AG Norkus on the Habitual Place of Work in Locatrans Sarl v ES

On 3 July 2025, Advocate General Norkus delivered an opinion in Case C‑485/24 Locatrans Sarl v ES ECLI:EU:C:2025:528.

The case concerns the determination of the habitual place of work under Article 6(2)(a) of the 1980 Rome Convention on the law applicable to contractual obligations of a driver who, under a single employment contract, worked for his employer in two distinct stages: first, across several states, and later, during the period preceding the end of the employment relationship, on a permanent basis in a single state.

The opinion is significant because it sheds light on how Article 6(2)(a) of the Rome Convention applies to a novel situation, though it may be criticised for lacking clarity and consistency with earlier case law.

Facts

Locatrans Sàrl is a transport company established in Luxembourg. ES was resident in France. The parties entered into an employment contract on 15 October 2002, which stipulated, inter alia, that Luxembourg law would apply and that the countries essentially covered by the transport business were Germany, the Benelux countries, Italy, Spain, Portugal and Austria. On 31 March 2014, Locatrans informed ES that, after analysing his activity over the preceding 18 months, it had found that he had carried out more than 50% of his employment activity in France and that it was therefore obliged to register him with the French social security system. Following the termination of his contract, ES brought proceedings in France on 8 January 2015.

The referring court (the French Cour de cassation – Chambre sociale) was unsure whether, for the purposes of determining the habitual place of work under Article 6(2)(a) of the Rome Convention, it should take into account the entire duration of the employment relationship (which, according to the referring court, would point to the application of Luxembourg law, under which the claim would fail) or the most recent period of work (which, according to the referring court, would point to the application of French law, under which the claim would succeed) “where the employee, having worked for a certain time in one place, then carries out his…activities in a lasting manner in a different place which is clearly intended by the parties to become a new habitual place of work” ([17]).

Novelty of the Situation

The Court of Justice of the European Union has addressed the determination of the habitual place of work under European private international law instruments in cases involving changing working patterns, beginning with Mulox and Rutten (concerning itinerant commercial representatives) and Weber (concerning a cook working on a ship and an offshore installation). It has also considered the habitual place of work of a lorry driver in Koelzsch.

However, in none of these cases did the Court directly addressed the situation of an employee who first worked in several states and then, on a permanent basis, in a single state, where the claim concerned the termination of employment.

AG Opinion

The conclusions of the Advocate General are not surprising. He opined that, where the state in which the work is carried out during the second stage is clearly intended by the parties to become a new habitual place of work, and where the dispute concerns the termination of the contract, it is necessary to refer to the most recent period of work ([58]). Furthermore, a change in the applicable law “must not affect legal relationships which arose prior to that change, so that, rationae temporis, the dispute remains governed by the law applicable at the time those circumstances arose (tempus regit actum)” ([51]).

The opinion is noteworthy for the way in which it positions Locatrans within the existing case law. However, it may be criticised for a lack of clarity regarding the meaning and relevance of the “temporal criterion”, as well as for inconsistency with an earlier AG opinion on the role of the parties’ intention in changing the habitual place of work.

Locatrans and Earlier Case Law

In Mulox and Rutten, the employees had offices in their places of residence. The CJEU held that this was the crucial factor in determining the habitual place of work.

In Weber, the employee did not have an office and therefore no professional base from which he worked. According to the CJEU, where an employee carries out the same kind of work in two or more countries, the habitual place of work ‘is, in principle, the place where [the employee] spends most of his working time’ (Weber, [50]), assessed over the entire period of employment (Weber, [51]-[52]), unless the intention of the parties (Weber, [54]) or the link between the subject-matter of the dispute and another place of work (Weber, [58]) indicate that that place of work should be regarded as the habitual place of work. However, where an employee carries out different kinds of work in two or more countries, qualitative criteria relating to the nature and importance of the work carried out in each country become relevant (Weber, [58]).

In Koelzsch, the CJEU held that, in determining the habitual place of work of a lorry driver, the referring court had to take particular account of the place from which the employee carried out his transport tasks, received instructions concerning his tasks and organised his work, the place where his work tools were located, the places where the transport was principally carried out and where the goods were unloaded and the place to which the employee returned after the completion of his tasks (Koelzsch, [49]).

In Locatrans, the Advocate General tied together these strands of case law in the following way:

I would point out, first, that…the general rule that the country in which the employee habitually carries out his or her work in performance of the contract is that in which or from which, in the light of all of the factors which characterise that activity, the employee performs the essential part of his or her duties vis-à-vis his or her employer… is the starting point for the assessment by the national courts in all cases where, as in the present case, the employment contract is performed in the territory of several Contracting States. ([47], footnotes omitted)

In the second place,… in order to identify the State which may be regarded as ‘the place in which or from which’ the employee performs the greater part of his or her obligations towards his or her employer, the Court has established qualitative and temporal criteria which the national courts must take into consideration. However, although, according to the Court, the temporal criterion must, in principle, take into account all of an employee’s term of employment with his or her employer, the Court has provided for the application of that temporal criterion in the specific case where the subject matter of the dispute in question is ‘more closely connected with a different place of work’. In that case, it is the most recent period of work which should be taken into account by the national court in its assessment, and not all of an employee’s term of employment. ([48], footnotes omitted)

… the referring court’s question appears to lie at the intersection of two lines of case-law that appear, at first sight, to be distinct. However, … despite their apparent divergence, those two approaches form part of a single line of case-law under which the Court of Justice has established a general rule based on taking account of qualitative and temporal criteria in its application. In that regard, it should be borne in mind that the national courts must take account of the qualitative criterion, which is the decisive criterion. However, in the absence of qualitative elements, or where they are not sufficiently precise, the temporal criterion becomes relevant. Moreover, those two criteria may be concomitant and complementary. In all cases, national courts must take into account the principle of proximity and the protection of workers. ([50], footnote omitted)

The “Temporal Criterion”

This is where the opinion becomes a bit unclear. What is the “temporal criterion”? What is its relevance?

According to the Advocate General, the “temporal criterion” was laid down in Weber. It will be remembered that in this case the CJEU held that, where an employee carries out the same kind of work in two or more countries, the habitual place of work ‘is, in principle, the place where [the employee] spends most of his working time’ (Weber, [50]) assessed over the entire period of employment (Weber, [51]-[52]).

But there is a caveat: the intention of the parties (Weber, [54]) or the link of the subject-matter of the dispute with another place of work (Weber, [58]) may indicate that that place of work should be regarded as the habitual place of work. Although, according to the Advocate General, this might, at first sight, appear to be an exception to the “temporal criterion”, it is

rather the application by the Court of that temporal criterion to a specific situation. The Court has stated that weight will be given to the most recent period of work where the employee, after having worked for a certain time in one place, then takes up his or her work activities on a permanent basis in a different place, since the clear intention of the parties is for the latter place to become a new habitual place of work. (Locatrans, [46])

I doubt the correctness of referring to this caveat as the specific application of the temporal criterion. The Advocate General’s classification seems to lie in the fact that he separated all criteria relevant for determining the habitual place of work into “qualitative” and “temporal”. While “qualitative” criteria are “based on the nature and importance of work done in various places within the Contracting States” (Locatrans, fn 58), “quantitative” criteria are “based on the relative duration of periods of time spent working in each Contracting State” (Locatrans, fn 59). It seems that, because the parties can agree to change the place of work without changing the nature or importance of work done in various places, the Advocate General classified the intention of the parties as a “temporal” criterion.

But this seems to be a category error. Criteria relevant for determining the habitual place of work can be divided into “objective” and “subjective”. The intention of the parties is a subjective criterion. Other criteria listed above are objective and can be further divided into “qualitative” and “temporal”.

The Advocate General’s classification of the criterion of parties’ intention did not affect the outcome of the case, but it did reduce the clarity of his argument.

Role of Parties’ Intention

The last point I want to make is the statement made by the Advocate General in [51] of his opinion:

since one of the objectives of the Rome Convention is to fortify confidence in the stability of the relationship between the parties to the contract, a change in the applicable law resulting from changes in factual circumstances must also be the result of a clear intention on the part of the parties (emphasis added)).

This seems to indicate that the habitual place of work can change only if both the factual circumstances and the intention of the parties change.

However, this conflicts with the dicta from the opinion of Advocate General Wahl in Schlecker, where Advocate General Wahl gave an example of “a very long posting (over 10 years)” (Schlecker, [43]) which would lead to the change of the habitual place of work regardless of what the parties initially intended. It is a shame that the Advocate General did not explain how this point fit into the determination of the habitual place of work.