Jurisdiction clause in crew contracts overridden by ECJ interpretation of place of work
Nogueria v Crewlink Limited and Moreno Osacar v Ryanair: Opinion of the European Court of Justice 27 April 2017
Due to the nature of work in the aviation sector employees will regularly work in multiple Member States. This creates complexity in respect of both choice of law and jurisdiction. In this recent Ryanair case the European Court of Justice was asked to rule on the interpretation of the concept of “the place where the employee habitually carries out his work” taking into account principles from both the Rome Regulation governing choice of law and the Brussels Regulation governing jurisdiction.
Crewlink recruited and trained cabin crew for Ryanair and then assigned the crew to Ryanair. Employment contracts were issued stating they were governed by Irish law and contained a choice of forum clause conferring jurisdiction on the Irish courts. The contracts also stated that the crew were deemed to provide their services in Ireland as they carried out their duties on board aircraft registered in Ireland.
The appellants’ contracts designated Charleroi as their home base and they had to live within a one hour commute. The appellants started and ended their day at Charleroi and received work instructions at Charleroi Airports by consulting Ryanair’s intranet site. Ryanair and Crewlink acknowledged they shared a crew room at Charleroi. If and when relevant, the appellants completed sickness forms and attended disciplinary meetings at Charleroi.
The appellants issued various employment claims in the Labour Court in Charleroi which determined that they did not have jurisdiction to hear the claims due to the express jurisdiction provisions in the employment contract.
Referring Court question
The appellants lodged appeals against the Labour Court’s decision. The referring court sought a decision on whether Article 19 (2) of Regulation No 44/2001 providing that an employer could be sued in another Member State “where the employee habitually carries out his work or in the courts for the last place he did so” should be construed on the same basis as the “home base” definition in Annex 111 to Regulation No 3922/91 which determines specific Member State legislation applicable to airline flight and cabin crew.
It should also be noted that EU law will take account of the need to ensure adequate protection for the weaker contracting party ie the worker, when interpreting employment contracts.
Advocate General Opinion
For the purposes of determining jurisdiction,the place where the employee habitually carries out his work cannot be assimilated to the “home base” definition in related aviation legislation but is to be construed as “the place where or from which the worker principally carries out his obligations vis a vis his employer”.
The national court will be required to pay particular attention to the following non exhaustive list when determining the place from which employees principally perform their obligations:
· The place where the worker starts and ends his working days;
· The place where the aircraft on board which he carries out his work are habitually based;
· The place where he is made aware of the instructions communicated by his employer and where he organises his working day;
· The place where he is contractually required to live;
· The place where an office made available by the employer is situated;and
· The place which he must attend when he is unfit for work or in the event of disciplinary problems.
The Advocate General’s opinion is not binding but as it is usually followed by the European Court, EU airlines should be mindful of the above clear guidance provided on the information the national courts will now use to identify the place of work. Employer control of which Member State court can determine employee issues has been removed and the “home base” is of limited relevance in determining jurisdiction issues.
Related news & insights
Insights / A flying start for the restructuring plan
06-01-2021 / Aviation & Travel
Alex Rogan looks at the maiden flight of the restructuring plan, highlighting the practical considerations for future cases.
News / Incisive Law featured on the September issue of Asian Legal Business
18-09-2020 / Aviation & Travel
We are pleased to have been featured in the September issue of the Asian Legal Business Magazine.
Insights / Counter-Drone Tech and the Challenges Thereof
27-08-2020 / Aviation & Travel
Drone detection technologies have been a blind spot for most governments across the world, and it gains significance in the current times considering that drones are now being used for commercial purposes.
Insights / Drones – A New Frontier
13-08-2020 / Aviation & Travel
Unmanned Aircraft Systems / Vehicles (UAS UAV - or Drones, as they are commonly known) refer primarily to an unmanned aircraft which is guided by a remote control.
News / Fixing of domestic airfares by Indian government: a mode to be replicated by other countries?
04-06-2020 / Aviation & Travel
Setting aside our aspersions on the manner in which domestic air travel was recommenced in India – by way of a tweet by the aviation minister catching the airlines unawares - the government’s decision to “control” the ticket prices, at least in the short term (3 months), is, I feel, a masterstroke.
News / Update on the impact of the Coronavirus on the Aviation Industry
06-03-2020 / Aviation & Travel
Impact The COVID-19 outbreak has already had a severe impact on the aviation sector. “Air traffic has collapsed on key Asian routes and it is rippling throughout the air transport network globally, even between countries without major outbreaks of COVID-19.” Flybe yesterday announced its collapse, in part it says due to the effect of coronavirus upon bookings. Airlines are experiencing a serious decline in demand: “one carrier has taken a 26% reduction in passenger numbers across its entire operation and a major carrier has reported booking to Italy collapsing to zero with customers demanding refunds. Many carriers are reporting 50% no-shows across several markets, future bookings are softening and carriers are reacting with flight cancellation, crew being given unpaid leave, freezing of pay increases and plans for aircraft to be grounded.”