C-37/00

OPINION OF MR JACOBS — CASE C-37/00

OPINION OF ADVOCATE GENERAL JACOBS delivered on 18 October 2001 1

1. This case concerns the determination of the Convention on the accession of Spain the forum, in accordance with Article 5(1) and Portugal, signed at Donostia — San of the Brussels Convention, 2for proceed- Sebastian on 26 May 1989. 3 ings relating to a contract of employment. The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) raises the ques- tion with regard to such a contract between a Scottish company and a German national resident in Germany, who was employed for at least part of the time between 1987 and 1993 on board ships or drilling rigs operating on or over the Netherlands continental shelf and then for several months on board a floating crane in Danish territorial waters.

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WEBER v UNIVERSAL OGDEN SERVICES

4. It provides, inter alia: to 'the European territories of the Con- tracting States', with further detailed provi- sions concerning its application or possible application to various other dependent territories. That article was however deleted by Article 21 of the 1989 accession 'A person domiciled in a Contracting State convention 5 and since then there has been may, in another Contracting State, be sued: no specific territorial provision.

1. in matters relating to a contract, in the courts for the place of performance of the obligation in question; [prior to the Netherlands legislation 1989 accession convention, Article 5(1) went no further than this point] in matters relating to individual contracts of employment, this place is that where the employee habitually carries out his 6. The Netherlands Law of 1992 relating to work, or if the employee does not employment in extraction industries in the habitually carry out his work in any North Sea (Wet arbeid mijnbouw Noord- one country, the employer may also be zee, 'the WAMN') 6entered into force on sued in the courts for the place where 1 February 1993. the business which engaged the employee was or is now situated;

7. Article 2 of that Law provides that the Netherlands law on employment contracts, ...' 4 including such rules of private international law as are relevant thereto, is to apply to contracts for the employment of workers on board any 'mining installation' (mijnbouivinstallatie) on or over the Netherlands continental shelf. The Hoge 5. Prior to 1989, Article 60 had declared Raad explains that the term 'mining instal- that the Brussels Convention was to apply lation' includes drilling vessels and all fixed

or (immobilised) floating facilities for the The proceedings conduct of exploration operations or the extraction of minerals, and that 'continen- tal shelf' is to be understood as defined in the 1958 Geneva Convention on the Conti- nental Shelf, 7that is to say essentially 'the 9. Mr Weber is a German national who submarine areas adjacent to the coast but was employed as a cook by Universal outside the area of the territorial sea to a Ogden Services Ltd ('Ogden') between July depth of 200 metres'. (That convention was 1987 and December 1993. He was resident signed on 29 April 1958 and entered into in Germany both during the period of that force on 10 June 1964; the later United employment and when he brought the main Nations Convention on the Law of the Sea, proceedings in 1994. Ogden (although signed at Montego Bay on 10 December apparently a subsidiary of a much larger 1982, 8which contains a slightly different multinational) is a Scottish company estab- definition, did not enter into force until lished in Aberdeen. 16 November 1994 and was not ratified by the Netherlands until 28 June 1996.) Article 2 of the WAMN also provides that for the purposes of private international law work performed by such workers is deemed to be performed in the Nether- 10. Some factual details of Mr Weber's lands. employment are still in dispute before the national courts but it seems to be common ground that until 21 September 1993 at least part of his work for Ogden was carried out on board vessels or installations 8. Article 10(1) of the WAMN gives juris- covered (or subsequently to be covered) by diction over disputes concerning such the WAMN within the Netherlands conti- employment contracts to the Kantonrechter nental shelf area. From 21 September to te Alkmaar (Alkmaar Cantonal Court). 30 December 1993 he was employed by However, the Hoge Raad notes that the Ogden on a floating crane operating in explanatory memorandum to that article Danish territorial waters. indicates that it cannot derogate from the rules laid down in the Brussels Convention and therefore 'where an employer is estab- lished in another Member State of the European Communities an employee will be unable to rely on Article 10 and will 11. On 29 June 1994 Mr Weber brought have to bring his action in that Member proceedings against Ogden relating to the State'. 9 contract of employment 10 before the Kan- tonrechter te Alkmaar, on the basis of Article 10 of the WAMN. The Kanton- 7 —United Nations Treaty Series No 7302, Vol. 499, pp. 312-321 (hereinafter 'the Continental Shelf Conven- rechter accepted jurisdiction but, on appeal tion'). 8 — OJ 1998 L 179, p. 3 (hereinafter 'the Law of the Sea Convention'). 9 — It is not clear to me on what basis that conclusion was 10 — From Advocate General Strikwerda's opinion delivered to reached, particularly if the author of the memorandum had the Hoge Raad it appears that Mr Weber's complaint is in mind the post-1989 text of Article 5(1) of the Brussels that he was not called on to work again after an illness Convention. following his last period of employment.

14. The Hoge Raad's questions raise two issues. The first concerns the court for the place where an employee habitually carries out his work — which, as will be seen, (b) If so, in order to answer the question relates to the territorial jurisdiction of the whether the employee must be courts of the Contracting States — and the regarded as having carried out his work second concerns the identification of that 'habitually' in the Netherlands, must place, with particular regard to the mean- account be takenof the entire period of ing of the term 'habitually'. The temporal

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OPINION OF MR JACOBS — CASE C-37/00

aspects of the entry into force of a national Continental Shelf Convention, 11 the statute conferring jurisdiction on a particu- Vienna Convention on the Law of lar court are also raised in relation to the Treaties 12 and the Law of the Sea Con- second issue. vention. 13

18. It seems to me that the actual terms of the Law of the Sea Convention, on which Territorial jurisdiction of the courts of the the United Kingdom Government and the Contracting States Commission place some reliance, cannot be taken into account here since that conven- tion did not come into force until after the main proceedings were commenced and 15. The issue is whether for the purposes of was not ratified by the Netherlands until the Brussels Convention a court of a two years later. However, since its provi- Contracting State may be regarded as the sions are not dissimilar to those of the 'court for' a place situated outside that Continental Shelf Convention, the argu- State's land territory or territorial waters ments put forward may be transposable to but on or above its continental shelf. All the latter. those who have submitted observations, apart from Ogden, take the view that it may be so regarded.

entitled to construct and maintain or oper- (Article 3 of the Continental Shelf Con- ate on the continental shelf installations vention). Moreover, installations and and other devices necessary for its explo- devices on the continental shelf do not ration and the exploitation of its natural possess the status of islands, have no terri- resources' (Article 5(2)), such installations torial sea of their own and do not affect the and devices being 'under the jurisdiction of delimitation of the territorial sea of the the coastal State' (Article 5(4)). coastal State (Article 5(4)). From that, Ogden concludes that the sovereignty is limited and does not in fact make the continental shelf, or any installations and devices thereon, part of the 'territory' of the coastal State. Since treaties apply in prin- ciple to the entire 'territory' of each party 21. Moreover, the Truman Proclamation (Article 29 of the Vienna Convention) and of 28 September 1945 14 had already the Brussels Convention demonstrates no asserted that 'the continental shelf may be different intention, the continental shelf regarded as an extension of the land-mass must be excluded from its scope. of the coastal nation and thus naturally appurtenant to it'. And in 1969, describing that document as the 'starting-point of the positive law on the subject', the Inter- national Court of Justice held in its North Sea Continental Shelf judgment 15 that the continental shelf over which the coastal 23. Whilst those considerations regarding State may exercise rights 'constitutes a territory are not without relevance, it natural prolongation of its land territory would in my view be mistaken to regard into and under the sea' and that those rights the issue as that of the 'territorial scope' of exist 'ipso facto and ab initio, by virtue of the Brussels Convention. its sovereignty over the land, and as an extension of it'.

25. That determination must in my view remain in the first instance a matter for national law, provided that no rule of 27. As regards the land territory of a public international law is contravened. Contracting State, there can be no dispute. It is not the business of the Brussels Convention to determine the territorial jurisdiction of individual courts. It is entirely a matter of internal law to decide whether, within a particular State, the courts for a particular place are those of, 26. It is true that the Court seeks, wherever say, England, Scotland or Northern Ire- possible, to give the terms used in the land, or of one rather than another of the Brussels Convention an autonomous inter- German Länder or the Spanish provinces, pretation rather than one referring to or within those areas which local court has national law. 17 However, that option is territorial competence. 20 Moreover, it not always the most appropriate and is not seems clear from the report on the 1989 always adopted by the Court. 18 Indeed, the accession convention 21 that, despite the convention itself contains references to deletion of Article 60, there was still an national law — as in Articles 52 and 53, intention to allow Contracting States to concerning the determination of domicile. extend the Brussels Convention to other It is true, also, that for the purposes of territories for which they are responsible, in Article 5(1) the place of performance of a accordance with the rules of public inter- contract of employment falls to be deter- national law. mined by reference to uniform criteria established on the basis of the scheme and 19 — See Mulox, paragraph 16 of the judgment. 20 — However, although the territory over which a court has jurisdiction must be determined by national law, the 16 — It may be noted that those matters remain relevant, even relationship between that territory and a particular set of though the decision was taken in 1989 to delete Article 60: proceedings may none the less be governed by the see the reports cited above in note 5. convention even in the absence of any international 17 — See, for example, Case C-125/92 Mulox IBC [1993] ECR element; see the report by Mr Jenard on the original I-4075, paragraphs 10 and 11 of the judgment, Case version of the Brussels Convention, OJ 1979 C 59, p. 3, C-383/95 Rutten [1997] ECR I-57, paragraphs 12 and 13, Chapter IV.B, Section 2, Articles 5 and 6. or Case C-440/97 GIE Groupe Concorde [1999] ECR 21 — Cited above in note 5, paragraphs 33 to 38; see in I-6307, paragraph 11. particular the reference in paragraph 37(b)(2) to the 18 — See, for example, GIE Groupe Concorde, paragraphs 12 possibility that the Netherlands could declare the Brussels and 13, together with the case-law cited there. Convention to apply to the Netherlands Antilles.

29. That position is not affected by the limited nature of the rights of the coastal State or by the legal status of the super- jacent waters as high seas. The jurisdiction in question here lies clearly within the 31. The court for the Netherlands conti- realm of the rights accorded by the Conti- nental shelf area will thus not necessarily be nental Shelf Convention since before the the Kantonrechter te Alkmaar, or indeed signature of the Brussels Convention. Thus, any other Netherlands court, in all circum- when the Brussels Convention entered into stances — nor, moreover, is there any force, the continental shelf was already, as indication that Netherlands law would regards mining activities and installations, consider it to be so. However, the desig- under Netherlands jurisdiction. It is dif- nation of that court as competent in ficult to conceive how disputes, including matters arising out of contracts relating to employment disputes, arising out of those employment on mining installations in that activities, could have been excluded from area is entirely consistent with public inter- that jurisdiction, even if no specific court national law. was designated to hear them. 22 — Also signed, like the Continental Shelf Convention, at Geneva on 29 April 1958 (United Nations Treaty Series No 6465, Vol. 450, p. 82), and also since superseded by the Law of the Sea Convention, which contains largely similar provisions. 23 — It appears possible that Mr Weber's work was at least in part on board ships flying the flag of the Netherlands, which might provide a different basis for the jurisdiction of the Netherlands courts, independently of the area in which the ships sailed. However, that possible issue falls outside 30. The situation might on the other hand the scope of the Hoge Raad's question. be different in the case, for example, of a 24 — See, for example, Article IX of the International Con- vention on Civil Liability for Oil Pollution Damage (CLC), vessel flying the flag of another State and signed in Brussels on 29 November 1969.

35. The question of the determination of the place of performance of a contract of employment where the employee carries out work in different jurisdictions has been considered by the Court in three cases: Six Place where an employee habitually carries Constructions, 26 Mulox and Rutten. 27 out his work Although both Six Constructions and Mulox concerned an earlier version of the Brussels Convention, in which there was no specific rule relating to employment contracts, it is clear from Rutten 28 that those judgments and the earlier case-law on 33. It appears that Mr Weber was which they were based remain relevant to employed by Ogden between 1987 and the interpretation of the post-1989 version. 1993 on board various vessels and instal- lations, some inside and some outside the Netherlands continental shelf area. There is no clear indication in the documents before the Court as to the relative periods involved, a matter which indeed appears still to be in dispute in the national proceedings. From the facts found by the Rechtbank te Alkmaar for the period from 36. In Six Constructions, the work took the 1 February to 21 September 1993 it seems form of assignments carried out in various that his work within the area in question countries none of which was a party to the was intermittent at least during that Brussels Convention. Although the period. 25 From 21 September to 30 De- employee regularly returned to Belgium, cember 1993, he worked on board a float- where he had been recruited, it was only to ing crane in Danish territorial waters. report to his employer's branch there. The Court held that since the place of perform-

38. At first sight, the way in which the 41. The details of Mr Weber's employment Hoge Raad's question is expressed might have not been definitively ascertained but it seem surprising. It might appear self-evi- would seem that his situation is in one dent that, when determining where an respect closer to that of the employee in Six activity habitually takes place, the duration Constructions than in either Mulox or of that activity must be taken into account. Rutten. In particular, he does not appear to have had a professional base from which he operated but to have performed his work on the various vessels or installations to which he was sent from time to time, spending the remainder of his time no doubt at his own discretion. It is thus not easy to resolve the present case on the basis 39. However, apart from the question of of the rulings in the two latter cases. On the the entry into force of the WAMN, which is other hand, in Six Constructions the Court the subject-matter of the third question and which I shall consider below, the formu- lation may have been prompted in part by 29 — In paragraph 25 of the judgment.

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OPINION OF MR JACOBS — CASE C-37/00

dealt with the question on the basis that the 44. Second, regard must be had to the contract was performed wholly outside the concern to afford proper protection to the territory of the Contracting States, so that employee, the weaker party to the contract. no 'courts for the place of performance' Such protection is best assured if disputes could be identified within those States. fall within the jurisdiction of the courts for Here, at least two possible sets of such the place where he discharges his obli- courts — Netherlands and Danish — can gations, where it is (likely to be) least be identified. However, certain principles expensive for him to commence or defend expressed by the Court in all three cases himself in court proceedings. may be helpful in indicating the correct approach.

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WEBER v UNIVERSAL OGDEN SERVICES

forum should be determined on the basis of that is so, in my view a very strong what is most convenient for him. On the presumption arises that that is the State in contrary, the need to have uniform criteria, which the work was habitually carried out which ensure legal certainty, and to avoid during that period, even if there may have any multiplicity of jurisdiction means that been no individual habitual place of work the concern must be more abstract, and not there. 34 linked to the circumstances of the individ- ual employee. Similarly, the necessary link between the dispute and the court hearing it will not always mean that a court of the country whose law is applicable to the contract will have jurisdiction, desirable though such a result undoubtedly is. 33 50. That presumption might conceivably be rebutted in a situation closer to that in Mulox and Rutten — if, say, Mr Weber had had a professional base at which he worked, from which he went or was sent on various turns of duty elsewhere and to 48. Clearly, it will be very difficult for the which he returned. Such an 'effective centre national court to reach a conclusion in this of his working activities' might possibly case without ascertaining more closely outweigh even a majority of the employee's where Mr Weber in fact carried out his working time spent in another Contracting work over the period of his employment State, but all the circumstances would have and in particular what periods of work to be taken into account, including not only were spent in the various territorial waters the time spent but also the nature and or continental shelf areas (or even perhaps importance of the work done in each place. in areas over which no State can claim In the present case, though, there seems to jurisdiction, in which case the flag of the be no indication of any factor that might vessel or vessels on which he worked might counteract a clear majority of working time be relevant). spent within the jurisdiction of the courts of a single Contracting State.

out in Article 5(1) with regard to employ- of both duration and place of employment. ment contracts must come into play. It will Thus there might be a significant propor- be recalled that the place of performance of tion of his work within one area, far an individual contract of employment is outstripping any work he did in any other 'that where the employee habitually carries area but accounting none the less for under out his work, or if the employee does not half his time. 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 situated'. Those alternatives are necess- arily, it seems to me, mutually exclusive; 35 the convention envisages that in some circumstances the place of habitual employment cannot be determined and that in those cases proceedings must be brought 53. In such a case (which is for the moment either in accordance with Article 2 or, but purely hypothetical), it seems to me that the only if the employee is the plaintiff, in the national court would have to look more courts for the relevant place of business. 36 closely at all the surrounding circum- That final possibility is not, however, stances. If the proportion in question con- available if a place of habitual employment stituted the employee's basic work, for can be established. example, and was all carried out at the same place, whereas all the other assign- ments were of an ancillary or fleeting nature, then there might be justification for regarding that place as the one where the work was habitually carried out. If, on the other hand, all the employee's assign- ments were of an equally transient and unstable nature and it was mere chance that led to a significantly greater propor- tion being in the jurisdiction of one Con- tracting State than in any other, I do not 52. The matter should not be viewed as think such a conclusion could so easily be simply a question of mathematics. A more drawn. difficult situation would arise if it were to transpire that Mr Weber carried out less than half his work, in terms of duration, within a single jurisdiction, but that the remainder, the majority, was of a totally fragmented and dispersed nature, in terms

57. In the present case, only the national court can determine whether the circum- stances of Mr Weber's employment in Danish territorial waters set it apart from his previous assignments in such a way and to such an extent that, despite its brief duration in relation to the period of 56. That is not to deny that in some employment as a whole, it should be circumstances the most recent period of regarded as establishing a new place where employment may have greater weight than he habitually carried out his work for the earlier periods, as Ogden has pointed out in purposes of Article 5(1) of the Brussels its observations. For example, after a long Convention. However, unless that is the period working in one Contracting State, case, the whole period of his employment an employee might be posted to a branch of should be taken into account when deter- the same employer in another Contracting mining that place. State. If that move were of a specifically temporary nature, it being understood that he would return to his previous post, it might not have any immediate bearing on the place where he habitually carried out his work. If on the other hand it were understood to be a permanent career move, Entry into force of the WAMN involving a change of residence and other definitive steps, then that place might be transferred to the second Contracting State when the move occurred. A permanent 58. The Hoge Raad points out that Nether- posting following a series of varied tem- lands law did not designate a court with porary assignments might have a similar territorial jurisdiction to hear cases of the effect, and other situations may be kind in issue until 1 February 1993, yet imagined. Factors of that general kind were performance of the contract took place mainly before that date. It wishes to know 37 — At paragraph 38. 38 — See paragraph 32 of the Opinion in Mulox and paragraphs 33 and 34 of the Opinion in Rutten. 39 — See paragraph 39 above.

whether a distinction must be drawn, when had jurisdiction to hear them can in itself determining the place where Mr Weber have no bearing on its jurisdiction at the habitually carried out his work, between time when they are brought. the periods before and after the designation by the WAMN of the Kantonrechter te Alkmaar as the court with such jurisdic- tion. By that question, it presumably envis- ages the possibility that the earlier periods should be left out of account. 61. It is true that there is no provision to that effect in the Brussels Convention. However, under Article 54 the convention applies to proceedings instituted after its entry into force in the State in question, 59. The United Kingdom Government and with the consequence that the proper forum the Commission consider the entry into may be determined in accordance with its force of the WAMN to be irrelevant, being rules even though the facts on which that a matter of purely national law which can determination is based may have occurred have no effect on the uniform interpre- before it became applicable. 40 The same tation of the Brussels Convention. Ogden principle must apply mutatis mutandis and the Netherlands Government take the when a court covered by the convention opposite view, on the basis that the Kan- acquires new jurisdiction, whether terri- tonrechter had no jurisdiction over the torial or substantive, and indeed it is relevant territory prior to that date. Mr difficult to see how it could be otherwise. Weber draws attention to the fact that the WAMN was the culmination of a lengthy process and that even before its entry into force there had been Netherlands legis- lation relevant to the protection of workers on the continental shelf. 62. In the present case, it seems clear that when determining whether the place at which the work was habitually carried out lay within that territorial jurisdiction, there 60. I agree in principle with the United is thus no reason to disregard periods of Kingdom Government and the Commis- work effected before the WAMN came into sion. The place at which the employee's force. In any event, as I have pointed out, work was habitually carried out is a ques- mining activities and installations in its tion of fact (to be assessed in accordance continental shelf area have clearly been with uniform rules of law) and cannot be under Netherlands jurisdiction since the affected by national legislation designating entry into force of the Continental Shelf the court for that place. The significance of Convention. that factual matter lies in its relevance to determining the court which has jurisdic- tion to hear the proceedings, at the time 40 — In Case 25/79 Santcentral v Collin [1979] ECR 3423, the Court held the date of commencement of the proceedings when they are brought. The fact that, if the to be the relevant date for assessing the effect of a proceedings had been brought at an earlier jurisdiction clause in a contract concluded before the convention entered into force on the choice of forum for date, the court in question would not have proceedings commenced after its entry into force.

(3) The determination of that place is an assessment of fact to be carried out by the national court in accordance with the criteria laid down by the Court of Justice. It cannot be affected by changes in the national rules allocating territorial jurisdiction to national courts.

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