Class 9: Article 25 and article 4

Question 1

What is the Ryanair case?

Answer 1

• The employee may sue in the place of domicile of defendant (not unusual). If it is a defendant domiciled outside of the EU = you won’t be able to sue them on the basis of the regulation. But protection is that you may also sue the employer in your place of habitual employment which the courts in Charleroi got entirely wrong because they looked at it from the point of view of the employer.
• Strategy of Ryanair to keep their employment law and HR out of any state but Ireland → choice of court clauses for Dublin and choice of law: Irish law. They would also: big chunk of their employees sign service contracts = pilots or part of the cabin staff → are you an employee at all? = relevance: Holterman Shenevai criteria but also relevant for applicable labour law.
• First instance: Charleroi agreed with Ryanair → all the work is organized from Dublin. They also made an argument on the basis of international aviation law, suggesting that Ryanair aircraft, because of the nationality of the aircraft etc are not really Belgian but are Irish and so on and so forth.

Question 2

What did the CJEU decide in Ryanair case?

Answer 2

• The point of the employment section is the position of the employee: it is not meant to protect the position of the employer. Otherwise, the risk of forum shop the protected section = not the intention → the starting point need to be the employee. Place of habitual employment = Charleroi, regardless of them flying everywhere.

Question 3

What has been the result of the Ryanair case?

Answer 3

• Ryanair had to change some of its practices, but they still use service contracts and still issues concerning trade union conflicts.
  
  • Ryanair tries to state that active labour abor agreements do not fall within private international law, suggesting that they are not civil and commercial and that these collective labor , as part of public policy, are something different, which might be subject to Irish law.

Question 4

Litigation: what is the effect of an employee working elsewhere without agreement of the employer?

Answer 4

• What often happens is that employees diverge from from what was contractually agreed: plenty of employees who have de facto facto worked from places that are different from what they had agreed in that contract.
• They now want to sue in the places where they have decamped = so how do you need to interpret place of employment? Purely factual terms or in terms of what you have agreed = might even be impromptu agreement.
  
  • Often the employer does not agree that you go work in Lanzarote for a couple of months.
• Markt24: Court emphasizes the existence of the contract and not the actual exercise of the contract → there is distinguishable elements here: the question is whether there is a contract of employment at all: court does emphasise this contractual context and this agreement as opposed to the actual exercise of the work → extend to the situation where you unilaterally change the place of habitual employment.

Question 5

What are forum non convenience arguments

Answer 5

• Here the availability of witnesses, the effort which parties, particularly parties with shallow pockets, need to do to litigate a case in the alternative place of jurisdiction or indeed in England all of that counts towards a forum non analysis so you will have common law judges that will say and that have said in current circumstances it is quite impractical for this case to go ahead in a place like England.
  
  • If all the claimants and witnesses are elsewhere → common law is the standard proceedings, civil and commercial cases a lot of experts.

Question 6

What was the case in High court on the authentic languages?

Answer 6

• When you argue a case of EU → all the languages are equally authentic in all 22 languages: it is obligatory for the court under the CILFIT case law for a judge in the EU to apply the 22 authentic language versions.
  
  • Used in English courts

Question 7

What is retained EU law?

Answer 7

• UK post Brexit have 1 main statute where all the existing acquis will now be part of EU Law, where they will gradually eat away of.
  
  • We will gradually amend it, appeal it and also allow under certain conditions allow courts to diverge from certain rules and certain common law principles with the Supreme court the judge of what can and should be changed.
  • Absolute nightmare but a fee fest for lawyers.
• Because EU law has been retained, CJEU case law has also been retained → High Court case about “theft”: they needed 22 expert witnesses: High Court wanted to settle on 4-5, but they cannot send this to the CJEU = no longer possible: they are going to have to fight it out in England.

Question 8

What is important for the protective title?

Answer 8

• You stay within the title for your jurisdictional analysis → even if you are suing your employer, you are suing on the basis of art. 19 and not 4 → if you do not do this properly on the exam it is a problem (as well as in practice) = problem with the correct application and potentially also a procedure before Supreme Court.

Question 9

Is there already some flexibility wrt protected categories?

Answer 9

• Yes, somewhat: you could argue whether or not there was a consumer contract or an employment contract but the jurisdictional constraints are straight forward.

Question 10

What are choice of court agreements?

Answer 10

• Article 25: very crucial in B2B practices across the EU: standard practice whereby parties agree, if there is an issue, that they will settle this issue in court X or court A, B and C.
• Agreements are disregarded in case of art 24: exclusive jurisdiction and restricted in the case of protected category.
• When they are valid, they are exclusive (unless parties agree otherwise)
• Parties domiciled outside the EU can make a valid choice for a court within the EU.
• Unclear if there is reflexive effect for choice of court ex EU (Gothaer).

Question 11

Is a choice of court exclusive?

Answer 11

• Regulation specified in 2001 that if you agree choice of court, in principle it is exclusive unless you agree otherwise.
  
  • You do see this quite regularly, parties say in their choice of court provision: any discussion between the parties on interpretation of the current contract is subject to the non-exclusive jurisdiction of the court at a certain city.

Question 12

Why would you at a non-exclusive choice of court provision?

Answer 12

• Under the regulation, there’s a lot of places where you can sue (certainly under art. 7 = forum contractus; art. 4 = place of the defendant), but we add one more forum where we can sue → additional jurisdictional anker over and above art. 7 and 4.
  
  • Happens in banking and finance; insurance (if not under the protected category).
• You want there not to be any doubt that this is certainly a place where we can sue! = the reasoning behind non-exclusive choice of court.

Question 13

What is possible under the new Brussels Ia regulation?

Answer 13

• Parties can now make a valid choice of court, even if neither of them are domiciled in the EU.
• It’s also a result of the EU having exceeded separately to the Hague choice of court convention = Hague conference on PIL: quasi-international organization:
  
  • Make conventions which they agree and negotiate and it is open for various states to sign and or ratify → a EU have done this for the choice of court convention.
  • As a result of this, they had to change this rule because it did not mention anything about the parties being domiciled in the Hague Convention states.

Question 14

Does the Hague Convention apply to non-exclusive choice of court?

Answer 14

• The Hague Convention 2005 does not apply to non-exclusive choice of court = only applies to exclusive choice of court and the EU has made a reservation vis-à-vis insurance contract:
  
  • Carveout for insurance contract.
• In the relationship with the UK: the Hague convention is going to be important = UK is a party, as is the EU → for choice of court post Brexit, it is an important instrument = only for exclusive choice of court.
  
  • This is quite frustrating for the city: used a lot in Banking and Finance!
• Therefore, a court in the EU does not need to adopt the recognition and enforcement mechanism of Hague 2005 when they are face with non-exclusive choice of court with an English provider.

Question 15

What if you fall out of Brussels Ia?

Answer 15

• If you fall out of Brussels Ia, you have to go to bilateral agreements, case law approaches.
• → does not make your judgement unenforceable, but it does make it a hell of a lot harder! The defendant will have much more possibilities to object recognition and enforcement, where swiftness is of the utmost importance.

Question 16

What is the reflexive effect of art. 24?

Answer 16

• Reflexive effect from art. 24: question when the jurisdictional identified by the subject matter of the article happens to be outside of the EU, do we then as courts in the EU concede that the court outside of the EU must have jurisdiction = mirror application of the jurisdictional rules.
• But there is still some uncertainty surrounding this: Case Gothaer

Question 17

What is case Gothaer?

Answer 17

• Case under Lugano Convention, choice of court in favor of Iceland and court of Antwerp stated = did not have jurisdiction, but some concern about the validity of the choice of court agreement. Tried to convince a Hamburg judge that they had jurisdiction on 7.2 = tort.
• Question on Court of Justice: was the court bound not just by the dictum of the Antwerp court dictum, which was simply “I do not have jurisdiction” or whether it was both are bound by the reasoning of the entire code namely I don’t have jurisdiction because the court at Iceland has jurisdiction.
• The CJEU decided that they were bound by the decision that Iceland jurisdiction → they were also bound because Iceland is a part of the Lugano convention (which has a similar rule) and based on mutual trust.

Question 18

Why is the Gothaer judgement quite confusing?

Answer 18

• Confusing judgement: because Lugano state, the courts of Hamburg had to abide, not just by the dictum but also the reasoning. Under the Brussels I: if choice of court is made under B2B context and it is made ex-EU: do we need to respect this, even if the court limits it to Lugano states = quite confusing!
• Now we have art. 34-35 in Brussels Ia: suggest specifically in deciding when a case is already pending outside of EU, whether the EU-court may stay its proceedings and relinquish → the existence of an exclusive jurisdiction court outside of the EU → A lot of buts and ifs.
  
  • See later in the discussion art. 34-35