C-383/95
ECLI:EU:C:1996:417
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RUTTEN v CROSS MEDICAL
OPINION OF ADVOCATE GENERAL JACOBS delivered on 24 October 1996 *
1. The Netherlands Hoge Raad (Supreme Background Court) has asked for a preliminary ruling on the interpretation of Article 5(1) of the Con vention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (hereafter 'the Brus sels Convention'), as amended by the Con 3. Mr Rutten, a Netherlands national resi vention of 9 October 1978 on the accession dent in the Netherlands, was employed from of Denmark, Ireland and the United King 1 August 1989 by Cross Medical BV, a Neth dom, 1 by the Convention of 25 October erlands subsidiary of Cross Medical Ltd, a 1982 on the accession of the Hellenic Repub company incorporated in Great Britain and lic 2 and by the Convention of 26 May 1989 established in London. His contract of on the accession of the Kingdom of Spain employment contained clauses conferring and the Portuguese Republic ('the San Sebas jurisdiction in the event of employment dis tian Convention'). 3 putes on the Amsterdam Kantonrechter (Cantonal Court) and stipulating that the contract was to be governed by Netherlands law. O n 31 May 1990 Mr Rutten's employ ment with Cross Medical BV was terminated because of that company's financial difficul ties and he entered into a new contract of employment with Cross Medical Ltd. That contract surprisingly contained neither a choice of law clause nor a submission to jurisdiction clause.
2. Article 5(1) of the Brussels Convention, in so far as relevant to this case, essentially con 4. Mr Rutten continued to live in the Neth fers jurisdiction in disputes arising out of erlands. Both before and after his change of employment contracts on, inter alia, the employer, he carried out some two-thirds of courts of the place where the employee his work in the Netherlands; the remaining habitually carries out his work. third appears to have been spent in several other countries (there is slight divergence between the documents on the file, but England, Scotland, Ireland, the United * Original language: English. States, Germany and Belgium are variously 1 — OJ 1978 L 304, p. 77. 2 — OJ 1982 L 388, p. 1. mentioned). He carried out the preparation 3 — OJ 1989 L 285, p. 1. and planning for his trips in his Netherlands
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office (which appears to have been in his countries, decisive or significant in that house), where he kept all relevant documen- regard? tation and where he returned after every trip.
5. Mr Rutten's employment was terminated by Cross Medical Ltd with effect from 1 October 1991. He sought payment of arrears of salary and interest before the (c) Is the fact that the employee resides in Amsterdam Kantonrechter. Cross Medical one of those countries and maintains Ltd contests the jurisdiction of the Nether- there an office where he prepares or lands courts, arguing that Rutten habitually administers his work outside that coun- carried out his work in the United Kingdom. try, and to which he returns after every The Kantonrechter declared that it had juris- trip which he makes in connection with diction to hear and determine the claim; on his work, significant in that regard?' appeal on the issue of jurisdiction, the Recht- bank (District Court), Amsterdam, set aside the judgment of the Kantonrechter. Mr Rut- ten appealed in cassation to the Netherlands Hoge Raad, which referred the following questions to the Court:
Article 5(1) of the Brussels Convention
'(a) Where, in the performance of an employment contract, an employee car- ries out his work in more than one country, what are the criteria according to which he should be regarded as habitually carrying out his work in one of those countries, within the meaning 6. Article 5(1) represents one of the excep- of Article 5(1) of the Brussels Conven- tions to the general rule set out in Article 2, tion? namely that persons domiciled in a Con- tracting State are to be sued in the courts of that State. Those exceptions are justified by the fact that, as stated in the Jenard Report on the Convention, 'there must be a close connecting factor between the dispute and the court with jurisdiction to resolve it'. 4 (b) Is the fact that he spends most of his working time in one of those countries, or the fact that he spends more of his working time in another country or 4 — OJ 1979 C 59, p. 1, at p. 22.
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7. Until 1989, Article 5(1) read as follows: individual contracts of employment, this place is that where the employee habitually carries out his work, or if the employee does not habitually carry out his work in any one country, the employer may also be sued in the courts for the place where the business which engaged the employee was or is now 'A person domiciled in a Contracting State situated; ...' may, in another Contracting State, be sued:
1. in matters relating to a contract, in the courts for the place of performance of the obligation in question; ...' 5 9. What is at issue in this case is the meaning of the words '[the place] where the employee habitually carries out his work'. The identi- fication of that place in a specific case is a question of fact to be determined by the national court, and the Court has been asked in particular to give guidance as to the fac- 8. The San Sebastian Convention amended tors which may be relevant to that determi- Article 5(1) so that it reads as follows: nation in circumstances where the employee works in more than one country.
'A person domiciled in a Contracting State may, in another Contracting State, be sued:
10. The Court has not yet had occasion to rule on the meaning of the above terms. In the absence of any judicial guidance, I will 1. in matters relating to a contract, in the briefly review the history of the provision. A courts for the place of performance of the fuller discussion of the background may be obligation in question; in matters relating to found in my Opinion in Mulox IBC v Geels. 6
5 — The wording of the original 1968 version was marginally dif- ferent, but to substantially the same effect; the version cited is that amended by the 1978 Accession Convention. 6 — Case C-125/92 [1993] ECR I-4075.
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11. The amendment made to Article 5(1) by individual contracts of employment, this the San Sebastian Convention is discussed in place is that where the employee habitually the Report on that convention by Almeida carries out his work, or if the employee does 7 Cruz, Desantes Real and Jenard. It is stated not habitually carry out his work in any one that the solution adopted 'attempts to country, this place shall be the place of busi improve on that adopted by the Lugano ness through which he was engaged; ...' 8 Convention without departing from it too greatly, while following the guidelines laid down by the Court of Justice on the protec tion of the weaker party in the contractual relationship'. 9 The Report refers in particu lar to the decision of the Court of Justice in Six Constructions ν Humbert, 10 delivered after signature of the Lugano Convention 13. The only difference between the word but before finalization of the San Sebastian ing of Article 5(1) of the Lugano Convention Convention. and Article 5(1) of the Brussels Convention as amended by the San Sebastian Convention is that it is made clear in the latter that the option (where the employee does not habitu ally carry out his work in any one country) of suing in the place of business of engage 12. The relevant provision in the Lugano ment is available only to the employee. That Convention, also Article 5(1), reads as fol is the improvement referred to in the Report lows: on the San Sebastian Convention, intended to reflect the concern to protect the socially weaker party to the contract. It was prompted by Six Constructions, in which the Court pointed out that the wording of the Lugano Convention could work against the interests of the socially weaker party to the 'A person domiciled in a Contracting State employment contract by conferring jurisdic may, in another Contracting State, be sued: tion on the courts for the place where the employer is located even where the employer 1 is the plaintiff. 1
1. in matters relating to a contract, in the courts for the place of performance of the obligation in question; in matters relating to
14. Article 5(1) of the Lugano Convention 7 — OJ 1990 C 189, p. 35. was apparently intended to reflect the deci 8 — Convention of 16 September 1988 on jurisdiction and the sions of the Court of Justice in Ivenel ν enforcement of judgments in civil and commercial matters (applicable between the Member States of EFTA and the EEC); OJ 1988 L 319, p. 9. 9 — Paragraph 23(c). 10 — Case 32/88 [1989] ECR 341. 11 — See paragraphs 13 and 14 of the judgment.
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Schwab 12 and Shenavai v Kreischer 13 (see Convention) to the place 'where the the Report on the San Sebastian Convention, employee habitually carries out his work'. paragraph 23(a)) and also to be consistent with the Rome Convention on the law appli- cable to contractual obligations 14 (see the Jenard-Möller Report on the Lugano Con- vention, 15 paragraphs 37 to 40). 16. Article 6(2) of the Rome Convention provides that, in the absence of choice of law, a contract of employment is to be governed:
'(a) by the law of the country in which the 15. In the absence of any specific provision employee habitually carries out his for contracts of employment in the pre-1989 work in performance of the contract, versions of the Brussels Convention, the even if he is temporarily employed in Court had ruled in Ivenel v Schwab that the another country; or obligation to be taken into account for the purposes of Article 5(1) in the case of claims based on different obligations arising under a contract of employment was the obligation which characterized the contract, which was normally the obligation to carry out work. 16 (b) if the employee does not habitually In Shenavai v Kreischer the Court had stated carry out his work in any one country, obiter that, in the case of a dispute concerned by the law of the country in which the with a number of obligations arising under place of business through which he was the same contract and forming the basis of engaged is situated; the proceedings in question, the court before which the matter was brought should, when determining whether it had jurisdiction, be guided by the maxim accessorium sequitur principale: in other words, where various unless it appears from the circumstances as a obligations are at issue, it will be the princi- whole that the contract is more closely con- pal obligation which will determine its juris- nected with another country, in which case diction. 17 Those two propositions, together the contract shall be governed by the law of with Article 6(2) of the Rome Convention, that country'. are the source of the reference in Article 5(1) of the Lugano Convention (and hence also of that in Article 5(1) of the Brussels
17. It is clear from the Giuliano-Lagarde 12 — Case 133/81 [1982] ECR 1891. 13 — Case 266/85 [1987] ECR 239. Report on the Rome Convention 18 that the 14 — OJ 1980 L 266, p. 1. 15 — OJ 1990 C 189, p. 57. 16 — Paragraphs 15 and 20 and operative part of the judgment. 17 — Paragraph 19 of the judgment. 18 — OJ 1980 C 282, p. 1.
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wording of Article 6 took account of the fact performed his work in more than one Con that the interests of the parties to an employ tracting State. In my view, the Court's rul ment contract differ and sought to secure ing, although concerned with the earlier 'more adequate protection for the party who wording, is none the less helpful in interpret from the socio-economic point of view is ing the present wording. This is because the regarded as the weaker in the contractual Court interpreted the pre-1989 version in the 19 relationship'. light of its decisions in Ivenel ν Schwab and Shenavai ν Kreischer; as has been seen, it was those decisions which largely shaped the 1989 amendment currently before the Court.
18. That the concern to afford proper pro tection to the party to the contract who is the weaker from the social point of view is a factor to be taken into account in interpret ing Article 5(1) of the Brussels Convention was confirmed by the Court of Justice in 20. The Court ruled that, in the case of a Ivenel ν Schwab, in relation to the pre-1989 contract of employment, it was appropriate version of the article. 2 0 The Court in that to determine the place of performance of the case additionally stated, after reviewing the relevant obligation, for the purposes of legislative history of the provision, that in applying Article 5(1) of the Convention, by the matter of contracts Article 5(1) was par reference not to the applicable national law ticularly concerned to attribute jurisdiction in accordance with the conflict rules of the to the court of the country which had a close court seised but, rather, to uniform criteria connection with the case, and that in the case which it was for the Court to lay down on of a contract of employment the connection the basis of the scheme and the objectives of lay particularly in the law applicable to the the Convention. 2 3 contract. 2 1 I will revert to these points later.
The Mulox case
21. The Court moreover referred to its state ment in Ivenel ν Schwab that account must be taken of the concern to afford proper pro tection to the party to the contract who is 19. The pre-1989 version of Article 5(1) the weaker from the social point of view, came before the Court again in Mulox IBC ν namely in these cases the employee. Proper Geels, 22 a case where the employee protection of that kind is best assured if dis putes relating to a contract of employment fall within the jurisdiction of the courts of 19 — P. 25. 20 — Paragraphs 16 and 17 of the judgment 21 — Paragraph 15 of the judgment. 22 — Cited in note 6. 23 — Paragraph 16 of the judgment.
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the place where the employee discharges his his employer. In order to determine the obligations towards his employer. That is the place of performance, which was a matter place where it is least expensive for the for the national court, it was necessary to employee to commence, or defend himself take account of the fact that, in that case, the against, court proceedings. 24 work entrusted to the employee was carried out from an office in a Contracting State, where the employee had established his resi- dence, from which he performed his work and to which he returned after each business trip. 28
22. That proposition echoes the view I expressed in my Opinion in that case that the worker should be entitled to sue his employer at the place where he works: that is the natural forum for such disputes and it will in most cases be the most convenient forum for the employee, who should not be deprived of the convenience of suing there Application to the present case simply because his employer is domiciled in another Contracting State. 25
23. The Court in Mulox referred to earlier 24. The issue before the Court in this case case-law (set out above) 26 holding that, is essentially whether the wording of where various obligations derive from the Article 5(1) of the Brussels Convention as same contract and form the basis of the amended by the San Sebastian Convention, plaintiff's action, it is the principal obligation and in particular the words '[the place] which must be relied on in order to deter- where the employee habitually carries out mine jurisdiction. 27 The Court then stated his work', differs to any significant extent that, where the work was performed in more from the Court's interpretation of the than one Contracting State, the place of per- unamended provision in Mulox, and in par- formance of the contractual obligation ticular the concept 'the place where or from within the meaning of Article 5(1) was the which the employee principally discharges place where or from which the employee his obligations towards his employer'; and if principally discharged his obligations towards so whether that difference warrants depart- ing from the guidelines laid down by the Court in Mulox for determining where that place is in a specific case. 24 — Paragraphs 18 and 19 of the judgment in Mulox. 25 — Paragraph 29 of my Opinion. 26 — Paragraph 15. 27 — Case 266/85, cited in note 13, paragraph 19 of the judg- ment. 28 — Paragraphs 22 to 25 of the judgment.
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25. I remain of the view which I expressed recognized by the Court and coloured the in my Opinion in Mulox, to the effect that 1989 amendment to Article 5(1). the pre-1989 version of Article 5(1):
28. Secondly, it reflects the requirement of a 'should be construed as establishing jurisdic close connecting factor between the dispute tion at the principal place of employment. and the court with jurisdiction to resolve it. That term will in most situations be largely synonymous with the concept of the "habitual" place of employment used in Article 6 of the Rome Convention and in the Lugano and San Sebastian Conventions. However, the expression "principal place of 29. Thirdly, it should mean that the courts employment" seems preferable, since it more with jurisdiction will almost invariably be at effectively conveys the idea that one of the the place where it is least expensive for the worker's several places of employment must employee to commence, or defend himself in normal circumstances be more important against, court proceedings. than the others. ... if the San Sebastian Con vention were applicable in a case such as the present one, the term "habitually" should not be construed too literally but should be read as indicating the principal place of employment.' 2 9 30. Against that interpretation it might be argued that it will not necessarily confer jurisdiction on courts of the country whose law is applicable. As stated above, the desir ability of conferring jurisdiction on a court w h i c h will be able t o a p p l y its o w n law, 26. That interpretation accords with a num rather than a foreign law, was mentioned by ber of factors. the Court in Ivenel ν Schwab as one of the principal criteria governing the interpretation of Article 5(1).
27. First, it affords protection to the party to the contract who is weaker from a social point of view, namely in employment con 31. I do not however think that that objec tracts the employee: as has been seen, the tion is sufficient to override the advantages concern to ensure such protection has been of the interpretation I propose. As I stated in my Opinion in Mulox, desirable though it may be to confer jurisdiction over employ 29 — Paragraphs 32 and 37. ment disputes on the courts of the country
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whose law is applicable, that will not always 33. The Commission, although it endorses be possible in practice, even after the harmo- the view I expressed in my Opinion in nization of the choice-of-law rules effected Mulox that the term 'habitually' should not by the Rome Convention. 30 In that Opinion be interpreted too literally, sees difficulties in I discussed in some depth the difficulties simply equating the meaning of 'habitually' inherent in any attempt to ensure coinci- and 'principally'. It submits that the first dence of lex causae and lex fori, and con- concept refers rather to the temporal organi- cluded that it would be a mistake to exagger- zation of the employee's work whereas the ate the importance of the link between second refers to the central point of the jurisdiction and lex causae in employment work. However, it then states that the term disputes. 31 I remain of that view. 'principally' implies, as shown by the judg- ment in Mulox, 33 that in relation to the pre- vious version of Article 5(1) various criteria should be taken into account, including the time spent in each of the countries con- cerned. The new wording, and in particular the use of the word 'habitually', confirms that latter criterion. The Commission con- cludes that the national court must therefore first establish the periods during which the employee worked in the various different countries. If a clear majority of days were spent in one Contracting State, it is the courts of that State which in principle have jurisdiction to hear disputes arising out of the contract of employment. 32. Where, therefore, in the performance of an employment contract, an employee carries out his work in more than one country, the criteria according to which he should be regarded as habitually carrying out his work in one of those countries within the meaning of Article 5(1) of the Brussels Convention are essentially the same as the criteria according to which he would formerly have 34. Although that reasoning will in all prob- been regarded as principally discharging his ability lead to the correct result in the major- obligations towards his employer. The Court ity of cases, I am not convinced of the wis- in Mulox has already suggested some of dom of such a wide formulation. I remain of those criteria: in particular the location of the the view which I expressed in my Opinion in employee's office in a Contracting State, Mulox that the location and use made of the where he had established his residence, from employee's office cannot be overlooked. In which he performed his work and to which that case, I stated that, even if the employee he returned after each business trip. 32 spent more than half of the year travelling in
30 — Paragraph 27 of my Opinion. 33 — The Commission is considering the French and Dutch texts 31 — Sec paragraphs 27 and 28. of the judgment, which use the term 'principalement' and 32 — Paragraph 25 of the judgment. 'hoofdzakelijk' respectively.
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other countries and did not in fact visit a 36. As to the criterion of residence, I would single client in the country in which he had merely comment that, although it may be a his office, it seemed to me very difficult to relevant factor in the circumstances of a par- rebut the presumption that his principal ticular case, for the reasons given in my place of employment was located at the place Opinion in Mulox 35 I do not consider that it where he had his centre of operations. 34 I do should be decisive. not consider that that proposition has been made less cogent by the new wording of Article 5(1). If an employee who travels to several different countries prepares and plans his work from his office and returns there after every trip, it is artificial to regard him as 'habitually' or 'principally' carrying out his work in any country other than that where he has his office, the hub of his work- 37. I would stress the importance in any case ing activities. involving an employee who works in several different countries of making a determined effort to identify a principal place of employ- ment, in order to ensure that jurisdiction is conferred on the courts of a country which has a genuine connection with the dispute. 36 That result will not necessarily be achieved if recourse is had to the substitute connecting factor introduced by the San Sebastian Con- vention, namely the place where the business which engaged the employee was or is situ- ated. Other than to draw attention to the risk, however, I do not consider that it is necessary for the purposes of this case to analyse the scope of that substitute connect- ing factor.
35. The Commission adds that other factors, such as location of office and residence, are also significant. It draws a distinction as to the weight to be attached to those factors depending on whether the criterion of time points to the same or a different place as the other factors. This seems to me to be unnec- essarily complex in the context of this case, 38. To conclude, therefore, I consider that where it is clear that there is no such diffi- the additional factors mentioned in the culty. It also shows the dangers of attaching national court's questions are all relevant cri- too much weight to the criterion of time and teria for determining where the employee too little to the location of the employee's habitually carries out his work. centre of operations.
35 — Paragraph 34. 34 — Paragraph 33. 36 — Sec further my Opinion in Mulox, paragraphs 35 and 37.
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39. It may finally be noted that the main Clearly the employment dispute at issue has proceedings in this case provide a good illus numerous close connecting factors with the tration of the advantages of the interpreta Netherlands. For Mr Rutten to be compelled tion of Article 5(1) which I advocate. to bring his action before a court in the Mr Rutten is resident in the Netherlands. H e United Kingdom would be consistent nei has an office in the Netherlands from which ther with the general concern to protect the he plans and prepares his work and to which socially weaker party nor with the specific he returns after each trip, and he spends application of that concern in such cases, some two-thirds of his working time in the namely the aim of ensuring that the Netherlands, the remaining third being employee may bring proceedings in the divided between several other countries. forum most convenient to him.
Conclusion
40. Accordingly, I am of the o p i n i o n that the C o u r t should give the following reply t o t h e questions p u t b y the H o g e Raad:
F o r the p u r p o s e s of Article 5(1) of the C o n v e n t i o n of 27 September 1968 o n juris diction and t h e enforcement of j u d g m e n t s in civil and commercial matters, as m o s t recently a m e n d e d b y the C o n v e n t i o n of 26 M a y 1989 o n the accession of t h e King d o m of Spain and t h e Republic of Portugal, the place w h e r e an e m p l o y e e habitually carries o u t his w o r k means, in the case of a c o n t r a c t of e m p l o y m e n t in p u r s u a n c e of w h i c h the employee performs his w o r k in m o r e t h a n o n e State, t h e place w h e r e o r from w h i c h the employee principally discharges his obligations t o w a r d s his employer. It is for the national c o u r t t o d e t e r m i n e t h a t place in the light of all the relevant facts, w h i c h include in particular t h e fact t h a t t h e employee spends m o s t of his w o r k i n g time in o n e of those States w h e r e he resides and maintains an office f r o m w h i c h he prepares or administers his w o r k outside t h a t State and t o w h i c h he r e t u r n s after every trip w h i c h he makes in c o n n e c t i o n w i t h his w o r k .
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