CJEU on Escape Clause in Employment Contracts in Hortis

On 9 July 2026, the Court of Justice of the European Union delivered its judgment in Case C‑768/24 Hortis GRC SA v JA, France Travail Île-de-France ECLI:EU:C:2026:566. The judgment concerns the interpretation of Article 6 of the Rome Convention, the predecessor of Article 8 of the Rome I Regulation. More specifically, it concerns the relationship between the escape clause and party autonomy in individual employment contracts and the operation of the escape clause in the context of remote work.

The judgment is the result of a straightforward application of existing precedents, which is reflected in the fact that the Court thought there was no need for an Advocate General’s opinion. Nevertheless, Hortis is noteworthy because it sheds light on the objectives pursued by the choice-of-law rules for employment contracts and because it reveals some unresolved tensions within the Court’s approach to employee protection in private international law.

The remote-work dimension is particularly important. Article 6 of the Rome Convention  was developed in a legal environment in which the habitual place of work was normally assumed to reflect the economic and social environment in which the employment relationship was embedded. Remote work challenges that assumption.

The Facts

A French employee habitually carried out his work in France for a Swiss employer, who was engaged in the business of providing IT services to undertakings. The employment contract was governed by Swiss law pursuant to a choice-of-law clause. The employment relationship also displayed a number of connections with Switzerland. The employee received his salary in Swiss francs paid into a Swiss bank account, was affiliated with Swiss social insurance schemes, benefited from a favourable Swiss tax regime and used a Swiss email address and mobile telephone number.

The contract was terminated in accordance with Swiss law. Unlike French law, Swiss law did not require a pre-dismissal interview or a statement of reasons in the dismissal letter. The employee sought to rely on these more protective French rules.

The reference concerned Article 6(2) of the Rome Convention. In essence, the Cour de cassation asked the following two questions. First, can the law chosen by the parties also be the law designated by the escape clause as the law of the country most closely connected with the contract, with the consequence that the referring court cannot apply the mandatory rules of the law of the habitual place of work, which would apply if there was no choice of law? Secondly, may a court take into account objective factors, created by the contract, connecting it with the country of the chosen law when deciding whether the escape clause applies?

Nothing New – But Useful Clarification

The Court answered both questions in the affirmative.

With respect to the first question, the Court emphasised that the wording of Article 6(2) did not prevent the country with which the employment contract is most closely connected from being the country whose law had been chosen by the parties. Accordingly, where the chosen law is also the law of the country most closely connected with the contract, national courts must give effect to that law and cannot apply the mandatory provisions of the law of the habitual place of work.

This conclusion is hardly surprising. There was never a convincing doctrinal basis for arguing either that the chosen law could not also be the objectively applicable law under the escape clause or that, where it is the objectively applicable law under the escape clause, the mandatory rules of the law of the habitual place of work remain applicable. The judgment merely confirms what was already implicit in the Court’s earlier decision in Schlecker.

The Court’s answer to the second question is similarly orthodox. It held that the assessment under the escape clause must take into account all objective elements defining the employment relationship. At the same time, the choice of law itself cannot be taken into account as a connecting factor. The distinction is important. A contractual clause choosing Swiss law is not itself evidence that the contract is more closely connected with Switzerland. By contrast, payment of salary in Swiss francs into a Swiss bank account, affiliation with Swiss social security schemes, taxation in Switzerland or other objective elements generated during the performance of the contract may be relevant.

Employee Protection Through Proximity

The most interesting aspect of the judgment lies elsewhere.

The Court repeatedly stresses that the purpose of Article 6 is to ensure that the mandatory rules of the law of the country with which it is most closely connected are safeguarded. This objective, the Court explains, guarantees employees “adequate protection” ([34] and [44]). Importantly, however, adequate protection does not necessarily mean application of the law most favourable to the employee ([34]).

This language is significant. It confirms that the protective rationale of EU private international law of employment is not based on the search for the “better” law. Rather, protection is achieved by ensuring the application of the legal system that best reflects the reality of the employment relationship ([44], [45] and [47]).

The judgment therefore reinforces a line of authority running from Koelzsch and Schlecker to the recent judgment in Locatrans (noted here on the EAPIL blog). These cases emphasise that the choice-of-law rules for employment contracts are ultimately proximity-based rules, albeit proximity rules designed with employee protection in mind.

At the same time, this approach raises questions. The Court accepts that objective factors resulting from the implementation of the parties’ choice may support the application of the escape clause. It is therefore conceivable that an employer could deliberately structure an employment relationship around the chosen law in order to generate connecting factors favouring that law. Paragraph 46 attempts to address this concern by requiring national courts to examine whether the relevant factors result from genuine mutual agreement or were imposed by the employer. Whether this safeguard will be sufficient remains uncertain.

Systemic Effects and the Problem of Remote Work

Taken together, Schlecker, Locatrans and Hortis clarify, in a holistic way, the operation of the choice-of-law rules for individual employment contracts. These judgments emphasise the importance of identifying the legal system with the strongest factual connection to the employment relationship, although neither diminishes the central role that the habitual place of work continues to play within that framework.

However, if courts become increasingly willing to rely on the escape clause, the practical significance of the habitual place of work may diminish. Such a development could have implications extending beyond bilateral employer-employee relationships. Subjecting workers performing the same work in the same country to different employment laws fragments the internal labour market within the firm, complicates collective bargaining and potentially weakens the power of labour.

This is a particular concern in relation to remote work. Although Hortis itself does not endorse such strategies, the judgment raises the question whether employers might be able to structure remote working arrangements in a way that generates objective connecting factors supporting the application of the chosen law. One can imagine, for example, a non-EU employer seeking to organise a relationship around its home legal system while employing workers physically located in Europe. (For readers interested in this problem, I can recommend a contribution to an edited collection and a policy paper prepared for the European Trade Union Institute, where I examine the risks posed by remote work).

The Question That Was Not Asked

There is also a missed opportunity that lies elsewhere.

The dispute appears to have been driven largely by the employee’s desire to rely on French dismissal protections. If that was indeed the underlying concern, one might question whether the Cour de cassation asked the right question.

The reference focused on Article 6 of the Rome Convention. Yet the more difficult issue may have concerned Article 7(2) of the Convention and the possibility of treating French dismissal rules as overriding mandatory provisions.

French courts have traditionally been willing to regard the protection of weaker parties, including employees, as a legitimate basis for according overriding mandatory status to domestic rules. Whether such an approach is compatible with the structure of Article 6 remains uncertain. The recent CJEU judgment in ENI v HUK-COBURG (noted here on the EAPIL blog) suggests that EU private international law imposes limits on the power of national courts to apply their own law as overriding mandatory provisions expansively. Allowing domestic employment protections to displace the law designated as applicable under Article 6 could undermine its underlying objectives of legal certainty, foreseeability and proximity (as a vehicle of employee protection).

Of course, the Court cannot be criticised for failing to answer a question that was never asked. Nevertheless, the relationship between employee-protective choice-of-law rules and overriding mandatory provisions remains one of the most important unresolved issues in EU private international law of employment.

The issue acquires particular significance in the context of remote work, where employers and employees may be located in different jurisdictions for extended periods of time and where reliance on overriding mandatory provisions may become an attractive mechanism for preserving local employment standards.

Concluding Remarks

Hortis does not revolutionise the law. Its outcome was largely predictable and follows naturally from Schlecker. Yet the judgment is important for what it says about the objectives of Article 6 of the Rome Convention and indirectly Article 8 of the Rome I Regulation. The Court confirms once again that these provisions are not designed to ensure the application of the most favourable law. Their purpose is to ensure that the mandatory rules of the law of the country with which the employment contract is most closely connected are safeguarded.

Whether that approach ultimately provides sufficient protection against strategic structuring of employment relationships, particularly in the context of remote work, remains to be seen. For that reason, Hortis may prove to be important less for its immediate outcome than for the debates it is likely to generate about the relationship between employee protection, proximity and party autonomy in EU private international law in the context of changing work patterns.