Heiko Koelzsch v État du Grand Duchy of Luxemburg.
Date: 2011-03-15
32. In that regard, it should be noted, as the European Commission has correctly pointed out, that that criterion must be interpreted autonomously, in the sense that the meaning and scope of that referential rule cannot be established on the basis of the law of the court seised, but must be established according to consistent and independent criteria in order to guarantee the full effectiveness of the Rome Convention in view of the objectives which it pursues (see, by way of analogy, Case C‑125/92 Mulox IBC  [1993] ECR I‑4075, paragraphs 10 and 16).
33. Moreover, such an interpretation must not disregard that relating to the criteria set out in Article 5(1) of the Brussels Convention where they lay down the rules for determining jurisdiction for the same matters and set out similar concepts. It follows from the preamble to the Rome Convention that it was concluded in order to continue, in the field of private international law, the work of unification of law set in motion by the adoption of the Brussels Convention (see Case C‑133/08 ICF  [2009] ECR I‑9687, paragraph 22).
34. With regard to the content of Article 6 of the Rome Convention, it should be noted that it lays down special conflict rules relating to individual contracts of employment. Those rules derogate from those of a general nature set out in Articles 3 and 4 of that convention, which concern, respectively, the freedom of choice of the applicable law and the criteria for determining that law in the absence of such a choice.
39. By contrast, according to the appellant in the main proceedings, the Greek Government and the Commission, it follows from the Court’s case-law on Article 5(1) of the Brussels Convention that the consistent interpretation of the criterion of the place where the employee ‘habitually carries out his work’ has the result that that rule can also be applied in cases where work is carried out in several Member States. In particular, they point out that, for the purposes of specifically determining that place, the Court has made reference to the place from which the employee mainly carries out his obligations towards his employer ( Mulox IBC , paragraphs 21 to 23) or to the place in which he has established the effective centre of his working activities (Case C‑383/95 Rutten  [1997] ECR I‑57, paragraph 23), or, in the absence of an office, to the place in which the employee carries out the majority of his work (Case C‑37/00 Weber  [2002] ECR I‑2013, paragraph 42).
40. In that regard, it is apparent from the Giuliano and Lagarde Report on the Convention on the law applicable to contractual obligations (OJ 1980 C 282, p. 1) that Article 6 thereof 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’.
41. The Court has also been guided by those principles in the interpretation of the rules of jurisdiction relating to those contracts which are laid down by the Brussels Convention. It has held that, in a situation in which, as in the main proceedings, the employee carries out his working activities in more that one Contracting State, it is necessary to take due account of the need to guarantee adequate protection to the employee as the weaker of the contracting parties (see, to that effect, Rutten , paragraph 22, and Case C‑437/00 Pugliese  [2003] ECR I‑3573, paragraph 18).
42. It follows that, in so far as the objective of Article 6 of the Rome Convention is to guarantee adequate protection for the employee, that provision must be understood as guaranteeing the applicability of the law of the State in which he carries out his working activities rather than that of the State in which the employer is established. It is in the former State that the employee performs his economic and social duties and, as was noted by the Advocate General in point 50 of her Opinion, it is there that the business and political environment affects employment activities. Therefore, compliance with the employment protection rules provided for by the law of that country must, so far as is possible, be guaranteed.
43. Consequently, in the light of the objective of Article 6 of the Rome Convention, it must be held that the criterion of the country in which the employee ‘habitually carries out his work’, set out in Article 6(2)(a) thereof, must be given a broad interpretation, while the criterion of ‘the place of business through which [the employee] was engaged’, set out in Article 6(2)(b) thereof, ought to apply in cases where the court dealing with the case is not in a position to determine the country in which the work is habitually carried out.
44. It follows from the foregoing that the criterion in Article 6(2)(a) of the Rome Convention can apply also in a situation, such as that at issue in the main proceedings, where the employee carries out his activities in more than one Contracting State, if it is possible, for the court seised, to determine the State with which the work has a significant connection.
45. According to the Court’s case-law, cited in paragraph 39 of the present judgment, which remains relevant to the analysis of Article 6(2) of the Rome Convention, where work is carried out in more than one Member State, the criterion of the country in which the work is habitually carried out must be given a broad interpretation and be understood as referring to the place in which or from which the employee actually carries out his working activities and, in the absence of a centre of activities, to the place where he carries out the majority of his activities.
46. Moreover, that interpretation is consistent also with the wording of the new provision on the conflict-of-law rules relating to individual contracts of employment, introduced by Regulation No 593/2008, which is not applicable to the present case ratione temporis . According to Article 8 of that regulation, to the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract is to be governed by the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract. That law remains applicable also where the employee carries out duties temporarily in another State. Furthermore, as stated in recital 23 in the preamble to that regulation, the interpretation of that provision must be prompted by the principles of favor laboratoris  in that the weaker parties to contracts must be protected ‘by conflict-of-law rules that are more favourable’.
48. Accordingly, in the light of the nature of work in the international transport sector, such as that at issue in the main proceedings, the referring court must, as proposed by the Advocate General in points 93 to 96 of her Opinion, take account of all the factors which characterise the activity of the employee.
49. It must, in particular, determine in which State is situated the place 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 situated. It must also determine the places where the transport is principally carried out, where the goods are unloaded and the place to which the employee returns after completion of his tasks.