by Dr. Lisa Günther

Dr. Lisa Günther, a lawyer at TaylorWessing, has kindly provided us with the following note on the recent reference for a preliminary ruling made by the German Federal Labour Court (see Giesela Rühl’s earlier post on the Court’s press release here). Günther is the author of a doctoral dissertation on the applicability of foreign mandatory rules under Rome I and II that was accepted by the University of Trier (Die Anwendbarkeit ausländischer Eingriffsnormen im Lichte der Rom I- und Rom II-Verordnungen, Verlag Alma Mater, Saarbrücken 2011; more details are available here).

On February 25, 2015, the German Federal Labour Court referred three questions relating to the interpretation of Art. 9 and Art. 28 Rome I Regulation to the CJEU. In the context of a wage claim made by a Greek national who is employed by the Greek State at a Greek primary school in Germany, the German Federal Labour Court faced the problem whether to apply the Greek Saving Laws No 3833/2010 and 3845/2010 Laws as overriding mandatory provisions although the employment contract is governed by German law.

The Greek Saving Laws are the result of the implementation of agreements between Greece and the institutions formerly known as the “Troika” (EU, ECB, IMF) regarding the granting of credits in the context of Greece’s financial difficulties. The Saving Laws are supposed to ensure that Greece meets the obligations contained in Art. 119 ff. TFEU, particularly in Art. 126 TFEU. These obligations have been specified by Council Decision 2010/320/EU of 10 May 2010. The Greek Saving Laws result in payment cuts in the public sector. The Greek claimant demands payment of the difference between his original salary and the sum that has been reduced in accordance with the Greek Saving Laws.

As the employment contract was concluded in 1996, amended in writing in 2008 and lasted at least until December 2012, the German Federal Labour Court first raises the question as to whether the application of the Greek Saving Laws is subject to Art. 9 of the Rome I Regulation as far as the the temporal scope of the Regulation is concerned. If Art. 9 Rome I Regulation is applicable in this sense, the German Federal Labour Court raises the further question as to whether Art. 9 (3) Rome I Regulation implicitly prohibits the application of the Greek Saving Laws because Art. 9 (3) Rome I Regulation only covers overriding mandatory provisions of the place of performance and – according to the German Federal Labour Court – Germany is the relevant place of performance in this case.

Thus, the temporal scope of application of the Rome I Regulation must be the starting point of legal analysis. According to Art. 28 of the Rome I Regulation, the Regulation applies to contracts concluded as from 17 December 2009 (cf. the corrigendum published in OJ 2009, No. L 309, p. 87). As the employment contract was – initially – concluded in 1996, the answer in the negative seems quite clear. The previous instance, the Regional Labour Court of Nürnberg, thus decided that the Rome I Regulation is in fact not applicable. The German Federal Labour Court, however, argues that an autonomous interpretation of the term “concluded” is necessary because the Member States have different understandings of when an employment contract is actually “concluded”. Particularly, the German Federal Labour Court points out that such an autonomous interpretation must take into account the fact that employment contracts are continuous obligations. Also, the Court emphasizes that it may be necessary not only to include the very first conclusion of an employment contract into the scope of Art. 28 Rome I Regulation, but to interpret the term “concluded” in a way that amendments or changes (i.e. alteration of the gross salary or legislative measures such as the measures of the Greek legislature in question) to an existing employment contract also lead to the application of the Rome I Regulation.

Nevertheless, the wording of Art. 28 Rome I Regulation is rather inflexible in referring to contracts concluded as from 17 December 2009 but not to contracts merely continuing after 17 December 2009. Also, the legislative procedure shows that the drafters decided consciously against a retroactive effect of the Rome I Regulation (cf. von Hein, in: Thomas Rauscher [ed.], EuZPR/EuIPR, Munich 2011, Art. 8 Rome I para.16). While Art. 24 (3) of the Proposal for a Regulation of the European Parliament and the Council on the law applicable to contractual obligations (Rome I), COM(2005) 650 final, provided for a limted retroactive effect, this transitional provision was deleted and did not become a part of the final Rome I Regulation. The interpretation that it is sufficient for the applicability of the Rome I Regulation to simply continue a contract after 17 December 2009, however, would result in precisely such a retroactive effect. Against this background, a conscious choice of the contracting parties to substantially modify and/or actually renew their contract should be the minimum requirement for the intertemporal application of the Rome I Regulation.

Should the CJEU affirm the intertemporal application of the Rome I Regulation, the second question referred to the CJEU will become decisive. The characterization of the Greek Saving Laws as overriding mandatory provisions as such does not seem to pose any difficulties. Both the requirements of German case law as well as the definition now contained in Art. 9 (1) Rome I Regulation (“provisions the respect for which is regarded as crucial by a country for safeguarding its public interest, such as its political, social or economic organisation, to such an extent that they are applicable to any situation within their scope, irrespective of the law otherwise applicable to the contract“) – which provides guidance regardless of whether the Rome I Regulation is applicable or not – are met if taking into consideration genesis, wording as well as the policy of the Greek Saving Laws.

If Art. 9 Rome I Regulation is not applicable ratione temporae, the German Federal Labour Court considers taking the Greek Saving Laws into account as a matter of fact within the scope of the German lex causae. This approach complies with how German courts used to consider third country overriding mandatory provisions before the Rome I Regulation entered into force. As Art. 7(1) of the Rome Convention on the law applicable to contractual obligations from 19 June 1980 was never adopted in Germany, the German courts had to rely on blanket clauses in the lex causae allowing such consideration within the framework of substantive law rather than applying them pursuant to conflict of laws rules. The German Federal Labour Court, however, raises the question as to whether Art. 9 Rome I Regulation now excludes taking Greek Saving Laws into account. This question is a result of the unfortunate restrictions of Art. 9 Rome I Regulation. Whereas Art. 9(2) Rome I Regulation concerns the application of overriding mandatory provisions of the law of the forum – in this case German law –, Art. 9(3) Rome I Regulation limits the application of overriding mandatory provisions to the provisions of the place of performance, stating that “[e]ffect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding provisions render the performance of the contract unlawful. […].” While the Rome I Regulation does not provide a definition of the “place of performance”, therefore not answering the question whether the relevant place of performance is the place of performance of the characteristic performance of the contract only or whether each performance has to be considered separately, the German Federal Labour Court seems to have determined that Germany must be regarded as the place of performance for the payments of the Greek state within the meaning of Art. 9(3) Rome I Regulation. Therefore, the question as to whether Art. 9(3) Rome I Regulation actually prohibits the application of overriding mandatory provisions which are neither overriding mandatory provisions of the lex fori nor of the place of performance becomes crucial.

Both the wording as well as the genesis of Art. 9(3) Rome I Regulation suggest that the direct application of overriding mandatory provisions which are not part of the law of the place of performance on a conflict of laws level is – unfortunately – not possible. The Member States could not agree on a provision comparable to Art. 7(1) of the Convention on the law applicable to contractual obligations from 19 June 1980 which provided for the application of third country overriding mandatory provisions with which the situation has a close connection (cf. Art. 8(3) of the proposal COM(2005) 650 final) but deliberately restricted the scope of Art. 9 (3) to overriding mandatory provisions of the place of performance.Still, Art. 9 (3) Rome I Regulation should not prohibit indirectly considering the content of third country overriding mandatory provisions as a matter of fact within the scope of blanket clauses of the substantive lex causae:

First, the indirect consideration of third country overriding mandatory provisions as a matter of fact should not be equated with a direct application on a conflict of laws level. Therefore, the conflict of law provisions of the Rome I Regulation cannot prohibit the consideration of third country overriding mandatory provisions on the substantive law level. Thus, even if the CJEU approves of the application of the Rome I Regulation ratione temporae, the German Federal Labour Court will not be prevented from considering the Greek Saving Laws within blanket clauses of the German lex causae – which is exactly how German courts considered third country overriding mandatory provisions before the Rome I Regulation entered into force.

Secondly, the German Federal Labour Court raises the question whether it is actually obliged to apply the Greek Saving Laws pursuant to the principle of sincere cooperation between Member States. This principle provides for the Member States to assist each other in full mutual respect in carrying out tasks flowing from the Treaties, Art. 4 (3) TEU. It is questionable whether Art. 4 (3) TEU as part of the primary law actually obligates the Member States to apply any overriding mandatory provision of other Member States simply due to the fact that another Member State’s s legislature enacted them without any further statutory basis providing for such an application. However, as the Greek Saving Laws in question have their origins in obligations arising from the TFEU as well as a council decision, the situation might be regarded differently in the given case, especially because the situation affects the entire European Union. In this case, both Art. 4 (3) TEU as well as reasons of legal policy might actually oblige the German Federal Labour Court to apply the Greek Saving Laws to the claim for payment in question. Now it is up to the CJEU to decide.

Some earlier publications of Veerle Van Den Eeckhout on Private International Law and Migration Law are currently being made publicly available on SSRN. One of the core publications is the article  “De vermaatschappelijking van het internationaal privaatrecht. Ontwikkelingen aan het begin van de 21e eeuw” (written in Dutch. English title: “The Socialization of Private International Law. Developments at the beginning of the 21th Century”). This article provides an exploratory analysis of the interaction between Private International Law and Migration Law.

The papers presented at the European Parliament’s workshop “Cross-border activities in the EU – Making life easier for citizens” (PE: 510.003) on 26 February 2015 in Brussels have been uploaded to the Parliament’s homepage. The papers have been collected in a single compendium that is available (as a pdf file) here. The volume contains the following presentations (in the order of the workshop’s programme):

SESSION I – LESS PAPER WORK FOR MOBILE CITIZENS

Towards a European Code on Private International Law? (Jan von Hein and Giesela Rühl)

Promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents within and outside the european union (proposal for a regulation, COM(2013) 208) (Pierre Callé)

Promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the EU and beyond (Michael P. Clancy)

Towards European Model Dispositions for Family and Succession Law? (Christiane Wendehorst)

EU Regulation 650/2012 on successions and the creation of a European Certificate of Succession (Kurt Lechner)

Regulation (EU) 650/2012/EU on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (Eve Põtter)

SESSION II – CROSS BORDER FAMILIES AND FAMILIES CROSSING BORDERS

The Brussels IIa Regulation: towards a review? (Hans van Loon)

Name Law –- Is there a need to legislate? (Paul Lagarde)

SESSION III – BUSINESS AND CONSUMER’S CONCERN

Private international law as a regulatory tool for global governance (Harm Schepel)

The European Small Claims Procedure and the new Commission proposal (Pablo Cortés)

Mediation as Alternative Dispute Resolution (the functioning of Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters) (Giuseppe De Palo)

The 2005 Hague Convention on Choice of Court Agreements and the recast of the Brussels I Regulation (Gottfried Musger)

The second revised edition of European Private International Law, edited by Prof. dr. K.R.S.D. Boele-  Woelki & R.J. ter Rele, has just been published.

This book collects international and European instruments which primarily contain Private International   Law rules for jurisdiction, the applicable law and the recognition and enforcement of foreign decisions.

ISBN 9789069165998 | 452 Pages | Price € 34,50

More information, including the table of contents, is available here.

The first paper in the Working Paper Series of the Centre for Private International Law is now available on the Centre’s website (please see http://www.abdn.ac.uk/law/research/working-papers-455.php). Researchers are welcome to come to the Centre to pursue their research and to give a paper which could be submitted for the Working Paper Series. For further enquiries, please contact Jayne Holliday (Secretary), Dr Katarina Trimmings (Deputy Director) or Professor Paul Beaumont (Director).

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is seeking a

LEGAL OFFICER (full-time)

to support ongoing work in relation to the “Judgments Project”.

The ideal candidate will answer to the following description:

– Excellent law school education (Bachelor of Laws, Master of Laws, J.D., or equivalent), preferably in the common law tradition;

– Good knowledge of private international law (conflict of laws) in general, and in particular of international civil procedure;

– Familiarity with comparative law (substantive and procedural law) and public international law;

– A minimum of 3-5 years of experience in practice of law, academia, or an international organisation is desirable;

– Excellent command, preferably as native language and both spoken and written, of English; working knowledge of French and / or of other languages desirable;

– Very good drafting capabilities (e.g., dissertation, law review or other publication experience will be taken into account);

– Personal qualities to work well in a small team and contribute to a good, pleasant and co-operative working atmosphere both within the Permanent Bureau and with outside experts.

The successful candidate will be working under the direction of the responsible First Secretary. Duties will mainly focus on the “Judgments Project”, which includes assistance with preparation of research papers and other documentation, organisation and preparation of presentations, attendance of relevant (experts) meetings, etc. Work may from time to time also relate to the follow-up and co-operation with States with regard to the implementation of the 2005 Hague Choice of Court Convention, assistance with promotional activities and training programmes, and other work as required by the Secretary General.

Type of appointment and duration: One-year contract as Legal Officer, funded by a special grant from the Attorney-General’s Department of Australia; any extension of the contract is subject to additional funding.

Preferable starting date: as soon as possible, taking into account the availability of the successful candidate.

Salary: Relevant A-grade of the Co-ordinated Organisations scale for the Netherlands, depending on qualifications and experience (the grade corresponding to the envisaged profile would most likely be A/1 of the Hague Conference adaptation of the Co-ordinated Organisations scale).

Place of work: The Hague, the Netherlands

Deadline for applications: 22 May 2015

Applications: Written applications including a curriculum vitae, letter of motivation, academic transcripts, one sample of written work (preferably in an area of international civil procedure), and at least two references, should be addressed to the Secretary General of the Hague Conference on Private International Law, before 22 May 2015. Email address: applications@hcch.nl

The first issue of 2015 of the Dutch journal on Private International Law, Nederlands Internationaal Privaatrecht, is a special issue on the upcoming revision of the Brussels IIbis Regulation. Renowned scholars reflect on topical issues that need to be addressed in the revision. It includes the following contributions:

Ian Curry-Summer, ‘The revision of Brussels IIbis’ (Editiorial).

Alegría Borrás, ‘Grounds of jurisdiction in matrimonial matters: recasting the Brussels IIa Regulation’, p. 3-9.

Abstract. The recasting of the Brussels IIa Regulation implies different considerations. The first one is the review of the existing grounds of jurisdiction and how they can survive in the new text. The second is the possibility of the introduction of party autonomy and the hierarchization of the grounds of jurisdiction. These modifications imply the possibility of including changes in other rules related to jurisdiction. Although it would be a good result if all member states could accept the rules on matrimonial matters, as well as on jurisdiction and on the applicable law, this still seems to be difficult, taking into account the need for unanimity and the experience with the Rome III Regulation.

Th.M. de Boer, ‘What we should not expect from a recast of the Brussels IIbis Regulation’, p. 10-19.(sample copy)

Abstract. If the European Commission decides to recast the Brussels IIbis Regulation, it is likely to submit a proposal in which the focus will be on practical matters, such as judicial cooperation, the return of abducted children, or the further abolition of exequatur. The questionnaire that was used for the public consultation on the ‘functioning’ of Brussels IIbis did not leave much room for criticism of the Regulation’s points of departure with regard to jurisdiction in matters of parental responsibility. Yet, there are a few issues that may be more important than the prevention of parallel proceedings or the free circulation of judgments within the EU. One of them concerns the virtually unlimited scope of the regulation in cases in which jurisdiction is determined by prorogation (Article 12). Another problem results from the perpetuatio fori principle underlying Article 8. Both provisions confer jurisdiction even if the child is habitually resident outside the EU, which casts considerable doubt on the effectiveness of the court’s decision.

Marco Mellone, ‘Provisional measures and the Brussels IIbis Regulation: an assessment of the status quo in view of future legislative amendments’, p. 20-26.

Abstract. The European Commission is assessing the need for legislative amendments to EC Regulation No. 2201/2003 on the recognition and enforcement of decisions in the field of matrimonial and parental responsibility matters (the so-called ‘Brussels IIbis’ Regulation). One of the key points of that Regulation is jurisdiction and the enforcement of provisional measures. This delicate issue has generated an intense debate among scholars and many decisions of the European Court of Justice have dealt with this subject. Therefore, the author returns to the outcomes of this debate and focuses on the parallel solutions adopted by the Brussels system of jurisdiction and the enforcement of decisions in civil and commercial matters. Following this path, the author tries to assess the right legislative approach for eventual future interventions by the European legislature.

Janys M. Scott QC, ‘A question of trust? Recognition and enforcement of judgments’, p. 27-35.

Abstract. The European Commission and the European Council propose to revise Brussels IIa to abolish exequatur in all matters of parental responsibility. There are some good reasons for extending direct enforcement, but this should not be at the expense of abandoning safeguards including those relating to public policy, nor should it involve diluting protection for children. If the Regulation is to deliver enforcement measures that work, then consideration must be given to how enforcement is made effective. This is likely to involve a continued role for the courts of the member state where a judgment is to be enforced.

Francisco Javier Forcada Miranda, ’Revision with respect to the cross-border placement of children’, p. 36-42.

Abstract. Concerning the current Council Regulation (EC) 2201/2003, in application for almost 10 years, on 15 April 2014 the Commission adopted a report on its application in practice that was followed by an extensive public consultation. In 2015, the Commission has launched a call for expressions with a view to setting up a group of experts to assist the Commission in the preparation of a legislative proposal for a revision of the Regulation. Within this process, one of the most important topics to be discussed is the proper functioning of the placement of a child in another member state in accordance with Article 56. In this field, this report helps to identify precedents, challenges and problematic points to be addressed and details and discusses the national procedures as well as topics of mutual trust, the case law of the Luxembourg Court of Justice and the best interests of the child in these situations, all of which aim to highlight the many prospective improvements to be achieved.

This issue also includes a conference report authored by Jacqueline Gray ‘Congress report: ERA Annual Conference on European Family Law 2014’, p. 43-45.

The Private International Law Association of Japan will hold its 128th conference on Saturday, June 6, and Sunday, June 7, 2015, at the Campus of Waseda University, Tokyo. One of the sessions includes a symposium on “Regional Economic Integration and Private International Law”. The conference programme and further information are available here.

Apologies for our recent outage, which many of you had noticed – thanks to those who emailed in and pointed out the problems with accessing posts, search, etc. We had gremlins of some variety in the database which powers conflictoflaws.net, and after much prodding and pushing they have cleared off. Everything should now be working normally again (if anyone does spot a fault, please do let me know.)

From 3 to 6 February 2015, the Working Group on the Judgments Project met in The Hague for its fourth meeting under the chairmanship of Mr David Goddard QC. The Working Group was composed of 28 participants from 15 Members. At its meeting, the Group further developed its proposed provisions for a future Convention on the recognition and enforcement of judgments. The Group prepared a common draft text, which sets out a possible architecture and draft provisions relating to the scope of the Convention, criteria for recognition and enforcement and procedure for recognition and enforcement.

The Working Group envisages that it will be able to bring the draft text to the point where it can recommend to Council, prior to its 2016 session, that the text be submitted to a Special Commission.