained in Articles 3 and 4 of the Rome Convention, concerning, respectively, the freedom of choice of the applicable law and the criteria for determining that law in the absence of such a choice.
25. Thus, Article 6(1) of the Rome Convention provides that the choice made by the parties regarding the law applicable to the contract of employment cannot lead to the employee’s being deprived of the guarantees laid down by the mandatory provisions of the law which would be applicable to the contract in the absence of a choice. Article 6(2) sets out the linking factors of the employment contract on the basis of which the lex contractus  must be determined in the absence of a choice by the parties.
26. Those factors are, first, that of the country in which the employee ‘habitually carries out his work’ (Article 6(2)(a)) or, alternatively, if there is no such place, ‘the place of business through which he was engaged’ (Article 6(2)(b)).
27. Furthermore, according to the last sentence of Article 6(2), those two linking factors are not to 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.
30. Nevertheless, it should be recalled that, according to the case-law of the Court, in the context of the preliminary ruling procedure, while it falls to the referring court to apply the rule of European Union law to a dispute before it and, thus, to characterise a provision of national law by reference to such a rule, it is the Court’s duty to provide that referring court with an interpretation of European Union law which may be useful to it in assessing the effects of that provision (see, to that effect, Case C-6/01 Anomar and Others [2003] ECR I-8621, paragraph 37 and the case-law cited), to extract from all the information provided by the national court, and, in particular, from the statement of grounds for the reference, the elements of European Union law requiring an interpretation, having regard to the subject-matter of the dispute (see, to that effect, Case 20/87 Gauchard  [1987] ECR 4879, paragraph 7).
32. Furthermore, it must be observed that, for the purposes of determining the applicable law, the factor linking the employment contract in issue to the country where the employee habitually carries out his work must be taken into consideration first, and its application excludes the taking into consideration of the secondary factor of the country in which the place of business through which he was engaged is situated.
35. That interpretation is also supported by the analysis of the objective of Article 6 of the Rome Convention, which is to guarantee adequate protection to the employee. Thus, as the Court has already stated, the factor of the country in which the employee ‘habitually carries out his work’, set out in Article 6(2)(a) of the Rome Convention, must be given a broad interpretation, while the factor of ‘the place of business through which [the employee] was engaged’, in Article 6(2)(b) thereof, can apply only if the court seised is not in a position to determine the country in which the work is habitually carried out (see Koelzsch , paragraph 43).
36. Thus, in a case such as that in the main proceedings, which concerns an employee carrying out his work in more than one Contracting State, the factor in Article 6(2)(a) of the Rome Convention should nonetheless be applied when it is possible for the court seised to determine the State with which the work has a significant connection (see Koelzsch , paragraph 44).
37. In such a case, the factor of the country in which the work is habitually carried out must be understood as referring to the place in which or from which the employee actually carries out his working activities and, if there is no centre of activities, to the place where he carries out the majority of his activities (see Koelzsch,  paragraph 45).
38. Therefore, in the light of the nature of work in the maritime sector, such as that at issue in the main proceedings, the court seised must take account of all the factors which characterise the activity of the employee and must, in particular, determine in which State the place is situated from which the employee carries out his transport tasks, receives instructions concerning his tasks and organises his work, and the place where his work tools are to be found (see Koelzsch , paragraphs 48 and 49).
39. If it is apparent from these findings that the place from which the employee carries out his transport tasks and also receives the instructions concerning his tasks is always the same, that place must be considered to be the place where he habitually carries out his work, within the meaning of Article 6(2)(a). As stated at paragraph 32 above, the factor of the place where the employee habitually carries out his work is applied in priority.
40. Consequently, the aspects characterising the employment relationship, as referred to in the order for reference, namely, the place of actual employment, the place where the employee receives instructions or where he must report before discharging his tasks, are relevant for the determination of the law applicable to that employment relationship in that, when those places are situated in the same country, the court seised may take the view that the situation falls within the case provided for in Article 6(2)(a) of the Rome Convention.
41. It follows that, on a proper construction of Article 6(2) of the Rome Convention, the national court seised of the case must first establish whether the employee, in the performance of his contract, habitually carries out his work in any one country, which is that in which or from which, in the light of all the aspects characterising that activity, the employee performs the main part of his duties to his employer.
54. In that context, it must be noted at the outset that it is apparent from the wording of that provision that it does not concern only those business units of the undertaking that have legal personality, the term ‘place of business’ covering every stable structure of an undertaking. Consequently, not only the subsidiaries and branches but also other units, such as the offices of an undertaking, could constitute places of business within the meaning of Article 6(2)(b) of the Rome Convention, even though they do not have legal personality.
62. As regards the claim of the applicant in the main proceedings as to the same person’s being the director of Naviglobe and of Navimer, it is for the referring court to assess what the real relationship between the two companies is in order to establish whether Naviglobe is, indeed, the employer of the personnel engaged by Navimer. The court seised must, in particular, take into consideration all the objective factors making it possible to establish that there exists a real situation different from that which appears from the terms of the contract (see, by analogy, Case C-341/04 Eurofood IFSC [2006] ECR I-3813, paragraph 37).