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European Labour Law Lecture 03D

European Labour Law Lecture 03D. 4.1. The EU Law on Conflicts on the Labour Market 1.

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European Labour Law Lecture 03D

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  1. European Labour Law Lecture 03D

  2. 4.1. The EU Law on Conflicts on the Labour Market 1 We have seen that as regards statutory social security the EU has given clear rules on the determination of the applicable law on people having been insured according to several national social security systems. The counterpart also happened: EU rules on the determination of the applicable labour law. This has been done as part of the 1980 Convention of Rome on the applicable law to contractual obligations, in 2008 replaced by Regulation (EC) No. 593/2008 (often called the Rome I Regulation).

  3. 4.1. The EU Law on Conflicts on the Labour Market 2 Its character, though, is different from that on social security. In statutory social security – which is part of public law – the rule is very rigorous: this IS the applicable law. In contractual obligations – part of private law – the rule traditionally is more liberal: you can choose whatever law system you want. Only if you have not made a clear choice, the courts shall do it for you according to such or such rules. That is the whole idea of international private law, or – as the English call it – the law of conflicts. And this therefore has also been the main line of the 1980 Convention of Rome and now of Regulation 593 (Rome I Regulation).

  4. 4.1. The EU Law on Conflicts on the Labour Market 3 However, based on national experiences a special provision has been devoted on the contracts of employment. Reason: in such contracts the employer normally is the stronger party and he could be inclined to “impose” on the workers the law of a country with weak and cheap labour law. So what is the special provision for labour in the Rome I Regulation?

  5. 4.1. The EU Law on Conflicts on the Labour Market 4 A. if you have not chosen the applicable labour law yourself, the court shall choose it for your. And then de normal choice is: the law of the country where you have worked (lex laboris) (Art. 6(2) (but there are exceptions, art. 6(3) and art. 8). B. if you have chosen the applicable law yourself, this will be respected (Art. 3), but you cannot avoid the application of mandatory laws of the law system applicable under the A-rule, that are more favourable to the workers (Art. 6 (1). Example.

  6. 4.1. The EU Law on Conflicts on the Labour Market 5 This set of rules seem to be nice, but it soon appeared that they were not clear enough. A leading case was Rush Portuguesa, 1990.

  7. 4.1. The EU Law on Conflicts on the Labour Market 6 A second problem of contracts of employment with an international flavour is that of determining the competent court. This again has become object of EU law: the Convention of 1968 on the Jurisdiction and Enforcement in Civil and Commercial Matters, in 2001 replaced by Regulation (EC) 44/2001.

  8. 4.1. The EU Law on Conflicts on the Labour Market 7 Again, this, in private law matters (contracts) is primarily left to the parties and secondary to the courts to decide. But again, to protect the worker as normally the weaker party, many national law systems traditionally have given as the first rule: the court of the place of work (lex laboris). In Reg. 44/2001, which contains special provisions for contracts of employment (Art. 18-21), the rules are slightly different.

  9. 4.1. The EU Law on Conflicts on the Labour Market 8 • The employee may call the employer in court in various places, a.o. the place where he used to work (lex laboris) • The employer may only call the employee before the competent court for the place where the worker has his residence.

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