Jan Voogsgeerd v Navimer SA.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Toader
• ECLI: ECLI:EU:C:2011:564
• Date: 08 September 2011
• Docket Number: C-384/10
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 8 September 2011 (1)

Case C‑384/10

Jan Voogsgeerd

v

Navimer SA

(Reference for a preliminary ruling from the Hof van Cassatie (Belgium))

(Rome Convention on the law applicable to contractual obligations – Article 6(2)(b) – Choice of law made by the parties – Mandatory rules of the applicable law in the absence of choice – Contract of employment – Employee who does not habitually carry out his work in any one country)

I – Introduction

1. In this reference for a preliminary ruling under Article 267 TFEU, the Belgian Hof van Cassatie (‘the referring court’) has submitted to the Court of Justice a series of questions on the interpretation of the Rome Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980 (‘the Rome Convention’). (2) According to the recitals in its preamble, that convention was concluded in order to continue in the field of private international law the work of unification of law which had already been done within the European Union, in particular in the field of jurisdiction and enforcement of judgments, and with a view to establishing uniform rules concerning the law applicable to contractual obligations. The unification of the conflict-of-law rules concerned was intended to contribute towards legal certainty in the European judicial area. The same aim is also pursued by Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (3) (‘Rome I’), which replaced the Rome Convention with effect from 17 December 2009. As that regulation is applicable only to contracts concluded after that date and the employment contract at issue was concluded on 7 August 2001, the provisions of the Rome Convention are alone applicable to it.

2. The reference for a preliminary ruling was made in the course of a dispute between Mr Voogsgeerd, a Netherlands national, and his former employer, Navimer, a firm established in the Grand Duchy of Luxembourg, for which he worked as a First Engineer, concerning a claim for compensation for the alleged wrongful termination of his employment relationship. The point at issue in that context is which national law should ultimately be applicable to the main proceedings, particularly given that, in the event of the applicability of Luxembourg law (which had originally been agreed as the lex contractus), the action for damages brought by Mr Voogsgeerd would be precluded by a three‑month limitation period which has now expired. Mr Voogsgeerd himself takes the view that that limitation period does not apply, as it is contrary to the mandatory rules of Belgian law which he considers to be applicable to his employment contract. In support of his claim as to the applicability of Belgian law, he relies in particular on the fact that, in the performance of his employment contract, he always took instructions from an undertaking other than, although closely connected with, his employer, that is to say Naviglobe, a firm established in Antwerp. He concludes from this that Naviglobe must be regarded as a place of business of his employer within the meaning of Article 6(2)(b) of the Rome Convention, and that, in the final analysis, regard must be had to the specific rules laid down there.

3. The purpose of the questions referred is, in essence, to obtain information on the meaning to be ascribed to the term ‘place of business’ as it is used in the aforementioned provision and the requirements to be attached to that criterion for the purposes of applying the conflict-of-law rule contained in that provision. In the light of the parallels between this case and Koelzsch, (4) which concerned the interpretation of Article 6(2)(a) of the Convention, it is necessary to examine the relationship between those two provisions.

II – Legislative context

A – The Rome Convention

4. Article 3 (‘Freedom of choice’) of the Rome Convention provides:

‘1. A contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract.

…’

5. Article 4 (‘Applicable law in the absence of choice’) of the Convention provides:

‘1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected. Nevertheless, a severable part of the contract which has a closer connection with another country may by way of exception be governed by the law of that other country.

…’

6. Article 6 (‘Individual employment contracts’) of the Rome Convention provides:

‘1. Notwithstanding the provisions of Article 3, in a contract of employment a choice of law made by the parties shall not have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable under paragraph 2 in the absence of choice.

2. Notwithstanding the provisions of Article 4, a contract of employment shall, in the absence of choice in accordance with Article 3, be governed:

(a) by the law of the country in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country; or

(b) if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated;

unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract shall be governed by the law of that country’.

7. Article 1 of the First Protocol on the interpretation by the Court of Justice of the European Communities of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980 (5) (‘First Protocol on the interpretation of the Rome Convention’) provides:

‘The Court of Justice of the European Communities shall have jurisdiction to give rulings on the interpretation of:

(a) the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, …;

(b) the Convention on accession to the Rome Convention by the States which have become Members of the European Communities since the date on which it was opened for signature;

…’

8. Article 2 of the First Protocol on the interpretation of the Rome Convention provides as follows:

‘Any of the courts referred to below may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning interpretation of the provisions contained in the instruments referred to in Article 1 if that court considers that a decision on the question is necessary to enable it to give judgment:

…

(b) the courts of the Contracting States when acting as appeal courts’.

B – The Brussels Convention

9. Article 5 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (‘the Brussels Convention’) (6) provides:

‘A person domiciled in a Contracting State may, in another Contracting State, be sued:

…

5. as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated’.

C – National law

10. In accordance with Article 80 of the Luxembourg Law of 9 November 1990 (7) establishing a Luxembourg Public Maritime Register, the unlawful termination of a seaman’s contract of employment confers entitlement to damages and to the payment of interest; the legal action to remedy that unlawful termination must, on pain of inadmissibility, be brought before a labour court within three months of the service of the notice of termination or the provision of reasons for the termination.

III – Facts, main proceedings and questions referred

11. On 7 August 2001, Mr Voogsgeerd, a Netherlands national, concluded an employment contract of unlimited duration with Navimer, an undertaking established in the Grand Duchy of Luxembourg. Luxembourg law was agreed as the law applicable to that employment contract.

12. Mr Voogsgeerd received his wages from Navimer’s payroll office, also established in Luxembourg, and, furthermore, was affiliated to a Luxembourg sickness insurance fund.

13. During the period from August 2001 to April 2002, he worked as First Engineer on the vessels MS Regina and MS Prins Henri, owned by Navimer, the North Sea having been indicated as the area of operation.

14. By letter of 8 April 2002, Navimer dismissed Mr Voogsgeerd, who contested the unilateral termination of his employment contract by bringing an action for wrongful dismissal on 4 April 2003 before the Antwerp Labour Court.

15. In support of his action, Mr Voogsgeerd relied, with reference to Article 6(1) of the Rome Convention, on the mandatory rules of Belgian law, which, in his submission, are applicable in the absence of a choice of law made by the contracting parties, in accordance with Article 6(2)(b) of the Convention.

16. In this regard, he claimed that he must be regarded as bound by an employment contract with the Belgian undertaking Naviglobe and not with the Luxembourg undertaking Navimer, as his work always required him to go to Antwerp to be present when the ships were loaded and to take instructions from his employer, which were passed to him via Naviglobe.

17. The Antwerp Labour Court decided that, in the light of all the circumstances of the employment relationship, Navimer must be regarded as the place of business through which Mr Voogsgeerd was engaged and that, accordingly, the mandatory rules of...