The Brussels I Regulation (No 44/2001)

Section 5 Jurisdiction over individual contracts of employment

Individual contracts of employment were completely ignored in the original 1968 Brussels Convention, and were consequently subject to the general rules and to the special rule on contractual obligations in Article 5(1), without any special restriction on the choice of forum. They were made the subject of special rules in the 1988 Lugano Convention (the second part of Article 5(1) and Article 17(5)), and they are now dealt with by special rules in Section 5 of Chapter II of the Brussels I Regulation (and of the Lugano Convention 2007), which Section is placed after the Sections on insurance (Section 3) and consumer contracts (Section 4), completing the rules protecting the weaker party to a contract. Section 5 follows the same scheme and the same solutions as the others (Pocar nr. 85). Section 5 solely deals with disputes relating to individual employment contracts. It has no relevance for collective type labour disputes or for other contracts dependent on individual employment contracts (see ECJ 13 July 1993 ‘Mulox v Hendrick Geels’, Case C-125/92). But is is applicable to actions based on an obligation under another contract than a contract of employment that has the same particularities for work and does not involve working activities on a self-employed basis (ECJ 15 January 1987 'Shenavai v Kreischer', Case 266/85).

See also:

• Forum contractus (Article 5 (1)) including contracts of employment (Jenard 1968)
  • Contracts of employment
• Article 5 (1) (Almeira 1990)
• Article 5 (1) Contract of employment(Jenard/Möller 1988)
• Individual contracts of employment (Pocar 2007)

Article 18 of the Brussels I Regulation

Application of Section 5 in matters relating to employment contracts [Article 18 BR I]

Like the provisions in Section 3 (matters of insurance) and Section 4 (consumer contracts), Article 18, paragraph 1, BR I affirms the independent and comprehensive nature of the rules of jurisdiction for individual contracts of employment contained in Section 5, without prejudice to Article 4 BR I if the defendant is domiciled in a third State not bound by the Brussels I Regulation, and without prejudice to Article 5, point (5), BR I for disputes against an employer (or employee) domiciled in one of the Member States relating, however, to the operations of a branch, agency or other establishment of that employer in another Member State. Where a disputes falls under Section 5 of Chapter II of the Brussels I Regulation, the court having jurisdiction in proceedings concerning an individual contract of employment must be designated in accordance with the jurisdiction rules laid down in that section, rules which, on account of their specific and exhaustive nature, cannot be amended or supplemented by other rules of jurisdiction laid down in that regulation unless specific reference is made thereto in Section 5. If an employee could rely in such case on Article 6, point (1), BR I, too, this would run counter to the wording of both that provision and Section 5 of Chapter II of the Brussels I Regulation (ECJ 22 May 2008 ‘Glaxosmithkline v Rouard’, Case C-462/06).

Like Article 9, paragraph 2, BR I (for matters of insurance) and Article 15, paragraph 2, BR I (for consumer contracts), Article 18, paragraph 2, BR I treats the existence of a branch, agency or establishment in a EU Member State as equivalent for questions arising out of their operation to a domicile of the employer in that Member State, even if the employer is domiciled in a third State not bound by the Brussels I Regulation (Pocar nr. 86). For the effects of Article 4 and Article 5, point (5) in conjunction with Article 18, paragraph 2, BR I, we refer to our comment on the consequences of these provisions where it concerns insurance or consumer contracts. To their substance, these consequences are the same where it involves a dispute relating to an individual employment agreement. So when the employer is domiciled outside the European Union, the court of a Member State seised by the employee has to determine on the basis of its own rules of private international law whether it has jurisdiction to give a judgment (Article 4 BR I), unless the employer has a branch, agency or other establishment in a Member State and the dispute between the (former) employer and (former) employee arises out of the operations of that branch, agency or establishment, in which case the employer is deemed to be domiciled in that Member State. This means, for instance, that where the employee has entered into an individual contract of employment with such an employer not being domiciled in any Member State, while he has worked for or at such branch, agency or other establishment, he may apply the rules of Section 5 as if his employer was domiciled in that particular Member State (Article 18, paragraph 2, BR I) . He may do so in the same way when his employer is domiciled in another Member State, yet in a different one than the one where the branch, agency or establishment of the employer is located where this employee works or has worked, but now provided that he files any possible legal claims against his (former) employer at the courts for the place in which that branch, agency or other establishment is situated (Article 5, point (5), BR I). As a result, Article 4 BR I only has relevance when the employer is not domiciled within the European Union and the employer has no branch, agency or other establishment within the European Union or, if he has, the employee does not work or has not worked for such branch, agency or other establishment of that employer within a Member State. Only then the seised court of a Member State may apply its own national rules of private international law as to ascertain whether it may hear the case.

See also:

• Forum contractus (Article 5 (1)) including contracts of employment (Jenard 1968)
• Jurisdiction based on the place of performance (Schlosser 1979)
• Special concurrent jurisdiction (Evrigenis 1986)
  • Article 5
    • Article 5 (1)
  Article 5 (1) (Almeira 1990)
• Article 5 (1) Contract of employment(Jenard/Möller 1988)
• Individual contracts of employment (Pocar 2007)

Article 19 of the Brussels I Regulation

Index Article 19

• Jurisdiction when the employee starts proceedings against the employer [Article 19 BR I]
• Courts of the Membre State of the domicile of the employer [Article 19(1) BR I]
• Courts for the place of the employee's (former) habitual place of work [Article 19(2)(a) BR I]
• Absence of one habitual place of work [Article 19(2)(b) BR I]

Jurisdiction when the employee starts proceedings against the employer [Article 19 BR I]

Section 5 provides different rules of jurisdiction dependant on the question whether the employer or employee has brought a claim against the other in court. In practice employers seldom start legal actions against their (former) employees. Usually it’s the employee who initiates legal proceedings against his employer, for instance in regard of unpaid wages or a dismissal. If such action has an international element, Article 19 BR I points out where the employee may (must) file his legal claim against a (former) employer, provided that his (former) employer is domiciled in a EU Member State or is deemed to be domiciled there under Article 5, point (5), or Article 18, paragraph 2, BR I. The employee has, depending on the given circumstances, several option, from which he may choose freely.

Courts of the Member State of the domicile of the employer [Article 19(1) BR I]

First the employee may start legal proceedings against his (former) employer in the courts of the Member State where that employer is domiciled (Article 19, point 1, BR I). The domicile of the employer has to be determined on the basis of Article 59 and Article 60 BR I (see domicile natural persons and domicile legal persons). This jurisdictional provision of the Brussels I Regulation does not affect the national jurisdiction of the Member State of the employer’s domicile. The rules on national jurisdiction of that Member State, therefore, not only determine with which type of court the claim must be lodged, but also in which territory within that Member State this may or has to be done. It is mentioned again that the employer, who in reality is domiciled outside the European Union, is nevertheless deemed to have his domicile in a Member State when he has a branch, agency or other establishment there and the dispute with the employee arose out of the operations of that establishment, for example because the employee works or has worked there (Article 18, paragraph 2, BR I). When the employer is domiciled within the European Union, but in another Member State than where such branch, agency or other establishment is located, the employee may sue the employer in the courts for the place in which that branch, agency or other establishment is situated (Article 5, point (5), BR I).

Court for the place of the employee's (former) habitual place of work [Article 19(2)(a) BR I]

Secondly, the employee may sue his (former) employer in the courts of the place where the employee habitually carries out his work or the last place where he did so (Article 19, point 2, under (a), BR I). The last phrase has been inserted because it has frequently been observed that legal proceedings are brought by an employee against an employer only after the employment relationship comes to an end or the employee is no longer working. It would not be appropriate to deprive the employee of the alternative forum of his place of work in such cases. There is also the fact that in the place of his employment, whether during the employment relationship or after it has ended, the employee can usually turn to a trade union that can help him to assert his rights before the courts.

The alternative forum of the place of employment is derived from case law of the European Court (ECJ 15 January 1987 'Shenavai v Kreischer', Case 266/85 and ECJ 26 May 1982 'Ivenel v Schwab', Case 133/81), where the Court repealed the opinion developed earlier (namely in ECJ 6 October 1976 'De Bloos v Bouyer' (Case 14-76). The Court made clear in the two first mentioned cases that, as regards contracts of employment, the obligation to be taken into consideration is the one which characterizes such contracts, in particular the obligation to carry out the agreed work. In this repsect the connection lies particularly in the law applicable to the contract; and that according to the trend in the conflict rules in regard to this matter that law is determined by the obligation characterizing the contract in question and is normally the obligation to carry out the work.

In general it will be not so complicated to locate the habitual place of employment. Most times the employee, even though the employment contract carries an international element, shall be employed in one single place (office, factory, branch, agency or other establishment). In the few cases that the employee works or has worked , at the same time, in several places within one Member State or even in various places situated in different Member States or partly outside the European Union, he will usually do so from one regular place of work, situated in the vicinity of which he lives and which he frequently visits, where he has established the effective centre of his working activities and where, or from which, he in fact performs the essential parts of his duties vis-à-vis his employer (ECJ 9 January 1997 ‘Rutten v Cross Medical Ltd’, Case C-383/95). On that basis it is not hard to define the place where the work is carried out as being the place where or from which the employee principally discharges his obligations towards the employer. In answering this question, special attention has to be paid as well to the law that is governing the employment contract, which even may be declared applicable pursuant to mandatory rules of labour law and collective employment agreements (ECJ 26 May 1982 'Ivenel v Schwab', Case 133/81 and ECJ 13 July 1993 ‘Mulox v Hendrick Geels’, Case C-125/92).

Still, it is necessary to pick the right habitual place of work, as to avoid any multiplication of courts having jurisdiction, thereby precluding the risk of irreconcilable decisions and facilitating the recognition and enforcement of judgments in States other than those in which they were delivered (ECJ 13 July 1993 ‘Mulox v Hendrick Geels’, Case C-125/92). It is unworkable to grant jurisdiction to all of the countries where the employee works or has worked, more or less at the same time, during his employment, so that there is a necessity to specify one place where he is supposed to have carried out his work habitually. In order to be able to apply the rule of Article 19, point 2, under (b), BR I, that habitual place of work has to be located in a Member State of the European Union. This means that when the employee works in several places, a few of them situated in one or more Member States, but his habitual place of employment is nevertheless outside the European Union, the before meant rule cannot be applied. It is not possible, for instance, to choose in such event, in order rely on the rule of Article 19, point (2), under (a), BR I, a place of work within a Member State of the European Union with which the employee is connected most, yet secondary to that habitual place of work in a third State (ECJ 15 February 1989 ‘Six Constructions v Humbert’ (Case 32/88). It is neither allowed to resort in such situation to the rule of Article 19, point (2), under (b), BR I, which can be used solely when the employee does not or did not habitually carry out his work in any one country. If his habitual place of work is located outside the European Union this requirement is not fulfilled.

Absence of one habitual place of work [Article 19(2)(b) BR I]

Thirdly, yet only if an employee works or has worked habitually in different countries, an action against his (former) employer may be brought in the courts of the place where the business which engaged the employee is or was situated (Article 19, point 2, under (b) BR I). This solution corresponds to that of the Rome I Regulation on the law applicable to contractual obligations (see Article 8(3) of the Rome I Regulation).

It should be noted that this solution is necessary (and applicable) only when it is not possible to determine a country of reference meeting the two requirements that a significant link be established between the dispute and a place whose courts are in the best position to decide the case in order to afford proper protection to the employee as the weaker party to the contract, and that multiplication of the courts having jurisdiction be avoided. It, therefore, mainly aims at situations where the employee has two workplaces of equal significance or where none of the places where he regularly carries out his work during his employment, has sufficient importance to found any jurisdiction on it. Even when the employee works in more than one State, if he actually performs the essential part of his duties vis-à-vis his employer in one place, it is in that place that he must be judged habitually to carry out his work, and Article 19, point 2, under (a), BR I will consequently in that case apply (Pocar nr. 87). See, with reference to Article 5(1) of the 1968 Brussels Convention, ECJ 27 February 2002 ‘Weber v Universal Ogden’, Case C-37/00 and ECJ 10 April 2003 ‘Pugliese v Finmeccanica’, Case C-437/00).

The possibility has been examined to add a jurisdiction to those provided for in Article 19 BR I so as to allow an employee who has been posted for a limited period in another Member State, for the purpose of work, to bring legal proceedings concerning the work and the conditions under which it is carried out in the courts of that Member State. The proposal was considered in the light of Directive 1996/71/EC on the posting of workers, Article 6 of which provides that ‘In order to enforce the right to the terms and conditions of employment guaranteed in Article 3, judicial proceedings may be instituted in the Member State in whose territory the worker is or was posted, without prejudice, where applicable, to the right, under existing international conventions on jurisdiction, to institute proceedings in another State’. Obviously this provision, interpreted in the context of the Directive, has a scope different from that of a provision in the Convention conferring general jurisdiction, in favour of the employee, on the courts of the State in which he is posted.
The Directive gives a series of definitions of the terms used – such as ‘posted employee’, ‘terms and conditions of employment’, etc. – which would need to be referred to in interpreting the provisions of the Convention. Furthermore, the jurisdiction of the court of the employee’s place of posting is limited by the Directive to ‘the terms and conditions of employment guaranteed in Article 3’ of the Directive, and is not of a general nature. To confer general jurisdiction on this court would not include all of the matters covered by Article 3 of the Directive, since the terms and conditions of employment it refers to cover such subjects as health, safety and hygiene at work, which are matters of public law, and could not be included in the Lugano Convention, confined as it is to civil and commercial matters. Lastly, an additional forum inserted into the Convention would be available exclusively to employees, while Article 6 of the Directive does not distinguish between the positions of the parties, and also provides a basis for jurisdiction over proceedings brought by an employer. So to confer jurisdiction on the courts of a State in which a worker is posted would not regulate jurisdiction in the same way as the Directive, and would create two systems subject to different rules of interpretation and application, which might undermine legal certainty in areas where protection ought to be ensured.
These considerations resulted in the decision not to accept the proposal to confer general jurisdiction on the court of the place where a worker is posted, and not to amend the rules of jurisdiction regarding employment, though the Directive continues to operate within its own sphere of application, and in any event allows proceedings to be brought under existing international conventions on jurisdiction, among them the Lugano Convention, whose sphere of application remains unchanged (Pocar nr. 88).

Article 20 of the Brussels I Regulation

Jurisdiction when the employer starts proceedings against the employee [Article 20 BR I]

As with the other protective jurisdictions, laid down in Section 3 (matters of insurance) and Section 4 (consumer contracts), actions may be brought by an employer against an employee only in the courts of the Member State in which the employee is domiciled, except in the case of a counterclaim before the court dealing with the principal claim under the rules in the section on contracts of employment. The domicile of the employee is to be established on the basis of Article 59 BR I (domicile of natural persons). Article 20 BR I merely points out the Member State whose courts have jurisdiction to hear the claim of the employer against his (former) employee and to which an international element is attached. It does not interfere with the domestic rules of national jurisdiction of that Member State. Therefore, the employer has to decide on the basis of these national rules which type of court of that Member State is competent for such employment disputes and in which part of the country that type of court has to be addressed.

The employer may only bring a claim against the (former) employee in the courts of the Member State where the employee is domiciled, even when that employee works or has worked in another Member State, either permanently (habitual working space) or temporarily, or when the employee has moved his domicile to another Member State, for instance during his work or after termination of the employment contract. Where the employee is domiciled, has to be determined on the moment that the claim against him is filed in court.

In providing accordingly, Article 20 BR I follows the same criterion as that adopted for matters of insurance (Section 3) and consumer contracts (Section 4), and thus modifies Article 5(1) of the 1968 Brussels Convention and the 1988 Lugano Convention, which also allowed the employer to bring proceedings before the court of the place where the employee habitually carried out his work, and, if he worked in more than one country, the place of the business which engaged the employee. The decision to remove the employer’s option here was taken after careful evaluation of the role played by this criterion of jurisdiction. The reference to the place where the work is carried out is intended to offer the employee an alternative forum if the employee takes the view that it will be easier to prove his claim there, even after the relationship of employment has ended, and not to offer the employer an expedient forum actoris for disputes with an employee or former employee (Pocar nr. 89).

Article 21 of the Brussels I Regulation

Derogation from Section 5 by agreement [Article 21 BR I]

The rules on choice of forum are also aligned on the system for matters of insurance (Section 3) and consumer contracts (Section 4). In line with what was provided in Article 5(1) of the 1968 Brussels Convention and the 1988 Lugano Convention, Article 21, point (1), BR I states that a different jurisdiction can be agreed only after the dispute has arisen, so that the employee is in a position to assess whether it is desirable. Article 21, point (2), BR I adds that a choice of forum clause may also depart from the rules of Section 5 if it allows the employee to bring proceedings in courts other than those indicated in Article 19 BR I, granting him an additional forum, without taking away the courts pointed out under Article 19 BR I. By contrast with Section 3 (matters of insurance) and Section 4 (consumer contracts), however, there is no reference to the validity of a clause conferring jurisdiction on the courts of a State where both the employer and the employee have their domicile or habitual residence, as this would conflict with Article 3 of the abovementioned Community Directive on the posting of workers in the framework of the provision of services (Pocar nr. 90).

Where the employer has sued a (former) employee before a court that would not have jurisdiction according to Section 5 of the Brussels I Regulation, but the employee nevertheless appears in court to contest the legal claim to its substance, and not merely to point out that the court has no jurisdiction, then this may be regarded as an implied (tacit) prorogation of jurisdiction after the dispute has arisen (ECJ 20 May 2010 ‘Ceská -Vienna Insurance Group v Michal Bilas’, Case C-111/09).