CJEU on the Law Applicable to Employment Contracts in Locatrans

Had someone asked me before 11 December 2025 to select three key principles underlying the application of Article 6 of the Rome Convention and Article 8 of the Rome I Regulation, dealing with the law applicable to individual employment contracts, I would probably have listed the following:

• Identical interpretation of the connecting factor of the habitual place of work across the Rome, Brussels and Lugano instruments – because the Rome I Regulation expressly states, in Recital 7, that “the provisions of this Regulation should be consistent with … Brussels I”, because this has been regularly repeated by the CJEU (see, for example, [50] of ROI Land Investments) and because achieving the identity between the law and forum was one of the original reasons for having special private international law rules for employment contract (see, for example, [13] et seq of Ivenel);
• A broad interpretation of the connecting factor of the habitual place of work and a correspondingly narrow interpretation of the connecting factor of the engaging place of business – because, as the CJEU has repeatedly stated (see, for example, [35] of Voogsgeerd), this is required by the principle of employee protection that underlies the whole of EU private international law of employment, given that the connecting factor of the engaging place of business does not guarantee a particularly close connection between that place and the employment contract and can be easily manipulated by the employer; and
• A relatively strict application of the escape clause – because, as the CJEU confirmed in the context of employment contracts at [40] of Schlecker, the escape clause applies only where the gravitational pull of the most significant elements which define the employment contract in question indicates a closer relationship between that contract and a country other than that whose law would apply under the choice-of-law rules based on the connecting factors of the habitual place of work and engaging place of business.

On 11 December 2025, the CJEU delivered a remarkable judgment in Case C‑485/24 Locatrans Sarl v ES ECLI:EU:C:2025:955, the effect of which is that my answer to this hypothetical question would have been completely wrong.

Facts and Question

I have already reported on the opinion of AG Norcus in a previous post, which contains a detailed description of the facts of the case. The key fact was that ES, after having worked for a certain time in one place, was called upon to take up their activities in a different place, which was intended to become the new habitual place of work.

The question that the CJEU had to answer was whether Articles 3 and 6 of the Rome Convention must be interpreted as meaning that account should be taken of the intended new habitual place of work in determining the objectively applicable law.

Judgment

There are three elements to the CJEU’s decision.

First, since the wording of the relevant parts of Article 6 of the Rome Convention (which refers to “the law of the country in which the employee habitually carries out his work in performance of the contract”) and Article 8 of the Rome I Regulation (which refers to “the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract”), on the one hand, and Article 21 of the Brussels Ia Regulation (which refers to “the courts for the place where or from where the employee habitually carries out his work or in the courts for the last place where he did so”), on the other hand, is different, it is not necessary to interpret the connecting factor of the habitual place of work identically across these instruments ([46]-[53]).

Second, the CJEU noted that the broad interpretation of the connecting factor of the habitual place of work was adopted in Koelzsch and Voogsgeerd because these cases “each concerned an employee who had, during the entirety of his employment relationship, carried out his activities in more than one Contracting State and in respect of whom the connecting factor served to determine a single habitual place of work” ([43]). However, Locatrans was different because it “concerns the situation of an employee who also carries out his activities in several States, although for whom the habitual place of work moved to the territory of another Contracting State during the most recent period of the performance of his contract of employment” ([43]). This difference mattered because it required the court to “take the employment relationship into consideration as a whole” ([44]) and because “a change has occurred with regard to the habitual place of work, [so] no country, within the meaning of Article 6(2)(a) of the Rome Convention, can be identified” ([45]). Consequently, the law of the country of the engaging place of business would have been applicable under Article 6(2) ([54]).

Third, the CJEU implicitly recognised that the application of the law of the engaging place of business is unlikely to be in line with the principle of employee protection ([59]-[60]) and invited the referring court to apply the law of the intended new habitual place of work under the escape clause ([57]). Without a hint of irony, the CJEU said that this is required by the principle of legal certainty and foreseeability ([61]-[62]).

Comment

It will take a while for the full consequences of this judgment to become apparent. My first impression is that the CJEU unnecessarily complicated the matter and yet did not resolve it fully.

The CJEU ultimately invited the referring court to apply the law of the intended new habitual place of work under the escape clause. But surely it would have been simpler – and arguably fully in line with the case law on the determination of the habitual place of work under the Brussels instruments, in particular Mulox, Rutten (both concerning itinerant commercial representatives) and Weber (concerning a cook working on a ship and an offshore installation) – if the CJEU had said that the law of the intended new habitual place of work should apply as the objectively applicable law under Article 6(2)(a), rather than under the escape clause.

If the habitual place of work changes, for example from the law of Luxembourg to the law of France as in Locatrans, an additional question arises: whether, and if so to what extent, the previously applicable law remains relevant. AG Norcus addressed this point by applying the principle tempus regit actum. According to him, 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” ([51] of the AG Opinion). However, the CJEU judgment is silent on this point.