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OPINION
OF ADVOCATE GENERAL
JACOBS
delivered
on 19 September 2002 (1)
Case
C-437/00
Giulia
Pugliese
v
Finmeccanica SpA
1.
This case concerns the choice of forum in accordance with
Article 5(1) of the Brussels Convention, (2) where an employee
is engaged by Company A ostensibly to work in one Contracting
State but the employment contract is immediately suspended
to allow him to work for a related Company B in another Contracting
State, with Company A agreeing to pay certain expenses for
the duration of that second employment, and where proceedings
are brought by the employee against Company A relating to
the agreements between them.
2.
The Landesarbeitsgericht München (Regional Labour Court,
Munich) wishes to know in those circumstances
(i) what is the place 'where the employee habitually carries
out his work for the purposes of the provision in question,
and
(ii) whether jurisdiction might vest in the courts of the
second Contracting State on the ground that it was the place
of performance of the obligation to pay the agreed expenses.
Factual
background and proceedings
3.
Ms Giulia Pugliese, whose family is from Rome, was engaged
by Aeritalia Società Aerospaziale Italiana ('Aeritalia)
- now part of the Finmeccanica SpA group ('Finmeccanica),
the defendant - to work at its establishment in Turin, Italy,
from 17 January 1990.
4.
It appears however that she never worked there. By two agreements
with Eurofighter Jagdflugzeug GmbH ('Eurofighter, a consortium
in which Aeritalia was and Finmeccanica now is a partner to
the extent of some 20%) and a further agreement with Aeritalia,
all three signed in January 1990, her employment with Aeritalia
was suspended 'as agreed for a period of at least three years
and she took up a post with Eurofighter in Munich, Germany,
with effect from 1 February 1990. According to Ms Pugliese,
that arrangement was in pursuance of an agreement under which
the partners in Eurofighter make staff available to it.
5.
In the agreement suspending Ms Pugliese's employment with
Aeritalia, the latter company also undertook to pay her voluntary
insurance contributions in Italy, to reimburse two return
air fares per year from Munich to the airport nearest herhome
in Italy, and to credit her on her return with full seniority
for the period worked abroad. Her duties with Eurofighter
could be terminated because of a change in programme, the
expiry of the agreed period or, for personal reasons, by mutual
agreement between the three parties. However, if she should
terminate the employment with Eurofighter unilaterally, Aeritalia
would be under no obligation to reinstate her. Neither the
contract of employment nor the agreement suspending it contained
any choice of law or jurisdiction clause.
6.
It appears that Aeritalia also undertook either to pay Ms
Pugliese a rent allowance or to bear the cost of renting her
accommodation in Munich for the duration of her assignment.
It in fact rented a flat in Munich from 1 March 1990, which
it made available to her.
7.
Under the contract of employment with Eurofighter, that company
was to pay Ms Pugliese's salary and certain other allowances.
She was to pay tax and national insurance contributions in
Germany, and the contract was to be subject to German law
and the competent Munich courts. It also referred to a monthly
rental allowance to be agreed 'between you and your parent
company.
8.
Ms Pugliese worked for Eurofighter in Munich for longer than
the agreed minimum three-year period. In November 1995, however,
Finmeccanica informed her that the suspension of her contract
would be terminated on 29 February 1996 and that she would
be employed in Turin as from 1 March. She responded with a
request to be employed in Rome, for personal and family reasons.
Finmeccanica, unable to accede to that request, extended the
suspension of her contract for three more months, after which
it ceased to pay the rent on her accommodation in Munich.
She then paid the rent herself.
9.
Upon Ms Pugliese's insisting on her need to work in Rome rather
than Turin, Finmeccanica agreed to extend the suspension several
more times, finally until 30 June 1998, but did not pay her
rent or reimburse any travel expenses after 1 June 1996.
10.
When she did not report for work in Turin in July 1998, Finmeccanica
first imposed disciplinary measures (two suspensions and a
warning) then, by letter of 7 September 1998, terminated the
employment relationship.
11.
Ms Pugliese continued (and possibly still continues) to work
for Eurofighter.
12.
The failure of Ms Pugliese and Finmeccanica to agree on the
details of her return has given rise to two sets of proceedings
in the Munich courts, which Ms Pugliese considers to have
jurisdiction.
13.
First, she brought an action before the Arbeitsgericht (Labour
Court) claiming reimbursement of her rent and travel expenses
from 1 June 1996. That claim was lodged on 9 February 1998,
but served on Finmeccanica on 4 September1998. On 20 August
1998, it was extended to include a challenge to the disciplinary
measures.
14.
Second, following the termination of the contract by Finmeccanica
on 7 September 1998, she brought a separate action before
the same court challenging her dismissal.
15.
Both actions were dismissed at first instance, on the ground
that the Arbeitsgericht had no international jurisdiction,
and Ms Pugliese appealed in both cases. The two appeals were
heard by different chambers of the referring court. The chamber
hearing the appeal in the first case has made the present
request for a preliminary ruling, whereas the chamber hearing
that in the second case dismissed it without making any such
reference. However, it appears from what was said at the hearing
that the second case is still in abeyance and a final ruling
may depend on the interpretation given by the Court in the
present case.
16.
The questions on which the national court seeks a ruling are
as follows:
'1. In a dispute between an Italian national and a company
established under Italian law having its registered office
in Italy arising from a contract of employment concluded between
them which designates Turin as the place of work, is Munich
the place where the employee habitually carries out his work
under the second part of Article 5(1) of the Brussels Convention
where, from the outset, the contract of employment is temporarily
placed on non-active status at the request of the employee
and, during that period, the employee carries out work, with
the consent of the Italian employer, but on the basis of a
separate contract of employment, for a company established
under German law at its registered office in Munich, for the
duration of which the Italian employer assumes the obligation
to provide accommodation in Munich or to bear the costs of
such accommodation and to bear the costs of two journeys home
each year from Munich to the employee's native country?
2. If the first question is answered in the negative, may
the employee, in a legal dispute with her Italian employer
arising from the contract of employment, rely, with reference
to the payment of rental costs and travel costs for the two
journeys home each year, on the argument that the court having
jurisdiction is that for the place of performance of the obligation
in question, pursuant to the first part of Article 5(1) of
the Brussels Convention?
17.
The Court has received written observations from Ms Pugliese,
the German and United Kingdom Governments and the Commission;
Ms Pugliese and the Commission presented oral submissions
at the hearing.
Brussels
Convention, background and case-law
18.
The Brussels Convention applies in civil and commercial matters
whatever the nature of the court or tribunal. Persons domiciled
in a Contracting State, whatever their nationality, are in
principle to be sued in the courts of that State, the only
exceptions being those pursuant to the rules set out in Sections
2 to 6 of the title relating to jurisdiction. Of those provisions,
Article 5 is relevant to the present case.
19.
It provides, inter alia:
'A person domiciled in a Contracting State 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; in matters
relating to individual contracts of employment, this place
is that where the employee habitually carries out his work
...
20.
Until 1989, Article 5(1) did not contain any specific provision
relating to contracts of employment; it referred simply to
the place of performance of the obligation in question. The
remainder of the paragraph was added by the Accession Convention
of that year. (3)
21.
The initial absence of a specific provision was not an oversight.
The Jenard Report (4) explains that labour law provisions
varied between Contracting States but that work was under
way to introduce a degree of harmonisation. Disputes should
as far as possible be brought before the courts of the State
whose law governed the contract, and the drafting committee
'did not think that rules of jurisdiction should be laid down
which might not coincide with those which may later be adopted
for determining the applicable law. It was therefore decided
that the general rule should apply to employment contracts
also.
22.
On 6 October 1976, the Court delivered judgment in two cases
relating to Article 5(1) as originally worded, Tessili (5)
and De Bloos (6) (although neitherconcerned an employment
contract). In De Bloos it held that the place of performance
is to be determined for the obligation forming the basis of
the legal proceedings. According to Tessili, that determination
comprises two steps. First the court seised must determine
in accordance with its own rules of conflict of laws what
law is applicable to the legal relationship in question; then
in accordance with the latter law it must define the place
of performance of the obligation.
23.
The rules for determining the law applicable to contracts,
referred to in the Jenard Report, were embodied in the Rome
Convention in 1980. (7) Under Article 6(2)(a) of that convention,
an individual contract of employment is governed, in the absence
of a choice expressed in the contract itself, by the law of
the country in which the employee habitually carries out his
work in performance of the contract, even if he is temporarily
employed in another country, unless it appears from the circumstances
as a whole that the contract is more closely connected with
another country, in which case the law of that other country
applies.
24.
The Giuliano-Lagarde Report (8) makes it clear that a concern
in the drafting of that provision was to secure 'more adequate
protection for the party who from the socio-economic point
of view is regarded as the weaker in the contractual relationship.
25.
In Ivenel (9) in 1982 the Court enunciated the principle that,
for contracts of employment, the connection between the court
seised and the dispute before it is determined by the obligation
characterising the contract, which is normally the obligation
to carry out work. In arriving at that principle, it referred
to the Rome Convention, to the Jenard and Giuliano-Lagarde
Reports and to internal evidence that the Brussels Convention
was concerned with protecting the weaker party to a contractual
relationship. It stressed also that all claims arising out
of a contract of employment should fall within the jurisdiction
of the same court.
26.
And in Shenavai (10) in 1987, it observed that such contracts
have certain particularities on account of which the courts
for the place where that characteristic obligation is to be
performed are considered best suited to resolving disputes,
but that where no such particularities exist (Shenavai concerned
an architect's claim forfees) regard is to be had solely to
the contractual obligation whose performance is sought in
the proceedings. The particularities referred to were that
employment contracts 'create a lasting bond which brings the
worker to some extent within the organisational framework
of the business of the undertaking or employer, and they are
linked to the place where the activities are pursued, which
determines the application of mandatory rules and collective
agreements.
27.
Ivenel and Shenavai were confirmed in 1989 in Six Constructions,
(11) a case which was pending before the Court at a time when
further developments were being finalised in the various conventions
in this field.
28.
In 1988, the Lugano Convention (12) extended the principles
of the Brussels Convention to certain European States outside
the Community, and for the first time added a specific provision
to cover the place of performance of individual contracts
of employment: '... this place is that where the employee
habitually carries out his work .... The Jenard-Möller
Report on that Convention (13) shows that there was a concern
to draft a provision in line with the Court's case-law, in
particular Ivenel and Shenavai, and to protect the weaker
party.
29.
The same concern underlay the 1989 amendment to the Brussels
Convention, as appears from the Cruz-Desantes-Jenard Report.
(14)
30.
Since 1989, the Court has delivered several more judgments
in the field of employment contracts and in the most recent
of these, Weber, (15) it summarised the present situation
as follows:
'First of all, ... as regards this type of contract, the place
of performance of the obligation upon which the claim is based,
as referred to in Article 5(1) of the Brussels Convention,
must be determined not by reference to the applicable national
law in accordance with the conflict rules of the court before
which the matter is brought, as is the case for most other
contracts ..., but by reference touniform criteria which it
is for the Court to lay down on the basis of the scheme and
objectives of the Brussels Convention ... (16)
Secondly, ... the rule on special jurisdiction in Article
5(1) ... is justified by the existence of a particularly close
relationship between a dispute and the court best placed,
in order to ensure the proper administration of justice and
effective organisation of the proceedings, to take cognisance
of the matter, and ... the courts for the place in which the
employee is to carry out the agreed work are best suited to
resolving disputes to which the contract of employment might
give rise ... (17)
Thirdly, in matters relating to contracts of employment, interpretation
of Article 5(1) ... must take account of the concern to afford
proper protection to the employee as the weaker of the contracting
parties from the social point of view. Such protection is
best assured if disputes relating to a contract of employment
fall within the jurisdiction of the courts of the place where
the employee discharges his obligations towards his employer,
since that is the place where it is least expensive for the
employee to commence or defend court proceedings ... (18)
It follows ... that, as regards contracts of employment, the
place of performance of the relevant obligation, for the purposes
of [Article 5(1)], is the place where the employee actually
performs the work covered by the contract with his employer
... (19)
31.
In Six Constructions, Mulox IBC, Rutten and Weber, the employee
had been required to work in more than one jurisdiction. In
Mulox IBC and Rutten, the Court held that in such cases the
place of performance should be that where or from which the
employee principally discharges his obligations towards his
employer, or where he has established the centre of his working
activities.
32.
In both those cases, the employee had a fixed working base
which could provide an objective criterion. Weber was more
difficult, in that no such base appeared to exist. The Court
therefore elaborated on its previous rulings, by holding that:
'... where an employee performs the obligations arising under
his contract of employment in several Contracting States the
place where he habitually works, within the meaning of [Article
5(1)], is the place where, or from which, taking account of
all the circumstances of the case, he in fact performs the
essential part of his duties vis-à-vis his employer.
In the case of a contract of employment under which an employee
performs for his employer the same activities in more than
one Contracting State, it is necessary, in principle, to take
account of the whole of the duration of the employment relationship
in order to identify the place where the employee habitually
works, within the meaning of Article 5(1).
Failing other criteria, that will be the place where the employee
has worked the longest.
It will only be otherwise if, in light of the facts of the
case, the subject-matter of the dispute is more closely connected
with a different place of work, which would, in that case,
be the relevant place for the purposes of applying Article
5(1) ...
...
33.
Mention may also be made of the 'posted workers' directive,
(20) which applies to certain workers posted by their employers
to work for another undertaking, or for an establishment or
undertaking owned by the group, in another Member State. Article
6 gives jurisdiction over disputes concerning certain guaranteed
terms and conditions to the courts of the Member State in
which a worker is posted. It was to be transposed into national
law by 16 December 1999.
34.
Finally it may be noted that, since 1 March 2002, the Brussels
Convention has been replaced by Council Regulation No 44/2001,
(21) which contains a section on jurisdiction over individual
contracts of employment separate from the general provisions
relating to contracts. Under Article 19(2)(a), an employer
domiciled in a Member State may be sued, in another Member
State, 'in the courts for the place where the employee habitually
carries out his work or in the courts for the last place where
he did so.
35.
Recital 13 in the preamble to that regulation specifies that
in relation to, inter alia, employment, 'the weaker party
should be protected by rules of jurisdiction more favourable
to his interests than the general rules provide for.
Analysis
Preliminary remarks
36.
This novel situation is not envisaged in the Brussels Convention,
nor can it be resolved by simple reference to the existing
case-law.
37.
Ms Pugliese had two contracts of employment, one with Aeritalia/
Finmeccanica and the other with Eurofighter, which were formally
distinct but perhaps objectively linked. The only work she
performed under either contract was for Eurofighter in Munich.
The contract with Aeritalia/ Finmeccanica also specified a
- different - place of work, but the obligation to perform
that work was suspended, practically from the outset and at
least until 30 June 1998. The only 'active obligations connected
with that contract during that period were those on the employer
to pay or reimburse certain sums.
38.
The circumstances of this case are clearly very specific.
None the less, it appears that arrangements of a similar kind
may be common between undertakings related in the same way
as Aeritalia/ Finmeccanica and Eurofighter. It will therefore
be helpful when considering the interpretation to be given
to look also beyond those specific facts on which the national
court must base its own decision, and it should be borne in
mind that the question of jurisdiction with regard to a dispute
over the termination of the contract of employment with Finmeccanica
must also be determined in separate proceedings.
Provisions not directly applicable
39.
A number of instruments, although they have been discussed
in the proceedings and although they form part of the legal
background, are not directly relevant.
40.
First, the Rome Convention is not applicable ratione temporis.
Under Article 17, it applies only to contracts made after
the date on which it entered into force, namely, for both
Italy and Germany, 1 April 1991 and thus after the conclusion
of Ms Pugliese's contracts of employment. Moreover, the two
conventions address different problems and will not always
lead to the same result, desirable though it is that they
should do so whenever possible.
41.
Second, the posted workers directive is also inapplicable
because it could not have been relied on directly before 16
December 1999 and does not appear tohave been transposed into
German (or Italian) law before that date. Moreover, as the
national court and the Commission have pointed out, it is
doubtful whether Ms Pugliese's situation would come within
the scope of the directive at all, since it does not seem
to meet the criteria laid down in Article 1(3): Ms Pugliese
was not working under the direction of Aeritalia/ Finmeccanica,
Eurofighter was not 'owned by Aeritalia/ Finmeccanica, and
Aeritalia/ Finmeccanica was not a temporary employment undertaking
or placement agency.
42.
Furthermore, although I have referred above to the Lugano
Convention and to Regulation No 44/2001, it is clear that
their provisions do not apply as such to, respectively, cases
where only Contracting States to the Brussels Convention are
involved and proceedings instituted before 1 March 2002.
43.
However, even though they may have no direct bearing on the
particular facts of the case in the main proceedings, all
those instruments form part of the same legal context as the
Brussels Convention and might have been relevant in slightly
different circumstances. They all, moreover, underscore the
concern that jurisdiction (and applicable law) should preferably
be linked to the place where the employee carries out his
work, a concern which is consistently based both on practical
considerations and on the need to protect the employee as
the weaker party in the contractual relationship.
Nature of the contract
44.
Does the dispute concern 'matters relating to an individual
contract of employment?
45.
The matters it concerns arise out of the contract of employment
between Ms Pugliese and Aeritalia/ Finmeccanica and out of
the agreements temporarily suspending the employee's obligation
to work under that contract but maintaining and/or imposing
certain obligations on the employer.
46.
In their observations, both the United Kingdom and the Commission
consider the possibility that, while that suspension prevailed,
the bond between Ms Pugliese and Aeritalia/ Finmeccanica may
have been something other than a contract of employment.
47.
That possibility cannot be dismissed out of hand. The employee's
obligation to carry out work for the employer, temporarily
absent in the present case, is clearly the most characteristic
(and may be regarded as a defining) feature of a contract
of employment, and the Court has viewed it in that light.
Other particularities to which the Court has referred are
less apparent. The employee's inclusion within the employer's
organisational framework is limited, and the resulting bond
is weak. When no work is to be performed, there is little
scope for the application of mandatory rules or collective
agreements. It is also arguable thatthe obligations which
Ms Pugliese wishes to have enforced - the payment of accommodation
and travel expenses - derive from an agreement quite separate
from the original contract of employment.
48.
None the less, I consider that the agreements between Ms Pugliese
and Aeritalia/ Finmeccanica formed a whole which had, and
never lost, the nature of a contract of employment.
49.
The original agreement was undeniably a contract of employment
and, as the United Kingdom points out, the employer sought
to enforce it as such. The agreement suspending it appears
in fact to embody an impermanent amendment of the terms of
that contract and should thus be regarded as forming part
of it. Many of its effects were suspended but those which
remained - payment of insurance contributions and recognition
of seniority - are typical obligations of an employer towards
an employee. The suspending agreement included at least some
of the terms on which active employment was to be resumed.
The Court has not seen the terms governing payment of rent,
but reimbursement of expenses attendant on relocation is also
typical of an employment relationship and the obligation appears
to be an integral part of the same context.
50.
The employee's obligation to perform work under a contract
of employment may be suspended for a variety of reasons. The
suspension may be imposed by law, as in the case of maternity
leave or where the employee is required to carry out some
form of military or civil service. Or the employee may be
freed for an agreed period to pursue study or some other activity,
an arrangement which may benefit both parties. In most if
not all of such cases the subsisting relationship will remain
one of employment, albeit in a reduced or attenuated form.
51.
It is of course not impossible to conceive of situations in
which no such relationship subsists. The 'suspension might
be such purely in form but amount in fact to a termination,
with no practical possibility for the employee to return to
work and no real residual obligations on either side. The
subsisting obligations might be wholly unrelated to the field
of employment. Or the suspension and its terms might wholly
replace the employment relationship with one of a different
kind, as in an arrangement whereby an employee becomes an
independent outside contractor providing his services on a
different basis. (22)
52.
However, where obligations typical of an employment contract
subsist, where provision is made for reviving the characteristic
obligation to perform work in that context and where no other
relationship has displaced or overridden the original bond
between the employer and the employee - all criteria which
appear to be met in the present case - then I do not consider
that suspension of even themost characteristic of the obligations
of a contract of employment can change the nature of that
contract.
53.
In that regard, the fact that during the suspension the employee
is bound by another contract of employment with another employer
is of no consequence. It is not uncommon for an employee to
work under several contracts of employment concurrently and
there is no inherent reason why the existence of one should
change the nature of another. However, in circumstances such
as those of the present case, the relationship between the
two contracts will be decisive for the determination of 'the
place where the employee habitually carries out his work.
Relationship between the contract and the place of work
54.
If jurisdiction is to be based on the place where the employee
habitually carries out his work, how can that criterion be
applied when the only work carried out by the employee is
performed in a place determined by a different contract with
a different employer?
55.
All those who have submitted observations in this case agree
that the answer depends on the extent to which the two contracts
are connected. If they are sufficiently linked, then the place
where the employee habitually carries out his work will be
the same for both. If the link is insufficient, then jurisdiction
over a dispute arising out of one contract cannot be determined
by the place where the employee habitually carries out work
under the other.
56.
There is disagreement however as to how the dividing line
is to be drawn between those two situations, and that in essence
is the point on which the national court seeks guidance in
its first question. The German Government considers that in
principle jurisdiction must be determined independently for
each contract and only a very close link indeed (for example,
where one company is a wholly-owned subsidiary of the other
) can justify taking the place of work under one contract
as a criterion in relation to the other. Ms Pugliese, the
United Kingdom Government and the Commission on the other
hand all favour, though to differing degrees and on differing
grounds, the view that the connection in the present case
is sufficient for Munich to be treated as the relevant place
of work.
57.
The reasons underlying the development of the ground of jurisdiction
in issue are important here. One consideration is that in
a high proportion of cases the law governing the contract
will be that of the State in which the work is performed and
such disputes as arise will be connected with the place of
work. The courts for that place will thus be objectively best
placed to resolve them. The fact that the employee will by
definition be habitually present there (and the employer likely
to be either present or represented) is another practical
consideration but one which also deals specifically with the
concern, stressed consistently by both the Court and the convention
drafters, to afford protection tothe weaker party, the employee,
by allowing him to bring or defend proceedings in the courts
where it will generally be least burdensome for him to do
so.
58.
As I have had occasion to remark, (23) that concern cannot
go as far as to allow the employee a discretion in choosing
his forum or to imply that the forum should be determined
on the basis of what is most convenient for him - regardless,
for example, of where he carries out his work - since such
an approach would run counter to the need to have uniform
criteria ensuring legal certainty and to avoid any multiplicity
of jurisdiction.
59.
However, it is a concern which is fundamental to the rule
under consideration and, unless there are good reasons for
discounting it in a particular case, it should always be among
the leading considerations in the interpretation and application
of that rule.
60.
Consequently, I find the German Government's approach too
strict. The criterion of relatedness which it suggests tips
the scales very firmly away from the place where the employee
carries out his work, whereas they should be tipped rather
towards it. Such a demanding criterion would in many cases
of this sort rule out all possibility for the employee to
avail himself of the intended protection despite the existence
of uncontestable objective links between the place of work
and the contract in relation to which the dispute arose.
61.
The Commission suggests a test first adumbrated by the national
court: are the two contracts so closely related that one would
not have been concluded in the absence of the other? That
certainly appears to be a useful indicator. If such a condition
is met, the conclusion must surely be that the place where
the work is carried out can serve as a basis for jurisdiction
over disputes arising out of either contract. But again it
might be too severe if viewed as a necessary condition. In
the present case, Aeritalia might have offered Ms Pugliese
a post and she might have accepted even if the Eurofighter
post had not been available (or she had not wanted it) or,
conversely, she might have been taken on by Eurofighter even
if Aeritalia had not served as an intermediary. Yet neither
of those possibilities affects the relationship between the
contracts as they were actually signed.
62.
It is not easy to formulate a single precise test which will
always clearly distinguish between contracts so closely related
that a single place of work will be valid for both and those
whose relationship is more distant and for each of which the
place of work must therefore be determined separately. I doubt,
moreover, whether it is necessary or desirable to do so.
63.
I would favour rather a more global approach, weighing up
all the factors militating for or against a close connection
between the contracts whilst bearing inmind the strong protective
aim of the rule in issue. The point to be decided, although
necessarily formulated in general terms, is whether the work
performed by the employee is carried out 'for or in the interest
of the employer in the contract in relation to which the dispute
arises, and a variety of factors must be taken into account
when deciding it.
64.
The criteria suggested by the German Government and the Commission
undoubtedly have their place among those factors. But even
if they are not satisfied, others may come into play. At the
hearing, counsel for Ms Pugliese suggested a number which
are in my view also relevant. To what extent was the second
contract concluded with the participation of the first employer
or, conversely, independently by the employee? To what extent
do the contracts cross-refer to each other? Is there an arrangement
between the two employers providing a framework for the coexistence
of the two contracts? Is there an organic or economic relationship
between the employers and if so, how close is it? Does the
second contract of employment provide for a period of work
sufficiently long to create a 'habitual place of work?
65.
Other factors might include whether the conclusion of the
second contract was contemplated when the first was signed,
whether there are any continuing rights and obligations between
the employee and the first employer, whether the employee
has a right to resume employment with that first employer
and, if so, on what conditions.
66.
Assessing the known facts of the present case on the basis
of all those factors, it seems to me that the national court
would be fully justified in concluding that the connection
between the two contracts was sufficiently close that the
work carried out by Ms Pugliese for Eurofighter under the
second contract was also performed for Aeritalia/ Finmeccanica
or in its interest in the context of the first contract and
that the place where she habitually carried out that work
may serve as a basis for jurisdiction, under Article 5(1)
of the Brussels Convention, over disputes arising in relation
to that first contract. Such a conclusion would also be fully
in agreement with the criteria set out in Weber, taking account
of the place where the employee worked the longest in performing
the essential part of her duties vis-à-vis the employer,
in the context of the whole duration of the employment relationship
with that employer.
67.
It would apply moreover not only to Ms Pugliese's principal
claims for reimbursement of expenses, which are themselves
objectively linked to her place of work in Munich, but also
to the aspects of her action - and indeed of her second action
relating to the termination of the contract - which display
objective links with Turin. As the Court stressed in Ivenel,
(24) the protective aim of the provisionin question implies,
inter alia, that the same court must have jurisdiction over
all matters arising out of the same contract of employment.
Place of performance of the obligation to pay expenses
68. The considerations above answer the national court's first
question in such a way as to render examination of its second
question unnecessary.
69.
However, it may be pointed out that, as is clear from the
Court's case-law, the place of the employee's work is the
only place of performance which can determine jurisdiction
where contracts of employment are concerned. Thus, the place
of performance of the obligation to pay expenses could be
relevant only if the relationship between Ms Pugliese and
Aeritalia/ Finmeccanica were found not to be one of employment.
In that case, and on the assumption that the place of performance
as determined in accordance with Tessili was indeed Munich,
the result would be the same, as regards Ms Pugliese's principal
claims, as that which I have reached above in my analysis
of the first question.
Conclusion
70.
I am therefore of the opinion that the Court should give the
following answer to the Landesarbeitsgericht München:
(1) Where an employee is engaged by Company A to work in one
Contracting State but the contract of employment is suspended
to allow him to work for Company B in another Contracting
State, and where a dispute arises between the employee and
Company A relating to the contract between them, the place
where the employee habitually carries out his work for Company
B may found jurisdiction under Article 5(1) of the Brussels
Convention when there is a sufficiently close connection between
the two contracts for that work to be regarded as carried
out also for or in the interest of Company A. The existence
and closeness of that link are to be assessed in the light
of all the circumstances including, as appropriate, factors
such as the following:
- whether the second contract of employment provides for a
period of work sufficiently long to create a habitual place
of work;
- whether one contract would have been concluded in the absence
of the other;
- whether the conclusion of the second contract was contemplated
when the first was signed;
- whether the second contract was concluded with the participation
of the first employer or, conversely, independently by the
employee;
- whether the contracts refer to each other;
- whether there is an organic or economic relationship between
the employers;
- whether there is an arrangement between the two employers
providing a framework for the coexistence of the two contracts;
- whether there are any continuing rights and obligations
between the employee and the first employer;
- whether the employee has a right to resume employment with
the first employer and, if so, on what conditions.
(2) When applying Article 5(1) of the Brussels Convention
to matters arising out of an individual contract of employment,
the place of performance of obligations other than the obligation
to carry out work is not relevant.
1:
- Original language: English.
2: - Convention of 27 September 1968 on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters (OJ
1978 L 304, p. 36), as amended by the Convention of 9 October
1978 on the Accession of the Kingdom of Denmark, Ireland and
the United Kingdom of Great Britain and Northern Ireland (OJ
1978 L 304, p. 1, and - amended text - p. 77), by the Convention
of 25 October 1982 on the Accession of the Hellenic Republic
(OJ 1982 L 388, p. 1) and by the Convention of 26 May 1989
on the Accession of the Kingdom of Spain and the Portuguese
Republic (OJ 1989 L 285, p. 1).
3: - 26 May 1989, cited above in note 2. The addition also
provides for cases where the employee does not habitually
carry out work in any one country, when the employer may also
be sued in the courts for the place where the business which
engaged the employee is or was situated. That rule, which
is also reflected in the other provisions cited below, is
not in issue here.
4: - Report on the Convention on jurisdiction and the enforcement
of judgments in civil and commercial matters, OJ 1979 C 59,
p. 1, at p. 24.
5: - Case 12/76 Tessili [1976] ECR 1473; see in particular
paragraph 13 of the judgment.
6: - Case 14/76 De Bloos [1976] ECR 1497; see in particular
paragraph 15 of the judgment.
7: - Convention on the law applicable to contractual obligations
opened for signature in Rome on 19 June 1980, OJ 1980 L 266,
p. 1.
8: - Report on the Convention on the law applicable to contractual
obligations, OJ 1980 C 282, p. 1, at p. 25.
9: - Case 133/81 Ivenel [1982] ECR 1891; see in particular
paragraphs 12 to 19 of the judgment.
10: - Case 266/85 Shenavai [1987] ECR 239; see in particular
paragraphs 16 and 17 of the judgment.
11: - Case 32/88 Six Constructions [1989] ECR 341; see in
particular paragraph 10 of the judgment.
12: - Convention on jurisdiction and the enforcement of judgments
in civil and commercial matters, OJ 1988 L 319, p. 9.
13: - OJ 1990 C 189, p. 57, at pp. 72-73.
14: - Report on the Convention on the accession of the Kingdom
of Spain and the Portuguese Republic to the [Brussels Convention],
OJ 1990 C 189, p. 35, at paragraph 23.
15: - Judgment of 27 February 2002 in Case C-37/00 Weber,
paragraphs 38 to 41.
16: - The Court referred to Tessili and to Case C-125/92 Mulox
IBC [1993] ECR I-4075, paragraphs 10, 11 and 16 of the judgment,
Case C-383/95 Rutten [1997] ECR I-57, paragraphs 12 and 13,
and Case C-440/97 GIE Groupe Concorde [1999] ECR I-6307, paragraph
14.
17: - The Court referred to Mulox IBC, cited above, paragraph
17 of the judgment, and Rutten, cited above, paragraph 16.
18: - The Court referred to Mulox IBC, paragraphs 18 and 19
of the judgment, and Rutten, paragraph 17.
19: - The Court referred to Mulox IBC, paragraph 20 of the
judgment, Rutten, paragraph 15, and GIE Groupe Concorde, paragraph
14.
20: - Directive 96/71/EC of the European Parliament and of
the Council of 16 December 1996 concerning the posting of
workers in the framework of the provision of services, OJ
1997 L 18, p. 1.
21: - Council Regulation (EC) No 44/2001 of 22 December 2000
on jurisdiction and the recognition and enforcement of judgments
in civil and commercial matters, OJ 2001 L 12, p. 1; the Convention
however still applies in cases involving Denmark.
22: - In this latter type of situation, the considerations
expressed by the Court in Shenavai, which relate to the distinction
between contracts of employment and contracts for work on
a self-employed basis, are likely to be relevant.
23: - In my Opinion in Weber, cited above in note 15.
24: - At paragraphs 18 and 19 of the judgment.
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