C-32/88
ECLI:EU:C:1988:552
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OPINION OF MR TESAURO —CASE 32/88
OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 15 December 1988 *
Mr President, Sharjah and that it has a 'branch' in Members of the Court, Brussels.
1. By judgment of 14 January 1988 the Since, however, in proceedings for a French Cour de cassation (Court of preliminary ruling, the Court must rely, as Cassation) has sought a ruling from the regards the facts of the proceedings before Court of Justice on the interpretation of the national court, on the conclusions Article 5(1) of the Brussels Convention on arrived at by that court in those Jurisdiction and the Enforcement of proceedings, it is necessary to proceed in Judgments in Civil and Commercial this case on the assumption that the Matters. defendant's registered office is in Belgium.
The facts of the case and the arguments of The French court which was called upon to the parties which have submitted obser consider the defendant's objection of lack of vations to the Court during the procedure jurisdiction was unable, on procedural are set out in detail in the Report for the grounds, to consider that question in greater Hearing. It therefore suffices for me, before detail since it was not raised in the proper examining the questions referred to the manner in the course of the procedure. Court, to mention the essential points of those arguments.
I therefore put that question aside nolens The plaintiff, Mr Humbert, a French volens and return to the characteristics of national resident in France, brought the case referred to the Court by the Cour proceedings before a French tribunal against de cassation. the company for which he had worked for a period of nine months seeking the payment of compensation under various heads. There are reasons for doubting whether the A significant factor in this case is the fact defendant is established in a Member State that the plaintiff did not perform his work although that question is of decisive for the defendant in any Member State of importance for the purposes of the the Community. It is apparent from the application of the Brussels Convention. It order for reference and from the documents appears from documents before the Court before the Court that Mr Humbert worked that Six Constructions Ltd, a company for the defendant exclusively in whose registered office is alleged to be in non-member countries. It is for that reason Brussels, is a company incorporated under that the Cour de cassation has referred two the law of the United Arab Emirate of questions to the Court, to ascertain first
* Original language: Italian.
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what obligation is to be taken into account taken into account for the purpose of for the purposes of the application of Article determining the place of enforcement is 5 (1) and secondly whether the charac that which corresponds to the right on teristic obligation must be considered as which the plaintiff's action is based, that being performed at the registered office of is to say the obligation in respect of the company which engaged him or which the proceedings were brought. whether, on the other hand, the general rule that the defendant is to be sued in the courts of the place where it is domiciled, in (b) Secondly, in its judgment in Case 12/76 accordance with Article 2 of the Tessili v Dimlop [1976] ECR 1473, the Convention, is to be applied. Court laid down the principle that the place where the obligation in question
was performed, or was to be performed, is to be determined by means of two 2. The Court's case-law concerning the steps. First the court before which the interpretation of Article 5 (1) of the Brussels matter is brought must determine 'in Convention is not very extensive. It has, accordance with its own rules of conflict however, given some judgments first on the of laws what is the law applicable to the more general question of determining the legal relationship in question'; then it obligation to be taken into account for the must define, in accordance with that purposes of Article 5 (1) and secondly on law, the place of performance of the the more specific problem arising in that contractual obligation in question. connection with regard to contracts of
employment. (c) Thirdly, and in relation to contracts of employment, the Court, in its judgment There is no concealing the fact that in Case 133/81 Ivenel v Schwab [1982] considerable divergences between those ECR 1891, laid down the principle that judgments have led to questions — often of in the case of a contract of employment a somewhat critical nature — being raised the connection which must subsist by legal writers. The ruling which the Court between the court hearing the matter is asked to give in the present case is and the dispute before it is determined therefore of particular importance for the by the obligation characterizing the purpose of clarifying the Court's case-law. contract in question and is normally the It is no coincidence that the observations obligation to carry out work. submitted in the course of the written procedure and at the hearing, whilst citing the Court's case-law, reach divergent (d) Finally, in Case 266/85 Shenavai v
conclusions. Kreischer [1987] ECR 239, the Court reiterated that contracts of employment have certain particularities in the light of 3. Let us begin by a systematic examination which the court of the place in which of the principles which have been laid down the characteristic obligation of such by the Court in the past and may come into contracts is to be performed is play in the present case. considered best suited to resolving disputes which may arise, and stated that 'where no such particularities exist' (a) I would refer in the first place to the regard is to be had solely to the principle laid down in Case 14/76 De contractual obligation whose Bloos v Boityer [1976] ECR 1497 performance is sought in the judicial according to which the obligation to be proceedings.
OPINION OF MR TESAURO —CASE32/88
4. On applying the principles derived from not carried out in any Member State of the the aforementioned cases to the questions Community, to apply Article 5 (1) unless, as referred to the Court by the Cour de Mr Humbert argued, other features of the cassation, it becomes clear that the solution employment relationship are regarded as will differ depending on which line of characterizing the contract for the purpose decisions is relied upon. of locating the relationship in a specific State.
An application of the principles laid down in In order to overcome that difficulty the the De Bloos and Shenavai cases leads to the parties which sought to rely on the Ivenel conclusion that the obligation to be taken judgment have had to show considerable into account is the obligation which corre ingenuity in their observations to the Court. sponds to the right on which the plaintiff's action is based. In this case the Cour de cassation states in its order that in his action Mr Humbert is seeking the payment of 5. On the one hand, some governments compensation under various heads deriving have suggested the adoption in a case such from his contract of employment. The obli as the present of a criterion according to gations upon which his action is based could which the court of the place where the be regarded as the obligation on the part of employer has its registered office would the employer to pay the compensation. have jurisdiction. That criterion was also Consequently, it is not precluded, in theory, envisaged by the Cour de cassation in its that the place of performance of the obli second question. gation could be the place where the worker is resident if that is what is provided by the rules of substantive law to be applied according to the rules of conflict of laws of On the other hand, the Commission, which the court before which the matter is considered that criterion and rejected it, brought, according to the judgment in the proposes that in such a case it is completely Tessili case. Unsurprisingly, that is the view impossible to apply Article 5(1) and that to which Mr Humbert subscribes in his recourse must be had to the general rule of observations to the Court, although on the jurisdiction set out in Article 2, namely the basis of reasoning which fails to take place of the defendant's domicile. account of the judgment in the De Bloos case.
6. Before I consider which of the two alter natives is to be preferred or whether to propose a further solution, may I be On the basis, however, of the principle laid permitted to make some observations on the down in the Ivenel case that the obligation argument put forward in the second which characterizes the contract, normally question by the Cour de cassation and the obligation to carry out work, is to be developed by some of the governments taken into account, it must be the courts of which submitted observations to the Court, the State in which the work is carried out namely that the Court should lay down the that have jurisdiction. Needless to say such principle of the jurisdiction of the courts of a conclusion inevitably makes it impossible the place where the employer has its in this instance, the characteristic of which registered office as such (or, in this case, as is, as has already been seen, that the work is the place of recruitment).
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7. I must say that such an innovative What is excluded, however, in so far as it is solution, although presented in an authori contrary to the most basic principles of tative manner, leaves me so seriously interpretation, is that a connective criterion perplexed, in the light of the aforemen adopted under one convention could be tioned judgments of the Court, that it does used, in its own right, that is to say not as a not seem justified to recommend its result of a process of interpretation, in the adoption. application of Article 5 (1) of the Brussels Convention.
In order to explain my perplexity I do not 9. Reference to the criterion of the place of believe it necessary to examine the various the company's registered office is incon arguments which the governments put sistent with the following: forward in support of this proposition, based in particular on the provisions of two international conventions, the Rome Convention on the Law Applicable to (a) the wording of the provision which the Contractual Obligations 1 and the Lugano Court is called upon to interpret; Convention on the Recognition and Enforcement of Judgments (the so-called 'parallel convention'), 2for one very simple reason: even if such an examination would (b) the intention of the drafters of the 1968 provide support for that proposition, I am Convention confirmed in 1978; convinced that its merits must be assessed by reference to the Brussels Convention, that is to say the only one which the Court has jurisdiction to interpret. 3 (c) the ratio decidendi of the judgment in the Ivenelcase;
8. In other words, it is not excluded that (d) a systematic reading of the Convention; provisions of other conventions or criteria for the interpretation of other conventions could provide logical arguments in favour of a given interpretation of the Brussels (e) the legal position in almost all the Convention. Member States.
1 — OJ L 266, 9 10.1080, p 1. 2 — OJ L 319, 25.11 1988, p 9. 3 — Such a conclusion is, in my view, in no way contradicted by lhe hope, which is, 10 say the least, surprising, expressed in the declaration by the representatives of the governments (a) The Brussels Convention certainly does of the States signatories to the Lugano Convention which not lay down any specific rules on juris are members of the European Communities, which states that 'they consider as appropriate that the Court of Justice diction, neither special nor exclusive, for of the European Communities, when interpreting the disputes in employment matters. Conse Brussels Convention, pay due account to the rulings contained in the case-law of the Lugano Convention' quently, jurisdiction is governed either by Whatever the scope of such a declaration it certainly cannot apply lo a case such as the present which falls the general provision contained in Article 2 within tne rules of the Brussels Convention whose or by the special, alternative provision for substantive provisions are different from those of the Lugano Convention contracts contained in Article 5 (1), which
OPINION OF MR TESAURO — CASE 32/88
the Court is to interpret in this case and by expressly bringing the French and Dutch which is, without doubt, a provision which texts into line with the Italian text so as to must be interpreted strictly. refer to the courts for 'the place of performance of the obligation in question'. In addition, the Schlosser Report expressly referred in that connection to the judgment in the De Bloos case. It is also beyond doubt that neither of those other provisions refers as such to the place (c) As regards the judgment in the Ivenel where a company has its registered office as case, the reasons why the Court had a connective criterion. On the contrary, recourse to the concept of the characteristic Article 2 refers to the courts of the place of obligation as the criterion for determining the defendant's domicile and Article 5(1) the place of performance in cases provides the plaintiff with the alternative of concerning employment relationships are, the courts for the place of performance of on the one hand, to provide an alternative the obligation in respect of which the legal which is potentially closer to the interests of proceedings were brought. the employee, who is regarded as the weaker party, and, on the other, to avoid the risk, feared by many persons, of a multi plication of courts having jurisdiction.
(b) The Jenard Report clearly explains the The proposition in question would lead to reasons why the final version of the Brussels the paradox that by establishing the place Convention, the preliminary draft of which where the company has its registered office included a provision on exclusive juris as such as the criterion for determining diction for cases relating to employment jurisdiction, the same criterion would also matters (and also particularly provided, it be applicable in cases in which the plaintiff may be emphasized, the criterion of the was the employer. place of the company's registered office), did not lay down a special jurisdiction for In other words, to maintain that the place such cases. It is, moreover, significant that of performance must be defined as the place the Jenard Report concludes its discussion where the company has its registered office, of contracts of employment by referring to in cases where the characteristic obligation, the possibility of amending the scope of the represented by the work carried out, is Brussels Convention, in particular by means performed outside the territory of the of an additional protocol. However, no such Member States, would have the result of change has been made even as a result of enabling the employer to bring the the amendment of the Convention to take employee, the weaker party, before its own account of the accession of three new forum actoris. States. That clearly shows that the Member States' intention is still not to provide for a special jurisdiction in employment cases. In my view, the paradox seems so glaring as to make it fundamentally impossible to endorse that proposition. 4
4 — On the subject of this paradox but in relation to other matters, it must be pointed out that the Jenard/Möller Moreover, not only did the Convention of Report on the Lugano Convention justifies in this manner (paragraph 66) the provisions of Article 5(1) in relation to Accession of 1978 not introduce a special the performance of contracts of employment which some governments in this case would like to see extended to the jurisdiction for contracts of employment, in solution of the present case: 'Le concept sous-jacent à cette contrast to other situations, but it laid down disposition est la protection de l'employé, qui, du point de vue économique et social, est considéré comme l'élément le the authentic interpretation of Article 5 ( 1 ) plus faible'.
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(d) This is all the more clear if it is This is borne out by the fact that, as was considered that in the cases where the emphasized in the Jenard Report, the Convention has explicitly laid down special Brussels Convention, which is based on the rules on jurisdiction — alternatives to the principle of direct jurisdiction, provides a general rule contained in Article 2 — in higher degree of legal certainty because the order to protect the weaker party (as for decision whether to recognize or enforce a matters relating to insurance and to judgment in the State requested to do so consumer contracts), the Convention has emanates from a court whose jurisdiction is also expressly provided (in Articles 11 and derived from the same Convention itself. 14, as amended in 1978) that proceedings may be brought only in the courts of the State in which the weaker party is (e) An examination of the national rules of domiciled. That means in practice that an jurisdiction applicable in Member States insurer may never bring an insured person with regard to employment relationships before its own courts. The same principle leads to the following conclusions: applies to consumer contracts. In the case, however, of contracts of employment the employer would be able to bring the (i) the vast majority of national laws lay employee before the employer's own courts. down the rule that actions are to be That result is at the very least debatable. brought in the courts of the defendant's domicile;
Undoubtedly, it is the employee who is the (ii) in many cases, and mostly concomi plaintiff in the majority of cases concerning tantly with the courts of the employment. In the scheme of the defendant's domicile, it is possible to Convention the general provision regarding bring proceedings before the courts of jurisdiction contained in Article 2, namely the place where the work was that the courts of the place where the performed or was to be performed; defendant is domiciled have jurisdiction, is available to the plaintiff. Accordingly, if it is desired to give substance to the need for (iii) it is rare for jurisdiction to be protection for the weaker party, and attributed to the courts of the place of therefore to offer the plaintiff a genuine the employer's domicile or registered alternative, which is plainly the object of the office as such. Convention, the proper course, in my opinion, is not to create something which in many cases will be none other than a duplicate of the general rule. In view of the It is therefore possible to discern a general need to provide effective protection for the trend in the national legal systems to weaker party so as to enable him to defend affording the worker a forum close to his his interests without being burdened by legal place of work. In addition, some States seek costs (not to mention other costs) which to facilitate the legal protection of workers may be a disincentive, forcing him to bring alone by allowing them a greater choice in proceedings in the courts of the place where comparison with an employer. the employer has its registered office, I feel that another avenue should be explored seeking to establish an alternative forum to The Italian rules (Article 413 of the codice that afforded by Article 2 within the limits di procedurale civile (Code of Civil of a teleological interpretation. Procedure)) which envisage in the alter-
OPINION OF MR TESAURO —CASE 32/88
native the jurisdiction of the place where a employment relationship, must be firmly company has its registered office, are only rejected. To propose such a solution, which at first sight contrary to the foregoing. That could, moreover, quite conceivably be provision makes it clear that the reason for extended from the case in point to all cases the choice is the need to confer jurisdiction in general, would be to ask the Court not on the courts of the place where, on the just to interpret Article 5 (1) of the basis of the principle of id quod plerumque Convention but rather to establish a new accidit, the work is carried out because that connective criterion. Whilst the solution of
is where the company is established. That is the characteristic obligation (Ivenel case) confirmed by the alternative provision for could still be ascribed to the efforts to the jurisdiction of the courts of the place of interpret Article 5 (1) and in particular to a subsidiary establishment of the company the determination of the obligation to be where the work is carried out. In addition, taken into account, the hypothesis of the it must not be overlooked that it is one jurisdiction of the courts of the place where thing to provide for the courts of the place the company has its registered office as such where the company is situated to have juris would constitute the culmination not of a diction for the purposes of determining process of interpretation but rather one of jurisdiction in the national territory and real innovation: a new criterion would be quite another for it to be laid down for the established, one which was moreover delib purposes of determining international juris erately excluded by the Contracting States.
diction. It hardly needs to be pointed out that it is for those States and not for the Court to make amendments to the Convention. Whilst it is possible to justify the national legislature's choice of the courts of the place Since therefore the solution of the juris where the company has its registered office diction of the courts of the place where the in so far as it is based on the reasonable company has its registered office as such or assumption that in general the place where as the 'place of recruitment', which is a the company has its registered office is also
different way of saying the same thing, has the place where the work is carried out, it been rejected, it is necessary to consider would be unacceptable for such a choice to other ways of giving a satisfactory reply to be adopted by court ruling, as proposed by the Cour de cassation. the Cour de cassation and certain governments, inasmuch as in the present case the fact that the worker has not 11. In essence, the dispute may be reduced worked in the country where the company to two alternatives: the national court may has its registered office is in fact the premise consider either that the payment of the
on which the argument is based. Nor is this compensation which the plaintiff is seeking an exceptional case; it is a recurring represents the performance of the situation where problems of international contractual obligation to which the jurisdiction are at issue. proceedings relate or that payment of the compensation does not relate to a sole obli- gation but to 'various obligations' resulting 10. In conclusion, I believe that the from the contract of employment. argument that jurisdiction be conferred on the courts of the place where the company has its registered office as such, that is to In the first case, that is to say, if there is a say in absolute terms and ex hypothesi single obligation, the solution seems rela without reference to any link either with the tively simple. The wording of Article 5 (1) place of performance or with the place of of the Convention, in itself and as inter the other obligations inherent in an preted by the Court (in the De Bloos,
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Shenevai and Tessili cases), leads the court case where the rules of substantive law before which the proceedings are brought to protecting the worker are unable to perform consider whether, in accordance with the that function of providing a connection rules of substantive law which are to be between the law applicable and the courts applied under its rules of conflict of laws, having jurisdiction simply because the place that court or some other court has juris where the work is carried out is outside the diction in the matter. In addition, the court territory of the Member States of the EEC, before which the matter is brought is not that interpretation cannot be developed prevented from otherwise determining its further, at least if the focus is on the obli jurisdiction (or lack of jurisdiction) by gation to carry out the work. reference to the place of performance of the obligation which forms the basis of the action: for example, where that appears to be the precise intention of the parties, 13. In such a case it is possible either to perhaps confirmed by the method of performance adopted by the parties in the disregard for the purposes of this hypothesis course of the employment relationship in the `obligation which characterizes the question, and in any event in the case of a contract' and to go back to the general mere factual connective criterion. scheme of Article 5(1) according to the wording of the provision itself (De Bloos and Shenavai cases) or to hold Article 5(1) to be wholly inapplicable and to have 12. In the second case, that is to say of a recourse, as is proposed by the Commission, multiplicity of obligations, the position to the normal rule of jurisdiction contained would be that underlying the Ivenel case in Article 2, that is to say the place where and it would be difficult to apply the prin the defendant is domiciled. ciples laid down in that judgment to this case in which the obligation which 'charac terizes' the labour relationship is located outside the Community. 14. Without wishing to cast doubt on the Court's approach in its judgment in the Ivenel case, I do consider that the Court should verify whether recourse to the An examination of this argument is concept of the characteristic obligation, in considerably simplified if account is taken of so far as that is taken to be the work carried the reasons upon which the judgment in the out, constitutes the hoped-for panacea in all Ivenel case was based. It is significant that cases where a multiplicity of obligations is at the Court's reasoning hinged on two issue, particularly in cases where, for factual elements: the protection of the weaker party reasons — work performed outside the and the advisibility of correlation between Member States — the connection between the courts having jurisdiction and the law the place where the work is carried out and applicable to the contract which 'contains the court having jurisdiction is imprac provisions protecting the worker'. The ticable; otherwise further uncertainty will be Court states in paragraph 19 of its judgment created rather than removed (work carried that, 'the law applicable ... is normally that out in more than one State). of the place where the work characterizing the contract is carried out'.
In examining that question certain elements In my view the logic of the Court's which have been emphasized by academic reasoning leads to the conclusion that in a writers on the subject must, in my view, be
OPINION OF MR TESAURO —CASE 32/88
taken into account. I refer, in particular, to international context is much more delicate. the criticism provoked by the connection In that connection the most common between the law applicable and the court situation is of an employment relationship with jurisdiction, which emerges from the containing subjective and objective elements judgment in the Ivenel case. In that located in two or more countries so that it is connection I would point out that Article 6 all the more necessary that the worker who of the Rome Convention, which relates to is bringing the proceedings has a real alter employment contracts, certainly does not native to the courts of the place where the constitute a specific application of the defendant company has its registered office. principle of the characteristic obligation Whilst it may be true that the protection of which is referred to in Article 4 but provides the worker's interests is foreign to the for a derogation from the application of 'philosophy' contained in the Brussels that principle. In the absence of Article 6, or Convention, that is not a reason for denying in a case where it is not applicable, the him a genuine alternative, as may be said to effect of Article 4 would be the application be offered to a plaintiff, in accordance with of the law of the country of habitual a judicial tradition which has been consis residence of the worker, as the party tently enshrined in all legal systems and performing the obligation which is charac also, undeniably, in the Brussels teristic of the contract. Convention.
15. On the basis of those considerations, I More generally then, without there being take the view that the existence of a factual any need to invoke fundamental principles, element, namely that the work is carried out there is no doubt that the problem of deter in one or more non-member countries, mining the law applicable is different from should not be capable of exercising such a that of determining the court with juris significant influence as to exclude the diction, above all in the area with which this normal operation of Article 5(1). In other case is concerned where many aspects of the words, it is difficult to understand why the employment relationship are subject to mere fact that mandatory rules (either rules of public law or rules which must necessarily be applied) of the State in which the work is carried out, with the consequence that the actual (a) the plaintiff founds his action on, for choice of the law applicable is often merely example, two obligations rather than a residual. The determination of the court single obligation, with jurisdiction, on the other hand, involves other conditions and implications which are centred, in most legal systems, on the interests of the worker. (b) the place where the work is carried out is partially or totally in the territory of a non-member country,
In addition, as has already been emphasized, in comparison with the legis lative choice regarding jurisdiction within should always and inevitably deprive the the national territory, that is to say in plaintiff of the alternative forum afforded by relation to employment relationships where Anicie 5 (1), as interpreted by the Court in there is generally no foreign element, the its judgments in the De Bloos and Shenavai choice of the court with jurisdiction in the cases.
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Rather, I believe that it is more consistent employment relationship considered as a with the general structure of the rules of the whole. Convention, which seek to afford the plaintiff — clearly, where the relevant I do not consider that the risk of a 'multipli conditions are met — a genuine alternative cation' of proceedings which has sometimes forum by means of special rules of juris been feared constitutes a decisive hindrance diction, to propose to the Court a solution to the acceptance of that proposition. The which enables the provisions of Article 5 (1) national courts do not lack the means to to be applied in an appropriate case. avoid that risk. The Brussels Convention itself offers solutions based on well-known judicial concepts, such as related actions In my opinion therefore, at least in a and collateral actions. Furthermore, it does situation such as that in the present case, not follow that the determination of the but also where there are held to exist a 'principal' obligation amongst those which multiplicity of obligations, the court before are the subject of legal proceedings is which the matter is brought must have incapable of satisfying all the relevant regard to the obligations actually at issue requirements: the need for certainty, the before it and ignore the characteristic obli need to adhere to the wording of the gation which may obviously not in fact be Convention and the intention of the the subject of the proceedings and may lead Contracting States and also those to a forum outside the Community or in requirements which I can but endorse, any event to a substantial separation formed the basis of the Court's judgment in between the place of performance and the the Ivenel case.
In conclusion I propose that the following reply be given to the Cour de cassation :
In a dispute arising out of employment in which the work is carried out outside the territory of the Contracting States, the court before which the matter is brought must take into account , for the purposes of deciding whether it has juris diction in accordance with Article 5 (1) of the Brussels Convention , the contractual obligations in respect of which the legal proceedings were brought .