C-25/79
ECLI:EU:C:1979:255
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JUDGMENT OF 13. 11. 1979 — CASE 25/79
cases in which they would have been law in force at the time when the
regarded as void under the national contract was entered into.
In Case 25/79,
REFERENCE to the Court under the Protocol of 3 June 1971 on the Interpretation by the Court of Justice of the Convention signed at Brussels on 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters by the Cour de Cassation [Court of Cassation] of France (Social Chamber) for a preliminary ruling in the action pending before that court between
Sanicentral GmbH, Saarbrücken (Federal Republic of Germany),
and
René Collin, residing at Still (France),
on the application of Articles 17 and 54 of the Convention of 27 September 1968,
THE COURT
composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart and G. Bosco, Judges,
Advocate General: F. Capotorti Acting Registrar: S. Neri, Legal Secretary
gives the following
SANICENTRAL v RENÉ COLLIN
JUDGMENT
Facts and Issues
The facts of the case, the course of the "any clause conferring territorial procedure and the conclusions, jurisdiction is void, and that if the work submissions and arguments of the parties is performed independently of any may be summarized as follows: establishment, the court having jurisdic- tion, in the absence of an industrial conciliation board, is the one in whose district the worker is resident" and it
accordingly declared that it had I — Facts and procedure jurisdiction.
The company brought an appeal before René Collin, a French worker, residing the Cour d'Appel [Court of Appeal], Colmar (Haut-Rhin), maintaining that at Still (Bas-Rhin), was engaged by Sani- the Tribunal d'Instance, Molsheim, was central GmbH, Saarbrücken, under a written contract dated 27 October 1971, in error in relying on Article 14 of the Code Civil and Article 517-1 of the to work in the Federal Republic of Code du Travail because, on the one Germany, independently of any establishment. The contract was broken hand, the first paragraph of Article 17 of on 8 December 1971 and on 27 the Brussels Convention recognizes the November 1973 Collin brought an action validity of a clause conferring juris- diction, and, on the other hand, as the against his former employer before the summons to attend the Tribunal Tribunal d'Instance, Molsheim (Bas- Rhin), sitting as an industrial conciliation d'Instance, Molsheim, was prior to the decree of 12 September 1974 it could board, claiming payment of sup- not, by virtue of the rule of the non- plementary wages and various allowances. retroactivity of laws, be governed by that decree. The Cour d'Appel, Colmar, rejected the first submission on the ground that the Brussels Convention, The company submitted that territorially signed on 27 September 1968, came into the court had no jurisdiction, arguing force in France only on 1 January 1973, that Collin's contract of employment that is to say, after the conclusion of included a clause conferring on the local Collin's contract of employment and that German court jurisdiction over any thus the provisions of the Convention disputes which might arise between the "cannot govern a contract of parties. The Tribunal d'Instance, employment entered into prior to its Molsheim, found for the company on entry into force". The Cour d'Appel, the ground that Article 14 of the Code Colmar, also rejected the second Civil [Civil Code] and Article R 517-1 of submission on the ground that "it is the Code du Travail [Labour Code], as established case-law that procedural laws brought up to date by the decree of 12 apply to actions pending and that the September 1974, were applicable to the position is the same with regard to laws case; consequently the court decided that on jurisdiction".
JUDGMENT OF 13. 11. 1979 — CASE 25/79
The company then appealed to the Cour Code Civil and the criterion of the
de Cassation (Social Chamber), which by residence of the plaintiff as set out in the judgment of 10 January 1979 asked the Code du Travail are clauses excluding Court of Justice: jurisdiction which are prohibited by Article 3 of the Brussels Convention", "Whether, in application of Article 54 of and that the Cour d'Appel, Colmar, the Brussels Convention, Article 17 of refused "the immediate application of that Convention must be interpreted to the Convention" whilst it accepted it for mean that, when proceedings have been Article 517-1 of the Code du Travail, commenced after 1 February 1973, although both provisions are of a pro- clauses conferring jurisdiction inserted cedural nature. into a contract of employment concluded before 1 February 1973 which would have been regarded as void by the internal legislation in force at that time As regards the legal position the must henceforward be deemed to be Commission makes a preliminary obser- vation in which it takes the view that it is valid, regardless of the date of the "desirable to enlarge the scope of the agreements between the parties and of question in the light of the context as the date of the performance of the work in question." shown by the documents in the file" and therefore to consider the existence of
The judgment containing the reference jurisdiction in the light of the Brussels was lodged at the Court Registry on Convention as a whole and not only of 12 February 1979. Article 17 thereof.
Only the Commission submitted written observations under Article 20 of the The Commission recalls that "the Protocol on the Statute of the Court of
Justice of the EEC. authors of the Convention, legal theory and case-law are at one" in agreeing that On hearing the report of the Judge- the Brussels Convention covers disputes Rapporteur and the views of the regarding contracts of employment and Advocate General the Court decided to takes the view that "Article 54 could not
open the oral procedure without any be clearer and gives no grounds for preparatory inquiry. doubt": the Convention lays down rules of jurisdiction which must be observed in In accordance with Article 20 of the proceedings instituted after 1 February Statute of the Court of Justice of the 1973, the date of its entry into force. It is EEC written abservations were submitted therefore of little importance whether the by the Commission of the European action originates in obligations entered Communities, represented for these into by the parties before or after purposes by its Legal Adviser, Mr 1 February 1973. Leleux, acting as Agent.
The Commission refers to the case-law II — Observations of the Com- of the French Cour de Cassation mission submitted under (judgment of 24 October 1977, Gaz. Pal. Article 20 of the Protocol 1978, 1-3 January, p. 6) at which the on the Statute of the Court Full Court rejected a submission with of Justice regard to national public policy which had been put forward to preclude the The Commission, in recalling the facts, application of the Convention by the remarks that "both Article 14 of the Social Chamber; consequently it is
SANICENTRAL RENÉ COLLIN
possible to institute proceedings against a Prud'hommes, Vannes, 19 December defendant outside his domicile only if the 1975, Rec. Dalloz-Sirey 1976, p. 202; Convention itself provides a ground of Cour d'Appel, Aix en Provence, 10 May jurisdiction making it possible to 1974, Rec. Dalloz-Sirey 1974, p. 760 — derogate from the general rule with Gaz. Palais 1974, p. 671). In the latter regard to the defendant's national court case the French court rejected the as expressed in Articles 2 and 3 of the argument that the contract of said Convention. employment was concluded before 1 February 1973, "stating that the action was indeed subject to the rules of the Convention under Article 54, since the action had been commenced after In any case, recourse to Article 14 of the Code Civil — on which both the 1 February 1973".
Tribunal d'Instance, Molsheim, and the Cour d'Appel, Colmar, relied — is expressly prohibited by Article 3 of the Convention; and the court should have In conclusion the Commission suggests checked "whether a ground of that the following reply should be given jurisdiction is to be found in the to the question raised: Convention itself". The only possibility which might be envisaged would be subparagraph 1. of Article 5, but the Commission maintains that "it cannot be seen from the material in the file that "The Brussels Convention of 27
any part of the contractual obligations September 1968 is applicable in its had been or was to be performed in entirety to all legal proceedings instituted France" and that consequently that after it entered into force, that is to say, article could not be applied. on 1 February 1973. After that date a defendant domiciled in a contracting State may be summoned before the courts of another State only if the Convention expressly so provides. As regards the application of Article 17 of the Brussels Convention, the Commission maintains that "there can be
no possible justification for excluding that article from the application of Article 17 is applicable, like the other Article 54 or adding a supplementary provisions of the Convention, to condition to the latter provision". And as proceedings referred to in Article 54. the Cour de Cassation, in its aforesaid Consequently contractual clauses judgment of 24 October 1977, conferring jurisdiction determine recognized that the authority of the jurisdiction exclusively, subject only to Convention is superior to that of the exceptions expressly set out in Article national law, "it is not possible to object 17 itself. Since there is no exception in a lawsuit concerning international concerning actions relating to contracts legal relationships covered by the of employment, such clauses, even when Convention that a clause conferring they are prohibited by a procedural jurisdiction is void in national law". The provision under national law, are fully Commission emphasizes that French valid in actions concerning international courts have already applied Article 17 of legal relationships falling within the the Convention to decide that French sphere of application of the courts had no jurisdiction (Conseil de Convention."
JUDGMENT OF 13. 11. 1979 — CASE 25/79
III — Oral procedure the oral procedure by its Legal Adviser, Mr Leleux, presented oral argument.
At the sitting on 2 October 1979 the The Advocate General delivered his
Commission of the European Com- opinion at the sitting on 24 October munities, represented for the purposes of 1979.
Decision
1 By a judgment dated 10 January 1979, received at the Court Registry on 12 February 1979, the French Cour de Cassation (Social Chamber) referred to the Court of Justice under the Protocol of 3 June 1971 on the Interpre- tation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as "the Convention") a question relating to the interpretation of Articles 17 and 54 of the said Convention which, in accordance with Article 62 thereof, entered into force on 1 February 1973.
This question is raised in the course of an action, concerned with the breach — on 8 December 1971 — of a contract of employment containing a clause conferring jurisdiction upon a German court, between a French worker, resident in France, and a German company which had engaged him to work in the Federal Republic of Germany, independently of any establishment.
This contract of employment was concluded on 27 October 1971 and the court proceedings were commenced on 27 November 1973.
2 In view of these facts the Cour de Cassation asks whether the clause
conferring jurisdiction is effective in the case of contracts of employment concluded prior to the Convention or whether "in so far as they concern the protection of employed workers those provisions relate to the very substance of agreements and must be given effect only in relation to subsequent contracts". The Cour de Cassation accordingly framed the following question:
SANICENTRAL RENÉ COLLIN
"Whether, in application of Article 54 of the Brussels Convention, Article 17 of that Convention must be interpreted to mean that, when proceedings have been commenced after 1 February 1973, clauses conferring jurisdiction inserted into a contract of employment concluded before 1 February 1973 which would have been regarded as void by the internal legislation in force at that time must henceforward be deemed to be valid, regardless of the date of the agreements between the parties and the date of the performance of the work in question."
3 It follows from this questions that the Cour de Cassation rightly accepts that employment law comes within the substantive field of application of the Convention and that litigation arising out of a contract of employment concluded after 1 February 1973 is subject to the Convention and particu- larly to Article 17 thereof relating to prorogation of jurisdiction.
4 In view of the fact that the contract of employment was broken off on 8 December 1971 and that the judicial proceedings were not commenced until 27 November 1973, that is, after the Convention had come into force, the Cour de Cassation is concerned as to the meaning of Article 54 of the Convention which provides that "the provisions of this Convention shall apply only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after its entry into force" and asks whether the clause in the contract of employment conferring jurisdiction, which could have been regarded under French legislation prior to 1 February 1973 as being void, recovers its validity at the date of the entry into force of the Convention.
s It is appropriate to answer this point by stating, on the one hand, that the Convention does not affect rules of substantive law and, on the other hand, that, as the Convention seeks to determine the jurisdiction of the courts of the contracting States in the intra-Community legal order in regard to matters of civil jurisdiction, the national procedural laws applicable to the cases concerned are set aside in the matters governed by the Convention in favour of the provisions thereof.
6 By its nature a clause in writing conferring jurisdiction and occurring in a contract of employment is a choice of jurisdiction; such a choice has no legal effect for so long as no judicial proceedings have been commenced and only becomes of consequence at the date when judicial proceedings are set in motion.
JUDGMENT OF 13. 11. 1979 — CASE 25/79
That is therefore the relevant date for the purposes of an appreciation of the scope of such a clause in relation to the legal rules applying at that time.
The judicial proceedings were instituted on 27 November 1973 and the Convention thus applies in pursuance of Article 54 thereof.
The effect of that article indeed is that the only essential for the rules of the Convention to be applicable to litigation relating to legal relationships created before the date of the coming into force of the Convention is that the judicial proceedings should have been instituted subsequently to that date, which is the position in the present instance.
7 Consequently the answer to the question raised by the French Cour de Cassation (Social Chamber) must be that Articles 17 and 54 of the Convention must be interpreted to mean that, in judicial proceedings instituted after the coming into force of the Convention, clauses conferring jurisdiction included in contracts of employment concluded prior to that date must be considered valid even in cases in which they would have been regarded as void under the national law in force at the time when the contract was entered into.
Costs
8 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.
On those grounds,
THE COURT,
in answer to the question referred to it by the Cour de Cassation (Social Chamber) by a judgment of 10 January 1979, hereby rules:
SANICENTRAL RENÉ COLLIN
Articles 17 and 54 of the Convention of Brussels of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted to mean that, in judicial proceedings instituted after the coming into force of the Convention, clauses conferring jurisdiction included in contracts of employment concluded prior to that date must be considered valid even in cases in which they would have been regarded as void under the national law in force at the time when the contract was entered into.
Kutscher O'Keeffe Touffait
Mertens de Wilmars Pescatore Mackenzie Stuart Bosco
Delivered in open court in Luxembourg on 13 November 1979.
A. Van Houtte H. Kutscher
Registrar President
OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 24 OCTOBER 1979 <apnote>1</apnote>
Mr President, of clarifying whether clauses conferring Members ofthe Court, jurisdiction which the parties to a contract of employment have agreed 1. The preliminary proceedings of upon are in every case effective in which my opinion of today forms part accordance with Article 17 of the
raise two interesting problems of the Convention, notwithstanding the con- interpretation of the Convention of trary provisions of some statutory Brussels of 27 September 1968 on legislation in regard to the exclusion of Jurisdiction and the Enforcement of the jurisdiction of the national courts Judgments in Civil and Commercial dealing with labour relations. If that Matters. First, one has the opportunity issue falls to be resolved in the affirm-
1 — Translated from the Italian.