CROSS-BORDER EMPLOYMENT : COMPETENT COURT COULD BE THE ONE IN EMPLOYEE'S HOME COUNTRY.

When a French employee works in Morocco for a British company, can he refer to a French labour court? When the employee previously worked for a French company which, in some way, freely transferred this employee to a British subsidiary within the same group, the question becomes a real headache. But this type of litigation is expected to increase with the reinforcing of the internal market and globalisation. Conclusions that the advocate general of the European Court of Justice Miguel Poiares Maduro has just given are therefore to be read attentively (conclusions of 17 Janaury 2008, Glaxosmithkline against J.-P. Rouard, case C-462/06).

Jean-Pierre Rouard was first employed by the French company Beecham Sevigne, which then became Laboratoires Glaxosmithkline, under French law. In 1984, he was posted in Morocco, with a new employment contract signed with a British company in the same group, Beecham Research. In this contract, the second employer committed to maintaining certain aspects of the initial contract (seniority, compensation rights etc). The litigation arises from redundancy, but the French labour court declared that it was not competent considering that the contracts in force are governed by English and Moroccan law.

Community regulation 44/2001 (legal competency) is complex. On the one hand, it says that if there are a number of defendants, the competent court is the one "for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings" (general rule). On the other hand, it set out that when it is a matter of an employment contract, the competent court can be the one in the home country of the employee, therefore the of the plaintiff in this particular case (special rule). The problem was to determine which rule and which criteria were applicable.

For the advocate general, though the regulation sets out an exception to the rule of the defendant's home country, "not taking account of the hypothesis (of a claim) against several defendants must be taken as a lacuna in this text". "It is...

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