Voogsgeerd (Rome Convention on the law applicable to contractual obligations) [2011] EUECJ C-384/10 (15 December 2011)

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(Rome Convention on the law applicable to contractual obligations – Contract of employment – Choice made by the parties – Mandatory rules of the law applicable in the absence of choice – Determination of that law – Employee carrying out his work in more than one Contracting State)

1 This reference for a preliminary ruling concerns the interpretation of Article 6 of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1) (‘the Rome Convention’), which relates to individual employment contracts.

2 The reference has been made in the course of proceedings between Mr Voogsgeerd, residing at Zandvoort (Netherlands), and Navimer SA (‘Navimer’), an undertaking established in Mertert (the Grand Duchy of Luxembourg), regarding a payment in lieu of notice to Mr Voogsgeerd for breach of the employment contract which he had entered into with that undertaking.

7 Article 80(2) of the Luxembourg Law of 9 November 1990 establishing a Luxembourg Public Maritime Register (Mémorial A 1990, p. 808), provides:

8 Article 39 of the Belgian Law of 3 July 1978 on employment contracts (Belgisch Staasblad, 22 August 1978), states:

The dispute in the main proceedings and the questions referred for a preliminary ruling

9 On 7 August 2001 at the headquarters of Naviglobe NV (‘Naviglobe’), an undertaking established at Antwerp (Belgium), Mr Voogsgeerd entered into a contract of employment of indefinite duration with Navimer. The parties chose Luxembourg law to be the law applicable to that contract

10 From August 2001 until April 2002, Mr Voogsgeerd served as chief engineer on the ships MS Regina and Prince Henri, which belonged to Navimer, and whose navigation area extended to the North Sea.

11 By letter of 8 April 2002, that undertaking served a notice of dismissal on Mr Voogsgeerd. On 4 April 2003, Mr Voogsgeerd commenced proceedings against Naviglobe and Navimer before the arbeidsrechtbank te Antwerpen (Labour Court, Antwerp), seeking an order that those undertakings, jointly and severally, make a payment in lieu of notice in accordance with the Belgian Law of 3 July 1978 on employment contracts, plus interest and costs.

12 In support of his application, Mr Voogsgeerd claimed that, based on Article 6(1) of the Rome Convention, the mandatory rules of Belgian employment law were applicable, irrespective of the choice made by the parties regarding the applicable law. In that respect, Mr Voogsgeerd claimed that he was bound, by his contract of employment, to the Belgian undertaking Naviglobe, and not to the Luxembourg undertaking Navimer, and that he had principally carried out his work in Belgium where he received instructions from Naviglobe and to which he returned after each voyage.

13 By judgment of 12 November 2004, the arbeidsrechtbank te Antwerpen declared that it lacked jurisdiction to rule on the action against Navimer. However, it declared the proceedings brought against Naviglobe admissible, but unfounded.

14 Mr Voogsgeerd lodged an appeal against that judgment before the arbeidshof te Antwerpen (Higher Labour Court, Antwerp). Having ruled that it had territorial jurisdiction, that court, firstly, rejected the claim against Naviglobe as unfounded, on the ground that the applicant in the main proceedings had not adduced evidence to show that he had been seconded to that company.

15 Secondly, as regards the employment relationship with Navimer, the arbeidshof te Antwerpen found that, having regard to all the circumstances in issue, Mr Voogsgeerd had not habitually carried out his work in a single Member State, in the present case Belgium, and that, consequently, Article 6(2)(a) of the Rome Convention was not applicable. In that context, the court stated, firstly, that Mr Voogsgeerd did not have a contract of employment with Naviglobe, that his salary was paid by Navimer and that he was affiliated to a Luxembourg sickness insurance fund and, secondly, that he had failed to establish that he worked mainly in Belgian territorial waters. Therefore, the arbeidshof te Antwerpen found that, since Navimer was the business which engaged Mr Voogsgeerd, the mandatory provisions of Luxembourg law applied to the contract of employment, in accordance with Article 6(2)(b) of the Rome Convention.

16 As is apparent from the order for reference, the arbeidshof te Antwerpen considered that Mr Voogsgeerd had proved in support of his appeal that Antwerp was the place where he always boarded and from where he received the instructions for each of his missions.

17 However, the arbeidshof te Antwerpen found that, on the basis of Article 6(2(b) of the Rome Convention, only Luxembourg law was applicable to the contract of employment and that the action for damages for the wrongful termination of that contract must be dismissed insofar as it was brought after the expiry of the 3-month limitation period prescribed by Article 80 of the Luxembourg Law of 9 November 1990 establishing a Luxembourg Public Maritime Register.

18 Mr Voogsgeerd appealed on a point of law against the section of that judgment concerning Navimer, which therefore remains as the only defendant in the main proceedings. The ground of appeal relied upon alleges an error of law by the arbeidshof te Antwerpen regarding the determination of the law applicable to the contract of employment.

19 In support of his appeal, the applicant in the main proceedings claims that the arbeidshof te Antwerpen infringed Articles 1, 3, 4 and 6 of the Rome Convention by finding that the evidence which he had put forward to establish the habitual carrying out of his work in Belgium under the authority of Naviglobe had no bearing on whether the provisions of the Rome Convention, and in particular Article 6(2)(b) of that convention, applied.

20 The referring court observes that, insofar as that evidence is accurate, Naviglobe, which is established in Antwerp, could be regarded as being the business with which Mr Voogsgeerd is connected for his actual employment, for the purposes of Article 6(2)(b) of the Rome Convention.

21 In those circumstances, the Hof van Cassatie decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

22 The Court of Justice of the European Union has jurisdiction to rule on the present reference for a preliminary ruling, which has been made by one of the two Belgian courts which have the power to do so under Article 2(a) of the First Protocol on the interpretation of the Rome Convention (OJ 1998 C 27, p. 47), which entered into force on 1 August 2004.

23 By its questions, the referring court asks, in essence, whether factors such as the place where the employee is actually employed, the place to which that employee is obliged to report and where he receives administrative briefings necessary for the performance of his work, and the de facto place of business of the employer affect the determination of the law applicable to the contract of employment under Article 6(2) of the Rome Convention.

24 It should be borne in mind at the outset that Article 6 of the Rome Convention lays down special conflict 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 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 connecting criteria 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 criteria are, first, the country in which the employee ‘habitually carries out his work’ (Article 6(2)(a)) and, secondly, in the absence of such a 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 connecting criteria 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.

28 In the case in the main proceedings, it is not disputed that the parties to the contract chose Luxembourg law as the lex contractus. However, irrespective of that choice, the question remains as to what is the law applicable to the contract, since the applicant in the main proceedings invokes the mandatory provisions of Belgian law as the basis of his right to a payment in lieu of notice. As is apparent from paragraph 19 above, Mr Voogsgeerd claims that the court of appeal, which found, on the basis of Article 6(2)(b) of the Rome Convention, that Luxembourg law was applicable to the contract in issue, infringed several provisions of that convention and, in particular, Article 6 thereof. In that regard, Mr Voogsgeerd claims that, in the course of the carrying out of his work, he had no contact with Navimer, but that he was obliged to report for boarding at Antwerp with Naviglobe, which gave him instructions.

29 By its questions, the Hof van Cassatie essentially asks the Court to interpret Article 6(2) of the Rome Convention, and, in particular, the connecting criterion of the country in which the place of business which engaged the employee is situated, referred to in Article 6(2)(b).

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).

31 In the present case, although the questions referred concern Article 6(2)(b) of the Rome Convention, it must be noted, as the Advocate General has pointed out in paragraph 60 of her Opinion and as observed by the Belgian Government and the European Commission, that the factors characterising the employment relationship in issue in the main proceedings, which were highlighted by the referring court to justify the submission of the reference for a preliminary ruling, seem to correspond more with the criteria set out in Article 6(2)(a) than with those in Article 6(2)(b).

32 Furthermore, it must be observed that, for the purposes of determining the applicable law, the criterion connecting the employment contract in issue to the country where the employee habitually carries out his work should be taken into consideration first, and the application of that criterion excludes the taking into consideration of the secondary criterion of the country in which the place of business through which he was engaged is situated.

33 In that regard, it must be recalled that in Case C-29/10 Koelzsch [2011] ECR I-0000 the Court, interpreted Article 6(2)(a) of the Rome Convention as meaning that it is first necessary to examine, on the basis of evidence such as that put forward by Mr Voogsgeerd, whether the employee principally carries out his work within one single country.

34 Indeed, it follows from the wording of Article 6(2) of the Rome Convention that the intention of the legislator was to establish a hierarchy between the criteria to be taken into account for the determination of the law applicable to the contract of employment.

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 criterion 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 criterion of ‘the place of business through which [the employee] was engaged’, set out in Article 6(2)(b) thereof, can apply only in cases where 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 criterion contained in Article 6(2)(a) of the Rome Convention should nonetheless apply 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 criterion 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, in the absence of a 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 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 (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 criterion of the place where the employee habitually carries out his work applies in priority.

40 Therefore, the factors characterising the employment relationship, as referred to in the order for reference, namely the place of actual employment, the place where the employee received instructions or to 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 located in the same country, the court seised may take the view that the situation falls within the scope of Article 6(2)(a) of the Rome Convention.

41 It follows that Article 6(2) of the Rome Convention must be interpreted as meaning that 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 the same country, which is the country in which or from which, in the light of all the factors which characterise that activity, the employee performs the main part of his obligations towards his employer.

42 In case the national court were to take the view that it cannot rule on the dispute before it under Article 6(2)(a) of that convention, it is necessary to answer the questions as set out in the reference for a preliminary ruling.

43 By its first and second questions, which should be considered together, the referring court asks, in essence, whether the concept of ‘the place of business through which the employee was engaged’, within the meaning of Article 6(2)(b) of the Rome Convention, must be understood as referring to the place of business which concluded the contract of employment or as referring to the place of business of the undertaking to which the employee is connected through his actual employment and, in the latter case, if that connection can follow from the fact that the employee must report regularly to and receive instructions from that undertaking.

44 As is apparent from paragraphs 39 and 40 above, when the court seised establishes that the employee must always report to the same place where he receives instructions, that court must regard the employee as habitually carrying out his work in that place, within the meaning of Article 6(2)(a) of the Rome Convention. Those factors, which characterise the actual employment, all concern the determination of the law applicable to the contract of employment on the basis of that connecting criterion and they cannot also be relevant to the application of Article 6(2)(b) of the Rome Convention.

45 As stated by the Advocate General in paragraphs 65 to 68 of her Opinion, to interpret Article 6(2)(b) in order to determine the undertaking which engaged the employee by taking into account factors that do not just relate to the conclusion of the contract, would be inconsistent both with the language and with the spirit and purpose of that provision.

46 Indeed, the use of the term ‘engaged’ in Article 6(2)(b) of the Rome Convention, clearly refers just to the conclusion of the contract or, in the case of a de facto employment relationship, to the creation of the employment relationship and not to the way in which the employee’s actual employment is carried out.

47 Furthermore, the schematic interpretation of Article 6(2)(b) requires that the – subsidiary – criterion laid down in that provision be applied when it is impossible to place the employment relationship in a Member State. Therefore, only a strict interpretation of that subsidiary criterion can guarantee the complete foreseeability of the law applicable to the contract of employment.

48 Since the criterion of the place of business of the undertaking which employs the worker is unrelated to the conditions under which the work is carried out, the fact that the undertaking is established in one place or another has no bearing on the determination of that place of business.

49 It is only if factors concerning the engagement procedure lead to the conclusion that the undertaking which concluded the contract, in reality, acted in the name of and on behalf of another undertaking that the referring court might consider that the connecting criterion contained in Article 6(2)(b) of the Rome Convention refers to the law of the country where the place of business of the latter undertaking is situated.

50 Consequently, for the purposes of that assessment, the referring court should not take factors relating to the performance of the work into account, but only those relating to the procedure for concluding the contract, such as the place of business which published the recruitment notice and that which carried out the recruitment interview, and it must endeavour to determine the real location of that place of business.

51 In any event, as noted by the Advocate General in paragraph 73 of her Opinion, for the purposes of the last subparagraph of Article 6(2), the referring court can take other elements of the employment relationship into account when it appears that those concerning the two connecting criteria set out in that article which relate to the place where the work is carried out and the place of business of the undertaking which employs the worker suggest that the contract is more closely connected with a State other than those indicated by those criteria.

52 The answer to Question 1 and 2 must therefore be that the concept of ‘the place of business through which the employee was engaged’, within the meaning of Article 6(2)(b) of the Rome Convention, must be understood as referring exclusively to the place of business which engaged the employee and not to that with which the employee is connected by his actual employment.

53 By its third question, the referring court asks, in essence, whether, for the purposes of applying the connecting criterion set out in Article 6(2)(b) of the Rome Convention, the place of business must fulfil some formal requirements, such as the possession of legal personality.

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 only concern the business units of the undertaking which 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.

55 However, as highlighted by the Commission and noted by the Advocate General at paragraph 81 of her Opinion, that provision requires that the undertaking has a degree of permanence. Indeed, the purely transitory presence in a State of an agent of an undertaking from another State for the purpose of engaging employees cannot be regarded as constituting a place of business which connects the contract to that State. That would be contrary to the connecting criterion provided for by Article 6(2)(b) of the Rome Convention, which is not the place of the conclusion of the contract.

56 If, however, the same representative travels to a country in which the employer maintains a permanent establishment of his undertaking, it would be perfectly reasonable to suppose that that establishment constitutes a ‘place of business’, within the meaning of Article 6(2)(b) of the Rome Convention.

57 Moreover, the place of business which is taken into consideration for the application of the connecting criterion must, in principle, belong to the undertaking which engages the employee, that is to say forms an integral part of its structure.

58 On the basis of those considerations, the answer to Question 3 is that Article 6(2)(b) of the Rome Convention must be interpreted as meaning that the possession of legal personality does not constitute a requirement which must be fulfilled by the place of business of the employer within the meaning of that provision.

59 By its fourth and last question, the referring court asks whether, for the purposes of applying the connecting criterion provided for in Article 6(2)(b) of the Rome Convention, the place of business of an undertaking other than that which is the employer can be regarded as acting in that capacity even though the authority of the employer has not been transferred to that other undertaking.

60 In that context, the order for reference appears to suggest that this question arises because the applicant claims to have always received instructions from Naviglobe and that, for the period under consideration, the director of that undertaking was also the director of Navimer, the undertaking which formally engaged the applicant in the main proceedings.

61 As regards the first factor, it must be recalled that, as is clear from paragraphs 39 and 40 above, this situation must be taken into account in determining the place where the work is habitually carried out, for the purpose of applying Article 6(2)(a) of the Rome Convention, since it concerns the performance of the work.

62 As regards the claim of the applicant concerning the fact that the same person was the director of Naviglobe and of Navimer, it is a matter for the referring court to assess what is the real relationship between the two companies 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 enabling it to establish the actual situation which differs 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).

63 In making this assessment, the fact pleaded by Navimer, namely the absence of a transfer of authority to Naviglobe, constitutes one of the factors to be taken into consideration, but it is not, in itself, decisive in the determination whether the employee was, in reality, engaged by a different company than that which is referred to as the employer.

64 It is only where one of the two companies acted for the other that the place of business of the first could be regarded as belonging to the second, for the purposes of applying the connecting criterion provided for in Article 6(2)(b) of the Rome Convention.

65 On the basis of those considerations, the answer to Question 4 is that Article 6(2)(b) of the Rome Convention must be interpreted as meaning that the place of business of an undertaking other than that which is formally referred to as the employer, with which that undertaking has connections, may be classified as a ‘place of business’ if there are objective factors enabling an actual situation to be established which differs from that which appears from the terms of the contract, and even though the authority of the employer has not been formally transferred to that other undertaking

66 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

1. Article 6(2) of the Rome Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, must be interpreted as meaning that 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 the same country, which is the country in which or from which, in the light of all the factors which characterise that activity, the employee performs the main part of his obligations towards his employer.

2. In the case where the national court takes the view that it cannot rule on the dispute before it under Article 6(2)(a) of that convention, Article 6(2)(b) of the Rome Convention must be interpreted as follows:

– the concept of ‘the place of business through which the employee was engaged’ must be understood as referring exclusively to the place of business which engaged the employee and not to that with which the employee is connected by his actual employment;

– the possession of legal personality does not constitute a requirement which must be fulfilled by the place of business of the employer within the meaning of that provision;

– the place of business of an undertaking other than that which is formally referred to as the employer, with which that undertaking has connections, may be classified as a ‘place of business’ if there are objective factors enabling an actual situation to be established which differs from that which appears from the terms of the contract, and even though the authority of the employer has not been formally transferred to that other undertaking.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Voogsgeerd (Rome Convention on the law applicable to contractual obligations) [2011] EUECJ C-384/10 (15 December 2011) URL: http://www.bailii.org/eu/cases/EUECJ/2011/C38410.html Cite as: ECLI:EU:C:2011:842, EU:C:2011:842, [2011] EUECJ C-384/10

Court of Justice of the European Communities (including Court of First Instance Decisions)