Opinion of the Advocate-General
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Mr President,
Members of the Court,
1 . By judgment of 14 January 1988 the French Cour de cassation ( Court of Cassation ) has sought a ruling from the Court of Justice on the interpretation of Article 5(1 ) of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters .
The facts of the case and the arguments of the parties which have submitted observations to the Court during the procedure are set out in detail in the Report for the Hearing . It therefore suffices for me, before examining the questions referred to the Court, to mention the essential points of those arguments .
The plaintiff, Mr Humbert, a French national resident in France, brought proceedings before a French tribunal against the company for which he had worked for a period of nine months seeking the payment of compensation under various heads . There are reasons for doubting whether the defendant is established in a Member State although that question is of decisive importance for the purposes of the application of the Brussels Convention . It appears from documents before the Court that Six Constructions Ltd, a company whose registered office is alleged to be in Brussels, is a company incorporated under the law of the United Arab Emirate of Sharjah and that it has a "branch" in Brussels .
Since, however, in proceedings for a preliminary ruling, the Court must rely, as regards the facts of the proceedings before the national court, on the conclusions arrived at by that court in those proceedings, it is necessary to proceed in this case on the assumption that the defendant' s registered office is in Belgium .
The French court which was called upon to consider the defendant' s objection of lack of jurisdiction was unable, on procedural grounds, to consider that question in greater detail since it was not raised in the proper manner in the course of the procedure .
I therefore put that question aside nolens volens and return to the characteristics of the case referred to the Court by the Cour de cassation .
A significant factor in this case is the fact that the plaintiff did not perform his work for the defendant in any Member State of the Community . It is apparent from the order for reference and from the documents before the Court that Mr Humbert worked for the defendant exclusively in non-member countries . It is for that reason that the Cour de cassation has referred two questions to the Court, to ascertain first what obligation is to be taken into account for the purposes of the application of Article 5(1 ) and secondly whether the characteristic obligation must be considered as being performed at the registered office of the company which engaged him or whether, on the other hand, the general rule that the defendant is to be sued in the courts of the place where it is domiciled, in accordance with Article 2 of the Convention, is to be applied .
2 . The Court' s case-law concerning the interpretation of Article 5(1 ) of the Brussels Convention is not very extensive . It has, however, given some judgments first on the more general question of determining the obligation to be taken into account for the purposes of Article 5(1 ) and secondly on the more specific problem arising in that connection with regard to contracts of employment .
There is no concealing the fact that considerable divergences between those judgments have led to questions - often of a somewhat critical nature - being raised by legal writers . The ruling which the Court is asked to give in the present case is therefore of particular importance for the purpose of clarifying the Court' s case-law . It is no coincidence that the observations submitted in the course of the written procedure and at the hearing, whilst citing the Court' s case-law, reach divergent conclusions .
3 . Let us begin by a systematic examination of the principles which have been laid down by the Court in the past and may come into play in the present case .
( a ) I would refer in the first place to the principle laid down in Case 14/76 De Bloos v Bouyer (( 1976 )) ECR 1497 according to which the obligation to be taken into account for the purpose of determining the place of enforcement is that which corresponds to the right on which the plaintiff' s action is based, that is to say the obligation in respect of which the proceedings were brought .
( b ) Secondly, in its judgment in Case 12/76 Tessili v Dunlop (( 1976 )) ECR 1473, the Court laid down the principle that the place where the obligation in question was performed, or was to be performed, is to be determined by means of two steps . First the court before which the matter is brought must determine "in accordance with its own rules of conflict of laws what is the law applicable to the legal relationship in question"; then it must define, in accordance with that law, the place of performance of the contractual obligation in question .
( c ) Thirdly, and in relation to contracts of employment, the Court, in its judgment in Case 133/81 Ivenel v Schwab (( 1982 )) ECR 1891, laid down the principle that in the case of a contract of employment the connection which must subsist between the court hearing the matter and the dispute before it is determined by the obligation characterizing the contract in question and is normally the obligation to carry out work .
( d ) Finally, in Case 266/85 Shenavai v Kreischer (( 1987 )) ECR 239, the Court reiterated that contracts of employment have certain particularities in the light of which the court of the place in which the characteristic obligation of such contracts is to be performed is considered best suited to resolving disputes which may arise, and stated that "where no such particularities exist" regard is to be had solely to the contractual obligation whose performance is sought in the judicial proceedings .
4 . On applying the principles derived from the aforementioned cases to the questions referred to the Court by the Cour de cassation, it becomes clear that the solution will differ depending on which line of decisions is relied upon .
An application of the principles laid down in the De Bloos and Shenavai cases leads to the conclusion that the obligation to be taken into account is the obligation which corresponds to the right on which the plaintiff' s action is based . In this case the Cour de cassation states in its order that in his action Mr Humbert is seeking the payment of compensation under various heads deriving from his contract of employment . The obligations upon which his action is based could be regarded as the obligation on the part of the employer to pay the compensation . Consequently, it is not precluded, in theory, that the place of performance of the obligation could be the place where the worker is resident if that is what is provided by the rules of substantive law to be applied according to the rules of conflict of laws of the court before which the matter is brought, according to the judgment in the Tessili case . Unsurprisingly, that is the view to which Mr Humbert subscribes in his observations to the Court, although on the basis of reasoning which fails to take account of the judgment in the De Bloos case .
On the basis, however, of the principle laid down in the Ivenel case that the obligation which characterizes the contract, normally the obligation to carry out work, is to be taken into account, it must be the courts of the State in which the work is carried out that have jurisdiction . Needless to say such a conclusion inevitably makes it impossible in this instance, the characteristic of which is, as has already been seen, that the work is not carried out in any Member State of the Community, to apply Article 5(1 ) unless, as Mr Humbert argued, other features of the employment relationship are regarded as characterizing the contract for the purpose of locating the relationship in a specific State .
In order to overcome that difficulty the parties which sought to rely on the Ivenel judgment have had to show considerable ingenuity in their observations to the Court .
5 . On the one hand, some governments have suggested the adoption in a case such as the present of a criterion according to which the court of the place where the employer has its registered office would have jurisdiction . That criterion was also envisaged by the Cour de cassation in its second question .
On the other hand, the Commission, which considered that criterion and rejected it, proposes that in such a case it is completely impossible to apply Article 5(1 ) and that recourse must be had to the general rule of jurisdiction set out in Article 2, namely the place of the defendant' s domicile .
6 . Before I consider which of the two alternatives is to be preferred or whether to propose a further solution, may I be permitted to make some observations on the argument put forward in the second question by the Cour de cassation and developed by some of the governments which submitted observations to the Court, namely that the Court should lay down the principle of the jurisdiction of the courts of the place where the employer has its registered office as such ( or, in this case, as the place of recruitment ).
7 . I must say that such an innovative solution, although presented in an authoritative manner, leaves me so seriously perplexed, in the light of the aforementioned judgments of the Court, that it does not seem justified to recommend its adoption .
In order to explain my perplexity I do not believe it necessary to examine the various arguments which the governments put forward in support of this proposition, based in particular on the provisions of two international conventions, the Rome Convention on the Law Applicable to Contractual Obligations ( 1 ) and the Lugano Convention on the Recognition and Enforcement of Judgments ( the so-called "parallel convention "), ( 2 ) for one very simple reason : even if such an examination would provide support for that proposition, I am convinced that its merits must be assessed by reference to the Brussels Convention, that is to say the only one which the Court has jurisdiction to interpret . ( 3 )
8 . In other words, it is not excluded that provisions of other conventions or criteria for the interpretation of other conventions could provide logical arguments in favour of a given interpretation of the Brussels Convention .
What is excluded, however, in so far as it is contrary to the most basic principles of interpretation, is that a connective criterion adopted under one convention could be used, in its own right, that is to say not as a result of a process of interpretation, in the application of Article 5(1 ) of the Brussels Convention .
9 . Reference to the criterion of the place of the company' s registered office is inconsistent with the following :
( a ) the wording of the provision which the Court is called upon to interpret;
( b ) the intention of the drafters of the 1968 Convention confirmed in 1978;
( c ) the ratio decidendi of the judgment in the Ivenel case;
( d ) a systematic reading of the Convention;
( e ) the legal position in almost all the Member States .
( a ) The Brussels Convention certainly does not lay down any specific rules on jurisdiction, neither special nor exclusive, for disputes in employment matters . Consequently, jurisdiction is governed either by the general provision contained in Article 2 or by the special, alternative provision for contracts contained in Article 5(1 ), which the Court is to interpret in this case and which is, without doubt, a provision which must be interpreted strictly .
It is also beyond doubt that neither of those other provisions refers as such to the place where a company has its registered office as a connective criterion . On the contrary, Article 2 refers to the courts of the place of the defendant' s domicile and Article 5(1 ) provides the plaintiff with the alternative of the courts for the place of performance of the obligation in respect of which the legal proceedings were brought .
( b ) The Jenard Report clearly explains the reasons why the final version of the Brussels Convention, the preliminary draft of which included a provision on exclusive jurisdiction for cases relating to employment matters ( and also particularly provided, it may be emphasized, the criterion of the place of the company' s registered office ), did not lay down a special jurisdiction for such cases . It is, moreover, significant that the Jenard Report concludes its discussion of contracts of employment by referring to the possibility of amending the scope of the Brussels Convention, in particular by means of an additional protocol . However, no such change has been made even as a result of the amendment of the Convention to take account of the accession of three new States . That clearly shows that the Member States' intention is still not to provide for a special jurisdiction in employment cases .
Moreover, not only did the Convention of Accession of 1978 not introduce a special jurisdiction for contracts of employment, in contrast to other situations, but it laid down the authentic interpretation of Article 5(1 ) by expressly bringing the French and Dutch texts into line with the Italian text so as to refer to the courts for "the place of performance of the obligation in question ". In addition, the Schlosser Report expressly referred in that connection to the judgment in the De Bloos case .
( c ) As regards the judgment in the Ivenel case, the reasons why the Court had recourse to the concept of the characteristic obligation as the criterion for determining the place of performance in cases concerning employment relationships are, on the one hand, to provide an alternative which is potentially closer to the interests of the employee, who is regarded as the weaker party, and, on the other, to avoid the risk, feared by many persons, of a multiplication of courts having jurisdiction .
The proposition in question would lead to the paradox that by establishing the place where the company has its registered office as such as the criterion for determining jurisdiction, the same criterion would also be applicable in cases in which the plaintiff was the employer .
In other words, to maintain that the place of performance must be defined as the place where the company has its registered office, in cases where the characteristic obligation, represented by the work carried out, is performed outside the territory of the Member States, would have the result of enabling the employer to bring the employee, the weaker party, before its own forum actoris .
In my view, the paradox seems so glaring as to make it fundamentally impossible to endorse that proposition . ( 4 )
( d ) This is all the more clear if it is considered that in the cases where the Convention has explicitly laid down special rules on jurisdiction - alternatives to the general rule contained in Article 2 - in order to protect the weaker party ( as for matters relating to insurance and to consumer contracts ), the Convention has also expressly provided ( in Articles 11 and 14, as amended in 1978 ) that proceedings may be brought only in the courts of the State in which the weaker party is domiciled . That means in practice that an insurer may never bring an insured person before its own courts . The same principle applies to consumer contracts . In the case, however, of contracts of employment the employer would be able to bring the employee before the employer' s own courts . That result is at the very least debatable .
Undoubtedly, it is the employee who is the plaintiff in the majority of cases concerning employment . In the scheme of the Convention the general provision regarding jurisdiction contained in Article 2, namely that the courts of the place where the defendant is domiciled have jurisdiction, is available to the plaintiff . Accordingly, if it is desired to give substance to the need for protection for the weaker party, and therefore to offer the plaintiff a genuine alternative, which is plainly the object of the Convention, the proper course, in my opinion, is not to create something which in many cases will be none other than a duplicate of the general rule . In view of the need to provide effective protection for the weaker party so as to enable him to defend his interests without being burdened by legal costs ( not to mention other costs ) which may be a disincentive, forcing him to bring proceedings in the courts of the place where the employer has its registered office, I feel that another avenue should be explored seeking to establish an alternative forum to that afforded by Article 2 within the limits of a teleological interpretation .
This is borne out by the fact that, as was emphasized in the Jenard Report, the Brussels Convention, which is based on the principle of direct jurisdiction, provides a higher degree of legal certainty because the decision whether to recognize or enforce a judgment in the State requested to do so emanates from a court whose jurisdiction is derived from the same Convention itself .
( e ) An examination of the national rules of jurisdiction applicable in Member States with regard to employment relationships leads to the following conclusions :
( i ) the vast majority of national laws lay down the rule that actions are to be brought in the courts of the defendant' s domicile;
( ii ) in many cases, and mostly concomitantly with the courts of the defendant' s domicile, it is possible to bring proceedings before the courts of the place where the work was performed or was to be performed;
( iii ) it is rare for jurisdiction to be attributed to the courts of the place of the employer' s domicile or registered office as such .
It is therefore possible to discern a general trend in the national legal systems to affording the worker a forum close to his place of work . In addition, some States seek to facilitate the legal protection of workers alone by allowing them a greater choice in comparison with an employer .
The Italian rules ( Article 413 of the codice di procedurale civile ( Code of Civil Procedure ) ) which envisage in the alternative the jurisdiction of the place where a company has its registered office, are only at first sight contrary to the foregoing . That provision makes it clear that the reason for the choice is the need to confer jurisdiction on the courts of the place where, on the basis of the principle of id quod plerumque accidit, the work is carried out because that is where the company is established . That is confirmed by the alternative provision for the jurisdiction of the courts of the place of a subsidiary establishment of the company where the work is carried out . In addition, it must not be overlooked that it is one thing to provide for the courts of the place where the company is situated to have jurisdiction for the purposes of determining jurisdiction in the national territory and quite another for it to be laid down for the purposes of determining international jurisdiction .
Whilst it is possible to justify the national legislature' s choice of the courts of the place where the company has its registered office in so far as it is based on the reasonable assumption that in general the place where the company has its registered office is also the place where the work is carried out, it would be unacceptable for such a choice to be adopted by court ruling, as proposed by the Cour de cassation and certain governments, inasmuch as in the present case the fact that the worker has not worked in the country where the company has its registered office is in fact the premise on which the argument is based . Nor is this an exceptional case; it is a recurring situation where problems of international jurisdiction are at issue .
10 . In conclusion, I believe that the argument that jurisdiction be conferred on the courts of the place where the company has its registered office as such, that is to say in absolute terms and ex hypothesi without reference to any link either with the place of performance or with the place of the other obligations inherent in an employment relationship, must be firmly rejected . To propose such a solution, which could, moreover, quite conceivably be extended from the case in point to all cases in general, would be to ask the Court not just to interpret Article 5(1 ) of the Convention but rather to establish a new connective criterion . Whilst the solution of the characteristic obligation ( Ivenel case ) could still be ascribed to the efforts to interpret Article 5(1 ) and in particular to the determination of the obligation to be taken into account, the hypothesis of the jurisdiction of the courts of the place where the company has its registered office as such would constitute the culmination not of a process of interpretation but rather one of real innovation : a new criterion would be established, one which was moreover deliberately excluded by the Contracting States . It hardly needs to be pointed out that it is for those States and not for the Court to make amendments to the Convention .
Since therefore the solution of the jurisdiction of the courts of the place where the company has its registered office as such or as the "place of recruitment", which is a different way of saying the same thing, has been rejected, it is necessary to consider other ways of giving a satisfactory reply to the Cour de cassation .
11 . In essence, the dispute may be reduced to two alternatives : the national court may consider either that the payment of the compensation which the plaintiff is seeking represents the performance of the contractual obligation to which the proceedings relate or that payment of the compensation does not relate to a sole obligation but to "various obligations" resulting from the contract of employment .
In the first case, that is to say, if there is a single obligation, the solution seems relatively simple . The wording of Article 5(1 ) of the Convention, in itself and as interpreted by the Court ( in the De Bloos, Shenevai and Tessili cases ), leads the court before which the proceedings are brought to consider whether, in accordance with the rules of substantive law which are to be applied under its rules of conflict of laws, that court or some other court has jurisdiction in the matter . In addition, the court before which the matter is brought is not prevented from otherwise determining its jurisdiction ( or lack of jurisdiction ) by reference to the place of performance of the obligation which forms the basis of the action : for example, where that appears to be the precise intention of the parties, perhaps confirmed by the method of performance adopted by the parties in the course of the employment relationship in question, and in any event in the case of a mere factual connective criterion .
12 . In the second case, that is to say of a multiplicity of obligations, the position would be that underlying the Ivenel case and it would be difficult to apply the principles laid down in that judgment to this case in which the obligation which "characterizes" the labour relationship is located outside the Community .
An examination of this argument is considerably simplified if account is taken of the reasons upon which the judgment in the Ivenel case was based . It is significant that the Court' s reasoning hinged on two elements : the protection of the weaker party and the advisibility of correlation between the courts having jurisdiction and the law applicable to the contract which "contains provisions protecting the worker ". The Court states in paragraph 19 of its judgment that, "the law applicable ... is normally that of the place where the work characterizing the contract is carried out ".
In my view the logic of the Court' s reasoning leads to the conclusion that in a case where the rules of substantive law protecting the worker are unable to perform that function of providing a connection between the law applicable and the courts having jurisdiction simply because the place where the work is carried out is outside the territory of the Member States of the EEC, that interpretation cannot be developed further, at least if the focus is on the obligation to carry out the work .
13 . In such a case it is possible either to disregard for the purposes of this hypothesis the "obligation which characterizes the contract" and to go back to the general scheme of Article 5(1 ) according to the wording of the provision itself ( De Bloos and Shenavai cases ) or to hold Article 5(1 ) to be wholly inapplicable and to have recourse, as is proposed by the Commission, to the normal rule of jurisdiction contained in Article 2, that is to say the place where the defendant is domiciled .
14 . Without wishing to cast doubt on the Court' s approach in its judgment in the Ivenel case, I do consider that the Court should verify whether recourse to the concept of the characteristic obligation, in so far as that is taken to be the work carried out, constitutes the hoped-for panacea in all cases where a multiplicity of obligations is at issue, particularly in cases where, for factual reasons - work performed outside the Member States - the connection between the place where the work is carried out and the court having jurisdiction is impracticable; otherwise further uncertainty will be created rather than removed ( work carried out in more than one State ).
In examining that question certain elements which have been emphasized by academic writers on the subject must, in my view, be taken into account . I refer, in particular, to the criticism provoked by the connection between the law applicable and the court with jurisdiction, which emerges from the judgment in the Ivenel case . In that connection I would point out that Article 6 of the Rome Convention, which relates to employment contracts, certainly does not constitute a specific application of the principle of the characteristic obligation which is referred to in Article 4 but provides for a derogation from the application of that principle . In the absence of Article 6, or in a case where it is not applicable, the effect of Article 4 would be the application of the law of the country of habitual residence of the worker, as the party performing the obligation which is characteristic of the contract .
More generally then, without there being any need to invoke fundamental principles, there is no doubt that the problem of determining the law applicable is different from that of determining the court with jurisdiction, above all in the area with which this case is concerned where many aspects of the employment relationship are subject to mandatory rules ( either rules of public law or rules which must necessarily be applied ) of the State in which the work is carried out, with the consequence that the actual choice of the law applicable is often merely residual . The determination of the court with jurisdiction, on the other hand, involves other conditions and implications which are centred, in most legal systems, on the interests of the worker .
In addition, as has already been emphasized, in comparison with the legislative choice regarding jurisdiction within the national territory, that is to say in relation to employment relationships where there is generally no foreign element, the choice of the court with jurisdiction in the international context is much more delicate . In that connection the most common situation is of an employment relationship containing subjective and objective elements located in two or more countries so that it is all the more necessary that the worker who is bringing the proceedings has a real alternative to the courts of the place where the defendant company has its registered office . Whilst it may be true that the protection of the worker' s interests is foreign to the "philosophy" contained in the Brussels Convention, that is not a reason for denying him a genuine alternative, as may be said to be offered to a plaintiff, in accordance with a judicial tradition which has been consistently enshrined in all legal systems and also, undeniably, in the Brussels Convention .
15 . On the basis of those considerations, I take the view that the existence of a factual element, namely that the work is carried out in one or more non-member countries, should not be capable of exercising such a significant influence as to exclude the normal operation of Article 5(1 ). In other words, it is difficult to understand why the mere fact that
( a ) the plaintiff founds his action on, for example, two obligations rather than a single obligation,
( b ) the place where the work is carried out is partially or totally in the territory of a non-member country,
should always and inevitably deprive the plaintiff of the alternative forum afforded by Article 5(1 ), as interpreted by the Court in its judgments in the De Bloos and Shenavai cases .
Rather, I believe that it is more consistent with the general structure of the rules of the Convention, which seek to afford the plaintiff - clearly, where the relevant conditions are met - a genuine alternative forum by means of special rules of jurisdiction, to propose to the Court a solution which enables the provisions of Article 5(1 ) to be applied in an appropriate case .
In my opinion therefore, at least in a situation such as that in the present case, but also where there are held to exist a multiplicity of obligations, the court before which the matter is brought must have regard to the obligations actually at issue before it and ignore the characteristic obligation which may obviously not in fact be the subject of the proceedings and may lead to a forum outside the Community or in any event to a substantial separation between the place of performance and the employment relationship considered as a whole .
I do not consider that the risk of a "multiplication" of proceedings which has sometimes been feared constitutes a decisive hindrance to the acceptance of that proposition . The national courts do not lack the means to avoid that risk . The Brussels Convention itself offers solutions based on well-known judicial concepts, such as related actions and collateral actions . Furthermore, it does not follow that the determination of the "principal" obligation amongst those which are the subject of legal proceedings is incapable of satisfying all the relevant requirements : the need for certainty, the need to adhere to the wording of the Convention and the intention of the Contracting States and also those requirements which I can but endorse, formed the basis of the Court' s judgment in the Ivenel case .
In conclusion I propose that the following reply be given to the Cour de cassation :
In a dispute arising out of employment in which the work is carried out outside the territory of the Contracting States, the court before which the matter is brought must take into account, for the purposes of deciding whether it has jurisdiction in accordance with Article 5(1 ) of the Brussels Convention, the contractual obligations in respect of which the legal proceedings were brought .
(*) Original language : Italian .
( 1 ) OJ L 266, 9.10.1080, p . 1 .
( 2 ) OJ L 319, 25.11.1988, p . 9 .
( 3 ) Such a conclusion is, in my view, in no way contradicted by the hope, which is, to say the least, surprising, expressed in the declaration by the representatives of the governments of the States signatories to the Lugano Convention which are members of the European Communities, which states that "they consider as appropriate that the Court of Justice of the European Communities, when interpreting the Brussels Convention, pay due account to the rulings contained in the case-law of the Lugano Convention ". Whatever the scope of such a declaration it certainly cannot apply to a case such as the present which falls within the rules of the Brussels Convention whose substantive provisions are different from those of the Lugano Convention .
( 4 ) On the subject of this paradox but in relation to other matters, it must be pointed out that the Jenard/Moeller Report on the Lugano Convention justifies in this manner ( paragraph 66 ) the provisions of Article 5(1 ) in relation to the performance of contracts of employment which some governments in this case would like to see extended to the solution of the present case : "Le concept sous-jacent à cette disposition est la protection de l' employé, qui, du point de vue économique et social, est considéré comme l' élément le plus faible ".
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