On the 12 September 2013 (Anton Schlecker v Melitta Josefa Boedeker) the European Court of Justice has confirmed that, where an employment contract does not specify the applicable law, the law applicable will not always be the law of the country where the employee works, if the employee has a closer connection to another jurisdiction.
The questions referred to the European Court of Justice related to the interpretation of Article 6(2) of the Rome Convention, specifically:
“(1) Is Article 6(2) of the Rome Convention on the law applicable to contractual obligations to be interpreted in such a way that, if an employee carries out the work in performance of the employment contract not only habitually but also for a lengthy period and without interruption in the same country, the law of that country should be applied in all cases, even if all other circumstances point to a close connection between the employment contract and another country?
(2) Does an affirmative answer to the first question require that, when concluding the contract of employment, or at least at the commencement of the work, the employer and the employee intended – or were at least aware of the fact – that the work would be carried out over a long period and without interruption in the same country?”
The Court stated that in determining the applicable law, preference must be given to the connection between the employment contract in force and the country where the employee “habitually carries out his work”, which term is to be interpreted broadly. It is therefore not necessary to consider the place of business through which the employee is engaged, unless the court is not in a position to determine the country in which the work is habitually carried out.
The Court found that even where an employee carries out work for a lengthy period and without interruption in the same country, the concluding part of Article 6(2) of the Rome Convention allows disregard the law applicable in that country if it appears from the circumstances as a whole that there is a closer connection with another country.
In this respect, the Court was of the view that factors such as the country in which the employee pays taxes, the country covered by social security scheme and pension, sickness insurance and invalidity schemes, salary determination and other working conditions were significant for this analysis.