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Jurisdiction clause in crew contracts overridden by ECJ interpretation of place of work

News / 19-06-2017 / London

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.

Background

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.

Commentary

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. 

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