Departamento de Derecho Común, University of Santiago de Compostela, Santiago de Compostela, Spain
KeywordsArrest of ships Forum arresti Forum of the branchHabitual place of workInternational jurisdictionManning agencySeamen’s contract of employmentThe business which engaged the employee
3.1 Jurisdictional Regimes
The allocation of international jurisdiction over individual employment contracts proceeds in accordance with the rules laid down by the existing instrument of reference for this purpose within the European Area of Justice. Until January 10, 2015, that was Regulation (EC) No. 44/2001, of 22 December 2000 on international jurisdiction, recognition and enforcement of judgments in civil and commercial matters,1 also known as the Brussels I Regulation, that follows the course charted by a prior document, the 1968 Brussels Convention. The Regulation has already been reviewed, and Regulation (EU) No. 1215/2012 of the European Parliament and the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), also known as the Brussels I bis Regulation, is applicable to all lawsuits brought before member states’ courts from 10 January 2015.2 Neither the said Convention nor the Brussels I or Brussels I bis Regulations formulate specific rules on maritime employment, but as they deal with civil and commercial matters, including employment contract matters, we must turn to them as a primary source of international jurisdiction rules for the issues in question here. It is therefore important to recall that both Brussels I and Brussels I bis Regulations are binding on all member states, including Denmark, thanks to an international agreement concluded with the European Community in 2005.3
Nevertheless, the fact that these instruments do not have universal scope of application means that other instruments may equally come into play to establish a member state’s international jurisdiction, in particular the 1988 and 2007 Lugano Conventions4: in parallel with the Brussels Convention and the Brussels I and Brussels I bis Regulations, the Lugano Conventions share the aim of binding non-EU members that are members of the European Economic Area (hereafter EEA). The interrelationship between these instruments, whose provisions have fairly similar aims, allows us to speak of a ‘Brussels–Lugano system’. Accordingly, and although the CJEU only provides binding guidance on the Brussels Convention and the Brussels I and I bis Regulations, its case law is also taken into consideration when it comes to applying the Lugano Conventions. As a matter of fact, Protocol No. 2 to the 2007 Lugano Convention already pays due regard to the connection between these legal instruments, and EU members may ask the CJEU questions on the interpretation of this Convention as well.5
This study basically focuses on Section 5, Chapter II, of the Brussels I and Brussels I bis Regulations and the 2007 Lugano Convention, which are almost identical. The latter replaced the 1988 Lugano Convention and is to be applied to all claims arising after it comes into force,6 while the Brussels Convention was replaced by the Brussels I Regulation, which has been in turn replaced by the Brussels I bis Regulation in 2015. As to jurisdiction issues the latter has completely overcome Brussels I Regulation, but this book keeps referring to it to the extent that, on the one hand, the ongoing discussion still is based upon its provisions and, on the other hand, the Lugano Convention in force is parallel to it. Nevertheless and for reasons of simplicity, constant reference to the Brussels I Regulation and the Lugano Convention is avoided in the discussion, although there are variations in the numbering of provisions otherwise similar when not identical in the Brussels I bis Regulation. As the following discussion is applicable to the Lugano Convention references will be made to the European Economic Area instead to the European Area of Justice. In addition to this, it must be noted that both the 1968 Brussels and the 1988 Lugano Conventions are still effective in some territories, as specified below.
The fact that some member states have established open and second registries overseas raises the question of exactly where the Brussels I bis Regulation is enforceable, i.e. which courts are to be deemed part of the European Area of Justice, despite their remoteness from European shores. Article 355 of the TFEU, in accordance with Article 68(1) of the Brussels I bis Regulation, provides an answer to this question. Accordingly, EU Treaties—and thus the Brussels I and I bis Regulations7—apply to Guadeloupe, French Guyana, Martinique, Réunion, Saint Barthélemy, Saint Martin, the Azores, Madeira and the Canary Islands, i.e., territories where an open or second registry has been set up. Other territories are, however, excluded from the application of EU Treaties and hence from the territorial scope of the Brussels I bis Regulation.
Nevertheless, some of these territories are bound by the 1968 Brussels Convention and the 1988 Lugano Convention by virtue of specific statements on the part of member states that have special relationships with them.8 This applies to French overseas territories, including French Polynesia, the French Southern and Antarctic Territories, Wallis and Futuna, New Caledonia and the local authorities of St. Pierre and Miquelon and Mayotte. In 1994, the UK stated that the Brussels and Rome Conventions applied to Gibraltar,9 but there is no such statement with regard to British overseas territories, i.e., Anguilla, the Cayman Islands, South Georgia and the South Sandwich Islands, Montserrat, the Pitcairn Islands, Saint Helena and Dependencies, the British Antarctic Territory, the British Indian Ocean Territory, Turks and Caicos, the British Virgin Islands and Bermuda. Both Conventions apply in Aruba and the Dutch Antilles—Bonaire, Curacao, Saba, St. Eustatius and St. Maarten, as well as in Danish-ruled Greenland and the Faroe Islands.
As to their scope of application, neither the Brussels I bis Regulation nor the Lugano Convention aims to provide a fixed set of rules on international jurisdiction for all international cases, but only those in which the defendant is domiciled in a member state; otherwise, the system refers international jurisdiction issues to the relevant national law. Hence, the Brussels–Lugano system is not rigid when it comes to defendants domiciled in third states, allowing member states to maintain exorbitant heads of jurisdiction, for example. Simultaneously, and given the variety of labour markets within the EEA, submission to national law allows member states to tailor international jurisdiction rules to their own peculiarities by reference to their national legislation. This happens in Spain, in which employment and labour matters are dealt with in Article 25 of the Spanish Judiciary Act, the Ley Orgánica del Poder Judicial (hereafter LOPJ). The fishing sector is particularly important in Spain as it employs a large number of workers, and the provision mentioned above lays down special heads of jurisdiction in matters of seafarers’ employment contracts, giving consideration to the fact that access to justice is even more difficult for them as a result of the internationalisation of maritime employment, as discussed in Chap. 2.10 In this regard, following an analysis of Section 5, Chapter II, of the Brussels and Lugano system, we will turn to Article 25 of LOPJ, with a view to comparing it with these instruments.
The allocation of jurisdiction by reference to national law has expired for some criteria of international jurisdiction, in particular the special forum on individual employment contracts, with Brussels I bis Regulation becoming fully applicable. As said above, this Regulation revises the Brussels I Regulation and has replaced it from 10 January 2015. Article 6(1) of Regulation No. 1215/2012—corresponding to Article 4(1) of the Brussels I Regulation—indeed specifies that the international jurisdiction of each member state is to be determined by the state’s own law if the defendant is not domiciled in a member state, subject to Article 21(2). In this regard, Recital 14 of the Brussels I bis Regulation clearly states: ‘to ensure the protection of (…) employees (…) certain rules of jurisdiction in this Regulation should apply regardless of the defendant’s domicile’. Accordingly, from 10 January 2015 an employee may also sue an employer who is not domiciled in a member state pursuant to the forum laboris.
Nevertheless, it is important to note that the Brussels I bis Regulation recasts the Brussels I Regulation on several issues but does not modify most provisions relating to individual employment contracts. Apart from the significant modification concerning the scope of application of the forum laboris, and further clarifications with a view to enhancing worker protection, the content of Section 5, Chapter II, remains almost identical to the Brussels I Regulation. The following commentary is mainly grounded on the Brussels I Regulation, but the link between EU instruments makes this commentary transferable to the Regulation applicable from 2015 onwards and to Articles 20 to 23 replacing Articles 19 to 21 of the Brussels I Regulation.
It must be highlighted that more heads of jurisdiction are available for seafarers than those provided for in Section 5, Chapter II, to the extent that submission to the relevant national legislation if the defendant is domiciled in a third state remains in the Brussels I bis Regulation. In the following pages, Spanish legislation and Article 25(1) of the LOPJ will be compared with the criteria laid down in Section 5, with a view to establishing whether it makes sense to resort to national legislation.
Finally, it must be recalled that the strict parallelism between the 2007 Lugano Convention and the Brussels I Regulation concludes in 2015, unless the former is revised to keep pace with the Brussels I bis Regulation.
In addition, all instruments comprised in the Brussels–Lugano system are compatible with other conventions concerning private matters, whose application they do not affect. In maritime employment, neither Maritime Labour Convention, 2006 (MLC, 2006), nor ILO Convention No. 188 concerning Work in Fishing (WFC, 2007), deals with private international law issues.11 However, both the 1952 Brussels and the 1999 Geneva Conventions relating to the Arrest of Ships12 include rules on international jurisdiction, which will be analysed later on, since they are also applicable to maritime employment.
3.2 International Jurisdiction Over Individual Employment Contracts in the Brussels–Lugano System: Section 5, Chapter II
3.2.1 Rationale and Structure
Section 5, Chapter II, of the Brussels and the Lugano system entitled ‘Jurisdiction over individual contracts of employment’ makes up a single unit within these instruments in that only rules provided there can allocate international jurisdiction to a member state court with a view to deciding on a dispute arising from an employment contract. In this regard, the Section is in line with those devoted specifically to matters relating to insurance and consumer contracts, all of which stem from the contractual asymmetry attributable to these contracts and focus on protecting the weaker party, in this case the employee.
Section 5 first emerged with the Brussels I Regulation, being absent from both the 1968 Brussels and the 1988 Lugano Conventions. In fact, it was the CJEU that highlighted and shaped the peculiarities of employment contracts with regard to jurisdictional matters, when interpreting Article 5(1) of the 1968 Brussels Convention on ‘matters relating to a contract’. This provision allocates these matters to the courts of the place of performance of the obligation in question—just as Article 7(1)(a) of the Brussels I bis Regulation does—so that the contract at issue may be litigated before as many jurisdictions as obligations arising from it are disputable. In other words, there is no forum contractus with a view to putting both parties to a contract on the same footing, and thus not favouring the party of the characteristic performance, for example by allocating jurisdiction to the courts of the country where that performance is carried out. This viewpoint cannot be supported when it comes to employment contracts, as the employee needs to be protected against forum shopping on the part of the employer. This was argued by the CJEU in several judgments,13 through which it set up a special head of jurisdiction for employment contracts, submitting all issues arising from them to the state where the employment services are habitually provided, i.e., where an employee carries out the characteristic performance in the contract.
22.214.171.124 Internal Structure
Section 5 picks up CJEU doctrine on employment contract matters, enhancing it in the sense that it aims to protect the weaker party, the employee, through means other than the establishing of a special head of jurisdiction. The means are not new but formed part of the protection granted by the 1968 Brussels and 1988 Lugano Conventions to consumers and insurance policyholders, insured people and beneficiaries. Employee protection in international jurisdiction matters is manifested in three aspects.
First, Section 5—as well as Sections 3 and 4, Chapter II—extends the territorial scope of application of the Brussels–Lugano system to include claims against defendants domiciled in third states, provided that they have a branch in a member state. Hence, the fact that an employer has a branch in a member state means that she is in fact domiciled in a member state for the purposes of Section 5; in other words, she can be sued in that state for all claims arising out of the operations of the branch.
Second, a line is drawn between cases where employees are the plaintiffs and those where they are the defendants. In the first of these instances, the employee-plaintiffs may choose from within a range of heads of jurisdiction to facilitate their access to justice. In the second case, the employee-defendants are protected by the fact that their employers are only allowed to sue them in the courts of the employees’ domicile. This difference in judicial treatment is backed up by the fact that employees are the plaintiffs in roughly 90 % of all labour disputes.
Third, party autonomy is not excluded as a head of jurisdiction. However, its application is restricted to cases in which the employee’s will to submit a claim to a specific court can be assumed to be on an equal footing with the employer’s or to cases in which the choice of court agreement provides the employee with courts other than those already established in Section 5.
Nevertheless, it is important to note that while the Brussels I Regulation and the Lugano Convention do protect workers, they do not make use of the fourth pillar of protection, which exists for insured people, holders or beneficiaries of insurance policies and consumers and which manifests itself when a foreign decision is only recognised after having been checked the jurisdiction of the court of origin. The reason for these checks is the need to ensure that the weaker parties to insurance or consumer contracts do not have to appear before the court where the proceedings have been initiated simply to enter a plea that the seized court is not vested with international jurisdiction. In the event that the seized court does not declare ex officio its lack of international jurisdiction in a given case, there will be a second check at the time of exequatur, i.e., a foreign judgment going against the parties will not be recognised on the ground that the court of origin lacked jurisdiction.
The second check does not help workers, however, as it is designed to assist the defendant; because employees are mainly plaintiffs in employment claims, they are more interested in their judgment being recognised and enforced than in being protected in the rare cases in which they are the defendants.14 Nevertheless, it must be acknowledged that since employees are deemed the weaker party to the contract, the absence of the latter control entails depriving them of an important guarantee that may protect them from submitting to a choice of court that does not favour their interests, for example.15 Accordingly, the Brussels I bis Regulation has reviewed this issue, and a check on the jurisdiction of the court of origin can also be requested by any interested party in the enforcement of a judgment on employment contract matters from 2015 onwards.16 Furthermore, the fact that the new Regulation has eliminated the exequatur and referred the examination of the grounds for non-recognition of a foreign judgment to the enforcement proceeding makes it easier for employees to have their decisions enforced.
126.96.36.199 External Structure: Relationship with Other Forums Not Provided for in Section 5
The drafting of a specific Section on individual employment contracts seeks to strengthen the weaker party’s position in the employment relationship through the mechanisms mentioned above. Along the same lines, resorting to heads of jurisdiction other than those provided for by Section 5 is not allowed, which is also a means of achieving the goal of protecting workers. In short, an employer may only bring a claim against an employee before the courts of the latter’s domicile and, where appropriate, counterclaim.
The thoroughness of Section 5 also has unintended consequences, one of which is highly relevant; an employee cannot institute proceedings against several co-defendants, as provided for by Article 6(1) of the Brussels I Regulation and the Lugano Convention. More specifically, the CJEU does not allow this on the ground that the provision is not included in Section 5 of the said instruments.17 This limitation is particularly salient if we take into consideration the many instances in which there are several employers or, as often happens in the shipping and fishing sectors, when employment services are provided to a group of companies and seafarers who wish to sue both the company that first hired them and the company or companies to whom they have provided services.18 In fact, the Piraeus Court of Appeals addressed a similar case to the one in which the CJEU delivered a negative judgment; a seafarer sued his employer, a shipping company and the shipping agent, who were both jointly and severally liable under Greek law.19 Article 6(1) was thus applied with a view to avoiding irreconcilable judgments.
In view of the gap in Section 5 stemming from the absence of due consideration to the possibility of claiming against several employers, the revision of Article 18(1) of the Brussels I Regulation by Brussels I bis Regulation is very welcomed. Article 20(1) thereof now contains a specific reference to Article 8(1), which replaces Article 6(1) of the Brussels I Regulation, and reads as follows: ‘In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Article 6, point 5 of Article 7 and, in the case of proceedings brought against an employer, point 1 of Article 8’.20 Therefore, referral to the forum connexitatis allows the employee to sue co-defendants in the employer’s domicile.
As mentioned, it should be noted that the 2007 Lugano Convention has not yet been revised, and the wording of Article 18(1) therefore remains the same, meaning that employees cannot bring a lawsuit against several defendants until this instrument is revised.
The final wording of Article 20(1) Brussels I bis Regulation enhances the Commission Proposal for a revised Brussels I Regulation,21 in the sense that the proposal included a reference to the provision allowing several defendants to be brought before the same court, but regardless of the role played by the employee in those proceedings, i.e., that of plaintiff or defendant. Accordingly, the employer would have been provided with a head of jurisdiction other than that of the employee’s domicile, therefore undermining worker protection. In fact, this is why the CJEU decided not to allow employees to resort to different heads of jurisdiction from the ones laid down in Section 5, with a view to maintaining a protective shield for employees and preventing employers from suing their employees in places other than those where they are domiciled. Some governments suggested that Article 6(1) of the Brussels I Regulation should be read as being available only to employees suing several co-defendants. However, the CJEU did not find any reason in favour of this teleological reduction that ‘would go beyond the balance of interests which the Community legislature has established in the law as it currently stands’ and be contrary to the principle of legal certainty.22
Article 18(1) of the Brussels I Regulation and the Lugano Convention does contain a reference to Article 5(5), as Article 20(1) of the Brussels I bis Regulation does to Article 7(5). Hence, an employee may claim before the courts in the place where the employer has a branch, agency or establishment, but not vice-versa, as by definition an employee lacks an establishment and therefore this head of jurisdiction is not available for the employer.23
The same provisions pay due regard to Articles 4 and 6 respectively, allowing plaintiffs to make good use of forums furnished by national law when the defendant is domiciled in a third state. For these cases, there is no distinction as to the position in which workers may find themselves in the proceeding.
3.2.2 Scope of Application
188.8.131.52 Material Scope: Issues Included Within Section 5
Section 5 is devoted to individual employment contracts. What is actually held to be an individual employment contract is a question that must be answered from a European standpoint, i.e. it is regarded as an autonomous concept, for whose development attention must be paid to CJEU case law in relation to Article 5(1) of the Brussels Convention and also to EU primary law, in particular to Article 45 of the TFEU.24
There is certainly no precise definition of the concept, among other reasons, because this would limit the operability of Section 5 to some extent, in the light of the legal diversity in this field. Some general features can be defined, however, that may help to identify the kind of relationships that fall into the broad concept ‘employment contract’. Of particular interest here is the CJEU Shenavai v Kreischer judgment, according to which the concept is characterised by the fact that it involves the provision of services in exchange for remuneration, creating ‘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’.25
There are two instances in the shipping and fishing sectors where there is some doubt as to whether these features really apply. The first one concerns the bond between captain and shipowner, and the conclusion is that they are linked by an employment contract as well, as already mentioned.26 The second case is that of share fishermen: pursuant to CJEU case law,27 the fact that the fishermen are paid in kind does not change their status as employees. The problems arising when identifying the employer have already been referred to,28 and it is important to recall here that the employer is the stakeholder to whom performance is due and not the stakeholder for whom services are actually performed.29
Although restricted to contractual claims, the phrase ‘matters relating to individual contracts of employment’ deserves a broad rather than a narrow interpretation.30 Although not as exhaustive as it might be, Section 5 covers all claims concerning the formation and conclusion of employment contracts—including non-existence or invalidity—as well as discussions on the provision of services, including contract duration and hours of work and rest, wages and supplements, including bonuses and allowances—resulting from transfers, for example, and other expenses— dismissal and compensation or settlements arising from them.
Pension fund payments agreed by the employer are to be deemed contractual claims as they are due as a consequence of the work done and regardless of whether they are paid by a third party acting as an insurer.31 For example, Article 41, in fine of the Spanish Constitution opens the door to benefits other than those included within the Spanish social security scheme, such as those arising out of commercial contracts entered into with a bank or a voluntary mutual provident society. Accordingly, they fit within the material scope of this Section.32 The complementary nature of these benefits to the public social security system was also acknowledged by the EU according to Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community,33 with a view to ensuring pension rights already due in the framework of private schemes in other member states where the employer had been posted.
It is worth noting that the obligation to repatriate sailors is also deemed to be contractual. Furthermore, in the event of a ship and crew being abandoned, shipowners may incur expenses other than those related to repatriation,34 the amount of which depends on the duration of the abandonment, given that maintaining decent living conditions on board ship—including both accommodation and food—results in expenses for which the shipowner is mainly responsible, as established by MLC, 2006.35 It is still to be determined whether these claims are contractual or not. However, and taking into account the fact that the employer has a contractual obligation to provide accommodation and food on board as well as repatriation in specific cases and circumstances, these claims are regarded as contractual claims on the ground that they arise from the failure to fulfil these duties.
Collective interests are not covered by Section 5,36 and international jurisdiction rules on these matters are to be determined beyond its scope. Accordingly, labour relations, i.e. all claims involving parties that are entitled to collective bargaining, such as employer and employee representatives, business associations and trade unions, are excluded from this Section. By the same token, disputes arising out of employees’ information, consultation and negotiation rights, including the protection of staff representatives against dismissal,37 are also excluded from Section 5.38 However, individual claims arising from collective agreements applicable to individual contracts of employment,39 including those claims related to safety at work involving individual employees and their employers, are not excluded from the scope of Section 5.40
184.108.40.206 Excluded Issues
The title of Section 5 points to the distinction drawn here between claims arising from individual employment contracts and those that may be characterised as non-contractual and for which other heads of jurisdiction are to be sought beyond this Section. In the context of the Brussels–Lugano system, the distinction between the two matters is imposed by the dialogue that is set up between paragraphs 1 and 2 of Article 7 Brussels I bis Regulation.41
Nevertheless, it has also been pointed out that the distinction between contract and tort claims does not seem appropriate when it comes to Section 5.42 The German version of the Brussels I bis Regulation would support this interpretation while noting its application in individual employment contracts and labour relations: ‘wenn ein Vertrag oder Ansprüche aus einem Vertrag den Gegenstand des Verfahrens bilden…’, broader than the Spanish version, ‘en materia de contratos individuales de trabajo…’, and the English version, ‘in matters relating to individual contracts of employment …’.
The background to Section 5 does not support though such an interpretation, arising as it does from Article 5(1) of the Brussels Convention dealing with matters related to contract, as interpreted by the CJEU. Meanwhile, the Court has remained faithful to this distinction, which neither the wording of Section 5’s title nor its provisions aim to override.43 It must also be pointed out that where both contractual and non-contractual matters were to be included in Section 5, employers could only sue in tort in the employees’ domicile, which is not justified in view of the underlying interests in these claims.44
In addition, should employees have an accident in the course of their work, most jurisdictions currently hold employers’ non-contractual liability to be a strict one, and it is dealt with by social security schemes45 so that claims relating to accidents that occur in the framework of an employment contract usually fall outside Section 5.
Nevertheless, there is still room for claims subject to the general rules on non-contractual liability, in particular when brought against the supervisor. These cases are common at sea, when the captain or the master carry out risky manoeuvres with potentially negative consequences for seafarers’ and fishermen’s health. In these cases, the employer is usually held jointly liable with the person who made the decision. This is also the case should employees cause harm to third parties in the performance of their duties: the employer is then liable for the employees’ actions. Against this background, it has been proposed that this should be considered a contractual claim.46 The interfaces are evident, but this does not prevent the characterisation issue arising, i.e., although this is an employment matter, accidents at work do not fall into the category of ‘individual contracts of employment’.
Accidents in the workplace or in itinere as a result of breach of the duty of care on the part of employers or due to other causes attributable to them are thus deemed non-contractual matters; the same holds for accidents caused by a co-worker or a third party. In all these cases, in addition to the choice of court, the defendant’s domicile or branch, Article 7(2) of the Brussels I bis Regulation, lays down a special head of jurisdiction. Pursuant to this, both the court where the adverse event occurred and that where the harm became evident have jurisdiction, as interpreted by the CJEU.47
Non-contractual matters, including crimes, are generally regarded as internal ship matters and are thus allocated to the jurisdiction of the state whose flag the vessel is flying.48 The flourishing of flags of convenience may call this allocation into question, but international jurisdiction rules lack the flexibility to take other factors into account when an accident actually happens on the high seas. Furthermore, in DFDS Torline v Sjöfolk, the CJEU supported flag state jurisdiction.49 We will come back to this case later, as it deals with international jurisdiction in an industrial action case in which a shipowner was threatened with a boycott.50 The issue at stake was the interpretation of Article 5(3) of the Brussels I Regulation; the Court stated that ‘in the course of that assessment by the national court, the flag state, that is the state in which the ship is registered, must be regarded as only one factor, among others, assisting in the identification of the place where the harmful event took place. The nationality of the ship can play a decisive role only if the national court reaches the conclusion that the damage arose on board the Tor Caledonia. In that case the flag state must necessarily be regarded as the place where the harmful event caused damage’.51 Accordingly, if the harmful event or damage arising out of it occurs on board the ship, the jurisdiction of the flag state comes into play, but if the seafarer suffers an accident while working in port, the place to be taken into consideration is the country where the port is located.52
Social Security Matters
Social security and insolvency issues are among the questions that are excluded from the scope of the Brussels–Lugano system. Social security is a key area in employment matters and as such must be addressed here, in particular in its relationship with private international law and its governing instruments within the European Union, such as Regulation (EEC) No. 1408/71 of 14 June 1971.53
In accordance with the Jenard Report to the Brussels Convention,54 the concept of ‘social security’ is to be filled by reference to the latter Regulation as complemented by ILO Convention No. 102, of 28 June 1952, concerning Social Security (Minimum Standards). Both this and the Regulation that replaced it from 2009 onwards, Regulation (EC) No. 883/2004 of the European Parliament and the Council of 29 April 2004,55 list the matters included in their scope: medical treatment; sick leave; maternity/paternity leave; invalidity; old-age pensions; insurance against illness and accidents at work and the corresponding benefits for heirs, including family support; and unemployment benefit. The Regulation’s main aim is to coordinate different social security systems, and so the list cannot be understood to be a complete catalogue; rather, two parameters must be taken into account in filling up the concept of ‘social security’: the involvement of public management and, in particular, employers’ obligation to pay into the respective social security scheme.56 The protection granted by this Regulation comprises both EU nationals and non-nationals, but legally residing in an EU country.57
It is important to emphasise that the exclusion of these matters from the scope of the Brussels and Lugano system refers to litigation faced by those in charge of managing the social security system brought by those entitled to social security benefits, including the refund of incorrectly paid claims.58 For these cases, legal systems provide a forum legis as stated by the Jenard Report,59 i.e., jurisdiction is allocated to the legal system responsible for these matters, an issue that will be discussed later on.60 This is the case in Spain pursuant to Article 25(3) LOPJ, whereby Spanish courts are allocated jurisdiction to deal with social security matters handled by Spanish entities or entities with a domicile, branch, delegation or any other kind of representation in Spain.
In contrast, the right of return granted to social security entities, by means of which they can get worker’s payments back from the third parties responsible for an event that gives rise to a worker’s entitlement to benefits, does fall within the material scope of the Brussels–Lugano system.61 In its Steenbergen v Baten judgment, the CJEU stated that those responsible for administering the social security system may subrogate themselves in the place of the recipients of benefits. However, they cannot make use of special heads of jurisdiction, as the latter’s purpose is to remedy contractual asymmetries that are not present when social security entities or insurance companies claim in the employee’s place, for example. Section 5 cannot therefore be invoked in these cases, which is why other provisions of the Brussels and Lugano system such as Article 5(1) or (3) Brussels I Regulation and Lugano Convention, 7(1) or (3) of the Brussels I bis Regulation, dealing with non-contractual matters comes to the fore.62
Employer insolvency has serious implications for individual employment relationships, whether it leads to the termination of the contract or to the readjustment of working conditions, or simply to unpaid wage claims. Even more serious risks may arise when the affected workers are seafarers, such as being abandoned with the ship at any port in the world.63 The procedural treatment of employer insolvency departs from Regulation (EC) No. 1346/2000, 29 May 2000, on insolvency proceedings (hereafter EIR) as Article 1(2)(b) of the Brussels–Lugano system excludes bankruptcy matters from its scope of application. However, this Regulation only applies if the centre of the debtor’s main interests is located in a member state; otherwise, it is necessary to turn to national law for regulation.
EIR—as well as most member state insolvency legislation—adopted a cross-border insolvency model based on mitigated universalism64: only one main insolvency proceeding with universal effects over the debtor’s estate can be opened in the debtor’s centre of main interests. Nevertheless, secondary insolvency proceedings with territorial effects are also allowed in states where the debtor has an establishment, thus restricting the scope of the main insolvency proceeding insofar as secondary proceedings comprise the debtor’s assets located in the state where they are opened. Accordingly, several insolvency proceedings may be started over the same debtor, although with different scopes. Creditors can lodge claims in them, and so employees can resort to both main and secondary insolvency proceedings for payment. However, when it comes to deciding on the fate of current contracts to which the debtor is a party, attention should be paid to whether the employee reports to the establishment that has provided the head of jurisdiction for the starting of a secondary insolvency proceeding.65 Otherwise, the fate of current employment contracts will be decided by the insolvency office holder appointed to deal with the main insolvency proceeding.
International jurisdiction problems arise where the effects of insolvency proceedings on current employment contracts are concerned, but not with regard to unpaid wage claims. In such cases, the employees are creditors and as such have to lodge their claims with the insolvency court, which will rank them among the creditors in accordance with the relevant insolvency law. The same law may vest insolvency office holders with specific powers to deal with current employment contracts—to terminate them, for example. The issue here concerns individual employment contracts, although in the framework of an insolvency proceeding. Against this background, insolvency courts in its condition of the forum concursus may therefore have a role to play in these cases. Although EIR does not explicitly acknowledge the principle of vis attractiva concursus, i.e. that some actions dealing with insolvency-related matters have to be brought before the insolvency courts, the CJEU has made it clear that they do.66 Nevertheless, the vis attractiva principle is restricted to claims deriving directly from and closely related to the insolvency proceedings.67 Pursuant to the Proposal amending Regulation No. 1346/2000 presented by the European Commission on 12 December 2012,68 the forthcoming revised EIR will include a specific head of jurisdiction confirming that the above-mentioned claims have to be brought before the insolvency courts.69
Claims arising from the insolvency office holder’s powers to terminate the employment relationship or modify the working conditions would seem to fit neatly into the aforementioned definition, i.e. claims deriving directly from and closely related to the insolvency proceedings. However, employment matters are so closely intertwined with public and collective interests that it seems advisable to submit the question of the effects of insolvency proceedings on current employment contracts to the heads of international jurisdiction laid down in Section 5. In other words, the grounds of the vis attractiva concursus principle—the effectiveness and efficiency of the insolvency proceedings—would not justify the forum concursus deciding the fate of workers who actually discharge their duties to their employer in countries other than the one where the main insolvency proceedings are started.70
This issue is highly debatable, however, given that it concerns the insolvency representative’s powers, which stem from the insolvency proceeding and are closely related to it. The Proposal amending Regulation No. 1346/2000 contains a new provision that may help to solve the dilemma; found in the chapter on conflict of laws, it refers to cases in which the insolvency law in a member state that is dealing with the effects of insolvency on employment contracts stipulates that the latter can only be terminated or modified with the approval of the court that opens the insolvency proceedings, but where no insolvency proceedings have actually been opened in the state. The provision indicates that the court that opens the insolvency proceedings is competent to approve the termination or modification of the contracts in these cases;71 thus, an adaptation problem is solved. Contrario sensu, it could be concluded that, with the exception of this case, it should be the jurisdiction of the country where employees are habitually working that decides on any disputes arising from the modification or termination of the contracts, as these issues may also involve the intervention of government agencies.
220.127.116.11 Personal and Territorial Scope of Application
Section 5, Chapter II, of the Brussels–Lugano system applies as long as the defendant is domiciled in a member state when the lawsuit is filed. It is important to note that the concept of domicile is broadened in the framework of this Section. In accordance with Article 20(2) of the Brussels I bis Regulation, ‘where an employee enters into an individual employment contract with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member states, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member state’. This provision is in line with its counterparts on insurance and consumer matters respectively, and this interpretation increases the number of cases falling within these Sections.
The justification for extending the personal scope of these instruments lies in the protection of the weaker party, backed up by the concept of foreseeability on the part of defendants, in this case employers: having set up a branch, agency or other establishment in a member state, it is only reasonable to assume that they may be sued for their acts and omissions there. Article 20(2) clarifies the issue thus: resorting to the heads of jurisdiction provided by the Brussels–Lugano system is only permitted in claims arising from the operations of the branch in question,72 justifying the inclusion of claims against employers domiciled in third countries in this Section on the ground of their strong links with the European Economic Area. It should be noted that this condition seems to be met by all claims involving employees working for the establishment in question, even if they have been posted abroad.73 In short, if the employer domiciled in a third state has a branch, agency or establishment in a member state when the claim is lodged, the jurisdiction will be determined in accordance with the Section 5 rules discussed.
A key element in the extending of the personal scope of Section 5 is the meaning of the concepts ‘branch’, ‘agency’ and ‘establishment’. Article 7(5) of the Brussels I bis Regulation, already contains a similar concept to that mentioned in Article 20(2) that has been interpreted by the CJEU, and so a uniform interpretation of both provisions seems appropriate.74 The Court of Justice stated that ‘the concept of branch, agency or other establishment implies a place of business which has the appearance of permanency, such as the extension of a parent body, has a management and is materially equipped to negotiate business with third parties so that the latter, although knowing that there will if necessary be a legal link with the parent body, the head office of which is abroad, do not have to deal directly with such parent body but may transact business at the place of business constituting the extension’.75
Other voices suggest a different characterisation though,76 and their proposal is supported in both the procedural peculiarities of the employment relationship and the undeniable fact that this is all about litigation arising from the internal dimension of the branch, agency or establishment, and not from its external dimension, as is the case in Article 7(5). Nevertheless, the stability expected from this concept points to the need for preserving the analogy with the concept established in Article 7(5), and thus for granting both provisions the same interpretation, in particular because the definition of what is to be understood by an establishment is intended to provide legal certainty, and the fact that an employee is integrated within the employer’s organisation, hidden to third parties, does not provide such certainty.77
The CJEU acknowledged this uniform interpretation in its Mahamdia v Algeria judgment, making express reference to its case law on Article 5(5) of the Brussels I Regulation and the concept in question.78 More specifically, it should be highlighted that this definition of establishment includes maritime employment manning agencies acting on behalf of the employer in hiring crew.79 As will be discussed later,80 with this rule seafarers gain access to justice where they have been recruited by an establishment belonging to the foreign shipowner, understanding that manning agencies acting on the shipowner’s behalf in the framework of a lasting relationship match the aforementioned definition.
After Brussels I bis Regulation’s application, the domicile of employers in their position as defendants is irrelevant when it comes to applying the special forum on employment contract matters as laid down in Article 21(2). More specifically, the courts in a member state have jurisdiction when a seaman’s habitual workplace is in this member state, or if establishing a habitual workplace in a member state or any other state is impossible, the courts in the member state where the business which engaged the worker is situated, even if the shipowner is domiciled in a third state.
Section 5 may also be applied when there is a choice of court agreement. Article 21 of the Brussels I Regulation and the Lugano Convention leaves room for party autonomy in these matters, but only to place the worker in a better position to litigate. Therefore, if the specified conditions are met, the designated court will assume jurisdiction in accordance with this provision, even if the defendant is not domiciled in the European Economic Area. As Article 21 relies on Article 23 of the same instruments, if its provisions are to be applied there has to be confirmation that at least one of the parties to the employment contract is domiciled in a member state. After Brussels I bis Regulation’s application, the distinction between cases where at least one party is domiciled in a member state and cases where neither is but a member state court has been designated by the agreement between the parties has disappeared, and the only applicable requirements are those laid down by Article 25—the former Article 23 Regulation Brussels I, but current of Lugano Convention—regardless of where parties to the agreement are domiciled.
3.2.3 The Employee as Plaintiff
18.104.22.168 Introductory Notes to Article 21 of the Brussels I bis Regulation
Article 21 of the Brussels I bis Regulation, establishes the availability of two heads of jurisdiction for seafarers and fishermen, mirroring the existing dichotomy between Articles 4 and 7 of the Brussels I bis Regulation, i.e., employees can choose between the courts of the defendant’s domicile or the courts appointed by a special head of jurisdiction. With respect to the first court, it must be borne in mind that employers are deemed to be domiciled in a member state if they have a branch, agency or establishment in a member state, even though they are domiciled in a third state.81 The second court, the special head of jurisdiction contained in the provision, is based on the proximity principle and allocates claims to the courts where the characteristic performance of the employment contract is to be—or has been—carried out. Should identifying the location prove impossible, the second half of Article 21(1)(b) of the Brussels I bis Regulation comes into operation, and the issue is allocated to the courts in the place where the business which engaged the employee is situated. This provision thus lays down two criteria, one subordinate to the other, and the courts where the business which engaged the employee is located only come into play when there is no habitual place of work.
To interpret Article 21(1)(b), it is necessary to highlight the interrelation between EU legal instruments, i.e., not only between the 1968 Brussels Convention and the Brussels I and Brussels I bis Regulations—to which the Lugano Conventions need to be added—but also between these and the 1980 Rome Convention and the Rome I Regulation concerning the law applicable to contractual obligations.82 The CJEU reaffirmed this relationship in its Koelzsch v Luxembourg judgment when interpreting Article 6 of the Rome Convention, which deals precisely with the law governing employment contract matters.83
All these instruments contain a number of common concepts, and the CJEU encourages a uniform interpretation to enhance interpretative consistency and, of course, consistency between forum and ius.84 This is even more relevant where employment matters are concerned, as the origin of the special head of jurisdiction mentioned above lies in a Court of Justice interpretation of Article 5(1) of the Brussels Convention, which took Article 6 of the Rome Convention as a key aid to its construction.85 This is why both the special head of jurisdiction and the conflict rule share connecting factors, i.e., the locus laboris and the place of the business which engaged the employee, the uniform interpretation of which must be conducive to the coordination between forum and ius in these matters,86 thus avoiding the costs of ascertaining the foreign law.
Nevertheless, there are limitations to the uniform interpretation sought by the CJEU, as so far only small steps have been taken towards establishing consistency between forum and ius: the conflict rule laid down in Article 6 of the Rome Convention and Article 8 of the Rome I Regulation submits employment contracts to the law chosen by the parties in the first instance, thus moving away from consistency as a main objective from the very beginning.87
Furthermore, it is vital not to lose sight of the fact that the concepts in question are to be interpreted within the framework of the objectives pursued by the respective private international law sector into which they are incorporated.88 In other words, worker protection measures apply differently in international jurisdiction—where the main goal is access to justice, i.e., different heads of jurisdictions must be made available to the employee-plaintiff—whereas when it comes to conflict of laws, the main aim is to identify the closest law to the employment relationship. With the latter goal in mind, the conflict rule in question provides an escape clause that does not work when it comes to determining the competent court, which it cannot do.89 However, as employees may bring their claims before various courts, it may well be said that the closest connection is achieved by this means.90
22.214.171.124 The Defendant’s Domicile
The courts of the defendant’s domicile have jurisdiction in employment contracts, as provided for in Article 21(1)(a) of the Brussels I bis Regulation. This provision is in line with Article 4 thereof, in that it only determines which courts have international jurisdiction but not which one has venue; this issue depends on national law.
This head of jurisdiction is particularly useful when the habitual place of work is outside the European Economic Area,91 allowing employees to claim their rights in the courts of the member state where the employer is domiciled. Once more it should be remembered that the Brussels–Lugano system establishes the fiction that an employer that is domiciled in a third state but has an establishment in a member state is domiciled in the EEA for the purposes of Section 5. Against this background, the provision in question here is the one that is applicable to gaining access to justice.
The Brussels–Lugano system deals with the concept of domicile, distinguishing between employer-natural person and employer-legal person. In the first, the system does not provide an interpretation but submits the issue to the law of the state where the person in question is presumed to be domiciled,92 whereas in the case of the legal person it introduces an autonomous rule that stipulates that the domicile is either in the place where the person has a registered office, central administration or principle place of business.93
This last provision may be utilised to offset the ‘flag of convenience’ factor, in that it enables the employer’s domicile to be determined, not the place where the business has its statutory seat—which is usually the country in which the employer has chosen to register the ship or fleet—but the place where the head office or main place of business is situated,94 the latter being understood as the place where all finance-related activities—including commercial, industrial and professional activities—take place. As these activities may be manifold and divided among several countries, the fact that it must be the principal place of business serves to identify which one is the legal person’s centre of activity. The concept of central administration, on its part, refers to the place where the company designs its operational strategy, formulates objectives, monitors operations and centralises funding and balance sheets, etc., meaning the place from which the entrepreneur manages and administers the business.
126.96.36.199 Special Jurisdictional Rule in Employment Contract Matters: The Habitual Place of Work
Introduction and General Features
As mentioned previously, the historical background to Article 21(1)(b)(i) of the Brussels I bis Regulation is to be found in Article 5(1) of the Brussels Convention, which in turn stems from the need to give due consideration to the objectives underlying the establishing of all special jurisdiction rules in particular matters. They seek to ensure a close link between the courts and any claims they are allocated, in that the state jurisdiction to which these rules refer will normally be the same as the place where most sources of evidence are to be found; it is therefore about vesting jurisdiction upon the court that is closest to the facts.
More specifically, for reasons of legal certainty and worker protection, the CJEU gave an autonomous interpretation of Article 5(1) regarding individual employment contracts that diverged from the official interpretation used for all other contractual matters. A key difference was that as a result of this interpretation, the Court of Justice constituted a real forum contractus insofar as this head of jurisdiction submits all disputes arising from employment contracts or relationships to the jurisdiction of a single state, regardless of the obligation in question and the place where it is discharged. Actually, the forum in question points to the place where the characteristic performance has to be carried out: it seems logical for the employer to be sued in the place where the employee has performed or is expected to perform tasks that the employer has specified and managed; accordingly, the employer cannot argue that these courts are not foreseeable.95
One of the main strengths of this head of jurisdiction, in addition to its predictability, is that it is manipulation resistant and that it generally corresponds to somewhere that is accessible for workers, meaning that they should therefore have access to affordable justice. This accounts for the success and lack of controversy surrounding this international jurisdiction rule, a forum already known in member states before its adoption by the Brussels–Lugano system.96
Article 5(1) of the Brussels Convention’s transformation into Section 5, Chapter II, of the Brussels I Regulation involved a qualitative change in the area of worker protection.97 The special forum developed by CJEU case law, later introduced as a positive rule by the 1988 Lugano Convention and eventually laid down in Article 19(2)(a) of the Brussels I Regulation and the 2007 Lugano Convention, 21(1)(b)(i) of the Brussels I bis Regulation, remained, but the transformation brought further clarifications with it.
In the context of Article 5(1) of the Brussels Convention, and now 7(1) of the Brussels I bis Regulation, covenants as to where contractual obligations have to be carried out are permitted without restriction to determine international jurisdiction, i.e., to indicate the place where the obligation in question was, or is to be, performed, and thus the relevant jurisdiction. The establishment of a specific Section concerned with employment contract matters involves disregarding such covenants when it comes to determining international jurisdiction.98 This has to be welcomed in view of the uncertainty that these pacta provoke: the parties actually agree on the place of performance of an obligation, but they are usually unaware of the fact that they are also agreeing on a head of jurisdiction, and are hence referring matters to the court of the place agreed on in the covenant. So, the fact that the place where the work has to be carried out—such as the name of a ship—is expressly indicated in the contract is an important clue for determining exactly where employees habitually carry out their work, but it is not conclusive evidence and can only be used as a starting point to determine exactly where the place is.99 In fact, the place is where the employee follows the employer’s instructions and in which work is performed on a regular basis, as suggested by the adverb that qualifies the connection, i.e., the work is habitually carried out in a given place.
Two factors need to be examined to apply this forum: firstly, the type of activity in which the worker is engaged and, secondly, the place where the activity is usually carried out. In other words, attention has to be paid to the type of worker involved and the kind of obligations they are supposed to discharge for the employer, with a view to determining where the duties are effectively performed, i.e., where ‘the employee actually performs the work covered by the contract with his employer’.100 In practice, some kind of differentiation may be necessary with respect to the activities performed by the employee since the place in question ‘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’.101
As regards distinguishing between essential and non-essential parts of an employee’s tasks, a proposal has been made based on characterising individual employment contracts as contracts establishing ‘a lasting bond which brings the worker to some extent within the organisational framework of the employer’s business’.102 The definition of the ‘organizational framework of the employer’s business’ points to some kind of operational activity that includes the utilisation of an organisational unit with material, non-material and human resources, which is at the service of the employer’s economic activity. Workers’ integration into this organisational framework means that they are subject to the employer’s authority and will consequently undertake assignments in accordance with the requirements they are given in order to fulfil their role in the specific economic activity. Under such circumstances, the habitual place of work is the place where the organisational unit a worker forms part of is located.103 As a matter of fact, this rule applies in simpler cases,104 but application becomes more complicated in intricate cases in which employees carry out their work in different countries or in non-sovereignty areas, for example.105
Another proposal has been made that elaborates upon the latter for such cases, so that emphasis is placed not upon the organisational framework of the employer’s business but upon the labour market in which a worker is actually integrated.106 Nevertheless, the task of determining the boundaries of a specific labour market is another issue that internationalisation has made even more complicated,107 for which reason the establishment of the habitual place of work in complicated cases usually relies on the assessment of the circumstances at hand.
When it comes to actually determining which courts have jurisdiction according to this forum, the issue that inevitably arises is whether there is a role for worker protection. As previously said, worker protection is guaranteed by the fact that employees can choose to sue in different heads of jurisdiction, a choice that is forbidden to employers. However, while consumers and the weaker parties to insurance contracts can sue the other party in their domicile or habitual residence,108 employees do not enjoy this benefit. Instead, employees are granted access to the courts of the place where they are supposed to carry out, or have carried out, their tasks. The reasons for this have already been explained and point to the foreseeability of this forum for both employers and employees. While in most cases this place will designate the country where the worker’s habitual residence is, the CJEU also remarks ‘that is the place where it is least expensive for the employee to commence, or defend himself against, court proceedings’.109
Beyond this assertion, this head of jurisdiction is basically an expression of both the principles of procedural proximity and of foreseeability. Nevertheless, worker protection may explain the priority given to the habitual place of work over the place where the business which engaged the employee is situated pursuant to CJEU case law,110 for which reason the former is being liberally interpreted.
Determining a Habitual Workplace for Maritime Employment Relationships: The Role of Public International Law
Work at sea has the peculiarity of being carried out on a ship, a movable asset that sails through different territories, including areas not subject to territorial sovereignty. This feature has already been discussed in the second Chapter of the study,111 but it is useful to come back to it here to highlight the role of public international law. The concept of ‘habitual place of work’ refers to the territory of a state, which certainly does not exist when the work is performed on a floating structure, whether movable or not;112 therefore, private international law has to make use of public international law when it comes to applying the rule in question to maritime employment.
The interrelationship between public and private international laws is not unknown in EU legislation, even though there is no specific rule connecting the two areas of law. For our purposes, it is worth mentioning the provision proposed during the drafting of the Rome II Regulation on the law applicable to non-contractual obligations, which reads as follows: ‘a ship on the high seas which is registered in the State or bears lettres de mer or a comparable document issued by it or on its behalf, or which, not being registered or bearing lettres de mer or a comparable document, is owned by a national of the State’ shall be treated as being the territory of a State.113 This provision was abandoned, apparently because it was moving into the field of public law;114 however, it is still useful to illustrate that public international law has to play a role in this field as well.
The CJEU Weber v Ogden judgment is an outstanding example of the interrelationship between public and private international laws in these matters,115 as it actually dealt with a maritime employment case: the plaintiff, a cook with German nationality whose habitual residence was also in Germany, sued his employer, a Scottish company, for unfair dismissal. His lawsuit was brought in the Netherlands based on the fact that he had performed a significant portion of his tasks on different platforms and vessels adjacent to the country’s continental shelf. In reaching its judgment, the CJEU relied on international treaties regulating the use of the sea, in particular on the Convention on the Continental Shelf, approved in Geneva on 29 April 1958 and signed by the Netherlands. The CJEU did not take UNCLOS into account because the Netherlands had not yet ratified it when the employment contract in question began.
In its argumentation to establish whether the activity carried out on a state’s continental shelf means that the habitual place of work is that state, the Court emphasised that both Conventions attribute ‘over the continental shelf sovereign rights for the purposes of exploring it and exploiting its natural resources’ to the coastal state,116 hence assimilating this maritime area to a state territory at least for the purposes of the exploitation of these resources.117 Meanwhile, other uses, such as the simple passage of ships, do not lead to the conclusion that the area qualifies as a place of work [in addition to the fact that it would not qualify as habitual, as required by Article 21(1)(b)(i) of the Brussels I bis Regulation].
In short, applying public international law to the case at hand is crucial for establishing the habitual place of work with a view to designating which state is vested with international jurisdiction in the matter. The cook had also worked on a ship that was flying the Danish flag, but the fact that he provided most of his services on platforms on the Dutch continental shelf and vessels flying the Dutch flag tipped the balance in favour of the Netherlands as the country where the habitual work of place was situated. Against this background, allocating different sovereign rights to coastal states according to the maritime area also has an impact on establishing the country where the habitual performance of labour services is carried out. Nevertheless, the usual public international rule deciding on this issue is the one submitting the ship’s internal matters to the jurisdiction of the flag state to the extent that the controversial cases concern vessels with contacts with different jurisdictions or the high seas.118 In fact, the truly controversial cases are those such as the one underlying Weber v Ogden, where workers carry out their tasks on two or more vessels that fly different flags or combine their work on board with land-based activities or work on another kind of structure.
Vessels on the high seas sail or fish in waters that are not subject to state sovereignty or move through waters that are subject to different sovereignties. Against this background, there is extensive literature that points to the idea that under such circumstances, the workplace depends on a vessel’s flag, so the vessel’s internal matters are conventionally subject to the sovereignty of the flag state119: in principle, states cannot impose their jurisdiction at mare liberum, but this is only true up to a point, since rules to orientate behaviour are needed everywhere, even on the high seas. Hence, Article 94 of UNCLOS submits whatever happens on board ships to the flag jurisdiction. Accordingly, employment matters on board would primarily be regulated by the law of the flag state, as otherwise confirmed by MLC, 2006, and WFC, 2007, both of which vest obligations in these matters upon the flag state.
This is emphasised by the reasoning followed by the CJEU in Weber v Ogden, where it was acknowledged that coastal states hold certain sovereign rights over specific maritime areas as defined by public international rules, i.e., the CJEU borrowed concepts and rights from public international law to resolve a private international law case. Within this framework, public international law also explains why coastal state jurisdiction does not cover employment claims arising from work on board ships passing through the sea area adjacent to it, these cases being subject to the jurisdiction of the flag state.120 By this means, variation and discrepancies in jurisdiction and applicable law depending on the sea where the ship operates are avoided.
The Difficult Cases: Flags of Convenience and Mobile Workers
The allocation of jurisdiction to the flag state is, nevertheless, challenged when the flag is merely one of convenience, i.e., when there are no genuine links between the vessel and the country whose flag is flying. For this kind of case, as well as for those where there is more than one workplace, usually because workers discharge their duties to the shipowner on more than one vessel or provide both land-based and aboard services, Article 21(1)(b)(ii) of the Brussels I bis Regulation seems to provide an alternative: the courts where the business which engaged the seafarer is situated.121 In both cases, the reading of Article 21(1)(b) leads to the conclusion that if it is not possible to identify where employees habitually perform their duties to employers—either because there is no genuine link between the work performed at sea and a given territory or because there is more than one workplace—the alternative provided there comes into operation, and the jurisdiction of the state in which the seafarer or fisherman was engaged therefore takes on the responsibility for providing justice services.
However, CJEU case law does not support this reading of Article 21(1)(b) of the Brussels I bis Regulation. The Court of Justice states that worker protection entails the closest jurisdiction to the employment relationship deciding on the case, and this is none other than that of the locus laboris. On the basis of this idea, the CJEU draws the conclusion that all employees have a habitual place of work, even if they provide services in different states. In fact, CJEU case law rests on the assumption that worker protection informs the priority given to the habitual place of work while relegating the place where the business which engaged the employee is situated to a secondary role, on the ground that it lacks sufficient contacts with the employment relationship and can be easily manipulated by employers.122
As mentioned above, the CJEU has ruled on several cases dealing with work simultaneously performed in different countries, either by interpreting the habitual place of work as a head of jurisdiction, as in Mulox v Geels and Rutten v Cross Medical,123 or making use of the conflict rule laid down in Article 6 of the Rome Convention, which also submits employment contract matters to the law of the habitual workplace, in Koelzsch v Luxembourg and Voogsgeerd v Navimer.124 Prior to these judgments, the Giuliano-Lagarde Report stated that ‘if the employee does not habitually work in one and the same country the employment contract is governed by the law of the country in which the place of business through which he was engaged is situated’, with particular reference to work carried out on oil-rig platforms on the high seas.125
The Court of Justice holds a different view though, based on the worker protection principle, which identifies the closest courts to employment matters where international jurisdiction issues are concerned and the closest applicable law when it comes to conflict of law issues.126 To this end, the concept of ‘habitual workplace’ is granted a liberal interpretation on the ground of the principle of proximity and predictability, according to which, in the case of mobile workers, this place is the principal place of work.
More specifically, this place is defined by Mulox v Geels as ‘the place where or from which the employee principally discharges his obligations towards his employer’127 and by Rütten v Cross Medical as ‘the place where the employee has established the effective centre of his working activities’.128 Koelzsch v Luxembourg and Voogsgeerd v Navimer also refer to the relevant place of work, expounding on the numerous factors that the seized court must take into consideration to arrive at a conclusion as to where that place is.129 This is a crucial clarification, given that the regular basis on which work must be provided in one and the same country is lacking in the case of mobile workers;130 ergo, there is no key link to a given country so other factors must be borne in mind when establishing in which country employees habitually perform their duties, even should part of their job involve travelling from country to country. While providing guidance on the location of the principal workplace, the CJEU interpretation aims to prevent situations where multiple courts have jurisdiction in these matters, to preclude the risk of irreconcilable decisions.131
The same leitmotif accounts for the new wording of Article 8 of the Rome I Regulation, which refers to the place from which employees provide their services, with a view to covering cases similar to those decided in Mulox v Geels and Rütten v Cross Medical, and also to provide a solution to work carried out in non-sovereign areas, targeting airline workers in particular.132 In this case, identifying a base of operations from which they carry out their work would seem easy; hence, Article 8 aimed to enshrine what is referred to as the ‘base rule’.133
In spite of this, the wording of Article 8 does not seem suitable for seafarers, first, due to the difficulty of identifying their base of operations134 and, second, because of the flag jurisdiction’s traditional role in these matters.135 Not surprisingly, the fact that the workplace here is mobile but the worker is not has been highlighted.136 As a matter of fact, there is just one case in which courts137 and literature138 have identified a base of operations, i.e., workers employed on board ferries that always sail on the same route between countries and that embark and disembark at the same port, where they also provide services. Setting aside this case, the base test is of little help in maritime employment affairs, and resorting to public international law with a view to identifying the habitual place of work is clearly preferable.
Notwithstanding this, the CJEU in its judgment Voogsgeerd v Navimer includes seafarers among the workers for whom identifying the place from which employees mainly discharge their obligations to employers is possible: ‘(…) in the light of the nature of work in the maritime sector, such as that at issue in the main proceedings, the court seized must take account of all the factors which characterise the activity of the employee (…)’.139
Surprisingly and even though the worker is a seafarer, any reference to public international law is excluded from the CJUE’s motivation, in particular considering a ship to be a workplace. After reading the decision, what particularly stands out is the lack of a single reference to the flag of the ships on which Mr. Voogsgeerd provided his services.140 This absence seems to be motivated by the proliferation of flags of convenience—now increased by second and international registries—and the consequent loss of links with the country in which the ship is registered, undermining the identifying of the forum/lex laboris with the flag state. However, this is mere speculation since the CJEU did not make specific mention of flags of convenience to justify its judgment. In this sense, Voogsgeerd v Navimer represents a radical departure from traditional discussion in this field, as it may lead the seized court to find in casu the seafarer’s base of operations. The CJEU breaks away from the traditional discussion on these issues—of which it could not of course be ignorant—taking into consideration the precedent of Weber v Ogden and the pre-legislative activities of EU instruments in which an ad hoc solution for obligations contracted at sea had been sought.141
Other factors could also have influenced the Voogsgeerd v Navimer decision, in particular the evolution of company law and new recruitment methods. It is increasingly common for shipping agents and manning companies to act on behalf of shipowners when it comes to hiring seafarers or fishermen. As already discussed, in both the shipping and fishing sectors these companies are responsible not only for recruiting staff but often also for remunerating and giving instructions to seafarers as to where they have to go to carry out their work, as well as for managing transfers to and from the place of embarkation. It could also apply to a group of companies with one subsidiary acting as the shipowner and employer for tax and labour purposes and other as the one actually employing the worker. This seems to be the case of Naviglobe, a Belgian company acting in Antwerp on behalf of Navimer, a Luxembourg-based business that owned the vessels on which Mr. Voogsgeerd worked.
This case is therefore an excellent example of the impact of modern company law on the relocation of maritime employment: although starting out on the journey towards a genuine link between the flag and the state of the shipowners’ nationality has been advocated, the route is lined with obstacles resulting from the proliferation of one-ship companies and international business cooperation. The point to be made now is that the flag of convenience issue seems to be out of discussion nowadays, given that it is only one more factor leading to the internationalisation of the employment relationship.142 The case underlying the CJEU judgment also exemplifies that the problem to be tackled nowadays is groups of companies actually acting as employers, but not legally. Some jurisdictions have already tackled this issue by establishing joint liability of shipowners and manning agencies,143 and the same has been suggested at EU level with the aim of developing an autonomous concept of the employer.144 Indeed, those proposals would help worker protection much more than the approach undertaken in Voogsgeerd v Navimer.
In contrast, the factual approach to the habitual place of work endorsed by Voogsgeerd v Navimer involves transferring a significant amount of power to shipowners, as it enables them to choose indirectly which courts are deemed to be seized, either by hiring their manpower through agencies operating from the country of their choice or by selecting the base port.145 The Voogsgeerd v Navimer judgment rules that the seized court must ‘first establish whether the employee, in the performance of his contract, habitually carries out his work in any one country, which is that in which or from which, in the light of all the aspects characterising that activity, the employee performs the main part of his duties to his employer’.146 The Court of Justice seems to point to Antwerp in this case, as Mr. Voogsgeerd had to go there to receive instructions as to where to perform his duties and report back there afterwards. The main problem with this interpretation is that it places manning agencies at the centre of the maritime employment relationship when the employer is a different subject and instructions are complied with outside the territory from which the agencies operate. The same applies when this place is meant to be the vessel’s base port,147 as this is decided by the shipowner.
Accordingly, the scope of the CJEU’s judgment in Voogsgeerd v Navimer has to be restricted to those cases in which a seafarer is a truly mobile worker. Otherwise, the factual approach encouraged by the CJEU is likely to seriously affect predictability with respect to which courts can be seized,148 and it is not in accordance with the fact that the place where services are habitually provided is indeed a ship. In cases where employees work on board a single ship, the vessel should be presumed to be the workplace at issue, and resort to public international law is necessary to establish which country has jurisdiction to take on matters concerning the ship.
Should tasks not be performed in one and the same country pursuant to public international law, the place from which services are habitually provided is to be identified. To this end, a number of factors is mentioned in Voogsgeerd v Navimer—‘…determine in which State the place is situated from which the employee carries out his transport tasks, receives instructions concerning his tasks and organises his work, and the place where his work tools are to be found’149—which basically referred to the test establishing the habitual workplace already addressed and that requires first, identifying employees’ main tasks and, second, the place where they are performed.150
The judgment deals with Article 6 of the Rome Convention, and the doubt arises as to whether there is still room for the escape clause included in it as well as in Article 8 Rome I. In its judgment Schlecker v Boedecker,151 the CJEU addresses the role of the escape clause in this provision, highlighting that factors other than the ones concerning the worker’s provision of services have to be taken into account while assessing whether there is a closer law than the law of the habitual workplace, such as the place where employees are paid wages and other working conditions are fixed, where they pay income tax, are affiliated to social security schemes and are covered by pension, sickness insurance and disability schemes.152 Hence and from an international jurisdiction viewpoint, these factors should not be taken into account either to determine the place from which services are provided.
One relevant factor in determining the principal workplace could be the employer’s domicile, registered place of business or head office. But the dynamics of the heads of international jurisdiction provided for under Section 5 has shown that excessive weight should not be given to this link because of the mere fact that the employer’s domicile is already a head of jurisdiction. Although there will be certain cases in which both point to the same courts, general and special heads of jurisdiction are meant to be alternative choices. The place where the employer has a branch, agency or establishment should not be taken into account either since this would pave the way for a different head of jurisdiction. This is particularly salient in maritime employment matters, as it could be argued that the position of a shipping agent or a manning company acting on behalf of a shipowner in recruiting seafarers to work on board a vessel is comparable to that of a shipowner’s establishment for international jurisdiction purposes.153
The place of employees’ domicile or habitual residence might help establish the country from which employees perform their duties.154 Nevertheless, in contrast to insurance and consumer matters, EU legislation and related instruments avoid allocating jurisdiction to the courts of the place where a worker’s private life is based in favour of an approach that takes the employee’s professional life as a reference point, in particular because it is easy to change the place of habitual residence but not the place where duties to an employer are discharged. Undue weight must not be given to this factor when it comes to indicating the habitual workplace, although a coincidence between the two places seems to be quite common.
All in all, the seized court must basically identify the country where the main part of seafarers’ tasks is performed, setting aside the aforementioned factors as they are not directly connected to the provision of services. The point to be made now is that public international law cannot be disregarded either while establishing the principal workplace to the extent that the essential part of seafarers’ tasks may be provided in an area subject to public international rules. Against this background, Weber v Ogden provides an example of a mobile worker as the plaintiff worked on board ships flying different flags and also on maritime platforms, the key difference from Voogsgeerd v Navimer being the fact that the latter did take into account public international law while examining where the worker had carried out the essential or relevant part of his activities.155 The Court of Justice’s silence on this matter is not acceptable inasmuch as public international law is also involved in worker protection, not to mention the regulating of areas in which most seafarers and fishermen actually work.
Successive Provision of Services in Different Countries
Cases in which workers successively fulfil their obligations towards their employer in different countries are somewhat different. In Weber v Ogden, the CJEU expressly addressed this situation, submitting the case to the courts of ‘in principle, the place where he [the employee] spends most of his working time engaged on his employer’s business’.156 This statement led to a discussion on the meaning of ‘most of his working time’, and it was proposed that this ought to amount to at least 60 % of activity.157 The debate was abandoned in the end, however, as the Weber v Ogden judgment reduced the significance of the time factor.158
Instead, Weber v Ogden addressed the issue of workers being temporarily posted to a different state and how this should be approached when it came to establishing the habitual place of work.159 The matter was settled by taking the parties’ intentions at the time of the posting into account, i.e., whether or not they intend to carry on working in the country of origin after the period spent working abroad. Recital 36 of the Rome I Regulation confirmed this case law and provided a number of guidelines along these lines, which are also applicable when employees are assigned to a subsidiary of the group or company other than their employer’s, thus sorting out the problems stemming from the Pugliese v Finmeccanica doctrine.160
The same conclusion is to be drawn from the wording of Article 21(1)(b)(i) of the Brussels I bis Regulation, according to which attention needs to be paid to the courts of the last place of work if the employees have been permanently transferred to a ship flying a different flag, regardless of the time elapsing between the transfer and the arising of the dispute.161
188.8.131.52 Special Jurisdictional Rule in Employment Contract Matters: The Place Where the Business Which Engaged the Employee Is or Was Situated
The logic behind Article 21(1)(b) of the Brussels I bis Regulation indicates that paragraph (ii) should only be turned to when identifying a habitual workplace in one and the same country is not feasible,162 such as in cases in which the vessel changes flag regularly and the employment relationship in question lacks sufficient contacts with a base.163 Then, and only then, can seafarers make use of the courts of the place where the business which engaged them is situated. To this end, it does not really matter whether the habitual place of work is located in a third state: what counts here is that there is actually a habitual place of work, meaning that the prerequisite for resorting to Article 21(1)(b)(ii) is not met.164 In other words, even if seafarers or fishermen habitually carry out their tasks on board vessels flying the flag of a third state, they are not allowed to resort to the provision with a view to allocating jurisdiction to a member state, for example.165
Despite the subordinate role granted to this head of jurisdiction, there have been suggestions that it should be brought to the forefront when a ship sails or fishes in non-sovereignty areas,166 thus establishing a more appropriate forum than the flag jurisdiction, given the emergence of the flag of convenience issue. In spite of such stances, CJEU case law actively seeks to turn the forum of the country where the business engaging the employee is situated into a residual one via a liberal interpretation of the terms of Article 21(1)(b)(i). As seen above, the CJEU prioritises the location of a habitual place of work even where mobile workers are concerned, by taking into account all circumstances surrounding the work they carry out with a view to identifying the place from which the majority of their tasks for the employer are undertaken or in which the essential part of their obligations is fulfilled. This interpretation is also supported by the hint in Article 21(1)(b)(i) in the sense that weight should be given to the last place of work where appropriate.
In particular, Voogsgeerd v Navimer stressed the fact that resorting to the courts of the engaging business is truly subsidiary in maritime employment matters.167 In this sense, the special rule’s development is certainly striking up to a point,168 although there have been many warnings about its effects. As pointed out above, the provision resorts to a weak linking factor, as the business which engaged the employee may have very little connection with the maritime employment relationship and in fact the relationship can be easily manipulated by the employer.169
Considerable controversy surrounds the interpretation of the phrase ‘business which engaged the employee’, precisely because of the ease with which the relationship can be manipulated.170 Some authors suggest that the provision should be read literally for the sake of legal certainty,171 i.e., jurisdiction should be allocated to the courts where the establishment that engaged the employee is located, thus rejecting the integration of the employee within the business structure as a factor in interpreting the phrase.
Others, meanwhile, highlight the idea that counting the mere conclusion of the employment contract as a linking factor to a jurisdiction opens the door to forum shopping; this concept should therefore be consolidated by resorting to the business in which the employee is effectively integrated within the employer’s organisation.172 This approach is supported by the principles that should inform the determination of international jurisdiction, proximity and foreseeability, which are both to be found in the country where the establishment actually employing the worker is located.173 In similar terms, another proposal suggests taking the place that checks that workers carry out their tasks into account, the place where wages are paid and the place where workers receive instructions and guidelines—in short, the place where staff management takes place.174 Yet another proposal goes back to the pre-contract phase in order to trace the business in question.175
The issue seems to have been settled for good by Voogsgeerd v Navimer, in which the Court of Justice concluded that effective occupation in an establishment is a factor to be taken into account to establish where the work is provided on a regular basis, and this factor cannot be used to determine the business to which Article 21(1)(b)(ii) refers. On the contrary, legal certainty requires foreseeability in identifying the business, and this is only achieved by actually resorting to the place in which the employment contract was concluded.
For the purposes of identifying this place, ‘the referring court should take into consideration not those matters relating to the performance of the work but only those relating to the procedure for concluding the contract, such as the place of business which published the recruitment notice and that which carried out the recruitment interview, and it must endeavour to determine the real location of that place of business’.176 Hence, the Court moves away from a purely formal interpretation since what is important is not where the contract was signed but where the worker was recruited. However, there will be a habitual place of work if it is possible to locate the establishment in which the employee is actually doing the work, being paid and receiving instructions concerning the tasks to be carried out.
There is also debate around the concept of ‘business’ as employed in Article 21(1)(b)(ii). Some support the consistency of meaning between this concept and that of ‘branch’, ‘agency’ or ‘other establishment’ as mentioned in Article 7(5) of the Brussels I bis Regulation, for reasons of legal certainty.177 Others, however, prefer a broader interpretation of ‘business’.178 Voogsgeerd v Navimer did not directly address this issue but at the same time furnished no argument for treating both provisions as containing different concepts of ‘establishment’.
In any event, Voogsgeerd v Navimer is significant because it stresses that establishments acting on behalf of the employer are also included in Article 21(1)(b)(ii): subsidiaries, branches and offices of a company other than the employer-company may be the business which engaged the employee, provided that they are stable establishments.179 This judgment noted that, in principle, the business has to be part of the employer’s structure.180 This is not mandatory, however: ‘It is only if one of the two companies acted for the other that the place of business of the first could be regarded as belonging to the second, for the purposes of applying the linking factor in Article 6(2)(b) of the Rome Convention’.181 In short, a manning agency acting on behalf of the shipowner may also be the business in question for the purposes of applying Article 21(1)(b)(ii) and also when it comes to applying Article 7(5) of the Brussels I bis Regulation, as discussed below. Finally, in Voogsgeerd v Navimer the CJEU also addressed the situation in which the engaging business is a shell company; then once the veil has been lifted, the engaging business becomes the real employer.182
The use of the past tense in the terms of this head of jurisdiction indicates that no matter whether the business has disappeared when the claim is filed, the employee’s claim is to be lodged where the engaging business was situated and also when deciding which court has venue within a country. Only when the business moves within the same territory does the new location have to be considered.183
184.108.40.206 The Forum of a Branch, Agency or Other Establishment
Article 20(1) of the Brussels I bis Regulation, refers to Article 7(5), which implies that workers may also bring their claims before the courts of the place where the employer has a branch, agency or establishment, provided that such a claim arises from its operation. The country where the employer’s branch is located is vested with jurisdiction on the ground that while the employer must be accountable for activities organised from the branch in question, consideration is given to the principle of protection of legitimate expectations of all those who approach the employer through the said establishment.184 For this reason, obligations entered into by the branch need not necessarily be carried out in the state where the branch is situated to be considered as arising out of its operation and thus falling within this forum’s scope.185
This head of jurisdiction is only available to employees, but not to employers as by definition employees cannot have a branch.186 As mentioned above, Article 21(2) establishes the fiction that having a branch, agency or establishment in a member state amounts to being domiciled in the state, even if the employer is actually domiciled in a third country. As a result, Article 21(1)(a) of the Brussels I bis Regulation also applies when the employer does have a branch in the European Economic Area but not a domicile.187 However, if the employer is domiciled in a member state, Article 7(5) offers workers another head of jurisdiction as long as their claim arises from the corresponding branch, agency or establishment’s activity. Likewise, if an employer domiciled in a third state has establishments in different member states, workers can choose where to sue, depending on the place with which their claim is associated.188
The meaning of ‘branch, agency or other establishment’ in relation to employment contract matters has already been discussed.189 Closely intertwined with this discussion is the issue of the inappropriateness of this head of jurisdiction with respect to employment contract matters, as highlighted by some authors: it is most likely that the branch, agency or establishment is the same as the business which engaged the employee, and therefore the reference of Article 20(1) to Article 7(5) paves the way to an alternative route that, in principle, is not offered by Article 21(1)(b) of the Brussels I bis Regulation. As a result, employees can sue in the courts of the country where they habitually carry out their tasks but may only resort to the courts where the engaging business is situated when the habitual workplace is not in one and the same country; however, employees may recover this option by invoking Article 7(5). Since this somehow breaks with the internal logic of Section 5, the latter head of jurisdiction has been labelled inconvenient.190
Nevertheless, noteworthy is that the business which engaged the employee may be located in a different country from the one where the branch, agency or establishment mentioned in Article 7(5) is. The point is that employment claims falling within the scope of the latter forum must arise from the business operations, i.e., not limited to the employment contracts entered into there, but include other workers who have a close relationship with the establishment, perhaps because wages are paid there or because their tasks are supervised from there.191 As a matter of fact, there would seem to be a greater likelihood of overlap between the forums of the branch and the habitual place of work than between the heads of jurisdiction mentioned above.
When it comes to maritime employment, manning agencies deserve special consideration. In fact, manning agencies acting on behalf of the shipowner should be deemed to be its establishment. In a context of extreme offshoring models,192 such an interpretation is required to open a forum in the country in which workers are recruited, given that shipowners may be domiciled in one country and their ships may be flying a second nation’s flag, while crew members are supplied by yet another country. In these situations, owners are outsourcing a service that they themselves or a branch of their company would otherwise perform.193 For this purpose, it is irrelevant whether the agency has been set up as a different company to that operating the ship because the relevant fact here is that it is acting on behalf of the employer. Hence, although the ship is deemed to be the habitual place of work, seafarers should be allowed to claim against their employer in the place where the latter acts through another company, as pointed out in Voogsgeerd v Navimer.194 Nevertheless, a certain degree of permanence is required, including cases of agents regularly travelling to a given country and working from other companies’ offices but not cases in which a captain or master recruits seafarers and fishermen directly in port due to immediate service needs.195
The meaning of the concept ‘litigation arising from the operations of the shipowner’s establishment’ such as a manning agency is more controversial, particularly when such operations are restricted to the recruiting and placement of seafarers wherever they have to do their job. It is clear that this head of jurisdiction attracts all claims related to individual employment contracts when manning agencies are responsible not only for recruitment activities but also for all the vicissitudes of the contract, such as checking seafarers and fishermen’s professional qualifications, providing instructions and tickets for the journey to the ship and back, paying salaries and contributions to social security systems, and even managing complaints or negotiating collective agreements.
Manning agency activity is sometimes limited to staff recruitment and the subsequent management of seafarers’ transfer operations to a ship where they finally sign their employment contracts, in which case extending this forum would not seem to be as justifiable as it is in the previous case. However, the inherent contractual asymmetry between the parties to the contract must be borne in mind for a broad interpretation to be supported, which would also allow claims to be lodged against the employer in the place where the seafarer or fisherman was recruited. Reasons of effective judicial protection from the court support the idea of resorting to this forum in these cases as well, given that access to another jurisdiction may be de facto impossible for seafarers and fishermen as plaintiffs.
220.127.116.11 Party Autonomy
Prorogation of Jurisdiction
In contractual matters, the choice of forum seems appropriate for establishing the closest competent court. However, the approach to party autonomy as the basis for establishing international jurisdiction is influenced by worker protection, to prevent employers from taking advantage of their superior position vis-à-vis the weaker party to the contract, in this case workers. Article 23 of the Brussels I bis Regulation therefore limits the role of party autonomy to cases in which the choice of court agreement is concluded after the dispute has arisen or if it grants workers a head of jurisdiction other than those provided for in Section 5.196
Where the first situation is concerned, the specification that the agreement must have been entered into after a dispute arises refers to the time when extra-jurisdictional disputes emerge, i.e., the point when a disagreement leading to a court case actually happens.197 The second kind of agreement specifically mentioned seeks to favour workers by providing them with an additional forum to the ones laid down in Section 5. For this reason, prorogation of jurisdiction as indicated by Article 23 can only be applied to allocate jurisdiction to the corresponding courts and not to derogate jurisdiction. In other words, employees cannot resort to choice of court agreements with a view to challenging the jurisdiction of the courts where an employer has brought a claim against them in accordance with Article 22 of the Brussels I bis Regulation, i.e. the courts of the worker’s domicile.198
Article 23 is a special rule in relation to Article 25 of the Brussels I bis Regulation. The latter provision applies to forum selection clauses on employment contract matters with regard to the formal requirements provided, which are to be complied with by workers and employers in shaping an agreement conferring jurisdiction.199 If these agreements do not fall within the categories of either of the two cases laid down in Article 23, they are not binding on the parties, in particular on the worker,200 not even when they bestow international jurisdiction on the courts of a third state.201