The Gazette 1994

GAZETTE

A PRIL 1994

The Brussels Convent i on and Emp l oyment Agr eemen t s: Clar i f ied but not Simpl i f i ed

by Peter Byrne*

(3)] . . . is supported by the specific technical and formal characteristics of Community law . . . different language versions; novelty of the content and terminology of Community law. It should be added that there are inevitably differences between the methods of interpretation adopted by the Court of Justice and those on which national courts rely, stemming from the differences between the legal spheres in which the former and the latter operate." 8 harmonisation measures which the Brussels and Rome Conventions clearly are. Indeed, they show the necessity of a full consideration of the arguments put and accepted or rejected, as the case may be, by the Court of Justice, as the point of departure of any legal analysis of such measures. For considerations of space, the submissions in the Mulox case cannot be considered here in detail. These reasons are particularly compelling in relation to "the obligation to which reference must be made for the purposes of applying Article 5, 1. of the Convention is that which the contract imposes on the grantor and the non-performance of which is relied upon by the grantee in support of the application for damages or for the dissolution of the contract . . .""' however, in lvenel v Schwab specifically in relation to employment agreements "the obligation to be taken into account for the purposes of Article 5, 1. of the Convention in Prior decisions of the Court of Justice Contractual Obligation The Court of Justice ruled in de Bloos v Bouver that

Mulox v Geels ] is the latest in a series of cases in which the Court of Justice has given decision (directly, or indirectly 2 ) on an application for a preliminary ruling under the 1971 Protocol to the Brussels Convention 1 on the interpretation of the bearing of the special contract jurisdiction of Article 5, 1. of the Brussels Convention on employment contracts. Article 5, 1. is the most litigated provision of the Convention 4 and provides "A person domiciled in a Contracting State may, in another Contracting State, be sued: 1. in matters relating to a contract, in the courts for the place of performance of the obligation in question;" The difficulty of its application to employment contracts is matched by the commercial significance of that jurisdiction. As will be seen from the facts of the case, given the level of international activity in the Irish economy, jurisdiction in relation to the employment contract of a person with close Irish connections could easily become an issue, e.g. foreign postings and transfers of staff within a group. Often, the legal significance of such changes in the status of the employee are not appreciated at the time when they are made and legal advice is not sought until later or, in the worst case, only after an employment dispute has arisen. The Mulox decision may not be as helpful to the practising lawyer as appears at first sight. The Mulox case is also of interest because it considers the effect of the Rome Convention (on the law applicable to contractual obligations) 5 and the Lugano Convention 6 between the EEC and EFTA member states parallel to the Brussels Convention.

Peter Byrne, Solicitor

Likewise, it indicates the necessity for the jurisdiction of the Court of Justice

to uniformly interpret these conventions as instruments of

Community law. In the C.l.L.F.I.T. 1 case, Advocate General Capotorti stressed that the specific purpose of the Treaty of Rome, Article 177 (3), on which the interpretation protocols are based, is to prevent a body of national case law not in accordance with the rules of Community law from coming into existence in any Member State. Referring to arguments in favour of restricting the scope of the obligation on the highest national courts to refer to the Court of Justice, e.g. to prevent delays or increased costs in national proceedings (in an Irish context, similar delays and increased costs can intervene in the form of a constitutional challenge) he stated: "That kind of reasoning is not, in my opinion, conclusive. It might be sufficient to object that the meaning of a provision cannot depend on reasons of expediency. However, the reasons which militate in favour of the opposite view should also be borne in mind. The requirement [of Article 177

149