Four Papers on EU PIL of Employment in the Latest Issue of the European Labour Law Journal
In March 2023, Professor Bernd Waas, Chair of Labour Law at Goethe University Frankfurt, organised an event under the auspices of the European Centre of Expertise on EU private international law of employment.
The event was an expert meeting, whose aim was to provide the European Commission with academic expertise on this particular topic, thus aiding in its role of ensuring correct application of EU law across the Member States, as well as offering food for thought for a future review of EU private international law instruments. Four experts presented papers on different aspects of EU private international law of employment.
Uglješa Grušić, Associate Professor at University College London, provided an overview of the private international law regulation of individual employment relationships and future perspectives. Aukje AH van Hoek, Professor at the University of Amsterdam, examined industrial action from the perspective of private international law. Laura Carballo Piñeiro, Professor at the University of Vigo, explored the question of how to determine the habitual place of work of workers in the transport sector. Michael Wilderspin, former legal adviser to the European Commission, analysed the relevant case law of the CJEU.
These papers have now been published in the European Labour Law Journal (Volume 15, Issue 1, 2024)
Bernd Waas, Guest Editorial, 3
Uglješa Grušić, Private International Law Regulation of Individual Employment Relationships within the European Union, 86-101
This article is a revised version of a concept paper written for the European Commission on the private international law regulation of individual employment relationships within the EU. It aims to assess the regulation of such relationships from the perspective of European private international law and indicate potential avenues for reform.
Aukje AH van Hoek, Industrial Action in Private International Law, 102-122
This contribution deals with both jurisdiction and applicable law with regard to cross-border collective actions in labour law. It demonstrates that the European conflicts rule embodied in Article 9 of the Rome II Regulation is open to diverging interpretations. This can, to a large extent, be explained by the very diverse legal characterisation of industrial action in the national systems of the EU Member States. The connecting factors used in the Rome II Regulation also create specific challenges when applied in the context of industrial action. As a result of these complications, Article 9 Rome II currently fails to fulfil its function of creating legal certainty around the legality and the legal consequences of industrial action with a cross-border element. A further clarification of the scope of Article 9 and the role played by the law of the country in which the industrial action is taken would help to reduce the current confusion and uncertainty. The uncertainty as to the applicable law is exacerbated by the rules on jurisdiction in the Brussels I bis Regulation which allow, to some extent, for forum shopping. Two provisions of the Brussels I bis Regulation might warrant revision to reduce their negative impact on the exercise of the right to industrial action: the rule on multiple defendants (Article 8(1)) and the rule granting jurisdiction to the place where the damage caused by the industrial action is sustained (Article 7(2)).
Laura Carballo Piñeiro, The Conundrum of the Habitual Workplace: In Search of Access to Justice for Transport Workers in the European Union, 123-136
EU private international law regulations are articulated around the ‘habitual place of work’ factor, which does not fit well with the fact that not only are these workers mobile, but their place of work is also mobile. This article critically examines the proxy to this concept developed by the Court of Justice to provide transport workers with access to justice. There are some caveats to the chosen factual approach, in particular its complexity as well as the disregard for the collective dimension of employment relationships, since it can only be undertaken on a case-by-case basis. Moreover, this factual approach does not fit well to all transport sectors. The application of this approach considering the transport worker’s domicile/habitual residence might enhance the said access to justice. A similar factual approach is employed in the Posting Drivers in the Road Transport Sector Directive which further compromises worker protection in this sector.
Michael Wilderspin, The Contribution of the CJEU to the Notion of Habitual Workplace in the Field of International Transport, 137-143
The notion of the place (or country) in or from which the employee habitually carries out his or her work in performance of the contract of employment plays an important role in determining the allocation of international jurisdiction and the law applicable to the employment contract in the case of international transport. The CJEU has interpreted the notion of ‘where, or from where, the employee habitually carries out his or her work’ very broadly, concomitantly reducing the scope of the ‘engaging place of business’ criterion. This article shows the evolution of CJEU case law and its contribution to the development of the notion of habitual workplace in the field of international transport.