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DOI: 10.5553/EELC/187791072022007004006

European Employment Law CasesAccess_open

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2022/35 The habitual place of work: assessed through quantitative and qualitative criteria (BE)

Keywords Private International Law
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Gautier Busschaert, "2022/35 The habitual place of work: assessed through quantitative and qualitative criteria (BE)", European Employment Law Cases, 4, (2022):182-184

    In a decision of 16 May 2022, the Belgian Court of Cassation ruled that the habitual place of work used for the purposes of identifying the competent jurisdiction by virtue of Article 19(2)(a) of the Brussels I Regulation must be determined based on a circumstantial method including both quantitative and qualitative criteria.

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    • Summary

      In a decision of 16 May 2022, the Belgian Court of Cassation ruled that the habitual place of work used for the purposes of identifying the competent jurisdiction by virtue of Article 19(2)(a) of the Brussels I Regulation must be determined based on a circumstantial method including both quantitative and qualitative criteria.

    • Facts

      AZ UK, the defendant, is established in the United Kingdom and owns a subsidiary located in Belgium known as AZ BE. In 1995, the claimant started to work for the companies of the group AZ. In January 2007, the claimant was transferred to Belgium, although his work was also carried out in other European countries. In September 2007, the claimant signed an employment contract with AZ UK subject to UK law.
      The claimant was subsequently dismissed and sought compensation before the Belgian courts, claiming payment of substantial arrears of wages and additional termination fees from AZ UK. According to the claimant, the Belgian subsidiary, AZ BE, should also be regarded as his co-employer given that Belgian legislation prohibiting the leasing out of workers had been breached. Meanwhile, the AZ group contended that the Belgian courts were not competent to hear the case.
      On the one hand, the Brussels Labour Court declared the request against the Belgian subsidiary inadmissible. On the other hand, said the Court, unsure as to its territorial competence regarding a situation of posting in Belgium based on Article 8bis of the law of 5 March 2002 transposing Article 11.1 of Directive 2014/67/EU, ordered a new hearing of the case after having first dismissed the claim based on Article 19(2)(a) of Regulation 44/2001 (Brussels I) since Belgium was not the habitual place of work.
      The Labour Court’s decision was considered unsatisfactory by the claimant who filed an appeal before the Labour Court of Appeal of Brussels.

    • Decision of the Brussels Labour Court of Appeal

      The Court’s reasoning may be divided into three parts as follows.
      Firstly, under Article 19(2) of the Brussels I Regulation, an employer domiciled in a Member State may be sued in another Member State: (a) in the courts for the place where the employee habitually carries out their work or in the courts for the last place where they did so, or (b) if the employee does not or did not habitually carry out their work in any one country, in the courts for the place where the business which engaged the employee is or was situated.
      The Labour Court of Appeal referred to the notion of habitual place of work as defined by the ECJ and which designates “the place where, or from which, the employee actually performs the essential part of his duties vis-à-vis his employer”, taking into account that “to determine specifically that place, the national court must refer to a set of indicia” (Joined Cases C-168/16 and C-169/16, Ryanair and Crewlink, paras 59 and 61). Having said that, the Court considered that “the relevant criterion for establishing an employee’s habitual place of work […] is, in principle, the place where he spends most of his working time engaged on his employer’s business” (Case C-37/00, Weber, para 50). The criterion is therefore ‘quantitative’ according to the Labour Court of Appeal.
      Assessing the facts based on this only criterion, the Court confirmed the absence of an habitual place of work in Belgium or any other country whatsoever since the employee did not spend most of his time in any of these countries. In the opinion of the Court, it did not matter that Belgium was competent for social security purposes since the claimant worked at least 20% of his time there. Nor was it deemed relevant that the claimant had his office and domicile in Belgium and returned there after his travels. As it was not possible to identify an habitual place of work, the Labour Court concluded that the UK should be competent, as it is the place where the business which engaged the employee is situated.
      In addition, the Court examined the law of 5 March 2002 regarding the conditions of work, wages, and employment of posted workers in Belgium, which implements the EU posting of workers directives into Belgian law. The Court referred more particularly to Article 8bis of that law which implements Article 11.1 of Directive 2014/67/EU, with a view to assessing whether it was competent to rule upon the claim for benefits to which the employee would be entitled by reason of his posting to Belgium.
      The Court concluded that there was no breach of the core set of rules protected by that law in case of posting and in any case the claimant did not demonstrate that the UK law regime provided for in the employment contract was less favourable to him. Therefore, the Court declared itself not competent to rule on a potential breach of the law of 5 March 2002.
      Finally, the Court had to rule whether AZ BE could be considered as a co-employer of the claimant following an alleged breach of the law of 24 July 1987 prohibiting the leasing out of employees and found that AZ BE did not exercise any authority akin to that of an employer upon the claimant so that the claim directed towards AZ BE should be deemed inadmissible.
      Unsatisfied with the decision of the Brussels Labour Court of Appeal, the claimant appealed to the Court of Cassation and argued that the Labour Court’s decision infringed Article 19(2)(a) of the Brussels I Regulation.

    • Decision of the Court of Cassation

      The main issue before the Court of Cassation was to determine whether AZ UK could be sued before the Belgian courts, as the claimant considered Belgium to be the place where he usually worked.
      The claimant stated that the Labour Court of Appeal incorrectly applied Article 19(2)(b) of the Brussels I Regulation, which allows the employer to be sued in the court of the place where the business which engaged the employee is or was situated, that is, the United Kingdom. Indeed, the claimant argued that this part of the article can only be applied in last resort if the employee’s usual place of work cannot be identified.
      According to the claimant, the Labour Court of Appeal should have assessed all the specific circumstances of the case in order to evaluate through a range of factors with which Member State the employee’s professional activity had the most significant link. Among these factors, the claimant included especially the fact that he had his office and his residence in Belgium where he returned after his travel, that the work was performed exclusively in that Member State at the time of the dispute, but also that the majority of the time spent at work was spent in that Member State.
      One can understand from the claimant’s argument that the time or quantity factor applied by the Labour Court of Appeal should only be one among many others to locate the usual place of work. The Labour Court thus violated the Brussels I Regulation by focusing on the sole temporal or quantitative factor in order to determine the usual place of work.
      The Court of Cassation ultimately ruled in favour of the claimant, citing the ECJ’s long-standing case law according to which the usual place of work is the place where, or from which, the employee actually performs the essential part of their duties vis-à-vis their employer and that in order to determine this place one should have regard to a wide range of factors to make sure that this place is the one with which the dispute has the most significant connection.
      The Court of Cassation went on to say that by focusing on the temporal or quantitative factor, i.e. the place where the claimant spent most of his working time, the Labour Court of Appeal had infringed Article 19(2)(a) of the Brussels I Regulation. In view of the above, the Court of Cassation overturned the decision of the Labour Court of Appeal on that point and referred the case back to the Mons Labour Court of Appeal.

    • Commentary

      This decision from the Court of Cassation fully embraces the case law of the ECJ according to which the usual place of work should be assessed according to a multitude of factors both quantitative and qualitative allowing to determine the place with which the professional activity of the employee has the most significant link. This case law has been summarised in the Ryanair and Crewlink rulings (Joined Cases C-168/16 and C-169/16, judgment of 14 September 2017) where the ECJ made clear that:

      • the concept of ‘place where the employee habitually carries out his work’ enshrined in Article 19(2)(a) of the Brussels I Regulation (now Article 21(1)(b) of Regulation (EU) No. 1215/2012) must be interpreted as referring to the place where, or from which, the employee in fact performs the essential part of his duties vis-à-vis his employer (para 59);

      • when the national jurisdiction is not able to determine with certainty the ‘place where the employee habitually carries out his work’, it must, in order to assess whether it has jurisdiction, identify ‘the place from which’ that employee principally discharged his obligations towards his employer (para 60);

      • to determine specifically that place, the national courts must refer to a set of indicia (para 61);

      • using this circumstantial method, those courts must, in particular, determine in which Member State is situated (i) the place from which the employee carries out his professional tasks, (ii) the place where he returns after his tasks, receives instructions concerning his tasks and organises his work, and (iii) the place where his work tools are to be found (para 63).

      In view of the above, one can find it difficult to understand why the Labour Court of Appeal restricted its analysis to the place where the employee spent most of his working time and refused to also take qualitative factors into consideration so as to determine with which country the claimant’s professional life had the most significant link.
      One can only hope that the decision of the Court of Cassation will compel lower courts which are bound by its ruling to undertake a more comprehensive analysis when confronted with the determination of the habitual place of work for the purposes of finding the competent jurisdiction and/or applicable law.

    • Comment from other jurisdiction

      Germany (Julia Matthäus, Luther Rechtsanwaltsgesellschaft mbH): In the case at hand, the German courts would have come to the same conclusion as the Brussels Labour Court of Appeal. In fact, the Federal Labour Court displayed the same understanding of Article 19(2)(a) of the Brussels I Regulation as the decision at hand when ruling on the case of a pilot in 2012 (BAG decision of 20 December 2012, 2 AZR 481/11). In this decision, the Court applied the criteria developed by the ECJ. The Court drew on the place of preparation and post-processing of flights, the place where the plaintiff received her instructions and the place where she began and ended her flight assignments as circumstances accompanying the professional activity. All criteria together pointed to an habitual place of work, so that no recourse to the place of the hiring branch was necessary. The Federal Labour Court confirmed the case law in 2020, pointing out that in the special case of flight personnel, the place of the ‘home base’ was the most significant for determining the usual place of work (BAG, decision of 13 February 2020, 6 AZR 146/19). This is the place where a flight attendant regularly starts and ends their service.

      Subject: Private International Law
      Parties: N – v – ASTRAZENECA UK LIMITED
      Court: Belgian Court of Cassation
      Date: 16 May 2022
      Case number: S.21.0038.F
      Internet publication: https://juportal.be/content/ECLI:BE:CASS:2022:ARR.20220516.3F.1/FR?HiLi=eNpLtDKwqq4FAAZPAf4=


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