Case study on ‘Employment contract’
Conflict of laws
Project
“Using EU Civil Justice Instruments: Development of training
materials and organisation of test seminars“
(Agreement No. JUST/2013/JCIV/AG/4686)
This publication has been produced with the financial support of the Civil Justice Programme of
the European Union. The contents of this publication are the sole responsibility of ERA and can in
no way be taken to reflect the views of the European Commission .
Topic 3 Conflict of laws
Case study on ‘Employment contract’1
Case study
Mr. Adrian Campos used to work as cabin crew for the Spanish airline “SPANAIR” which was
based in Palma de Mallorca (Spain), where Mr. Campos, a Spanish citizen, is domiciled. Mr.
Campos pays income tax in Spain and is covered by Spanish Social Security.
SPANAIR ceased to operate in January 2012. Shortly afterwards, Mr. Campos concluded an
employment contract with Taskforce International Limited (TI), a company incorporated
under the law of Malta. The object of said contract was to render services as cabin crew on
board of flights operated by the low cost company Dylan-Air, an Irish company.
Mr. Campos signed a first temporary six-month labour contract on 31 March 2012. The
contract contained a jurisdiction clause conferring exclusive jurisdiction in favour of the
courts of Malta. It also made reference to the Employment and Industrial Relations Act
(EIRA) of the Republic of Malta. According to this first contract Mr. Campos was to operate
from the airport of Palma de Mallorca. When this first contract expired Mr. Campos signed a
new contract with TI that contained a clause specifying that he would operate from other
airports depending on the season and the needs of Dylan-Air. This second contract was
tacitly renewed when it expired after six months and so successively. In March 2013 DylanAir posted Mr. Campos to Düsseldorf and he started to operate flights to several very
popular destinations in Spain from there and has continued to do so.
15 July of 2014 is a day Mr. Campos will never forget. He was used to dealing with all sorts
of passengers, but that flight from Malaga to Düsseldorf was particularly difficult. An old
lady that had broken her wrist in an accident in Marbella made a lot of trouble and this was
already his fourth flight of the day. He had not even had time to have lunch. He therefore
took one of the sandwiches on sale and ate it hastily before starting the lottery game for
the passengers.
Two days later he was handed a letter of dismissal on disciplinary grounds. He was accused
of breaching the internal rules of the airline prescribing that the crew has to seek
authorization and pay before taking food that is on sale on board. The letter was signed by
TI.
Mr. Campos challenges the dismissal decision and argues that the dismissal is unjustifiedand
in breach of Spanish labour legislation.
He moreover puts forward that Dylan-Air did not respect German rules on health, safety
and security at the workplace that establish minimum rest periods for workers.
Questions:
1
Developed by Prof. Cristina González Beilfuss, Head of External and Institutional Relations of the Spanish
Judicial School, Barcelona; Professor of Private International Law at the University of Barcelona
1
a) Which is the law that applies to the employment contract?
b) Do the German rules on health, safety and security at the workplace apply in the present
case?
I. Introduction
The purpose of this case is to get deeper into Rome I, but as happens ordinarily the issue
of jurisdiction also arises. It will be dealt with very briefly before going into the issue of
the applicable law.
II. Jurisdiction
Jurisdiction in individual employment contract matters is dealt with in Regulation
1215/2012 of 12 December 2012 (see above). The fact that certain EU Member States
have special labour courts that would be competent to hear disputes arising out of
employment contracts is not relevant, because the Regulation applies in civil and
commercial matters whatever the nature of the court or tribunal (art. 1.1) and the
employment contract qualifies as a civil or commercial matter.
Regulation Brussels Ia contains a special section on individual employment contractsSection 5 of Chapter II. According to article 21 an employer domiciled in a Member State
may be sued in the courts of the Member State in which he is domiciled or alternatively
in 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; or if he does not or did not
habitually carry out his work in any country in the courts where the business which
engaged the employee is or was situated. Article 23 provides that prorogation of
jurisdiction is only permissible if the agreement was entered into after the dispute has
arisen or which allows the employee to bring proceedings in courts other than those
indicated in Section 5.
In the light of these provisions it appears that the prorogation agreement contained in
the contract between Mr. Campos and TI is not valid. Mr. Campos would be able to sue TI
at its domicile and alternatively at the place where or from where he habitually carried
out his work, which would seem to be Germany.
For the purposes of this exercise it is not necessary to develop the issue any further- the
determination of the applicable law is in principle not affected by which EU court finally
hears the case, because the purpose of any unification of choice of law rules is precisely
to ensure that the applicable law does not change, depending on the competent court.
III. The applicable law
After dealing with the issue of jurisdiction and perhaps going over the facts of the case in
the larger group, participants should be split into three groups and be left to work on
their own for 75- 90 minutes. This time the three groups will deal with the same issues.
Ideally each group has one trainer whose function is to make sure that participants do
not go off-topic and to intervene only if a group goes terribly wrong. It might also be
possible to have only one trainer who walks around the groups.
2
This case involves dealing with CJEU case law. The best solution would be for participants
to have access to the data-base they usually work with so that they are put in the same
situation they would be in if the case was real. Where this is not feasible there are two
alternatives- participants can be given a selection of CJEU cases- preferably not only the
ones relevant but also others- which they would need to go through in order to discern
what is relevant or not. Another alternative is that the information on the findings of the
CJEU is provided by the trainer at a later stage.
1. Identification of the applicable instrument
The first step in any private international question is to determine the sources that apply.
Participants are already familiar with Regulation Rome I and will most probably not have
any difficulty in reaching the conclusion that this is the relevant source. They should,
however, be reminded that it is important to check:
(i)
(ii)
whether the facts fall within the subject matter scope of the instrument
whether the facts fall within the temporal scope of the instrument
In connection to (i) it might happen that somebody argues that a labour dispute is not a
civil and commercial matter. They should be reminded that this notion has to be given an
autonomous interpretation. As happens in connection to Regulation Brussels Ia the
nature of the court or tribunal dealing with the matter is not relevant.
An important point to be made is that Regulation Rome I supersedes the national conflict
of law provisions that are no longer applicable in matters falling under the scope of
application of the Rome Regulation.
The temporal scope should not create any difficulties- the Regulation applies from 17
December 2009 to contracts concluded after that date (arts. 28 and 29 Rome I). All events
in this case take place between March 2012 and July 2014.
2. 2nd Characterization: Which are the relevant provisions in Rome I?
Once it is clear that Rome I applies the next step is to determine whether the claim falls
under the general rules of arts. 3 and 4, or a special provision is applicable. Art. 8 about
individual employment contracts is likely to be considered relevant as regards the
relationship between Mr. Campos and TI, but raises more doubts in connection to his
relationship with Dylan-Air.
In this context it is worth highlighting again that legal concepts contained in EU
instruments should as a rule be given an autonomous interpretation and not be defined
according to national law. There is no definition of employment contract in the text of
the Regulation (including its Preamble) nor case-law by the CJEU dealing with the
concept of an individual employment contract in the context of Rome I or Brussels I, but
regard could be paid to cases decided outside the area of cooperation in civil matters.
Even though the CJEU is not bound to follow decisions rendered in connection to other
areas of EU law, EU law is still a legal system and should be interpreted consistently,
unless there is reason not to do so. The CJEU has defined the employment contract in the
context of the free movement of workers and has stated that “a worker is a person who,
3
for a certain period of time, performs services for and under the direction of another
person in return for which he receives remuneration”2.
The fact that Mr. Campos was remunerated by TI and received instructions from DylanAir suggests that both relationships can be characterized as labour relationships. This is
further confirmed by the Guiliano-Lagarde report according to which art. 6 of the Rome
Convention dealing with employment contracts “covers the case of void contracts and
also de facto employment relationships...”. The relationship between Mr. Campos and
Dylan-Air should be probably characterized as such a de facto labour relationship and fall
under the scope of application of the specific provisions on employment contracts
contained in Rome I. Otherwise Mr. Campos would be deprived of the protection granted
by these provisions which goes against the objective of protecting weaker parties.
3. Party autonomy
According to article 8.1 Rome I, parties to an employment contract may choose the
applicable law according to the rules contained in art. 3 of the Regulation. The relevant
issue in the case at hand is to determine whether or not a law has been chosen. The first
contract between Mr. Campos and TI contains a clause conferring exclusive jurisdiction to
the courts of Malta but no corresponding choice of law clause in favour of the law of
Malta. In the contract, reference is, however, made to a particular Maltese Labour law
Statute. This first contract lasts for six months and is succeeded by different temporary
contracts. We are not told that there are any changes as regards the issue of jurisdiction
or the applicable law in these successive contracts. We can therefore safely assume that
they include the same clauses (and even if they did not we would be able to claim that it
was the intention of the parties that they did, unless there is evidence to the contrary).
Art. 3 Rome I establishes that the choice of the law governing the contract shall be made
expressly, or clearly demonstrated by the terms of the contract or the circumstances of
the case. Does the fact that the terms of the contract include a choice of court clause in
favour of the courts of one country and then refer to a particular statute of that country
mean an implicit choice of Maltese law? Is the fact that the prorogation agreement is
invalid of any relevance?
In this connection reference should be made to Recital (12) of the Preamble according to
which “an agreement between the parties to confer on one or more courts or tribunals
of a Member State exclusive jurisdiction to determine disputes under the contract should
be one of the factors to be taken into account in determining whether a choice of law
has been clearly demonstrated”. This suggests that it would not suffice if the choice of
court clause were the only element connecting the contract to Maltese law. But since the
terms of the contract also refer to a particular Maltese statute the choice of law may be
safely inferred from both elements. This would also be confirmed by a passage of the
Giuliano-Lagarde report under Art. 3 that states that “references in a contract to specific
Articles of the French Civil Code may leave the court in no doubt that the parties have
deliberately chosen French law, although there is no expressly stated choice of law”.
Participants should as well discuss whether the fact that the prorogation agreement is in
breach of art. 23 and therefore invalid has any meaning in connection to the implicit
choice of the applicable law. In principle it would seem that what we have to determine
is whether the parties actually had the common intention of choosing the applicable law
even though they did not expressly include a choice of law clause into their contract. The
2
CJEU, Case C- 43/99, Leclere and Deaconescu [2002], ECR I 4265.
4
fact that this is inferred from, among others, a contractual clause that is in breach of
Regulation Brussels I and therefore ineffective as regards jurisdiction is not conclusive.
Should the choice of Maltese law be extended to the contract between Mr. Adrian
Campos and Dylan-Air? We have characterized the relationship as an employment
contract, but it is obviously not a written contract and the parties are not the same. At
first sight it would therefore seem that it is not permissible to extend the choice of the
applicable law made in the contract between TI and Mr. Campos to the contract between
Mr. Campos and Dylan-Air. But this way of thinking would disregard the strong economic
connection between the two contracts. It is all part of the same game- the purpose of the
contract between TI and Mr. Campos is the provision of services in favour of Dylan-Air,
who is a party to the second contract. It would therefore seem that the law of Malta also
applies to the contract between Mr. Campos and Dylan-Air.
4. Party autonomy and weaker party contracts
Allowing the choice of the applicable law in weaker party contracts does not seem to be
in line with the purpose of protecting weaker parties. The bargaining position of Mr.
Campos and his employer(s) is not equal and he probably had no other choice than to
accept the terms of the contract proposed by TI if he wanted to get the job. How do we
reconcile this with Recital 23 of the Preamble stating that weaker parties should be
protected by conflict-of-law rules that are more favourable to their interests than the
general rules?
Art. 8.1 contains a sentence saying that the choice of the applicable law may not have
the result of depriving the employee of the protection afforded to him by provisions that
cannot be derogated from by agreement under the law that would apply in the absence
of choice. There is therefore a minimum standard of protection that is guaranteed in
spite of the choice of law and this minimum standard is provided by the mandatory rules
that would apply in the absence of choice.
Art. 8.1 is a rather complex provision which requires participants to proceed by the
following steps:
a) First, they need to determine the law that would apply in the absence of choice
pursuant to paragraphs 2, 3 and 4 of article 8.
b) Then they need to find out the contents of that law and determine which of its
rules are mandatory, in the sense that they cannot be derogated by agreement.
c) The mandatory rules of the law applying in the absence of choice need to be
compared with the chosen law in order to see which rules afford more protection.
d) The more advantageous rules are the ones that should be applied.
5. The law applying to a contract in the absence of choice
The law applicable to an employment contract in the absence of choice is determined as
follows:

Employment contracts are governed by the law of the country in which the
employee habitually carries out his work in performance of the contract (art. 8.2).
5




If the employee performs his work in more than one country the law of the
country from which the employee habitually carries out his work in performance
of the contract (art. 8.2) applies.
The fact that a worker is temporarily employed in another country does not
change the country where or from where the work has been carried out.
If the country in which or from which the worker habitually carries out his work
cannot be determined, the contract will be governed by the law of the place of
business through which the employee was engaged (art. 8.3).
Article 8 finally contains an escape clause allowing the application of a law that is
more closely connected to the contract (art. 8.4).
a) The place in which or from which the employee carries out his work
In the case at hand there is clearly not one single state in which the employee habitually
carries out his activities. Mr. Campos works in the transport sector and is therefore
moving around. Contrary to the position in some national legal systems the flag of the
aircraft should not be given too much weight (it is just a factor to be considered because
it is not infrequent that airlines hire aircrafts when they need to and the crew of an
airline fly under different flags).
We therefore need to determine whether there is one place from which Mr. Campos
habitually carried out his work. In an international road transport case the CJEU held that
the national court is to determine in which state the place is situated “….from which in
the light of all the factors that characterise his activity the employee performs the
greater part of his obligations towards his employer3 . This reasoning was confirmed in a
further maritime transport case4.
From the facts of the case at hand we know that at the beginning of his labour law
relationship with TI and Dylan-Air Mr. Campos operated aircraft from the airport of Palma
de Mallorca. It therefore seems likely that he received instructions in Palma de Mallorca,
organised his work there and had to report there before and after discharging his tasks. We
can therefore assume that at that period Spain was the country from which he habitually
carried out his work in performance of the contract. Spanish law would thus have been the
law governing the contract in the absence of choice in this initial period.
But we have also been told that the first contract expired after six months, and that all
contracts that followed contained a clause stipulating that Mr. Campos could be asked to
operate from different airports depending on the season and the needs of Dylan-Air. In
March 2013 he started operating flights from Düsseldorf and has continued to do so since
then. We might therefore think that the law applicable in the absence of choice is German
law, unless we can say that he was only temporarily working from Germany.
b) Was Mr. Campos only temporarily carrying out his activities from a place
other than Spain?
The second and successive contracts signed by Mr. Campos and TI stipulated that Mr.
Campos could be asked to operate from airports other than Palma de Mallorca if and
when Dylan-Air needed. The contracts signed suggest that Mr. Campos continues to
operate from Palma de Mallorca, except in certain cases. If this were so then we could
argue that the law applying to the case had Maltese law not been chosen would be
Spanish law.
3
4
See CJEU, Case C- 29/10, Koelzsch [2011] ECR I-1595.
CJEU, Case C-384/10, Jan Voogsgerd [2011], ECR I-13275.
6
The case at hand gives rise to doubts. In favour of Spanish law we could argue that
according to the contract the airline could at any moment post Mr. Campos somewhere
else and that the present arrangement is therefore only temporary; on the other hand,
the time factor speaks in favour of Germany not merely being a place from which Mr.
Campos was temporarily carrying out his work. The labour relationship started in March
2012. After one year Mr. Campos was asked to operate from Düsseldorf and has worked
from there for another year. It is not certain that Mr Campos will resume working in
Spain at a later stage and therefore it seems hard to qualify Germany as a place where
Mr. Campos was temporarily carrying out his work (see Recital 36).
In a real situation it would therefore be necessary to conduct an in–depth investigation
into the facts of the case. This should be done bearing in mind that the CJEU has
repeatedly stated that “the factor of the country in which the employee “habitually
carries out his work” set out in Article 6 (2) (a) of the Rome Convention must be given a
broad interpretation because the objective of Article 6 is to guarantee adequate
protection to the employee. The factor should be applied when it is possible for the court
seised to determine the State with which the work has a significant connection. This
would require determining the centre of the employee’s activities or the place where he
carries out the majority of his activities”5.
It may be that Participants raise the issue of which is the impact of national rules
implementing Directive 96/71/EC of the European Parliament and of the Council of 16
December 1996 concerning the posting of workers in the framework of the provision of
services (OJ L 18, 21.01.1997). This is clarified in Recital (34) of the Preamble which
establishes that the rule on individual employment contracts should not prejudice the
application of the overriding mandatory provisions of the country to which a worker is
posted. This will be further analyzed under 8.
The core issue that is at stake in our case- whether it is or is not permissible to dismiss
somebody on disciplinary grounds on the basis of a breach of internal rules that does not
seem to be of sufficient entity- is actually not dealt with in the Posted Worker’s Directive.
The Posted Worker’s Directive seeks to ensure that, whatever the law applicable to the
employment relationship, the rules of the country where the work is carried out as
regards issues such as maximum work periods and minimum rest periods; minimum paid
annual holidays; the minimum rates of pay, health, safety and hygiene at work are
respected.
c) The place of business through which the employee was engaged
If we are not in a position to determine, as probably happens in this case, which is the
place from which Mr. Campos habitually carried out his work in performance of the
contract, we will need to rely on art. 8.3 Rome I. This provision states that in such a case
the contract is governed by the law of the country where the place of business through
which the employee was engaged is situated.
The difficulty in our case is that Mr. Campos was hired by TI, a company domiciled in
Malta, but received instructions and worked on aircrafts operated by Dylan-Air, a
company established in Ireland. Which is the place of business through which he was
engaged, the place of business which concluded the contract or the place of business to
which the employee was connected through his actual employment?
5
See Koelzsch, paras 43 - 4 and Voogsgerd, paras 35- 37.
7
The CJEU has already answered the question in Voogsgerd- it has ruled that art. 8.3 Rome I
must be given a strict interpretation, in line with the language, the spirit and purpose of
the provision. The competent authority has to take into consideration matters relating to
the procedure for concluding the contract, such as the place of business which published
the recruitment notice and that which carried out the recruitment interview, and not
matters relating to the performance of the work, that are relevant in the context of art. 8.2
Rome I. The term place of business covers every stable structure of an undertaking, even
though it does not have legal personality (see Voogsgerd, para. 54).
If TI had had an office in Spain and Mr. Campos had been recruited through this office we
might therefore have reached the conclusion that Spanish law governs the contract in the
absence of choice. We are not told that this has been so and therefore cannot assume it.
This would lead to the law of Malta, which also happens to be the law chosen in the
contract as analysed before. The consequence would be that there is in principle no
minimum protection guaranteed in accordance with the mandatory rules of a law other
than the law chosen.
The facts of the case however suggest that TI acted in the name of and on behalf of DylanAir, that even though Mr. Campos was formally contracted by TI, he actually worked for
Dylan-Air. Dylan-Air was exercising the authority of an employer. The reason for dismissal
was a breach of internal rules of the airline prescribing that the crew has to request
authorization and pay for any items of food that are on sale for passengers. By contrast it
seems that the role of TI was very limited.
A parallel situation was analysed by the CJEU in Voogsgerd. The CJEU stated in this regard
that it is for the competent authority to assess what the real relationship between the two
companies is and to establish if there exists a real situation different from that which
appears from the terms of the contract. It ruled that the place of business of an
undertaking other than that which is formally referred to as the employer with which that
undertaking has connection may be classified as a place of business within the meaning of
the provision on employment contracts if objective factors make it possible to establish that
there exists a real situation different from that which appears from the terms of the
contract, even though the authority of the employer has not been formally transferred to
that other undertaking.
In view of this ruling the competent authority would thus need to investigate the facts of
the case and could eventually reach the conclusion that Irish law were applicable if Mr.
Campos was actually engaged by Dylan-Air. It might even be Spanish law if Mr. Campos was
engaged by a “place of business” of Dylan-Air in Spain. As analysed before, this term covers
every stable structure of an undertaking regardless of whether this structure has legal
personality or not.
When analysing article 8.3 it is important to make clear to participants that they have to
reach a decision and cannot fall back on article 8.4 without doing so. This provision contains
an escape clause that allows departing from the law governing the contract according to
art. 8.2 and 3. The provision therefore requires that the law governing the contract has
been established6.
d) The escape clause
Regardless of whether Maltese or Irish law governs, according to article 8.4 it is possible
to apply another law if it appears from the circumstances as a whole that the contract is
6
See CJEU, Case C- 64/12, Schlecker [2013] ECR.
8
more closely connected to this other law. The wording of the provision contrasts with
that of other escape clauses we have encountered before that required that all the
circumstances of the case pointed to a law other than that applicable according to the
relevant provisions and requires considering the circumstances as a whole, that is to make
a qualitative evaluation of the case.
The logic of article 8 should be stressed. The competent authority has to determine the
law governing the employment contract by reference to art. 8.2- place where or from
where the employee habitually carries out his work- and 8.3- country where the place of
business through which the employee was engaged is situated. However, if the contract
is more closely connected to another law, then the law governing the contract according
to paragraphs 2 and 3 of article 8 must be disregarded.
The crucial issue therefore is: When is a law more closely connected to an employment
contract than the law governing that contract by virtue of arts. 8.2 or 8.3? The CJEU
discussed this in the Schlecker case and remarked that “among the significant factors
suggestive of a connection with a particular country, account should be taken in
particular of the country in which the employee pays taxes on the income from his
activity and the country in which he is covered by a social security scheme.... In addition
the national court must also take account of all circumstances of the case such as the
parameters relating to salary determination and other working conditions” (see
Schlecker, para. 41).
There are a number of factors that suggest that Spanish law is more closely connected to
the present case than Irish or Maltese law. Mr. Adrian Campos has to our knowledge
continued paying income tax in Spain and is covered by Spanish social security, even
though none of these factors is per se conclusive. The competent authority would need
to investigate the circumstances as a whole, but we can assume that the exception laid
down in art. 8.4 Rome I applies in our case. It should as well be noted that if the court
reaches the conclusion that a law is more closely connected to the contract than the law
determined in accordance to arts. 8.2 and 8.3 it must apply this more closely connected
law. There is a certain amount of discretion involved in evaluating whether there is such
a more closely connected law, but if this is decided then there is no discretion in drawing
the consequence of applying this more closely connected law.
6. The role of the mandatory rules of the law applicable in the absence of
choice
The examination of the issues included under 5 has taken up a lot of time and energy but
we should not lose sight of the fact that the law applying in our case is not the law
determined according to art. 8.4 Rome I but the law chosen in accordance to art. 3 Rome
I, within the limitations established in article 8.1. Rome I.
As examined above, the employment relationship was submitted to the law of Malta and
Maltese law is the law that governs, but Mr Campos cannot be deprived of the protection
provided by the mandatory rules of the law that would govern in the absence of choice,
that is, in our case of Spanish law. How is this to be understood in practice?
The logic of the rule is the following- in matters of contract party autonomy is a
governing principle- most of the provisions are not mandatory and it is therefore
irrelevant that even in a weaker party contract parties can choose the applicable law
because they could have actually copied the provisions of that foreign law into their
contract. What matters is that it is made sure that the application of the imperative rules
9
is guaranteed, that if the rules of the law chosen afford less protection they can be
disregarded because the bargaining position of the parties is unequal. Transferred to our
case- it may well be that Maltese law governs but only in so far as the mandatory rules of
Maltese law are more beneficial to Mr. Campos than those of Spanish law. We need
therefore to compare the mandatory rules of two legal systems and evaluate which are
more beneficial to the employee’s benefits (so-called Günstigkeitsprinzip).
In order to carry out this exercise we need to define what to compare and how to
compare. Mandatory rules are defined in art. 8.1 Rome I as those rules that cannot be
derogated by agreement of private parties. This is the so-called domestic concept of
mandatory rules. But it is not required to compare the mandatory rules of Spanish and
Maltese law in the abstract but only insofar as relevant to the case at stake (functional
analysis). In our case the relevant issue seems to be what qualifies as a ground for
dismissal on disciplinary grounds and which are the conditions for the admissibility of
such a dismissal according to the law of Malta and Spain. Maltese law applies unless we
reach the conclusion that Spanish law is more favourable.
7. Further issue to be considered
According to the description we were given at the beginning Mr. Campos challenged the
dismissal decision on the grounds that it was against Spanish law, because the breach of
the internal rules of the company is not sufficiently serious and does not justify such
dismissal. His claim is only accurate in so far as Maltese law does not provide an
analogous or superior protection to the one afforded by Spanish law.
8. The role of the overriding mandatory provisions of German law
As we have seen the employment contract is governed by Maltese law. Spanish law also
comes into play insofar as the choice of Maltese law cannot deprive Mr. Campos of the
protection afforded by its mandatory rules. But from the description of the case we know
that Mr. Campos claims that the German provisions establishing minimum periods of rest
for workers have been breached by Dylan-Air, which implies that he maintains that such
rules apply regardless of the fact that the law applicable to the contract is not German
law.
The relevant provision here is article 9 that deals with the so-called overriding mandatory
provisions. These are defined as “provisions the respect for which is regarded as crucial by
a country for safeguarding its public interests, such as its political, social or economic
organisation to such an extent that they are applicable in any situation falling within
their scope, irrespective of the law otherwise applicable to the contract under this
Regulation”. Recital (37) of the Preamble remarks that the concept of overriding
mandatory rules should be distinguished from the expression “provisions which cannot
be derogated from by agreement” and should be construed more narrowly.
In the case at hand it is not doubtful that the rules on the minimum rest for workers
qualify as such rules that are crucial for safeguarding public interest. This is further
confirmed by art. 3.1 a) of the Posted Workers Directive. It is also very likely that the
situation falls under the scope of German rules even though the labour relationship does
not take place exclusively in Germany because the aircraft Mr. Campos flew in was
operating from Germany. It is therefore clear that the situation falls under article 9.1.
Which effect is to be given to the overriding mandatory provisions of German law largely
depends on where the case is heard, which once again illustrates the interdependence
10
between jurisdiction and choice of law. Were Germany the forum, the overriding
mandatory provisions of German law would apply according to art. 9.2.
If Mr. Campos sues in a country other than Germany then art. 9.3 Rome I governs. This
provision requires first that the overriding mandatory provisions belong to a country
where the obligations arising out of the contract have to be or have been performed,
which would be the case here because Mr. Campos’ obligations arising of the labour
contract have to be partially performed in Germany since he is operating from a German
airport. The second requirement is, however, probably not met. Art. 9.3 requires that the
overriding mandatory provisions render the contract unlawful, which is probably not
their effect since provisions of the kind we are discussing rather have the effect of
modifying the contract. It thus follows that German rules on the minimum rest for
workers would not need to be given effect.
If in the case at hand we were dealing with mandatory provisions that would render the
contract unlawful, the competent authority might decide to give them effect. The
provision tries to give some guidance as to the factors to be taken into account in order
to decide whether or not to give them effect. Regard should be paid to their nature and
purpose and to the consequences of their application or non-application.
11