Posts Tagged Protected categories
Thank you Jeffrey Neuburger for flagging Wiseley v Amazon. Jeffrey has excellent overview and analysis so I will suffice with identifying a few tags: the issue of click-wrap agreements (when does one agree to GTCs contained in pop-ups and hyperlinks and the like); application of a putable law to a contract (the von Munchausen or ‘bootstrap’ principle); comparative dispute resolution law: how would EU law look at the issues? Have fun.
A short post mostly for the sake of completeness. In its second recent judgment on insureds as ‘protected category’ under the Brussels I Regulation, the CJEU held last week in C-340/16 Kabeg. Where an employee is injured and the employer is statutory assignee of the rights of its employee, the employer is subrograted into the rights of the victim and can directly act against the insurer of the vehicle involved.
The Court’s less cautious approach to subrogation than it generally adopts, is influenced by Directive 2009/103, which obliges Member States to put in place such direct action. Article 18: ‘Member States shall ensure that any party injured as a result of an accident caused by a vehicle covered by insurance as referred to in Article 3 enjoys a direct right of action against the insurance undertaking covering the person responsible against civil liability.’
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2.
Thank you Cozen O’Connor for alerting me. California’s Senate Bill 1241 was signed into law at the end of September. It will apply to employment contracts entered into, modified, or extended on or after 1 January 2017.
The Bill will feature in a forthcoming article that I am co-authoring with Jutta Gangsted. I have not (yet) studied the preparatory work in detail however the Bill immediately calls for comparative analysis with the EU’s’ approach to this particular ‘protected category’: what is a labour (employment) contract; how does ‘primarily resides and works in California’ compare with ‘habitually carries out his work’ and ‘domicile’; when exactly is a contract ‘modified’ (on this see for the EU, Nikiforidis). The starting point of both the California and the EU rules is the same: employees cannot be considered to really consent to either choice of law or choice of court hence any clause doing same will be subject to mandatory limitations.
(Handbook of) European Private international law, 2nd ed. 2016. Chapter 2, Heading 188.8.131.52, Chapter 3, Heading 3.2.5.
Commission effectively supplements Rome I using the posted workers Directive. Defines ‘temporary employment’ as not exceeding 24 months.
Update 31 May 2017 A quick note by way of interim update: the proposal is stuck in Parliament (awaiting committee decision).
Thank you Fieke van Overbeeke for pointing this out to me. The EC have proposed to amend the posted workers Directive, to address unfair practices and promote the principle that the same work at the same place be remunerated in the same manner.
The amendment essentially relates to Article 8(2) of the Rome I Regulation, which partially corrects choice of law made in the context of contracts for employment. The proposal amounts to Union harmonisation of the concept ‘temporary employment’, as one not exceeding 24 months.
The proposal, if adopted, would insert an Article 2a in the posted workers Directive, 96/71, as follows:
Posting exceeding twenty-four months
1. When the anticipated or the effective duration of posting exceeds twenty-four
months, the Member State to whose territory a worker is posted shall be deemed to
be the country in which his or her work is habitually carried out.
2. For the purpose of paragraph 1, in case of replacement of posted workers
performing the same task at the same place, the cumulative duration of the posting
periods of the workers concerned shall be taken into account, with regard to workers
that are posted for an effective duration of at least six months.
Recitals 6-8 give context:
(6) The Rome I Regulation generally permits employers and employees to choose the law
applicable to the employment contract. However, the employee must not be deprived
of the protection of the mandatory rules of the law of the country in which or, failing
that, from which the employee habitually carries out his work. In the absence of
choice, the contract is governed by the law of the country in which or, failing that,
from which the employee habitually carries out his work in performance of the
(7) The Rome I Regulation provides that the country where the work is habitually carried
out shall not be deemed to have changed if he is temporarily employed in another
(8) In view of the long duration of certain posting assignments, it is necessary to provide
that, in case of posting lasting for periods higher than 24 months, the host Member
State is deemed to be the country in which the work is carried out. In accordance with
the principle of Rome I Regulation, the law of the host Member Sates therefore applies
to the employment contract of such posted workers if no other choice of law was made
by the parties. In case a different choice was made, it cannot, however, have the result
of depriving the employee of the protection afforded to him by provisions that cannot
be derogated from by agreement under the law of the host Member State. This should
apply from the start of the posting assignment whenever it is envisaged for more than
24 months and from the first day subsequent to the 24 months when it effectively
exceeds this duration. This rule does not affect the right of undertakings posting
workers to the territory of another Member State to invoke the freedom to provide
services in circumstances also where the posting exceeds 24 months. The purpose is
merely to create legal certainty in the application of the Rome I Regulation to a
specific situation, without amending that Regulation in any way. The employee will in
particular enjoy the protection and benefits pursuant to the Rome I Regulation.
It would obviously be attractive to ensure the same rule is verbatim included in a future amendment of the Rome I Regulation.
(Handbook of) EU Private International Law, 2nd ed 2016, Chapter 3, Heading 3.2.5.
In particular, a contract for employment needs to be distinguished from a contract for the provision of services. ‘Contract of employment’ was addressed in the abstract by the CJEU in Shenavai, Case 266/85, where the Court identified a double requirement for it referred to the need for a contract to be qualified as a contract of employment: there must be durable relation between individual and company: a lasting bond, which brings the worker to some extent within the organisational framework of the business; and a link between the contract and the place where the activities are pursued, which determines the application of mandatory rules and collective agreements. However precedent value of Shenavai for the Brussels I and recast Regulation is necessarily incomplete, for at the time employees as a protected category did not yet exist in the Regulation and the Court’s findings on contracts of employment took place within the need to identify a ‘place of performance’ under the Brussels Convention’s special jurisdictional rule on contracts.
The Jenard and Möller report to the 1988 Lugano Convention suggested the relationship of subordination of the employee to the employer.
In Holterman the Court throws into the mix reference to its interpretation of secondary EU law on health and safety at work as well as European labour law, holding that ‘the essential feature of an employment relationship is that for a certain period of time one person performs services for and under the direction of another in return for which he receives remuneration’ (at 41).
Consequently the national courts now have quite a number of criteria which they need to apply in practice: it is not for the CJEU to do so in an individual case. In Holterman the Court does seem to suggest that once a worker finds himself qualified as an employee, for the purposes of the application of the Jurisdiction Regulation, that qualification will trump any other roles which that individual may play in the organisation (at 49: ‘the provisions of Chapter II, Section 5 (Articles 18 to 21) of Regulation No 44/2001 must be interpreted as meaning that they preclude the application of Article 5(1) and (3) of that regulation, provided that that person, in his capacity as director and manager, for a certain period of time performed services for and under the direction of that company in return for which he received remuneration, that being a matter for the referring court to determine.’).
In light of the deference to the factual assessment of the national court, the CJEU does complete the analysis with respect to (now) Article 7(1): if the contract is not one of employment, then the special jurisdictional rule of Article 7(1) needs to be applied. The director of a company, the Court holds, provides a service to the company within the meaning of Article 7(1)b. In the absence of any derogating stipulation in the articles of association of the company, or in any other document, it is for the referring court to determine the place where Mr Spies in fact, for the most part, carried out his activities in the performance of the contract, provided that the provision of services in that place is not contrary to the parties’ intentions as indicated by what was agreed. For that purpose, it is possible to take into consideration, in particular, the time spent in those places and the importance of the activities carried out there, it being a matter for the national court to determine whether it has jurisdiction in the light of the evidence submitted to it (at 64).
Finally, should national law also allow for an action in tort against the director of a company, the locus delicti commissi is the place where the director carries out his duties for the company (at 76). The locus damni is the place where the damage alleged by the company actually manifests itself; it cannot be construed so extensively as to encompass any place where the adverse consequences can be felt of an event which has already caused damage actually taking place elsewhere (at 77-78).
All in all, a useful completion of the Shenavai criterion, and in the main a referral to the national court for factual analysis.