Provisional text

delivered on 3 July 2025 (1)

Case C‑485/24

Locatrans Sarl

ES

(Request for a preliminary ruling from the Cour de cassation – Chambre sociale (Court of Cassation – Social Chamber, France))

( Reference for a preliminary ruling – Convention on the law applicable to contractual obligations (the Rome Convention) – Article 6 – Contract of employment – Choice made by the parties – Mandatory rules of the law applicable in the absence of choice – Connecting criteria – Employee carrying out his or her work in more than one Contracting State – Habitual place of work – Change to the habitual place of work during the performance of the contract – Assessment based on the entire duration of the contract or the most recent period of work )

I.Introduction

The legal framework for this reference for a preliminary ruling is the Convention on the law applicable to contractual obligations. (2) More specifically, the question referred by the Cour de cassation (Court of Cassation, France) concerns, in essence, the interpretation of Articles 3 and 6 of that convention. Article 3 enshrines the principle of the freedom of the parties to choose the law applicable to contractual obligations. In accordance with that principle, common to the Member States, contracts are governed by the law chosen by the parties. Article 6, the interpretation of which lies at the heart of the referring court’s question, establishes a mechanism for designating the law applicable to an employment contract in the absence of a choice made in accordance with Article 3 of the convention and by way of derogation from the provisions of Article 4 of the convention. (3)

The request for a preliminary ruling has been made in proceedings between a transport company and a driver who had worked for that company, concerning various claims for compensation made by the latter against his former employer, following the termination of his employment contract.

Against that legal and factual background, the referring court’s question invites the Court of Justice to consider the interpretation of the concept of ‘country in which the employee habitually carries out his [or her] work in performance of the contract’ within the meaning of Article 6(2)(a) of the Rome Convention.

More specifically, the Court will have the opportunity to clarify the considerations which it set out in the judgment in Koelzsch , (4) in a factual context similar to that in that judgment, but raising a novel question. That question concerns the period of work to be taken into account by the referring court in determining which law is applicable under that provision if the employee has worked for his or her employer in two separate stages: first, in several States and next, during the period preceding the end of the employment relationship, on a permanent basis in a single State.

II.Legal framework

In addition to Article 1, Article 3 and Article 6 of the Rome Convention (now Article 8 of Regulation (EC) No 593/2008), (5) the first subparagraph of Article 5(1) of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (6) (now Article 19 of Regulation (EC) No 44/2001 (7)) is of particular importance in the present case.

III.The dispute in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court

Under an employment contract concluded on 15 October 2002, ES was employed as a driver by Locatrans Sàrl, a transport company established in Bettembourg (Luxembourg). The employment contract provided for a monthly working time of 166 hours. It stipulated that the applicable law was Luxembourg law and that the countries essentially covered by the transport business were Germany, the Benelux countries, Italy, Spain, Portugal and Austria.

By letter of 14 January 2014, Locatrans informed the employee of its decision to reduce his number of weekly working hours to 35 hours, that is to say, 151.55 hours per month, from 16 July 2014, a change to which the employee expressed his opposition.

By letter of 31 March 2014, Locatrans informed the employee that, after analysing his activity over the last 18 months, it had found that he had carried out a substantial part of his employment activity, namely over 50%, in France and that it was obliged to register him with the French social security system.

Locatrans confirmed an offer of employment to the employee in a French company by letter of 17 April 2014 and informed him that he would no longer form part of the staff of the undertaking from 16 July 2014 following his refusal of the reduction in his working time.

On 8 January 2015, the employee, disputing the termination of his employment contract, brought proceedings before the conseil de prud’hommes de Dijon (Labour Tribunal, Dijon, France) involving several claims for compensation.

By judgment of 4 April 2017, the conseil de prud’hommes de Dijon (Labour Tribunal, Dijon) dismissed the employee’s claims on the grounds that Luxembourg law was applicable to the performance and termination of the employee’s employment contract, that his dismissal was clear and unambiguous and that there was no reason to reclassify it as wrongful termination.

Further to the appeal lodged by the employee, by judgment of 2 May 2019 the cour d’appel de Dijon (Court of Appeal, Dijon, France) set aside the judgment of 4 April 2017. In that regard, that court noted that, according to the employment contract at issue, the parties had chosen to make their employment relationship subject to Luxembourg law. However, in its letter of 31 March 2014, Locatrans had recognised that the employee was carrying out most of his work in France, and the employee had provided evidence of that fact. In the light of Article 6 of the Rome Convention, the choice of Luxembourg law made by the parties could not have the result of depriving the employee of the protection afforded to him by the mandatory rules of French law, such as the provisions concerning the amendment and termination of employment contracts. Consequently, that court, having reclassified the termination of the employment contract as dismissal and having held that the dismissal was not based on a genuine and serious reason, ordered Locatrans to pay the employee certain sums by way of compensation.

Locatrans brought an appeal on a point of law against that judgment before the Cour de cassation – Chambre sociale (Court of Cassation – Social Chamber, France), the referring court.

In essence, that court recalled the conflict-of-law rule laid down in Article 6(1) and (2) of the Rome Convention. In that regard, it notes that the Court of Justice has set out the criteria for interpreting the concept of ‘place where the employee habitually carries out his [or her] work’, within the meaning of that provision, in the situation where an employee carries out his or her activities in more than one Contracting State, in particular in the judgment in Koelzsch . (8) In that case, the Court also relied on its case-law concerning Article 5(1) of the Brussels Convention, which, in the referring court’s view, demonstrates an intention to give an unequivocal interpretation of the connecting criteria concerning conflict of jurisdiction and conflict of laws. As regards the latter provision, the referring court also referred to the relevance of the judgment in Weber . (9)

The referring court notes that while the clarifications provided by the Court of Justice in the judgment in Koelzsch (10) on the interpretation of the concept of the ‘place where the employee habitually carries out his [or her] work’ could lead, in application of the favor laboratoris principle, to use the criterion of the last place where the employee habitually carries out his or her work, the fact remains that, in the judgment in Weber , (11) the Court expressly refers to taking into account ‘the whole of the duration of the employment relationship’ without repeating the criterion of the last place where the employee habitually carries out his or her work, as set out in paragraph 54 of that judgment.

In the light of that case-law, the referring court asks whether, in order to determine the law which is applicable in the absence of a choice made by the parties, it is necessary, in the present case, for the whole duration of the employment relationship to be taken into account in order to determine the place where the person concerned habitually carried out his or her work, within the meaning of Article 6(2)(a) of the Rome Convention, or whether the most recent period of work should be used. It considers that, although the criterion of the last place where the employee habitually carries out his or her work is relevant for the purposes of determining the court having jurisdiction, in that it enables the employee to bring proceedings at least expense, doubts remain as to the possibility of applying that criterion in order to determine the law applicable in the absence of a choice made by the parties since, such an approach could, in particular, lead to a single employment contract being successively subject to different mandatory rules depending on changes occurring as to the place of work.

In those circumstances, by decision of 10 July 2024, received at the Court of Justice on the same day, the Cour de cassation – Chambre sociale (Court of Cassation – Social Chamber) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Are Articles 3 and 6 of the [Rome Convention] to be interpreted as meaning that, in the case where the employee carries out the same activities for his [or her] employer in more than one Contracting State, the full duration of the employment relationship should, in order to determine the law which would be applicable in the absence of a choice made by the parties, be taken into account in order to determine the place where the person concerned habitually carried out his [or her] work or should the most recent period of work be taken into account where the employee, having worked for a certain time in one place, then carries out his [or her] activities in a lasting manner in a different place which is clearly intended by the parties to become a new habitual place of work?’

Written observations were submitted by the parties to the main proceedings, the French and Czech Governments and the European Commission. No hearing was held.

IV.Consideration of the question referred

By its sole question, the referring court asks, in essence, whether Articles 3 and 6 of the Rome Convention must be interpreted as meaning that, where an employee carried out the same work for his or her employer in several States and then, during the period preceding the end of the employment relationship, carried out his or her activities on a permanent basis in a single State, which is clearly intended by the parties to become a new habitual place of work, and where that employee’s dispute concerns the termination of the contract, it is necessary, in order to determine the place where that employee habitually carried out his or her work and, consequently, the law applicable in the absence of a choice made by the parties, to refer to the full duration of the employment relationship or to the most recent period of work.

That court therefore seeks to ascertain, in essence, which of those two criteria is applicable to the termination of the employment contract at issue in so far as that termination involves a conflict between the applicable laws. (12) It is apparent from the order for reference that, in the case of the first criterion referred to, taking into account the whole of the duration of the employment relationship would mean that the merits of the claims made by ES would be examined on the basis of Luxembourg law and that those claims would therefore have to be rejected. On the other hand, in the case of the second criterion envisaged, if only the most recent period of employment were taken into account, the French law on the amendment and termination of employment contracts would be applicable, which would be more favourable to ES.

In that regard, the referring court considers that there is reasonable doubt as to whether the criterion of the last place where the employee habitually carries out his or her work, which is relevant for the purposes of determining the court having jurisdiction, may also be used to determine the law applicable to an employment contract in the absence of a choice made by the parties, since such an approach could lead, inter alia, to that employment contract being successively subject to different mandatory rules depending on changes occurring to the place of work.

The parties to the main proceedings and the interested parties are divided as to the interpretation of Article 6(2)(a) of the Rome Convention.

Referring to the judgment in Weber , Locatrans and the Czech Government submit, inter alia, that where the employee carries out the same activities for his or her employer in more than one State, account must be taken of the whole duration of the employment relationship in order to identify the place where the person concerned habitually worked and, consequently, the law applicable in the absence of a choice made by the parties. For its part, the French Government considers that, that being the case, the most recent period of work could be taken into account in order to determine, in the light of all of the relevant circumstances, the existence of closer connections with another country. By contrast, ES maintains, as a preliminary point, that, despite the wording of the question referred for a preliminary ruling, he did not change his place of work during his employment relationship. (13) He submits, therefore, that his situation is clearly distinguishable from that which gave rise to the judgment in Weber , where the worker had performed his duties successively in two different places of work. In any event, even if the judgment in Weber were to be held to be relevant to the present case, ES argues that reference must be made to the most recent period of work. For its part, the Commission maintains that, in a case such as that at issue in the main proceedings, in which the dispute concerns the termination of the contract and where the relevant facts for the purposes of coming to a judgment arise at the end of the contract, account must be taken of the most recent period of work.

In view of the doubts entertained by the referring court and having regard to the arguments put forward by the parties to the main proceedings and the interested parties, I shall first set out some general considerations concerning the purpose and general scheme of the Rome Convention and the conflict-of-law rule laid down in Article 6 thereof (Section A). I shall then address the concept of ‘the country in which the employee habitually carries out his [or her] work in performance of the contract’, within the meaning of Article 6(2)(a) of that convention, in the light of the relevant case-law, in order to draw the conclusions appropriate to the present case (Section B).

A.Preliminary remarks on the purpose and general scheme of the Rome Convention and of the conflict-of-law rule laid down in Article 6 thereof

It should be recalled, in the first place, as the Court of Justice has already pointed out, (14) that it is apparent from the preamble to the Rome Convention that it was concluded in order to continue, in the field of private international law, the work of unification of law set in motion by the adoption of the Brussels Convention. (15)

It also follows from that preamble that the purpose of that convention is to establish uniform rules concerning the law applicable to contractual obligations, irrespective of where the judgment is to be delivered. As is also apparent from the report on that convention, it arose from the desire to eliminate the inconveniences arising from the diversity of the rules of conflict, in the field of contracts. (16)

In the second place, as regards the context of the conflict-of-law rule laid down in Article 6 of the Rome Convention, the general criteria laid down by that convention for determining the applicable law must be noted. In that regard, the uniform rules set out in Title II of that convention enshrine the principle that priority is given to the intention of the parties, to whom Article 3 of that convention grants freedom of choice as to the law to be applied. In the absence of such a choice, Article 4 of the Rome Convention provides for connecting criteria on the basis of which the court must determine that law. (17) Those criteria apply to all categories of contracts. (18)

As we know, specific rules are also laid down for certain types of contract. In particular, Article 6 of the Rome Convention establishes a conflict-of-law rule applicable to individual employment contracts. That special conflict-of-law rule (like the one laid down in Article 8 of the Rome I Regulation) is accompanied by two general provisions (paragraphs 1 and 2(a)), a subsidiary provision (paragraph 2(b)) and an exception clause (paragraph 2, last sentence). (19) According to the drafters of that convention, such a special conflict-of-law rule was intended to introduce a more appropriate arrangement for matters in which the interests of the States concerned were not the same, while at the same time securing more adequate protection for the party deemed, from a socio-economic point of view, to be the weaker in the contractual relationship. (20)

On the basis of those general considerations, Article 6(1) of the convention provides that ‘notwithstanding the provisions of Article 3, in a contract of employment a choice of law made by the parties shall not have the result of depriving the employee of the protection afforded to him [or her] by the mandatory rules of the law which would be applicable under paragraph 2 in the absence of choice’. (21) In the absence of such a choice, Article 6(2) sets out two connecting criteria, namely, primarily, the ‘law of the country in which the employee habitually carries out his [or her] work in performance of the contract’ (in point (a)), which is thus the objectively applicable law, or, in the alternative, ‘if the employee does not habitually carry out his [or her] work in any one country, … the law of the country in which the place of business through which he was engaged is situated’ (in point (b)). (22) An exception clause has been added to the last sentence of that paragraph 2, providing that those two connecting criteria are not applicable where ‘it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract shall be governed by the law of that country’.

It is in that context, (23) and bearing in mind the need to ensure coordination between the various provisions of EU private international law, that I shall now interpret the concept of ‘country in which the employee habitually carries out his [or her] work in performance of the contract’ within the meaning of Article 6(2)(a) of the Rome Convention.

B.The concept of ‘country in which the employee habitually carries out his [or her] work in performance of the contract’ within the meaning of Article 6(2)(a) of the Rome Convention

1.Relevant case-law and the literal, contextual and teleological interpretations

Article 6(2)(a) of the Rome Convention provides that, notwithstanding the provisions of Article 4 and in the absence of a choice made in accordance with Article 3, a contract of employment is to be governed by ‘the law of the country in which the employee habitually carries out his [or her] work in performance of the contract, even if he [or she] is temporarily employed in another country’.

It follows from a reading of that provision that a literal interpretation is not sufficient to define the autonomous concept of ‘the law of the country in which the employee habitually carries out his [or her] work in performance of the contract’. It was in the judgment in Koelzsch (24) that the Court of Justice ruled for the first time on that concept within the meaning of Article 6(2)(a) of the Rome Convention. (25)

(a)The judgment in Koelzsch: definition of the concept

(1)The objective of ensuring adequate protection for the worker and the need for a broad interpretation of the connecting criterion

In the judgment in Koelzsch, the Court of Justice adopted a broad interpretation in defining the autonomous concept of ‘the law of the country in which the employee habitually carries out his [or her] work in performance of the contract’. In arriving at that conclusion, the Court first indicated that such an interpretation must not disregard an interpretation relating to the criteria set out in Article 5(1) of the Brussels Convention where they lay down the rules for determining jurisdiction for the same matters and set out similar concepts. (26) Relying on its case-law interpreting that provision, (27) the Court recalled that, in a situation in which the employee carries out his or her working activities in more than one State, it is necessary to take due account of the need to guarantee adequate protection to the employee as the weaker of the contracting parties. (28)

Next, the Court of Justice observed that, in matters relating to employment contracts, the Brussels Convention and the Rome Convention pursue the same objective, namely adequate protection for the employee. It therefore held, in the light of that objective, that Article 6 of the Rome Convention must be understood as guaranteeing the applicability of the law of the State in which the employee carries out his or her working activities rather than that of the State in which the employer is established. (29) In view of the fact that both conventions have the same aim, the Court confirmed that the case-law interpreting Article 5(1) of the Brussels Convention remains relevant when analysing Article 6(2)(a) of the Rome Convention. (30)

Lastly, the Court held that, where work is carried out in more than one Member State, the criterion of the country in which the work is habitually carried out must be given a broad interpretation and be understood as referring to the place in which or from which the employee actually carries out his or her working activities and, in the absence of a centre of activities, to the place where he or she carries out the majority of his or her activities. (31) Therefore, in order to establish whether an employee has habitually carried out his or her work in one of the relevant States, the connecting criterion laid down in Article 6(2)(a) of the Rome Convention must be interpreted broadly. (32) To that end, the Court of Justice has taken into consideration the nature of work in the international transport sector, and has held that account must be taken of all the factors which characterise the activity of the employee. (33) In those circumstances, the Court has held that Article 6(2)(a) of the Rome Convention must be interpreted as meaning that, in a situation in which an employee carries out his or her activities in more than one Contracting State, the country in which the employee habitually carries out his or her work in performance of the contract, within the meaning of that provision, is that in which or from which, in the light of all of the factors which characterise that activity, the employee performs the greater part of his or her obligations towards his or her employer. (34)

(2)The general rule and the circumstantial method enabling its implementation: the qualitative criterion

It follows from that case-law that, in order to assess whether an employee habitually carried out his or her work in one of the Contracting States and, if so, to determine which one, the Court took care to establish, in paragraph 50 of the judgment in Koelzsch, a general rule based on taking into account various factual criteria. Under that rule, ‘the country in which the employee habitually carries out his [or her] work in performance of the contract’ is that in which or from which, in the light of all of the factors which characterise that activity, the employee performs the greater part of his or her obligations towards his or her employer. (35)

In order to guide national courts in the application of that principle, the Court of Justice has indicated, taking into account the specific nature of employment relationships in the transport sector, a number of factors which may be taken into consideration when applying Article 6(2)(a) of the Rome Convention. In particular, the national court must determine in which State is situated the place from which the employee carries out his or her transport tasks, receives instructions concerning his or her tasks and organises his or her work, and the place where the work tools are situated. It must also determine the places where the transport is principally carried out, where the goods are unloaded and the place to which the employee returns after completion of his or her tasks. (36)

In my view, such a ‘circumstantial method’ is an important factor in understanding the scope of a concept such as that of ‘place in which or from which the employee habitually carries out his [or her] work’ when applied in a specific case. According to the Court of Justice, that method makes it possible not only to reflect the true nature of legal relationships, in that it must take account of all the factors which characterise the activity of the employee, but also to prevent the concept from being exploited or contributing to the achievement of circumvention strategies. (37)

Moreover, it should be noted that, in order to establish the general rule referred to above, (38) the Court relied on its case-law relating to Article 5(1) of the Brussels Convention. (39) It must not be forgotten that the cases which gave rise to that case-law concerned a worker who performed his work in more than one State but had in one of those States, where that worker had established his residence, an office from which he organised his work for his employer and to which he returned after each business trip abroad. Consequently, for the specific purposes of determining the place where the employee ‘habitually carries out his [or her] work’, the Court of Justice has held that it is the place from which the employee principally discharges his or her obligations towards his or her employer, or the place where he or she has established the effective centre of his or her working activities. (40)

I would also point out that the expression ‘from which’ was added in Article 8(2) of the Rome I Regulation (41) when the Rome Convention was converted into a regulation. (42) Thus, by means of that new expression, the EU legislature incorporated the Court of Justice’s case-law on Article 5(1) of the Brussels Convention into that regulation. (43)

That said, it should be noted that, in its case-law relating to Article 5(1) of the Brussels Convention, and in relation to contracts of employment performed in the territory of several States, the Court of Justice has also been faced with another situation in which no place could be identified, from among the several places concerned, as being the place in which or from which the employee carries out his or her working activities. That is so in the judgment in Weber.

(b)The judgment in Weber: the temporal criterion

In the case which gave rise to the judgment in Weber, the question arose, inter alia, as to whether, in order to determine whether an employee carried out his or her work ‘habitually’ in a Contracting State, account should be taken of the ‘entire period’ of the employment or only of the most recent period. (44)

The Court of Justice first distinguished the case before it from those which gave rise to the judgments in Mulox IBC and Rutten vCross Medical, in which, unlike the circumstances in the judgment in Weber, the employee had an office in one of the Contracting States constituting the effective centre of his working activities and from which he performed the essential part of his duties vis-à-vis his employer. (45) In view of those differences, the Court held that the case-law from those cases could not be applied in its entirety to the judgment in Weber. (46) Nevertheless, the Court considered that that case-law remains relevant to the extent that it means that, where a contract of employment is performed in several Contracting States, Article 5(1) of the Brussels Convention must be understood as referring to the place where or from which, taking account of all the circumstances of the case, the employee actually performs the essential part of his or her duties vis-à-vis his or her employer. (47)

Second, on account of those different circumstances, the Court of Justice stated that the relevant criterion for establishing an employee’s habitual place of work, for the purposes of that provision, is, in principle, the place where the employee spends most of his or her working time engaged on his or her employer’s business. (48) The Court therefore held that, failing other criteria, that will be the place where the employee has worked the longest. (49)

It should be noted that, according to the Court of Justice, the logical implication of that temporal criterion, which is based on the relative duration of periods of time spent working in the various Contracting States in question, is that all of an employee’s term of employment must be taken into account in establishing the place where he or she carries out the most significant part of his or her work and where, in such a case, his or her contractual relationship with his or her employer is centred. (50) Thus, the Court has held that in the case of contract of employment under which an employee performs for his or her employer the same activities in more than one Contracting State, it is necessary, in principle, to take account of the whole of the duration of the employment relationship in order to identify the place where the employee works. (51)

In that regard, it seems to me important to point out that the Court of Justice has, however, provided for what might, at first sight, appear to be an exception to the rule of the temporal criterion under which the habitual place of work is the place where the employee has worked the longest. In my view, however, that is not an exception, but rather the application by the Court of that temporal criterion to a specific situation. The Court has stated that weight will be given to the most recent period of work where the employee, after having worked for a certain time in one place, then takes up his or her work activities on a permanent basis in a different place, since the clear intention of the parties is for the latter place to become a new habitual place of work. (52) Thus, in the absence of an effective centre of the employee’s working activities, the temporal criterion established by the Court in that judgment is based on a general rule, which may be disregarded only where, in light of the facts of the case, the subject matter of the dispute in question is more closely connected with a different place of work. (53) I shall return later to that temporal criterion, which is of particular importance in considering the question referred for a preliminary ruling. (54)

To summarise the present part of my analysis, I would point out, first, that, in order to establish the general rule that the country in which the employee habitually carries out his or her work in performance of the contract is that in which or from which, in the light of all of the factors which characterise that activity, the employee performs the essential part of his or her duties vis-à-vis his or her employer, the Court of Justice relied, in paragraph 50 of the judgment in Koelzsch, on its case-law arising from the judgments in Mulox IBC (55) and Rutten v Cross Medical. (56) As I have already explained, that rule was subsequently confirmed, in paragraphs 49 and 50 of the judgment in Weber. (57) It follows that verification of that rule is the starting point for the assessment by the national courts in all cases where, as in the present case, the employment contract is performed in the territory of several Contracting States.

In the second place, as I pointed out above, in order to identify the State which may be regarded as ‘the place in which or from which’ the employee performs the greater part of his or her obligations towards his or her employer, the Court has established qualitative (58)and temporal criteria (59) which the national courts (60) must take into consideration. However, although, according to the Court, the temporal criterion must, in principle, take into account all of an employee’s term of employment with his or her employer, the Court has provided for the application of that temporal criterion in the specific case where the subject matter of the dispute in question is ‘more closely connected with a different place of work’. (61) In that case, it is the most recent period of work which should be taken into account by the national court in its assessment, (62) and not all of an employee’s term of employment. (63)

That case-law must therefore be taken into consideration in assessing the present case.

2.The consequences to be drawn from the analysis of the case-law for the present case

50.At this stage of the reasoning, I note that it is apparent from the arguments put forward by the parties to the main proceedings and the interested parties that the referring court’s question appears to lie at the intersection of two lines of case-law that appear, at first sight, to be distinct. However, the foregoing analysis demonstrates that, despite their apparent divergence, those two approaches form part of a single line of case-law under which the Court of Justice has established a general rule based on taking account of qualitative and temporal criteria in its application. In that regard, it should be borne in mind that the national courts must take account of the qualitative criterion, which is the decisive criterion. However, in the absence of qualitative elements, or where they are not sufficiently precise, the temporal criterion becomes relevant. Moreover, those two criteria may be concomitant and complementary. (64) In all cases, national courts must take into account the principle of proximity and the protection of workers.

51.In addition, I would point out that, in so far as the employment relationship is a permanent one, the elements characterising that relationship, such as the performance of work, the place of performance of the work or the remuneration, may change. In particular, in a cross-border employment situation, the country where the employee ‘habitually carries out his [or her] work’ may also change depending on changes in objective circumstances. (65) In other words, the law applicable in the absence of a choice made by the parties may change due to the very nature of the employment relationship, which continues over time. However, since one of the objectives of the Rome Convention is to fortify confidence in the stability of the relationship between the parties to the contract, a change in the applicable law resulting from changes in factual circumstances must also be the result of a clear intention on the part of the parties. That change must not affect legal relationships which arose prior to that change, so that, rationae temporis, the dispute remains governed by the law applicable at the time those circumstances arose (tempus regit actum).

52.In the light of the foregoing, the essential question is what is, in the present case, the relevant criterion for determining, in concreto, the point in time at which the subject matter of the dispute arose in order to identify the place where the employee habitually carried out his work and, consequently, the law applicable in the absence of a choice made by the parties.

53.In the present case, it is apparent from the order for reference that Locatrans informed the employee that the analysis of his activity over the last 18 months had revealed that he had carried out a substantial part of his employment in France and that, for that reason, he had to be registered with the French social security system. Thus, according to the referring court, during the period prior to the end of the employment relationship, the employee carried out his activities on a permanent basis only in France. Therefore, it may, in my view, be argued that such a development or change in the situation of the employee resulting in the permanent performance of the work in a single Contracting State, which it is for the referring court to ascertain, falls within the scope of the application of the temporal criterion, as formulated by the Court of Justice in paragraphs 53 and 54 of the judgment in Weber. It follows that, contrary to the arguments advanced by Locatrans, in so far as the relevant facts are at the end of the period covered by the contract, in the present case it is not relevant to take into account all of the employee’s term of employment.

54.In that regard, I share the Commission’s view that, in a case such as that at issue in the main proceedings, in which the employee’s dispute concerns the termination of the contract and the facts relevant to the determination of that dispute arise at the end of that contract, the most recent period of employment should be taken into account, (66) for the following reasons.

55.First, it seems to me important to emphasise that the application by the national courts of the most relevant criterion (whether qualitative or temporal) for determining the place where the employee habitually carried out his or her work must take account of the objective, pursued by Article 6 of the Rome Convention, of guaranteeing adequate protection for employees. Thus, compliance with the employment protection rules provided for by the law of the country in which the employee carries out his or her working activities must, so far as is possible, be guaranteed. (67) However, as rightly emphasised by the Commission, that objective can only be fully attained if, when there is a development or permanent change to the country in which the work is habitually carried out, the applicable law also changes. (68)

56.Second, that interpretation seems to me to be compatible with the objective of the Rome Convention, which is to raise the level of legal certainty by fortifying confidence in the stability of relationships between the parties to the contract. (69) In my view, it is not a question of making the criterion of the place where the work is habitually carried out depend, as a general rule, on the last place where the work was carried out, but rather, in the context of the circumstantial method, of applying the temporal criterion relating to the ‘most recent period’, in view of the fact that the employee’s dispute concerns the termination of the contract. Therefore, a correct application of that temporal criterion should not be a source of unpredictability for the parties. I would point out that the time from which the latter place may be regarded as the habitual place of work is governed by the conditions laid down in the judgment in Weber. (70)

57.Third, that interpretation makes it possible to ensure consistency between Article 5 of the Brussels Convention and Article 6 of the Rome Convention (forum and ius). (71) The court for the place in which (or from which) the employee habitually carries out his or her work (or, as the case may be, that of the last place in which he habitually carried out his or her work (72)) will generally have jurisdiction for disputes arising from contracts of employment. That court will at the same time apply the mandatory rules of its own law (lex loci laboris). (73) In that regard, the fact that the application of that temporal criterion relating to the ‘most recent period’ is determined by the subject matter of the dispute, by the temporal situation of the relevant facts and by the clear intention of the parties makes it possible to manage a situation in which several laws apply simultaneously.

V.Conclusion

58.In the light of all of the foregoing considerations, I propose that the Court of Justice reply as follows to the question referred for a preliminary ruling by the Cour de cassation – Chambre sociale (Court of Cassation – Social Chamber, France):

Article 6(2)(a) of the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980,

must be interpreted as meaning that, where an employee first carried out the same activities for his or her employer in several States and then, during the period preceding the end of the employment relationship, carried out his or her activities on a permanent basis in a single State, which is clearly intended by the parties to become a new habitual place of work, and where that employee’s dispute concerns the termination of the contract, it is necessary, in order to determine the place where that employee habitually carried out his or her work and, consequently, the law applicable in the absence of a choice made by the parties, to refer to the most recent period of work.

—

1Original language: French.

2Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1; ‘the Rome Convention’). In view of the date on which the employment contract was concluded, the contract remains governed by that convention.

3Article 4 of the Rome Convention provides for a general mechanism for designating the law applicable to a contract in the absence of a choice by the parties.

4See judgment of 15 March 2011 (C‑29/10, ‘the judgment in Koelzsch’, EU:C:2011:151, paragraphs 40, 46, 50 and the operative part).

5Regulation of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6; ‘the Rome I Regulation’). That regulation replaced the Rome Convention and applies to contracts concluded on or after 17 December 2009. Therefore, as the contract at issue was concluded on 15 October 2002, the Rome Convention is applicable ratione temporis to the dispute in the main proceedings.

6Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32), as amended by the Convention of 29 November 1996 on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1; ‘the Brussels Convention’).

7Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1; ‘the Brussels I Regulation’). That regulation replaced the Brussels Convention. The Brussels I Regulation was repealed and replaced by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1; ‘the Brussels Ia Regulation’). Article 19 of the Brussels I Regulation became Article 21 of the Brussels Ia Regulation.

8See paragraphs 40, 46, 50 and the operative part of that judgment.

9See judgment of 27 February 2002 (C‑37/00, ‘the judgment in Weber’, EU:C:2002:122, paragraphs 54 and 58).

10Paragraphs 40 and 46 of that judgment.

11Point 2 of the operative part of that judgment.

12Article 1(1) of the Rome Convention provides that ‘the rules of this Convention shall apply to contractual obligations in any situation involving a choice between the laws of different countries.’

13ES submits that he carried out his transport activity in several places, while maintaining a significant connection with France, his State of residence, and that his employer had merely taken note of that factual situation which existed prior to the end of the employment relationship. In that regard, it is sufficient to note, first, that, in the procedure of cooperation established by Article 267 TFEU, it is not for the Court of Justice but for the national court to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver. Moreover, the Court of Justice must take account, under the division of jurisdiction between the EU Courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (see, inter alia, judgment of 7 June 2018, Scotch Whisky Association, C‑44/17, EU:C:2018:415, paragraph 24 and the case-law cited).

14See judgment of 6 October 2009, ICF (C‑133/08, EU:C:2009:617, paragraphs 22 and 23).

15In that regard, it should be recalled that recital 7 of the Rome I Regulation states that ‘the substantive scope and the provisions of this Regulation should be consistent with [the Brussels I Regulation] and Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)’. Furthermore, according to recital 7 of the latter regulation, ‘the substantive scope and the provisions of this Regulation should be consistent with [the Brussels I Regulation] and the instruments dealing with the law applicable to contractual obligations’ (emphasis added). Therefore, there is a need to ensure both the coordination of EU legislation on private international law and the consistency of the scope of certain provisions of those texts; see, inter alia, Gaudemet‑Tallon, H., ‘Fasc. 337: Convention de Rome du 19 juin 1980 et règlement « Rome I » du 17 juin 2008 – Champ d’application – Clauses générales’, JurisClasseur Commercial, 2023, pp. 1 to 39, in particular paragraph 81, and Szpunar, M., ‘Droit international privé de l’Union: cohérence des champs d’application et/ou des solutions?’, Revue critique du Droit International Privé, No 3, 2018, pp. 573 to 582.

16Report on the Convention on the law applicable to contractual obligations by Mario Giuliano, Professor, University of Milan, and Paul Lagarde, Professor, University of Paris I (OJ 1980 C 282, p. 1; ‘the Giuliano and Lagarde report’).

17See, to that effect, judgments of 6 October 2009, ICF (C‑133/08, EU:C:2009:617, paragraphs 24 and 25), and of 14 September 2023, Diamond Resorts Europe and Others (C‑632/21, EU:C:2023:671, paragraphs 67 and 69).

18See judgment of 6 October 2009, ICF (C‑533/08, EU:C:2009:617, paragraph 25).

19According to academic writers, Article 8 of the Rome I Regulation essentially reiterates Article 6 of the Rome Convention, that is to say, the possibility of choosing the applicable law, without prejudice, however, to the protection afforded by the provisions of the objectively applicable law, which is normally that of the State of the place where the work is habitually carried out, or, failing that, that of the location of the place of business through which the employee was engaged, unless the exception clause comes into play. See, inter alia, Lagarde, P. and Tenenbaum, A., ‘De la Convention de Rome I’, Revue critique de droit international privé, 2008, pp. 727 to 780, in particular paragraph 18. See also Palao Moreno, G., ‘Article 8’, Commentary on the Rome I Regulation, Magnus, U. and Mankowski, P. (eds), Verlag Dr. Otto Schmidt, Cologne, 2017, Vol. 22, pp. 577 to 599, in particular p. 586, paragraph 7.

20See the Giuliano and Lagarde report, p. 25.

21It should be borne in mind that Article 6 of the Rome Convention thus limits the parties’ freedom to choose the applicable law, enshrined in Article 3 of the convention. In other words, if the law applicable pursuant to paragraph 2 grants employees protection which is greater than that resulting from the law chosen by the parties, those provisions set aside the provisions of the chosen law and are applicable in their place. See the Giuliano and Lagarde report, p. 25. Thus, the provisions of the chosen law must be combined with the mandatory provisions of the objectively applicable law in the absence of choice if they are more favourable to the employee. See, to that effect, Palao Moreno, G., op. cit., p. 586, in particular paragraph 6.

22It should be recalled that the Court of Justice has previously stated that ‘it was the legislator’s intention to establish a hierarchy of the factors to be taken into account in order to determine the law applicable to the contract of employment’, that is to say, between Article 6(2)(a) and (b) of the Rome Convention. In particular, the Court has held, in that regard, that ‘for the purposes of determining the applicable law, the factor linking the employment contract in issue to the country where the employee habitually carries out his [or her] work must be taken into consideration first, and its application excludes the taking into consideration of the secondary factor of the country in which the place of business through which he was engaged is situated’ (see judgment of 15 December 2011, Voogsgeerd, C‑384/10, EU:C:2011:842, paragraphs 32 and 34); as regards maritime transport, see paragraph 38 of that judgment). Such a hierarchy is also applicable to Article 8(2) and (3) of the Rome I Regulation and, in both cases, leads, according to the Court, to a broad interpretation being given to the criterion of the country in which the employee habitually carries out his or her work, whereas the criterion of the country in which the place of business through which the employee was engaged can only apply if the court is not in a position to determine the country in which the work is habitually carried out (see also, to that effect, paragraphs 33 to 35 of that judgment and the case-law cited).

23With regard to that legal context, see the judgment in Koelzsch, paragraphs 33 to 36.

It will be recalled that the case which gave rise to that judgment concerned the dismissal of an international heavy goods vehicle driver, domiciled in Germany and engaged by a Luxembourg company, which was itself a subsidiary of a Danish company. He was covered by the Luxembourg social security system. The activity of that subsidiary consisted in transporting flowers and other plants from Denmark to various destinations, mainly in Germany, but also in other European countries, using lorries registered in Luxembourg and stationed in Germany. However, the subsidiary did not have a registered headquarters or offices in Germany. See the judgment in Koelzsch, paragraphs 13 to 16.

—

25It should be borne in mind that, according to the Court of Justice, that concept must be interpreted autonomously, in the sense that the meaning and scope of that conflict-of-law rule must be established according to consistent and independent criteria in order to guarantee the full effectiveness of the Rome Convention in view of the objectives which it pursues. See, to that effect, the judgment in Koelzsch, paragraph 32 and the case-law cited.

26See the judgment in Koelzsch, paragraph 33 and the case-law cited. See, to that effect, point 25 of the present Opinion. Conversely, as regards taking into account the corresponding provisions of the Rome Convention in the autonomous interpretation of the concept in Article 19(2) of the Brussels I Regulation, see, in relation to air transport, judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688, paragraphs 55 and 56).

27See judgments of 9 January 1997, Rutten v Cross Medical (C‑383/95, EU:C:1997:7, paragraph 22), and of 10 April 2003, Pugliese (C‑437/00, EU:C:2003:219, paragraph 18).

28See the judgment in Koelzsch, paragraph 41 and the case-law cited.

29In that regard, the Court has stated that it is in the former State that the employee performs his or her economic and social duties and that it is there that the business and political environment affects employment activities. Therefore, compliance with the employment protection rules provided for by the law of that country must, so far as is possible, be guaranteed. See the judgment in Koelzsch, paragraph 42.

30In that regard, in her Opinion in Koelzsch (C‑29/10, EU:C:2010:789, point 83), Advocate General Trstenjak pointed out that ‘it is not possible to start from the general presumption that all identical or similar terms must be interpreted uniformly: on the contrary, the question of uniform interpretation must be considered in the context of each individual case’.

31See the judgment in Koelzsch, paragraph 45.

32See footnote 22 to the present Opinion.

33See the judgment in Koelzsch, paragraph 48. In that regard, see Opinion of Advocate General Trstenjak in Koelzsch (C‑29/10, EU:C:2010:789, points 93 to 96).

34See the judgment in Koelzsch, paragraph 50.

35It is important to note that what must be at the heart of the national court’s assessment is the activity of the worker and not that of the employer; see van Calster, G., European Private International Law, Bloomsbury, 2016, p. 111.

36See the judgment in Koelzsch, paragraph 49. The same factors have been taken into consideration by the Court of Justice in the specific case of transport in the maritime sector (see judgment of 15 December 2011, Voogsgeerd, C‑384/10, EU:C:2011:842, paragraph 38). In the specific case of transport in the aviation sector, the Court has held that account must also be taken of the place where the aircraft aboard which the work is habitually performed are stationed (see judgment of 14 September 2017, Nogueira and Others, C‑168/16 and C‑169/16, EU:C:2017:688, paragraph 64).

37See judgment of 14 September 2017, Nogueira and Others (C‑168/16 and C‑169/16, EU:C:2017:688, paragraph 62 and the case-law cited).

38See point 36 of the present Opinion.

39That article became Article 19(2) of the Brussels I Regulation, which itself became Article 21(1)(b)(i) of the Brussels Ia Regulation. By way of reminder, the expression ‘from which’ was not added by the EU legislature to the first provision when the Brussels I Regulation was adopted, but it was added to the second provision when the Brussels Ia Regulation was adopted.

40See, with regard to employees engaged in commercial representation in more than one State, judgments of 13 July 1993, Mulox IBC (C‑125/92, EU:C:1993:306, paragraphs 25 and 26), and of 9 January 1997, Rutten v Cross Medical (C‑383/95, EU:C:1997:7, paragraphs 25 and 27). It will be recalled that it was in the first of those judgments that the Court of Justice ruled, for the first time, on the case of a worker working in more than one Contracting State.

41Article 8(2) of the Rome I Regulation provides that, ‘to the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract shall be governed by the law of the country in which or, failing that, from which the employee habitually carries out his [or her] work in performance of the contract’. Emphasis added.

42As academic writers point out, that clarification is intended to provide better protection to workers whose work involves frequent travel, as is the case with staff in the international, air or maritime transport sectors, in so far as those staff are often attached to a fixed working base. See, to that effect, Francq, S., ‘Le règlement Rome I sur la loi applicable aux obligations contractuelles. De quelques changements …’, Journal du droit international (Clunet), 2009, Vol. 36, No 1, pp. 41 to 69. For Advocate General Trstenjak, the amendment is important in that it demonstrates, inter alia, that that provision must be interpreted broadly; see her Opinion in Koelzsch (C‑29/10, EU:C:2010:789, point 77).

43See, in that regard, footnote 40 to the present Opinion.

44Paragraph 26 of the judgment. By way of reminder, that case concerned an employee – a cook – assigned successively by his employer to maritime installations situated on the continental shelf adjacent to the Netherlands and then in Danish territorial waters.

45See point 39 of the present Opinion. Mr Weber did not have an office in any of the relevant Contracting States that constituted ‘the effective centre of his working activities or from which he performed the essential part of his duties vis-à-vis his employer’. See the judgment in Weber, paragraph 48.

46See the judgment in Weber, paragraph 49.

47See the judgment in Weber, paragraph 49 and point 2 of the operative part.

48See the judgment in Weber, paragraph 50. In that regard, the Court has held that in such a situation, in which, throughout the entire period of employment in question, the employee had continuously performed the same working activity for his or her employer, the qualitative criterion, relating to the nature and importance of work done in various places within the Contracting States, was irrelevant; see the judgment in Weber, paragraph 51.

49See the judgment in Weber (paragraph 58 and point 2 of the operative part). It will be recalled that the temporal criterion had already appeared in the Court’s previous case-law, combined with a qualitative criterion taking into account the existence of an office where the employee organises his or her work; see, in that regard, judgment of 9 January 1997, Rutten v Cross Medical (C‑383/95, EU:C:1997:7, paragraph 27).

50See the judgment in Weber, paragraph 52.

51See the judgment in Weber, paragraph 58 and point 2 of the operative part.

52See the judgment in Weber, paragraph 54.

53See the judgment in Weber, paragraph 53, 58 and point 2 of the operative part. As regards paragraph 53 of that judgment, I would point out that the Court’s use of the expression ‘were more closely connected with a different place of work’ must not be confused with the exception clause in the last sentence of Article 6(2) of the Rome Convention. It should be borne in mind that, in that judgment, the Court interpreted Article 5(1) of the Brussels Convention, which did not provide for such an exception clause.

54See, in that regard, points 48 and 50 to 57 of the present Opinion.

55Paragraphs 24 to 26 of that judgment.

56Judgment of 9 January 1997 (C‑383/95, EU:C:1997:7, paragraphs 23 and 27). See point 43 of the present Opinion.

57See point 43 of the present Opinion.

58That criterion is based on the nature and importance of work done in various places within the Contracting States, where an effective centre of the employee’s activities can be identified. See, to that effect, the judgment in Koelzsch, paragraphs 48 to 50.

59That criterion is based on the relative duration of periods of time spent working in each Contracting State, applicable where the employee has performed the same job for his or her employer throughout the entire period of employment in question. See, to that effect, the judgment in Weber, paragraphs 51 and 52.

60See points 37 and 44 of the present Opinion.

61That expression, which is not to be confused with the exception clause in the last sentence of Article 6(2) of the Rome Convention (see footnote 53 to the present Opinion), appears to be based on paragraph 25 of the judgment in Mulox IBC: ‘it is open to the national court to take account of the fact that, when the dispute before it arose, the employee was carrying out his work solely in the territory of that Contracting State.’

62See, to that effect, the judgment in Weber, paragraphs 53 and 54.

63That said, it seems to me important to note that if the subject matter of the dispute arises at the beginning of the employment relationship, as, for instance, in the case of compensation to the employee for events occurring at the beginning of the contractual relationship, it is that period that should be taken into account by the national court when assessing the habitual place of work.

64That would be the case, for example, where the essential part of the worker’s duties was performed for 12 months in one country, and then for 10 months in another.

65See, conversely, with regard to Article 6(1)(b) of the Rome I Regulation, my Opinion in Liechtensteinische Landesbank (Österreich) (C‑279/24, EU:C:2025:380, point 53).

66That temporal criterion may be combined with the qualitative criterion arising from the fact that, during that same period, the employee had been affiliated to the French social security system by his employer. See footnote 48 to the present Opinion.

67See the judgment in Koelzsch, paragraph 42, and footnote 29 to the present Opinion.

68As the Commission rightly emphasised, that objective would not be guaranteed if the employee in the main proceedings did not benefit in the same way from the protections afforded by French law with regard to termination of contract as another employee who had been engaged only a year and a half before the termination of the contract and who had completed more than half of his work in France during that same period of a year and a half.

69See judgment of 6 October 2009, ICF (C‑133/08, EU:C:2009:617, paragraphs 23 and 44).

70The Court lays down three conditions: the duration of the activity carried out in one place, the performance of that activity on a permanent basis in a different place and the clear intention of the parties for the latter place to become a new habitual place of work. See the judgment in Weber (paragraph 54 and point 2 of the operative part).

71See point 28 of the present Opinion and footnote 15 thereto.

72That connecting criterion is provided for in Article 19(2)(a) of the Brussels I Regulation, now Article 21(1)(b)(i) of the Brussels Ia Regulation. Although that criterion cannot always be transposed to establish the applicable law (tempus regit actum), forum and ius may coincide where the subject matter of the dispute arises at the end of the employment relationship. Since the Brussels I Regulation entered into force on 1 March 2002, that is to say, two days after the judgment in Weber was delivered (paragraph 54), that criterion could, in accordance with that case-law, determine which court has jurisdiction in the event that the subject matter of the dispute concerns the termination of the contract, provided that there is a clear intention of the parties and that such ‘last place’ is stable and permanent.

73See Opinion of Advocate General Trstenjak in Koelzsch (C‑29/10, EU:C:2010:789, point 81).