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Language of document : ECLI:EU:C:2013:241

Conclusions05/03/2013 16:54:25.844C00642012CENL_Cnc_Mess_Fr.xmlTRA-DT-FR-CONCL-C-0064-2012-201302120-01_00.xmlCNCRPLitige0DEFÉDITION PROVISOIRE DU 11/12/20121Texte pour publication00-0Document30C:\TEMP\canevas\Litige.xml3/5/2013False0CNC§111;pos=48089:lng=EN§CONVERSION§cahilma@TRA-DOC-EN-CONCL-C-0064-2012-201302120-06_90Doc2XML SUIVI2 TRAD Prod 2003C:\Program Files\Doc2XML\XML\Serveur_SUIVI2_TRAD.xmlO:\Flux\Suivi_II\conversion\doc2xml_trad\In\UNCLASSIFIEDNormalIRECFalseFalse()Doc2XML_2003_PC_TRAD SV2_PUBC:\Documents and Settings\gti_prod\Application Data\Doc2XML\PR_Doc2XML_2003_SV2_PUB.xmlP:\GTiWebTools\Automates\Suivi_II\conversion\doc2xml_pub\In\OPINION OF ADVOCATE GENERAL

WAHL

delivered on 16 April 2013 (2)

Case C‑64/12

Anton Schlecker, trading under the name ‘Firma Anton Schlecker’

Melitta Josefa Boedeker

(Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands))

(Rome Convention on the law applicable to contractual obligations — Contract of employment — Applicable law in the absence of a choice made by the parties — Law of the country in which the work is habitually carried out — Possibility of disregarding that law on account of the existence of closer connections with another country — Implications)

I – Introduction

1. In the present case, the Court is called upon to interpret Article 6(2) of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980 (3) (‘the Rome Convention’), a provision which governs the determination of the law applicable to an employment contract in the absence of a choice expressed by the parties. The questions referred in this case by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) (or ‘the referring court’) have arisen in the course of a dispute, resulting from a unilateral change in the workplace, between Mrs Boedeker, a German national and resident, who pursued her professional activity without interruption and exclusively in the Netherlands for more than 11 years, and her employer, Firma Anton Schlecker (‘Schlecker’), which is established in Germany. (4)

2. The Court is requested, more specifically, to rule on the implications of the second part of Article 6(2) of the Rome Convention, which makes it possible not to apply the law selected on the strength of the connections expressly contemplated in points (a) and (b) thereof, in the event that it ‘appears from the circumstances as a whole that the contract is more closely connected with another country’. Accordingly, the Court is being asked to expand upon the line of authority devolving from Koelzsch (5) and Voogsgeerd. (6) Although, in ICF, (7) the Court has already ruled on the conditions for the implementation of the general ‘exception’ clause under the second sentence of Article 4(5) of the Rome Convention and although it has also had occasion, in Koelzsch and Voogsgeerd, to provide significant clarification as regards the relative weight to be attributed to the connection criteria referred to in Article 6(2)(a) and (b), this is the first time that a question has been referred concerning the implications of the ‘escape clause’, (8) specific to individual employment contracts, set out in the second part of Article 6(2).

3. The question is of undoubted importance, (9) since it relates, in a context of international mobility of workers, to an issue which has arisen in a number of disputes concerning individual employment relationships. Moreover, the diverse nature of the approaches adopted by national courts confronted with this issue demonstrates its complexity. It seems necessary, in the present case, to adopt an approach which accommodates not only the need for predictability of approach and legal certainty, which governed the adoption of the relevant rules, (10) but also the requirements of proximity and protection for the employee — which must, in accordance with the wishes expressed by the draftsmen of the Rome Convention, (11) but more broadly, in accordance with the guidance generally established by the Court, (12) be given some weight.

II – Legal framework

4. Article 3 of the Rome Convention, entitled ‘Freedom of choice’, provides:

‘1. A contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or a part only of the contract.

…’

5. For situations in which no choice has been indicated, Article 4 of the Rome Convention identifies a general yardstick which can be used in the case of all contracts for the purposes of determining the applicable law: the country with which the contract is most closely connected. That provision also lists a number of specific criteria on the basis of which it is possible to arrive at a presumption as to the country with which the contract has such a connection. Article 4 of the Rome Convention is worded as follows:

‘1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected. …

…

5. Paragraph 2 shall not apply if the characteristic performance cannot be determined, and the presumptions in paragraphs 2, 3 and 4 shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country.’

6. Article 6 of the Rome Convention lays down special conflict rules relating to individual contracts of employment, which derogate from the general rules under Articles 3 and 4, which concern, respectively, the freedom of the parties to choose the applicable law and the criteria for determining that law in the absence of such a choice. Article 6 is worded as follows:

‘1. Notwithstanding the provisions of Article 3, in a contract of employment a choice of law made by the parties shall not have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable under paragraph 2 in the absence of choice.

2. Notwithstanding the provisions of Article 4, a contract of employment shall, in the absence of choice in accordance with Article 3, be governed:

(a): by the law of the country in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country; or

(b): if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated,

unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract shall be governed by the law of that country.’

III – The facts giving rise to the dispute and the main proceedings

7. Schlecker is a company governed by German law which is active in the retailing of beauty and health products. Although Schlecker is established in Germany, it has many branches in several Member States of the European Union.

8. Under an initial employment contract, Mrs Boedeker — a German national and resident — was employed by Schlecker and performed her duties in Germany from 1 December 1979 to 1 January 1994.

9. Under a further contract, concluded on 30 November 1994, Mrs Boedeker was appointed by Schlecker, with effect from 1 March 1995 until the summer of 2006, as distribution manager (‘Geschäftsführerin/Vertrieb’) for the entire territory of the Netherlands. In that capacity, Mrs Boedeker in fact performed her duties in the Netherlands.

10. By letter of 19 June 2006, Schlecker informed Mrs Boedeker that her position as manager for the Netherlands would be abolished with effect from 30 June 2006 and invited her to take up, under the same contractual conditions, the post of head of accounts (‘Bereichsleiterin Revision’) in Dortmund (Germany), with effect from 1 July 2006.

11. Although Mrs Boedeker lodged an objection on 4 July 2006 against that notice of amendment (‘Änderungskündigung’), she took up her post as regional manager in Dortmund.

12. On 5 July 2006, Mrs Boedeker declared herself unfit for work on medical grounds.

13. As from 16 August 2006, she received benefits from a German health insurance fund (‘Krankenkasse’).

14. Subsequently, various actions were brought both by Mrs Boedeker and by Schlecker before the courts.

15. In one such action, the Kantonrechter te Tiel (Cantonal Court, Tiel), in a decision on the merits, allowed Mrs Boedeker’s claim that Netherlands law should be declared applicable to her employment contract with Schlecker. It accordingly terminated that contract with effect from 15 December 2007 and awarded Mrs Boedeker compensation in the amount of EUR 557 651.52 (gross).

16. Schlecker appealed that decision before the Gerechtshof te Arnhem (Regional Court of Appeal, Arnhem), which, by judgment of 15 December 2009, upheld the judgment of the Kantonrechter te Tiel as to the determination of the law applicable to the contract. It pointed out inter alia that, at the time of concluding the contract, the parties had not been aware — or at least not sufficiently aware — of the cross-border dimension which the employment contract might acquire and that it could not be construed in retrospect from the facts that a tacit choice of German law had been made. The Gerechtshof te Arnhem further found that, under Article 6(2)(a) of the Rome Convention, it was the Netherlands law which applied in principle to the employment contract between Schlecker and Mrs Boedeker and that the various factors put in evidence by Schlecker did not point to circumstances capable of establishing that the employment contract was more closely connected with Germany than with the Netherlands.

17. Hearing the appeal on a point of law, lodged by Schlecker against the final judgment of the Gerechtshof te Arnhem ruling on the law applicable to the employment contract, the Hoge Raad der Nederlanden stated that it had doubts as to the interpretation of the implications of the second part of Article 6(2) of the Rome Convention, which makes it possible not to apply the law selected on the strength of one of the connections expressly contemplated in Article 6(2)(a) and (b) of that convention, in the event that it appears from the circumstances as a whole that the contract is more closely connected with another country.

IV – The questions referred and the procedure before the Court

18. In those circumstances, the Hoge Raad der Nederlanden decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1): Is Article 6(2) of the Rome Convention to be interpreted in such a way that, if an employee carries out the work in performance of the contract not only habitually but also for a lengthy period and without interruption in the same country, the law of that country should be applied in all cases, even if all other circumstances point to a close connection between the employment contract and another country?

(2): Does an affirmative answer to [the first q]uestion … require that, when concluding the contract of employment, or at least at the commencement of the work, the employer and the employee intended — or were at least aware of the fact — that the work would be carried out over a long period and without interruption in the same country?’

19. Written observations have been submitted by Mrs Boedeker, the Kingdom of the Netherlands, the Republic of Austria and the European Commission. No request to hold a hearing was submitted.

V – Analysis

20. In order to be able to answer the questions referred by the national court, which relate, in essence, to the scope of the qualification made under the second part of Article 6(2) of the Rome Convention, it seems to me necessary to provide a number of clarifications as to the modus operandi, as I see it, of the mechanism established by that convention, as interpreted by the Court, for the purposes of determining the law applicable to individual employment contracts.

A – The modus operandi of the mechanism, provided for under the Rome Convention, for determining the law applicable to individual employment contracts

21. I would point out that, in accordance with Article 3 of the Rome Convention, freedom of contract is the prevailing principle in determining the law applicable to contractual obligations. For situations in which no choice has been made by the parties, Article 4 of that convention provides, by way of a standard and a general principle, (13) that the yardstick to be used in determining the applicable law is that of the country with which the contract is ‘most closely connected’, a concept which paragraphs 2, 3 and 4 of Article 4 link with a number of presumptions. Article 4(5) lays down an ‘exception’ clause which makes it possible to disregard those presumptions. Those conflict rules must be regarded as abstract and neutral, in that they do not seek to favour one party to the contract to the detriment of the other. Accordingly, the substantive content of the laws concerned is not taken into account in determining the applicable law.

22. However, along the same lines as the provision made for the purposes of determining the law applicable to consumer contracts (Article 5), Article 6 of the Rome Convention sets out specific conflict-of-law rules concerning individual employment contracts. In accordance with the objective pursued by the draftsmen of the Rome Convention, (14) it is therefore commonly accepted that, unlike the general rules laid down in Articles 3 and 4, the relevant rules governing conflict of laws are not entirely neutral, but predicated on the idea of protecting the employee. Guided by the principles established in interpreting the Brussels Convention, the Court has accordingly ruled that the objective of Article 6 of the Rome Convention was to guarantee adequate protection to the employee. (15)

23. Two essential aspects of Article 6 of the Rome Convention illustrate that special nature.

24. First, Article 6(1) of the Rome Convention significantly moderates the operation of the principle of freedom of contract. By way of derogation from Article 3, that provision prohibits the parties to the contract from depriving the employee, through the choice of applicable law agreed, of the protection which he would enjoy under the mandatory rules of the law which would have been applicable to the employment contract if they had not expressed any choice. In dealing with a contract in which the parties have expressed their choice as to the law applicable to it, the court must first determine, in accordance with the parameters set in Article 6(2), which law would apply to the employment contract in the absence of choice; it must then consider whether that law contains mandatory rules for the protection of employees; and, lastly, it must apply, from among those mandatory rules, those which are more favourable to workers than the relevant provisions of the law chosen by the parties, which remains applicable as to the remainder.

25. It is, in my opinion, that provision in particular which expresses the objective, pursued by the draftsmen of the Rome Convention, (16) of protecting the employee, traditionally regarded as the weaker party from a socio-economic point of view. Indeed, given the element of subordination which characterises the employment relationship, the employee runs the risk that an employer will impose on him the application of the law of a country which is objectively unrelated to the reality of the contractual relationship between them.

26. As has been pointed out, the connection chosen in matters of employment contracts is a connection of proximity, since the Rome Convention seeks to determine the country with which the employment contract is most closely connected. (17) The objective is not systematically to favour the employee, but rather to protect him by making applicable to him the mandatory rules of the law which reflects the most significant connection, that is to say, that of the social environment in which his employment relationship unfolds. (18)

27. Accordingly, in the event that the parties have expressed a choice as to the law applicable to the employment contract, it will be for the court to ensure that that law does not deprive the employee of the legal protection which would be afforded him by the mandatory rules of the law with which the employment contract is most proximate, the law which could be described as ‘objectively’ applicable.

28. Secondly, Article 6(2) of the Rome Convention refers to specific connection criteria on the basis of which it is possible, in the absence of choice by the parties, to select the law applicable to the contract.

29. Those criteria are either that of the country in which the employee ‘habitually carries out his work’ (Article 6(2)(a)), or, in the absence of such a place, that of the seat of ‘the place of business through which he was engaged’ (Article 6(2)(b)), and it should be noted in this regard that, in accordance with the case-law of the Court, the first is to be accorded priority in the assessment. (19) Article 6(2) also provides that those two connection criteria are to be disregarded where it appears from the circumstances as a whole that the contract of employment is more closely connected with another country, in which case the law of that other country is to apply. (20)

30. It is thus clear from the wording of Article 6(2) of the Rome Convention that the national court, called upon to determine the law applicable to a contract in the absence of a choice expressed by the parties, must, in accordance with the principle of proximity, determine which law is objectively most closely connected with the contract.

31. In order to do so, it is for the court to determine the place which, in its view, is the centre of gravity of the contractual relationship by using the criteria set out in Article 6(2)(a) (habitual place of performance of the work) and (b) (place of engagement), but not in isolation, since it is clear from the wording of Article 6 that the court may disregard the connections referred to in those provisions if it appears from the circumstances as a whole that the contract is more closely connected with another country.

32. Contrary to what has been observed in relation to Article 6(1) of the Rome Convention, the principle of protecting the party deemed to be weaker does not require the court, in applying the criteria under Article 6(2) for determining the applicable law, to compare the substantive content of the mandatory rules of the conflicting laws and to apply the law which, in the light of the particular circumstances of the case, seems to it most favourable to that party. Respect for the principle of favor laboratoris is ensured through the application of the mandatory rules of the law which, among the laws potentially applicable, is most closely connected with the employment contract, and not necessarily through application of the law most advantageous to the employee. (21) Indeed, I consider that Article 6 of the Rome Convention must simultaneously satisfy two needs: (i) the need for adequate protection of the employee, which, in accordance with the principle of proximity, favours selection of the country with which the employment contract is most closely connected and (ii) the need for legal certainty, which involves designating the criteria on the basis of which it is possible to determine the law applicable to the contract in the absence of choice.

33. To illustrate the situations covered respectively in each of the paragraphs of Article 6 of the Rome Convention, I would refer, by way of example, to the case of an employment contract concluded and performed habitually and continuously in Luxembourg between a company established in Sweden and a Luxembourg resident.

34. Let us imagine, first of all, that the parties, in accordance with the requirements resulting from Article 3 of the Rome Convention, have expressly and with reasonable certainty chosen to apply Swedish law to the employment contract. Notwithstanding that choice, it could be considered that the objectively applicable law — if reference is made to the criteria set out in Article 6(2) — is Luxembourg law. Accordingly, if ever a dispute were to arise following, for example, the dismissal of the employee, it would be for the court to determine, through a kind of comparative examination of the legislative elements directly related to the dispute, whether Luxembourg law contains mandatory rules protecting the employee which are more favourable than those recognised in Swedish law, such as those relating to the period of notice or the payment of compensation in the context of a dismissal decision. If that proves to be the case, the court cannot apply the relevant provisions of Swedish law and must instead apply Luxembourg law. Otherwise, it is Swedish law which remains applicable, since the parties to an employment contract may always agree to grant the employee the benefit of the legal provisions more favourable to the employee.

35. However, if the parties had not expressly and clearly indicated their choice to apply a given law, it would be the law objectively selected on the basis of the criteria set out in Article 6(2) — that is to say, Luxembourg law — which would, in any event, be applicable. In that situation, the employee could not claim the application of the Swedish provisions which might be more favourable to him.

36. In short, I would like to point out that, although the rules for determining the law applicable to the contract take into account the specific nature of the employment relationship, those rules must not, in my opinion, result — in all cases and regardless of the nature of the dispute — in the worker being granted the benefit of the national law which appears, from among all the conflicting laws and in the particular circumstances of the case, to be the most favourable to him. Contrary to what might be inferred, at first sight, from the facts giving rise to Koelzsch and Voogsgeerd, it is with a clearly expressed concern for ‘adequate’, and not necessarily optimal or ‘favourable’, protection for the employee and guided by considerations which had already been identified by the Court in interpreting the rules of jurisdiction laid down by the Brussels Convention, that the Court held that ‘compliance with the employment protection rules provided for by the law of that country must, so far as is possible, be guaranteed’. (22)

37. A different interpretation would, in my opinion, significantly undermine legal certainty and the predictability of the approaches adopted in the context of the mechanism for determining the law applicable to an individual employment contract, in that, depending on the nature of the dispute and the time at which the court is required to give a ruling, the law regarded as the most favourable will not necessarily always be the same. In that respect, it is necessary not to lose sight of the fact that an employment contract may — by dint of the place where it was concluded, the nationality or the place of establishment of the parties which concluded it, or even the fact that it was performed in several places — potentially present links with many countries. (23) Furthermore, the fact that the court is required to carry out a comparative examination of the provisions protecting the employee may prove to be an exercise which is not only particularly tedious, but also profoundly uncertain. Given the abstract nature of the connection criteria referred to in Article 6(2) of the Rome Convention, it is difficult to define, a priori, which law is ultimately the most favourable.

38. Moreover, it seems to me that, although the rules laid down in the Rome Convention are intended, in the first place, to prevent the creation, to the detriment of employees, of situations comparable to ‘law shopping’, they must not lead to the creation, in favour of the worker, of an unlimited choice as regards the substantive provisions which he may regard as applicable and thus to the creation of significant uncertainty in determining the applicable law.

39. It is in the light of those considerations that I will examine the questions referred.

B – The first question referred

40. By its first question, the national court seeks to obtain clarification as to the importance to be attached to the connection criterion referred to in Article 6(2)(a) of the Rome Convention, regard being had to the possibility, offered to the court under the second part of that provision, of selecting, as the law applicable to the employment contract, that of a country which is more closely connected with that contract. It seeks in particular to ascertain the implications of that provision and the conditions for its implementation in the particular situation in which an employee has performed an employment contract habitually, for a lengthy period and without interruption, in a single country.

1. Implications of the second part of Article 6(2) of the Rome Convention

41. The Court is, in the present case, required to take part in a discussion (24) of long standing both in the legal literature and within some national courts as to the relationship between the connection criteria referred to in the first part of Article 6(2) of the Rome Convention and the escape clause set out in the second part of that provision.

42. In essence, there are two conflicting views. According to the first, the fundamental relationship between those two parts is that of the rule and the exception, which means that the search for possible closer connections with another country can occur only in exceptional circumstances, that is to say, in the event that the presumptions result in the selection of a law which is manifestly inappropriate to the contract. According to the second view, there is no hierarchical relationship between the two parts and the court has a measure of discretion in determining the law most closely connected with the relevant contract.

43. To ensure a proper understanding of the points at issue and to clarify my remarks, I would like to put forward a specific example, which is similar to the case now before the referring court. I refer to the situation of a contract concluded in France between a French company and a woman of French nationality, a contract which, in all likelihood, it was presupposed would be performed in France, but which, in the context of a very long posting (over 10 years), was essentially and continuously performed in Saudi Arabia. If the idea is accepted that the ‘exception’ clause set out in the second part of Article 6(2) of the Rome Convention can apply only in an entirely secondary and exceptional manner, that is to say, where the connection to the place of performance of the employment contract is totally inappropriate, which is clearly not the case where it is performed on a long-term basis in a single place, then it would be appropriate without hesitation to apply Saudi law. However, if the idea is accepted that, even if the place of performance of the contract is particularly easy to determine, the court is entitled to check whether that contract may be more closely connected with another country, the answer is far less clear, since, although it is habitually performed in Saudi Arabia, many elements relating to it suggest that French law should be selected.

44. I am of the opinion that it is the second interpretation which must prevail, for the reasons that follow.

45. First, the fact that it is necessary, in accordance with the guidance set out in Koelzsch and Voogsgeerd, to construe broadly the rule, laid down in Article 6(2)(a) of the Rome Convention, that, in the absence of a choice expressed by the parties, it is the law of the place of performance of the contract which applies does not imply as a corollary that the safeguard clause laid down in the second part of Article 6(2) may be applied only in exceptional circumstances, or even that, where the habitual place of performance of the work is not in any doubt, it may not be applied at all.

46. I would point out in that regard that the Court confined itself in Koelzsch to holding that, in so far as the objective of Article 6 of the Rome Convention is to guarantee adequate protection for the employee, that provision must be understood as guaranteeing the applicability of the law of the State in which the employee engages in his working activities rather than that of the State in which the employer is established. (25) The Court inferred from this that the criterion of the country in which the employee ‘habitually carries out his work’, set out in Article 6(2)(a), must be broadly construed, while the criterion of ‘the place of business through which [the employee] was engaged’, set out in Article 6(2)(b), ought to apply in cases where the court dealing with the case is not in a position to determine the country in which the work is habitually carried out. (26)

47. A similar approach seems to me to have been adopted in Voogsgeerd, in which the Court pointed out that the criterion of the place where the employee habitually carries out his work must be applied first. (27)

48. I note, moreover, that the cases which gave rise to those judgments specifically related to situations in which the parties had opted for the application of the law of a given country (Luxembourg law), but where the objectively applicable law, under Article 6(2) of the Rome Convention, contained mandatory provisions more protective of employees than those contained in the law originally chosen. In the first case, it was argued that the provisions applicable to the dismissal of members of the personnel committee of which Mr Koelzsch was a member were more protective in Germany. In the second case, the action for damages brought by Mr Voogsgeerd for the allegedly wrongful termination of a seaman’s contract of employment between him and his former employer was time-barred under Luxembourg law after three months, a situation which would be excluded and even contrary to the law applicable in Belgium.

49. In my view, although it follows clearly from the case-law devolving from Koelzsch and Voogsgeerd that the connection criterion referred to in Article 6(2)(a) of the Rome Convention — that is to say, that of the habitual place of performance of the employment contract — must, in so far as is possible, be preferred to that of the place of engagement referred to in Article 6(2)(b), (28) it does not follow that use of the clause laid down in the second part of Article 6(2) must also be marginalised, to the effect that the court could have recourse to it only on an entirely exceptional basis.

50. I am of the view that the order of precedence recognised by the Court in relation to the criteria to be taken into account in determining the applicable law concerns only the connection criteria referred to in Article 6(2)(a) and (b) of the Rome Convention, that is to say, that of the place of performance and that of the place of engagement, and not the possibility open to the court of applying the law of the country with which the contract is most closely connected, under the second part of Article 6(2).

51. Accordingly, although, in order to guarantee a certain level of predictability, it is for the court to determine the law applicable to the contract on the basis of the connection criteria referred to in the first part of Article 6(2) of the Rome Convention and, in particular, the criterion of the place of performance of the work, referred to in Article 6(2)(a), I consider that the court may always, in accordance with the clear wording of the second part of Article 6(2), consider it necessary to disregard that law where there are closer connections with another country. That latter provision must, in my view, be conceived as an open conflict rule capable of supplanting both the law of the place where the work is habitually carried out and the law of the place of engagement. (29) I would also like to emphasise that the Court specifically pointed out, in paragraph 51 of Voogsgeerd, that the referring court in that case was free to take other factors pertaining to the employment relationship into account if it appeared that the factors relating to the two connection criteria set out in Article 6(2)(a) and (b) — relating respectively to the place where the work is carried out and the place of business of the undertaking which employs the worker — suggest that the contract is more closely connected with a State other than the States indicated by those criteria.

52. Secondly, that interpretation seems to me consistent with the approach adopted by the Court in the case which gave rise to the judgment in ICF, a case which was concerned, admittedly, with the ‘exception’ clause of general application — worded in the same terms as that at issue in the case currently under consideration — laid down in Article 4(5) of the Rome Convention, but which, for reasons which I will set out below, and notwithstanding the specific rules for determining the law applicable to individual employment contracts, has some relevance.

53. I would point out that, among the questions raised by the Hoge Raad der Nederlanden in that case, the fifth question specifically sought to obtain clarification as to the importance to be attributed to the connection criteria referred to in Article 4(2) to (4) of the Rome Convention, and, accordingly, as to the possibility of disregarding those presumptions under the second sentence of Article 4(5) ‘if it appears from the circumstances as a whole that the contract is more closely connected with another country’. (30)

54. The referring court accordingly asked the Court whether the exception in the second sentence of Article 4(5) of the Rome Convention had to be interpreted in such a way that the presumptions in Article 4(2) to (4) are to be disregarded only if it is evident from the circumstances as a whole that the criteria referred to therein do not have any genuine connecting value, or whether the court may also disregard them if it is clear from those circumstances that there is a stronger connection with some other country. In that context and as in the case currently under consideration, two possibilities were available. The first, which restricts the use of Article 4(5) of the Rome Convention to exceptional circumstances, allows the general presumptions to be disregarded only where they have no genuine connecting value in relation to the contract at issue. The second possibility, which confers far greater flexibility on the court, allows the latter to disregard the result arrived at on the basis of the presumptions set out in Article 4(2) to (4) simply by finding that the contract at issue is more closely connected with another country. (31)

55. Referring to the Giuliano Lagarde Report and on the view that it is ultimately appropriate to reconcile the requirements of foreseeability of the law, hence of legal certainty in contractual relationships, with the need to allow a certain flexibility in determining the law, the Court, after its examination, reached the conclusion that Article 4(5) of the Rome Convention must be interpreted as meaning that, where it is clear from the circumstances as a whole that the contract is more closely connected with a country other than that determined on the basis of one of the criteria referred to in Article 4(2) to (4), it is for the court to disregard those criteria and apply the law of the country with which that contract is most closely connected. According to the Court, the court retains that power notwithstanding its duty always to determine the applicable law on the basis of the presumptions set out in Article 4(2) to (4) of the Rome Convention, which satisfy the general requirement of foreseeability of the law, hence of legal certainty in contractual relationships. (32)

56. Although the concern for the protection of the employee led the draftsmen of the Rome Convention to lay down, in relation to individual employment contracts, conflict-of-law rules derogating from the general rules laid down in Articles 3 and 4 of that convention, that concern is expressed, above all — as I stated above — not by preferential connections in Article 6(2), but by the application of the law which has the closest relationship with the employment contract. As was pointed out with regard to Article 4 of the Rome Convention, the rules referred to in Article 6 are therefore also based on the idea of proximity.

2. Conditions for the implementation of the second part of Article 6(2) of the Rome Convention

57. An initial question remains as to the circumstances in which the court may disregard the law determined on the basis of the criterion of the place of performance of the employment contract. That question arises because the Court, while opting for a more nuanced approach, stated in ICF that it had to be ‘clear’ from the circumstances as a whole that the contract is more closely connected with a country other than that determined on the basis of one of the criteria set out in Article 4(2) to (4) of the Rome Convention. (33) Should that condition be transposed to application of the second part of Article 6 of the Rome Convention? I do not think so, for two reasons.

58. First, I would note that, although the general exception clause now set out in Article 4(3) of the Rome I Regulation expressly retains the adverb ‘manifestly’ in its wording, (34) that is not the case with the provision specifically covering employment contracts and set out in Article 8(4) of that regulation. (35) That the intention was to restrict recourse to the general exception under Article 4 of the Rome Convention seems to me certain, particularly given that, at one point — as is clear from the travaux préparatoires — consideration was given to removing it. (36) Although, admittedly, the Rome I Regulation is not applicable ratione temporis to the case currently under consideration, I nonetheless consider that, in line with the considerations of the Court in Koelzsch, (37) that regulation constitutes additional evidence to support the interpretation given to the Rome Convention.

59. Secondly, the condition that the existence of closer ties must be ‘clear’ from the circumstances is explained, in my view, by the fact that, unlike the rules laid down in Article 6 of the Rome Convention, which are concomitantly inspired by the idea of proximity and that of protecting the employee, Article 4 lays down a totally neutral conflict-of-law rule which pursues, primarily and before any other consideration, an objective of predictability and legal certainty. (38)

60. To my mind, it follows that, even supposing it to be established that the employment contract has been performed in a lasting, continuous and uninterrupted manner in a single country, which means, in principle, that it is the law of that country which must be applied, the provision made in the second part of Article 6(2) of the Rome Convention does not lose its raison d’être: if a contract is obviously located in a State which is not that of the habitual performance of the work, it is still possible to bring that provision into operation.

61. The point here is not that the significant connection criterion generally constituted (39) by the habitual place of performance of the work is marginalised, but rather that the national court is free to disregard that criterion in the event that, in the circumstances of the case, it appears that the centre of gravity of the employment relationship is not located in the country in which the work is carried out. The second part of Article 6(2) of the Rome Convention must be viewed as a safeguard mechanism. It must not obscure the connections referred to in the first part of Article 6(2), especially the strong connection constituted by the law of the place of work, thereby at the same time making the approaches ultimately adopted wholly unpredictable.

62. In the present case, the referring court proceeded, it seems, on the assumption that all the circumstances, apart from the place of performance of the work carried out without interruption by Mrs Boedeker for over 11 years in performance of the contract which she had entered into with Schlecker, weigh in favour of the existence of closer connections with Germany. That court points out, in particular, that the employer is a legal person governed by German law; that the worker resided, when she was an employee, in Germany; that the costs of the journey between the worker’s residence and the place of work were reimbursed by the employer; that prior to the introduction of the euro, the salary was paid in German marks; that the pension plan covering the employee was operated by a German organisation; that the social contributions were paid in Germany and; that the employment contract, drawn up in German, referred to binding provisions of German law.

63. Accordingly, as is clear from the wording of the first question, the referring court did not seek to obtain further information on the evidence which might make it possible to disregard the presumption arising under Article 6(2)(a) of the Rome Convention.

64. Moreover, I am well aware that it is solely for the national court to assess all the factors pertaining to the employment contract and to single out one or more as being, in its view, the most significant.

65. However, it seems appropriate, for the purpose of giving a helpful answer to the referring court, to provide some guidance as to the parameters that the national courts may take into account with a view to determining the country with which the contract is most closely connected.

66. In that regard, I believe that the court called upon to rule in a particular case cannot automatically conclude that the law of the country of performance of the contract, selected pursuant to Article 6(2)(a) of the Rome Convention, must be disregarded solely because, by dint of their number, the other relevant circumstances which have been brought to its knowledge would result in the selection of another country, but must take into account the weight of each of those circumstances in determining the centre of gravity of the employment relationship.

67. Indeed, among all the objective factors which fall to be assessed by the court, some must have less importance attributed to them than others for the purposes of concluding whether there are closer connections.

68. Without laying any claim to exhaustiveness, I regard as significant factors suggestive of connection with a particular country, first and foremost, the fact that the employee pays taxes and contributions there, relating to the income from his activity and the fact that he is covered by the social security scheme there and the various pension, sickness insurance and invalidity schemes. As the Netherlands Government stated, regardless of the particular rules applicable to certain categories of employee, the prevailing principle in matters relating to affiliation to a social security scheme is, save in the specific case of the posting of the employee, that of lex loci laboris, (40) which implies that an employee is subject to the social security scheme of the State in which he habitually works. By avoiding that rule, as the relevant basic legislation permits, (41) the parties concerned sought, it seems to me, to shift the centre of gravity of their relationship to another country. However, always with a view to providing adequate protection to the party regarded as economically and socially weaker, it is appropriate to examine whether the connection to the social protection schemes was made by mutual agreement of the parties or whether it was imposed on the employee.

69. Similarly, I am inclined to consider that some importance must be attached to the parameters taken into account for the purposes of determining the salary and working conditions. More specifically, the court could examine which agreement or national scale has been used in determining the salary and other working conditions. That examination could, in my view, be made by reference to the information contained in the employment contract and any documents appended or to which it expressly refers.

70. By contrast, the fact that the parties to the contract concluded it in a particular country, that they are of a particular nationality or that they chose to reside in a particular country constitute parameters of lesser importance. Similarly, decisive importance should not be attached to the language in which the employment contract was drawn up or the fact that it refers to a particular currency, although they may be relevant factors.

71. In the light of all those considerations, I propose that the answer to the first question should be that Article 6(2) of the Rome Convention must be interpreted as meaning that, even in the event that an employee carries out the work in performance of the contract not only habitually but also for a lengthy period and without interruption in the same country, the national court may, under the second part of that provision, disregard the law applicable in that country where it is clear from the circumstances as a whole that there is a closer connection between that contract and another country.

C – The second question referred

72. By its second question, the referring court asks whether an affirmative answer to the first question requires that the parties to the employment contract must have intended or have been aware — on the date of concluding the contract or, at least, of commencing its performance — that the work would be carried out in the same country over a long period and without interruption.

73. Since a negative answer has been proposed for the first question, it could be considered that it is no longer necessary to answer the second. It is clear that the second question seeks to ascertain whether, in the event that there is no doubt as to the place of performance of the contract, the ‘exception clause’ set out in the second part of Article 6 of the Rome Convention can be disregarded from the outset in the case under consideration only if the parties were aware of the actual place and the long duration of the employment contract.

74. However, in so far as that question potentially and more broadly relates to the relevance of the intention or awareness of the parties — when concluding the employment contract or, at the very least, on the date on which performance of the contract started — for the purposes of determining the law applicable to the employment contract under the Rome Convention, I believe that it may be of some assistance to consider that question.

75. In that regard, I would like to refer briefly to the following considerations.

76. It seems to me quite obvious that it is difficult to take into account the awareness or intention of the parties when ascertaining whether they have, in one way or another, indicated their choice as to the application of a particular law. Indeed, Article 3 of the Rome Convention, to which Article 6(1) thereof expressly refers, requires that ‘[t]he choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case’. Those conditions are clearly not satisfied by a mere intention or common will on the part of the parties, since this may at most be regarded as the expression of an implied choice, which does not meet the requirements under the relevant provisions.

77. On the other hand, I am inclined to conclude that specific information which has been brought to the attention of the parties concerning the place of performance of the contract may be of some assistance. Consequently, the intention or awareness of the parties at the time of concluding the contract — or, possibly, on the date on which performance commenced — may, where based on specific and objective evidence, be a relevant indicator for the purposes of identifying the country with which the employment contract is most closely connected.

78. The court may, therefore, in its consideration of all the circumstances which lead it to determine with which country the contract is most closely connected, take into account information concerning its performance which was actually brought to the attention of the parties.

79. Accordingly, I propose that the answer to the second question should be that it is possible to take into account, for the purposes of applying the law of the country of the place in which the work is habitually carried out, specific evidence showing that, when concluding the contract of employment, or at least at the commencement of the work, the employer and the employee intended — or were at least aware of the fact — that the work would be carried out over a long period and without interruption in the same country.

VI – Conclusion

80. Having regard to all the foregoing considerations, I propose that the questions referred by the Hoge Raad der Nederlanden be answered as follows:

(1): Article 6(2) of the Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 must be interpreted as meaning that, even where an employee carries out the work in performance of the contract not only habitually but also for a lengthy period and without interruption in the same country, the national court may, under the second part of that provision, disregard the law applicable in that country where it is clear from the circumstances as a whole that there is a closer connection between that contract and another country.

(2): It is possible to take into account, for the purposes of applying the law of the country where the work is habitually carried out, specific evidence showing that, when concluding the contract of employment, or at least at the commencement of the work, the employer and the employee intended — or were at least aware of the fact — that the work would be carried out over a long period and without interruption in the same country.

2 –: Original language: French.

3 –: OJ 1980 L 266, p. 1.

4 –: Pursuant to Article 1 of the First Protocol on the interpretation of the 1980 Convention by the Court of Justice (OJ 1998 C 27, p. 47), which entered into force on 1 August 2004, the Court has jurisdiction to rule on requests for a preliminary ruling concerning the interpretation of the provisions of that convention. Furthermore, under Article 2(a) of that protocol, courts such as the Hoge Raad der Nederlanden may request the Court to give a preliminary ruling on a question raised in a case pending before it and concerning the interpretation of such provisions. With regard to the temporal applicability of the Rome Convention, it is sufficient to point out that Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6) (‘the Rome I Regulation’), which replaced the Rome Convention, applies only to contracts concluded after 17 December 2009 (see Article 28 of that regulation). However, it is clear from the order for reference that the employment contract at issue in the dispute before the referring court was concluded well before that date, that is to say, on 30 November 1994.

5 –: Case C‑29/10 [2011] ECR I‑1595.

6 –: Case C‑384/10 [2011] ECR I‑13275.

7 –: Case C‑133/08 [2009] ECR I‑9687.

8 –: At this stage, I consider it preferable to refer to the ‘escape clause’ — a concept to be found in a number of contributions to the legal literature — since, in my view, to call it the ‘exception clause’ would beg the question as to whether the operation of that clause is triggered only by exceptional circumstances.

9 –: This remains true, despite the entry into force of the Rome I Regulation. Not only does that regulation apply only to contracts concluded after 17 December 2009, but the rules thereunder governing conflict of laws in relation to individual employment contracts (see Article 8) are, in essence, the same. In that regard, the Court has established a connection between the two measures (see Koelzsch, paragraph 46).

10 –: For a summary of the objectives pursued by the Rome Convention, see in particular ICF, paragraphs 22 and 23.

11 –: Accordingly, it is stated in the Report on the Convention on the law applicable to contractual obligations, by Professor Mario Giuliano, University of Milan, and Professor Paul Lagarde, University of Paris I (OJ 1980 C 282, p. 1, ‘the Giuliano Lagarde Report’; see, in particular, pp. 25 and 26) that it was a question of ‘finding a more appropriate arrangement for matters in which the interests of one of the contracting parties are not the same as those of the other, and at the same time to secure thereby more adequate protection for the party who from the socio-economic point of view is regarded as the weaker in the contractual relationship’.

12 –: The idea that it is appropriate to protect the weaker party by means of rules more favourable to his interests than the general rules is to be found more broadly in the provisions of private international law as a whole and is reflected in particular in the context of the interpretation of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36), as amended by the Convention of 29 November 1996 on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1), (‘the Brussels Convention’) (see, in particular, Case 133/81 Ivenel ECR 1891, paragraph 14; Case C‑125/92 Mulox IBC [1993] ECR I‑4075, paragraph 18; Case C‑383/95 Rutten [1997] ECR I‑57, paragraph 22; Case C‑37/00 Weber [2002] ECR I‑2013, paragraph 40; Case C‑437/00 Pugliese [2003] ECR I‑3573, paragraph 18) and Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) (see, in particular, Case C‑154/11 Mahamdia [2012] ECR, paragraphs 44 and 46).

13 –: See ICF, paragraph 26.

14 –: See, in particular, Giuliano Lagarde Report, p. 25.

15 –: See Koelzsch, paragraph 42.

16 –: See the considerations set out in the Giuliano Lagarde Report, pp. 25 and 26.

17 –: See, in that regard, Lagarde, P., ‘Convention de Rome’, Répertoire de droit communautaire Dalloz, 1992, paragraph 85.

18 –: Pataut, É., ‘Conflits de loi en droit du travail’, Jurisclasseur droit international, fascicule 573-10, November 2008, paragraph 14.

19 –: See Voogsgeerd, paragraph 32.

20 –: See Koelzsch, paragraph 36.

21 –: In that regard, it has been pointed out that, in accordance with the principle of proximity, the ‘fairest’ law is the ‘closest’ law and not the ‘best’ from the standpoint of its substantive content (Ballarino, T., and Romano, G.P., ‘Le principe de proximité chez Paul Lagarde’, Le droit international privé: esprit et methods — Mélanges en l’honneur de Paul Lagarde, Dalloz, 2005, p. 2).

22 –: See Koelzsch, paragraphs 41 and 42.

23 –: Evidenced, for example, by the facts which gave rise to Voogsgeerd, which concerned a dispute between a Netherlands national and a company established in Luxembourg, concerning an employment contract concluded in Belgium. In the performance of the contract, Mr Voogsgeerd received instructions from another company, closely connected with his employer, but established in Belgium.

24 –: A very similar discussion has taken place with regard to the relationship between the presumptions provided for in Article 4(2) and (4) of the Rome Convention and the possibility, provided for in Article 4(5) of that convention, to disregard them if it appears from the circumstances as a whole that the contract is more closely connected with another country (see the Opinion of Advocate General Bot in ICF, points 71 to 73).

25 –: See paragraph 42 of the judgment.

26 –: Ibid., paragraph 43.

27 –: See paragraphs 31 to 41 of the judgment.

28 –: That ‘marginalisation’ of the place of engagement as a connecting criterion is explained, it seems to me, by the fortuitous or artificial nature that it may have, but in particular by the fact that the employer generally has full control over the determination of that place, which is likely to infringe the principle of protection of the employee.

29 –: It is interesting to note that, in the Green Paper on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernisation (COM(2002) 654 final, p. 38)), it is stated that ‘whether or not the worker habitually carries out his work in the same country, the objective connection defined by the Convention can be overridden by an exception clause (end of Article 6(2)), which for the worker avoids the harmful consequences of rigid connection of the contract to the law of the place of performance’.

30 –: See paragraph 19 of the judgment.

31 –: For a summary of the arguments put forward in that regard, see paragraphs 50 to 52 of ICF.

32 –: Ibid., paragraphs 58 to 62.

33 –: Ibid., paragraph 64.

34 –: Under that provision, ‘[w]here it is clear from all the circumstances of the case that the contract is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply’.

35 –: Moreover, this is the case even though it has been argued that that difference in wording probably resulted, in the absence of explanation in the explanatory memorandum for that regulation, from an oversight (see Gaudemet-Tallon, H., Jurisclasseur Droit international, fascicule 552-15, 2009, paragraph 84).

36 –: See the Green Paper on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernisation, p. 28.

37 –: See paragraph 46 of the judgment.

38 –: See the considerations set out in points 21 and 22 of this Opinion.

39 –: As is clear from Koelzsch, paragraph 42, it is in the State in which the work is carried out that the employee performs his economic and social duties.

40 –: See, in particular, Article 13(2)(a) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971(II), p. 416), as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1); Article 11(3)(a) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1), and Article 16(1) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1).

41 –: In that regard, Article 18 of Regulation No 987/2009 states that ‘[a] request by the employer or the person concerned for exceptions to Articles 11 to 15 of the basic Regulation shall be submitted, whenever possible in advance, to the competent authority or the body designated by the authority of the Member State, whose legislation the employee or person concerned requests be applied’.