The Gazette 1994

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GAZETTE APRIL 1994
residence, from where he carried
out his activities and to where he
returned after any business travel.
In addition, the national court can
take into consideration the fact
that at the point in time at which
the proceedings pending before it
commence, the employee performs
his work exclusively in the
territory of that contracting state.
In the absence of other
determining factors, that place
should be taken to constitute, for
the application of Article 5, 1., the
place of performance of the
obligation which forms the basis
of the legal proceedings relating
to a contract of employment."
[Decision, 25 (emphasis
supplied) (translation by the
author)]
It is submitted that particular attention
should be paid to the emphasised
passage by management and legal
advisers alike. The Mulox case
clarifies the application of Article 5,
1. to employments, it does not
simplify it.
Finally, it appears to the writer (but
this has not been considered in detail)
that the employment relationship with
Geels may have rendered Mulox
under French tax law to be deemed to
have an establishment in France,
rendering it liable to tax on all
business concluded on its behalf by
Geels. If this was the case, perhaps
Mulox was not adversely affected but
taxation is likewise an issue which
should be acted on carefully on the
basis of prior advice.
References
1. Case C-l 25/92 Mulox IBC Limited v
Hendrick Geels, 13 July 1993.
2. Case 266/85 H. Shenavai v K
Kreicher, 1987 ECR, 0239.
3. See generally, Byrne, Peter; The EEC
Convention on Jurisdiction and the
Enforcement of Judgments, Dublin,
1990, §5.
4. Twelve cases to date. There are a
further three cases pending.
5. Rome Convention on the law
applicable to contractual obligations,
16 June 1980, 80/934/EEC, 1980 OJ
152
L. 266, p. 1. The Convention but not
the 1988 (first) Protocol on its
interpretation was ratified in Ireland
by the Contractual Obligations
(Applicable Law) Act, 1991 (No.
8/91).
6. 88/592/EEC, 1988 OJ L. 319, p. 9.
See footnote 15 below.
7. Case 283/81 Sri C.I.L.E.I.T. v
Minister of Health [1982] ECR 3415.
8. ibid., at p. 3438.
9. Case 14/76 Ets. A. de Bloos, S.P.R.L.
j v Bouyer S.A., [1976] ECR 1497.
10. ibid, at p. 1511.
11. Case 133/81 Roger Ivenel v Helmut
Schwab[1982] ECR 1891.
12. ibid, at p. 1902.
13. Case 12/76 Industrie Tessili Como v
DunlopAG [1976] ECRR 1473.
14. ibid, at p. 1486.
15. Case 32/88 Six Constructions Ltd v
Paul Humbert, 1989 ECR 0341.
I 16. The 1989 Convention on the
Accession of Spain and Portugal to
the Brussels Convention, Article 4,
(89/535/EEC, 1989 OJ L 285, p. 1).
The 1989 Accession Convention and
the Lugano Convention were ratified
in Ireland by the Jurisdiction of
Courts and Enforcement of Judgments
Act, 1993, (No. 9/93) and came into
force on 1 December 1993 (S.I. No.
330/1993 (Pn 0270).
*Peter Byrne, B.C.L., Dip Eur Law,
Solicitor, is author of The EEC
Convention on Jurisdiction and the
Enforcement of Judgments (Dublin,
1990). •
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