Case law Developments in PIL

CJEU Rules that a “Patron Agreement” Can Extend the Notion of Employer under the Brussels I bis Regulation

In its judgment in the case of ROI Land Investments, C-604/20, rendered on 20 October 2022, the CJEU discussed two key features of the employment protection mechanisms of the Brussels I bis Regulation.

Firstly the Court clarified who is to be considered an employer by holding that the employer is not necessarily the entity that formally concluded the employment contract with the employee. Secondly, the CJEU held that the Regulation’s rules on jurisdiction over defendants domiciled outside the EU are mandatory and exclusive. More favourable national jurisdictional rules for the employee do not trump the rules of the Brussels I bis Regulation.

Legal Background

Employment contracts are subject to special jurisdiction rules in the Brussels I bis Regulation in order to protect the employee as being the typically weaker party. The employment protection mechanisms of the Regulation give an employee more forum shopping opportunities than an employer as well as limit the possibility to include forum selection clauses in employment contracts. Also, the special jurisdictional rule that gives the employee a chance to initiate proceedings in the member state where he or she habitually carries out work is one of the extraordinary rules of the Regulation that applies regardless of whether the defendant is domiciled in an EU member state or elsewhere.


In November 2016, a German labour court held that the termination of an employment contract between a German employee and a Swiss company was unlawful. According to the judgment, the employer should pay the former employee outstanding remuneration amounting to 442 500 USD. Shortly after the judgment, the Swiss company went bankrupt.

As the former employee had not received the outstanding remuneration from the Swiss company, he filed a lawsuit against the Canadian parent company, ROI Land Investments, on the grounds of a “patron agreement”. In the patron agreement, the Canadian parent company had assured liability for the obligations of the Swiss subsidiary. In addition to the patron agreement, the employee had actually initially been hired directly by the Canadian parent company before his employment contract was transferred to the Swiss subsidiary.

When suing the Canadian company in German courts, issues of how the patron agreement was to be characterized under the Brussels I bis Regulation arose. The former employee argued that German courts should have jurisdiction under the Brussels I bis Regulation’s rules on either employment contracts or the rules on consumer contracts. Whereas the court of first instance concluded that there was German jurisdiction, the court of appeal came to a contrary conclusion even if the patron agreement was characterized as a consumer contract.

In its request for a preliminary ruling from the CJEU, the German Supreme Labour Court (Bundesarbeitsgericht) presented a third way of characterizing the patron agreement by noting that it under German law, it would be considered a surety bond (Bürgschaft). On the other hand, the Bundesarbeitsgericht noted that no employment contract would have been made without the patron agreement from the Canadian parent company. In essence, the main legal issues can be summarized as regarding whether the patron agreement should be characterized as an employment contract and if the jurisdictional rules of the Brussels I bis Regulation must be applied in relation to a defendant domiciled outside the EU.

Who is an Employer?

The first question that the CJEU interpreted in its judgment was whether the patron agreement could consitute an employment relation that triggers the special jursidictional rules for such contracts found in section 5 of the regulation. In the case at hand, the answer to that question boiled down to whether the Canadian mother company could be seen as an “employer”.

Previously, the CJEU has ruled on the employee notion under the Brussels I bis Regulation. First, in Holterman Ferho Exploitate, C-47/14, the Court held that also a CEO could be considered an employee if he “for a certain period of time performed services for and under the direction of that company in return for which he received remuneration”. According to the CJEU, the subordination prerequisite (“for and under the direction of that company”), could be met also for persons in management positions as long as their ability to influence the actual governing body of the employer corporation is “not negligible” (Holterman Ferho Exploitate, p. 47).

A few years after the Holterman Ferho Exploitate judgment, the CJEU was given an opportunity to develop what was meant by a not negligible influence under the equivalent rules in the Lugano II Convention in Bosworth and Hurley, C-603/17. Here, the CJEU held that even if the shareholders of the employer company have the power to terminate the contract for a CEO, the CEO is not to be considered an employee if “that person is able to determine or does determine the terms of that contract and has control and autonomy over the day-to-day operation of that company’s business and the performance of his own duties”.

ROI Land Investments completes the notion of employment relation under EU private international law by clarifying that not only the formal employer, but also the actual employer may be sought under the special jurisdictional rules for employment contracts. Both the court and the Advocate General came to the same conclusion in this part, but their arguments differ. Advocate General Jean Richard de la Tour proposed in his opinion, which is not yet available in English, that a third party who was directly benefitting from the work performed by the employee (“un intérêt direct à la bonne exécution dudit contrat”) should be considered an employer. In practice, the Advocate General’s and the Court’s solutions are probably not very different, but from a system-logical perspective, it is satisfactory that the Court sticks to the existing employee notion instead of inventing a new prerequiste. Now, the chosen employer notion mirrors the employee notion by focusing on the subordination relation.

According to the judgment, a patron agreement is not not necessarily in itself enough to stretch the employer notion (p. 33). To assess actual subordination between the presumptive employer and the employee, a national court must look into the employment history and, if there is e.g. a patron agreement, consider what that has meant for the employment relation (p. 35). In the case at hand, the patron agreement was a presumption for the entrance of the employment contract. Such a situation indicates that there is an employment relation.

Must the Jurisdictional Rules Apply when the Defendant is Domiciled Outside the EU?

Regarding the application of the Brussels I bis Regulation in relation to a defendant domiciled outside the EU, the CJEU noted that the clear exceptions in Article 6 trump national jurisdictional rules. As the rule in Article 21 p. 2 stating that an employee may initiate proceedings in the Member State where he or she habitually works is one of those, it shall be applied in the member states regardless of whether national rules would have been more favourable to the employee.

Consumer Contract?

As there had also been doubts in the national procedure if the patron agreement could be characterized as a consumer contract, the CJEU ruled also over this issue. Just in line with the wording of the consumer notion in Article 17 of the Brussels I bis Regulation, the court held that a prerequisite is that the contract is entered for purposes outside someone’s trade or profession. The court stressed that this is not only applicable for self-employed business owners, but also for employees (p. 55). According to the court, a patron agreement entered into between an employee and a third party not mentioned in the formal employment contract, cannot be considered to be outside the employee’s profession.


In a world where complex employment contract relations are common, the judgment may possibly hinder bad faith international outsourcing by giving employees the chance to claim liability from the actual employer. Still, the very special circumstances in the case make it a little hard to generalize how far the employer notion can be drawn in the future.

4 comments on “CJEU Rules that a “Patron Agreement” Can Extend the Notion of Employer under the Brussels I bis Regulation

  1. Adrian Briggs

    That seems to suggest that the English Court of Appeal was right when in Samengo-Turner (2007 EWCA Civ 723) it treated the entity that contracted to provide ‘loyalty incentives’ to the employee of its associate as an employer for the purpose of Section 5 of Chapter II of Regulation 44/2001. The rest of its judgment still ranges between dreadful and utterly dreadful, but this aspect of it may have been rehabilitated.

  2. In light of what is explained under paras. 42-48, I understand that the Court would also consider that under all relevant regulations, the lis pendens rule shall not operate in a way giving priority to a court first seized in a non-member State.
    Please advise if this is not correct – I am seeking advise from more knowledgable people.

    • Erik Sinander

      Nothing is explicitly stated about lis pendens in the paras you named. It only says that the exceptions made in article 6 p. 1 of the Brussels I bis shall be applied regardless of where the defendant is domiciled.

      As Brussels I bis does not regulate enforcement and recognition of judgments from non-member states, it would lead to an awkward situation if the Regulation would demand a court to stay its proceedings and wait for such a judgment. Contrary, I suppose that a member state would be obliged to accept jurisdiction over defendants domiciled in non EU member states despite that its own lis pendens rules say something else when the special exceptions in article 6 p.1 are applicable.

      • Dear Erik: I understand your point and interpretation. What happens is that there are a number of authors in Germany and Switzerland saying that when a court is seized in a third state, the EU Member State court can apply its national lis pendens rules. I think that the Court will not rule in this direction and led prevail EU jurisdiction, but to my knowledge it has never said so. This is why I had the idea that paras. 42-48 include an implicit a contrario saying that national rules on jurisdiction can only be relevant in the framework of Article 6, which would then exclude the interpretation I mentioned and which I consider, as you do, as wrong. This being so, the problem is serious in the relation to non Member States,although it will then also apply to all other Regulations containing rules on jurisdiction.

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