Flux européens

This post has been written by Dr Mykola Lazeranko, postdoctoral fellow at KU Leuven Law. I am most grateful for his contribution. Of note is that Mykola’s aim is not to highlight whether the Russian courts are correct in their approach; rather to document their private international law methodology.

Geert.

 

Introduction

Mid-December 2025, news outlets across Europe and beyond reported that the Central Bank of the Russian Federation had initiated proceedings against Euroclear in the Moscow Arbitration Court, seeking approximately USD 229 billion in relation to frozen Russian assets (see Guardian, Reuters, VRT news, etc.). On 17 December 2025, the court issued a ruling accepting the statement of claim for consideration and scheduled a court hearing for 16 January 2026 (see here).

On 16 January 2026, the court issued several procedural rulings. In particular, it dismissed Euroclear’s application for strike-out (formally ‘application to have the statement of claim left without consideration’), it granted Euroclear’s application to adjourn the preliminary hearing, and it granted the application of the Central Bank of the Russian Federation for the proceedings to be conducted in camera on the grounds that the case involves secreta commercii.

The next hearing is scheduled for 4 March 2026.

While the European Commission earlier dismissed the claim as ‘speculative’ and groundless, the litigation forms part of a broader pattern: since 2022, Russian courts have witnessed a steady increase in claims against Euroclear arising from sanctions-related asset freezes. By mid-January 2026, just short of 200 claims against Euroclear had been filed across Russia.

This post examines the private international law (PIL) dimension of this litigation, using the core, ‘trigger’ case of Bank Saint Petersburg v Euroclear. Its aim is to analyze how the courts grounded their reasoning to reject arguments of Euroclear that EU and Belgian law is applicable, and how it built sanctions-related case-law against Euroclear based on Russian law.

The Trigger Case: Bank “Saint-Petersburg” v. Euroclear

The Euroclear-related litigation began with case No. А40-205635/2022, filed in September 2022 before the Moscow Arbitration Court by Bank “Saint-Petersburg” PJSC.The bank sought compensation for losses it attributed to Euroclear’s blocking of funds following the imposition of EU sanctions.

In February 2023, the court of first instance granted the claim, awarding the bank USD 107,085,768.65 and EUR 488,994.50 in damages, alongside litigation costs. On appeal, the claimant withdrew the euro-denominated portion, and in May 2023, the Ninth Arbitration Court of Appeal upheld the decision for the USD portion. It also clarified that payment should be made in Russian roubles according to the exchange rate on the date of payment.

From the outset, the issue of applicable law was central. Euroclear stated that the dispute fell under EU law and Belgian law, invoking the regulatory framework governing its activities and the contractual arrangements between Euroclear and the Russian National Settlement Depository (NSD).

Consolidation of Defendants: From NSD and Euroclear to Euroclear Alone

Initially, the claim was brought jointly against Russia’s National Settlement Depository – NSD and Euroclear. From a PIL perspective, such a combination of domestic and foreign defendants could have implications for both jurisdiction and applicable law.

However, during the proceedings the claimant withdrew its claim against NSD. The court further emphasised that NSD could not be a defendant in this case because the claimant and NSD were bound by an arbitration agreement providing for dispute resolution before the Arbitration Centre at the Russian Union of Industrialists and Entrepreneurs. Consequently, the claims against NSD were left without consideration, and Euroclear remained the sole defendant.

The court made it clear that the mere involvement of a foreign party does not provide grounds to disregard an arbitration agreement. Had the claims against NSD and Euroclear been brought separately, the court noted, those would not have fallen within its jurisdiction.

PIL: First Instance

 Public Order as a Consideration

Relying on Article 1193 of the Russian Civil Code, the court noted that foreign law must yield to Russian law when the consequences of its application would have obviously been in conflict with the fundamentals of law and order (public order, ordre public) of the Russian Federation. The court stressed that when deciding whether it is necessary to apply the ordre public exception, the court should proceed not from a contradiction between the content of the foreign rule and the fundamental principles of the legal order (i.e. not from a review of the substance of foreign law), but from the unacceptability, for the forum state, of the consequences resulting from the application of the foreign law provision.

The court also stated that according to the Presidium of the Supreme Arbitration Court (informational letter No. 156 of 26 February 2013), ‘public order’ encompasses fundamental legal principles of the highest imperative authority, universality, and particular social and public significance, forming the foundation of the state’s economic, political, and legal system. Among these principles is the prohibition of actions explicitly forbidden by peremptory norms of Russian law (Art. 1192 of the Civil Code) when such actions threaten the sovereignty or security of the state.

Applying this standard, the court held that EU sanctions preventing the transfer of funds to the bank were incompatible with fundamental constitutional principles. Under Article 55(3) of the Russian Constitution, restrictions on the exercise of rights by Russian legal entities may be imposed only by federal law. Russian legislation does not compel compliance with foreign sanctions, hence, judicial enforcement of EU sanctions would contravene Russian public order.

The court stated that liability for harm in Russian law is a private-law construct, grounded in principles of fairness, proportionality, and fault. Proportionality, directly mentioned in the aforementioned informational letter No. 156 of 26 February 2013 of the Presidium of the Supreme Arbitration Court, is considered part of Russian public order.

The court further emphasised the prohibition of abuse of rights. Drawing on the Resolution of the plenum of the Russian Supreme Court of  23 June 2015, No. 25 “About application of some provisions of the Section I of part one of the Civil code of the Russian Federation by courts”, it noted that exercising a right in a manner that causes harm to others, particularly through unlawful means, constitutes abuse. Material damage, including the diminution of economic value or the need for additional expenditures, falls within this category. The court cited the ruling of the Supreme Court of the Russian Federation dated 28 November 2017, No. 309-ЭС-13269, in case No. А07-27391/2016, indicating it as a source where it is noted that the breach of the prohibition on abuse of rights constitutes violation of the principles of public order of the Russian Federation.

The court also relied on statutory and constitutional authorities concerning sanctions: the Federal Law “On Measures (Countermeasures) in Response to Unfriendly Actions of the USA and (or) other Foreign States”, which identifies foreign sanctions targeting Russia as threatening territorial integrity and economic stability, and the ruling of the Constitutional Court of the Russian Federation dated 13 February 2018 No. 8-П, where the court held that a right whose exercise depends on compliance with sanctions imposed against Russia or its economic entities by any state, outside proper international legal procedures and contrary to multilateral treaties to which Russia is a party, cannot be protected by the courts.

Non-Contractual Nature of the Claim

Euroclear argued that Belgian law should govern because of the contractual arrangements with NSD. The court rejected this, noting that the claims were non-contractual in nature, arising from harm caused by Euroclear’s actions, and therefore outside the scope of any contractual choice of law. The applicable law must be determined according to the conflict-of-law rules governing obligations arising from harm.

Lex Loci Damni and Foreseeability

Article 1219 of the Civil Code provides that obligations arising from harm are governed by the law of the place where the harmful act occurred, or, if the harm occurs elsewhere, the law of the place where the damage materialised, provided the harm was foreseeable.

The court found that the damage occurred in Russia, and Euroclear knew or ought to have known that blocking the funds would harm Russian entities. Sanctions were expressly directed at Russia, and Euroclear had been informed of the impact.

The court referred to paragraph 52 of the Plenum Resolution of the Supreme Court of the Russian Federation No. 24 dated 9 July 2019, “On the Application of Private International Law Norms by Courts of the Russian Federation”, which provides that if a claim arises from harm caused by an act or other circumstance that occurred on the territory of the Russian Federation, or if the harm materialized on the territory of the Russian Federation, the court may apply Russian law to the relations between the parties.

Accordingly, the court stated that since the consequences of the harm caused by the actions (or inaction) of Euroclear occurred on the territory of the Russian Federation, and Defendant was aware of the location where the harm would materialize, the applicable law governing these relations is the law of the Russian Federation.

Closest Connection

Finally, the court applied the subsidiary rule of closest connection (Article 1186 of the Civil Code), considering that the legal relationship is most closely connected with the Russian Federation for the following reasons:

• • Bank Saint Petersburg, as a banking organization registered in the Russian Federation, is claiming damages (actual loss) in its favour to fulfill its obligations to a wide range of parties, including both individuals and legal entities;
  • The harm caused by the unjustified actions (or omissions) of Euroclear since March 2022 is substantial, affecting not only the claimant but also specific individuals and legal entities, as well as the economy of the state;
  • The issuers of the securities for which funds were not transferred to the Bank are predominantly Russian entities;
  • The agreement between the NSD and the Bank is governed by Russian law, and NSD’s obligations were not fulfilled due to Euroclear’s actions (or omissions) that were inconsistent with Russian legislation.

These factors, the court concluded, outweighed the arguments relied upon by Euroclear.

PIL: Appellate Review

 In its May 2023 judgment, the Ninth Arbitration Court of Appeal endorsed the reasoning of the first-instance court concerning the PIL, further systematising its approach.

Emphasising Articles 247–249 of the Arbitration Procedure Code and Supreme Court Plenum Resolution No. 23 (2017), the appellate court further assessed jurisdiction and connection to Russia:

• • The bank’s main activity is in Russia, oriented toward Russian clients.
  • Key evidence resides with NRD, Russia’s central depository, subject to Russian law and supervision.
  • The securities involved were issued by Russian entities, and Euroclear’s actions had a significant economic impact domestically.
  • Euroclear maintains accounts in Russia.

The court in its judgment indicated that with regard to the present case, the arbitration court of the Russian Federation has jurisdiction to hear the Bank’s claims on the basis of the following:

• • Bank “Saint-Petersburg” PJSC, as a banking institution registered in the Russian Federation, seeks recovery of losses in its own favour for the purpose of performing its obligations towards a wide range of persons, including both individuals and legal entities.
  • The claimant’s principal business activities are carried out in the territory of the Russian Federation and are oriented towards Russian individuals and legal entities.
  • The damage caused to the Bank by the unjustified actions (or omissions) of Euroclear Bank SA/NV, commencing in March 2022, is substantial and affects not only the claimant, but also its clients and the economy of the state.
  • The main evidence confirming the need to transfer funds in favour of Bank “Saint-Petersburg” PJSC is held by the NSD on the territory of the Russian Federation. NSD, as a Russian legal entity, possesses the key evidence in the present dispute.
  • The obligations arising in connection with the Eurobonds for which funds were not transferred to the Bank involve predominantly Russian issuers.
  • The agreement between NSD and the Bank is governed by Russian law, and NSD’s obligations were not performed as a result of actions (or omissions) of Euroclear Bank SA/NV that were inconsistent with Russian legislation.
  • NSD, as the party obliged to transfer funds to the Bank, is registered in the Russian Federation, holds the status of Russia’s central securities depository, and its activities are regulated by Russian law and supervised by the Central Bank of the Russian Federation.
  • Euroclear Bank SA/NV maintains bank accounts within the territory of the Russian Federation.

The appellate court stated that the court of first instance in its consideration of the case correctly established that the law applicable to the present dispute is the law of the Russian Federation, and that the arbitration court of the Russian Federation has jurisdiction to hear the Bank’s claim against Euroclear. As  indicated in its ruling, the occurrence of damage within the territory of the Russian Federation constitutes an additional basis for the jurisdiction of the Russian arbitration court.

Overall, the appellate court’s decision did not introduce new substantive arguments but, to some extent, supported and further formalised the PIL reasoning, creating a guide for the large number of Euroclear-related claims in Russia.

Conclusion

The Bank Saint Petersburg v Euroclear litigation demonstrates the Russian courts’ interpretation and application of PIL principles in a sanctions context. Key takeaways include:

1. 1. Public order (ordre public) considerations override foreign law where enforcement would conflict with fundamental constitutional or statutory principles.
   2. Non-contractual claims arising from harm are governed by the law of the place where harm occurs, rather than contractual choice-of-law clauses.
   3. Lex loci damni and foreseeability determine applicable law when harm has consequences in another state.
   4. Closest connection serves as a subsidiary test, weighing factors such as the parties’ domicile, the location of harm, and the economic and legal context.

In Euroclear-related disputes, the Russian courts have constantly rejected arguments delivered by Euroclear to apply EU and Belgian law, establishing Russian law as the governing law for sanctions-related claims, which represents the interplay between private international law and the enforcement of cross-border sanctions.

At present, the court register shows around 190 cases across the Russian Federation against Euroclear. All of these cases were initiated after the decision in Bank Saint Petersburg v Euroclear, and in the majority of them final judgments have already been rendered (as a rule, the claims against Euroclear are upheld). The reasoning supporting the jurisdiction of the Russian courts and the application of Russian law in all such cases mirrors that adopted in this ‘trigger’ case.

Mykola.

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I have given background to Limby v Dyson when I discussed the important jurisdictional decisions. Current post deals with case management issues held by Pepperall J in Limbu & Ors v Dyson Technology Ltd & Ors [2026] EWHC 38 (KB).

The judgment is crucial for the discussion of equality of arms in supply chain due diligence claims, an issue which as the judge in current case also points out, was part of the forum non considerations at the time of the jurisdictional challenge. The judge’s considerations [8] re access to justice, costs, realism viz law firms contingency fees (and a side note on the barristers in the case, who of course act as single, self-employed risk takers viz the recoverability of their time spent) are an example of realism, empathy, concern for the rule of law and appreciation of real-life impact.

A first important issue under consideration comes down to whether the judge would order the case to first proceed with lead claimants, having to prove their working conditions etc, or rather, as defendants suggested, cut to the chase (claimants’ counsel called it ‘answering the siren song) as to Dyson’s knowledge and control of the circumstances in which claimants found themselves, with factual circumstances assumed for the purpose of the liability trial. [31] ff the judge explains while he rejects the latter (incl the difficulty of any appeal judges having to hear an appeal on the basis of assumed rather than proven facts) and he distinguishes the case management in Municipio on this point. [44] ff the claim in unjust enrichment is not going to trial now, for here the judge finds it impossible to split the issues of liability for and the assessment of the extent of any unjust enrichment (the latter requiring costly forensic evidence).

Focusing on one more element of the case-management: the request, which was granted, for ‘specific’ disclosure of a number of specific documents, even prior to what is known as ‘first disclosure’. There is an asymmetry of information between the parties as to what was reported to and known by Dyson. The judge ordered disclosure of 5 specific documents (the existence of which was revealed in related libel proceedings against Channel 4 journalists).

A judgment of much note, and another round hard fought by claimants, underscoring their need for tenacity and for support by level-headed lawyers.

Geert.

EU private international law, 4th ed. 2024, Chapter 7.

 

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When I reviewed the AG’s Opinion in Case C‑77/24 [Wunner], I signalled my agreement with his view on the lex societatis carve-out in Rome I, yet disagreed with his findings on locus damni for purely economic loss.

The CJEU held yesterday and does follow the AG on both points.

On the lex societatis exception, it confirms [23] its Verein für Konsumenteninformation formulate, later also confirmed in Kerr: the exception “applies exclusively to the structural aspects of companies and other bodies, corporate or unincorporated”. It then [24] revisits BMA: only in instances where directors, auditors and the like have a non-contractual obligation for reasons specific to company law, is the carve-out engaged, not if the obligation is extraneous to company law. [30] An action seeking to establish liability on the part of the directors, owing to an alleged infringement of a general prohibition on offering online games of chance without holding a licence for that purpose is, the Court holds, not covered by the carve-out because such a legal action does not concern the relationship between a company and its directors. Like the AG, the Court finds support in Rome I Articles 15(a) and (g).

[41] the Court emphasises actual manifestation of the damage, per Vereniging van Effectenbezitters. In determining that place of actual manifestation, [43] (and seeking [42] support in CJEU Pinckney‘s “the place where the alleged damage occurred is liable to vary according to the nature of the right allegedly infringed and that a finding that damage has occurred in a particular Member State is subject to the requirement that the right in respect of which infringement is alleged is protected in that Member State”), the Court very much ties the locus damni assessment to the alleged infringement which grounds the accusation effectively of the claim in tort for breach of statutory obligation: here: “the damage alleged by [claimant] actually manifested itself when he participated, from Austria, in online games of chance offered in breach of a prohibition applicable in that Member State. In those circumstances, the damage must be regarded as having occurred in Austria.”

Austria is [44] also the place where the games are held to have taken place – essentially because in the Court’s view the internet nature of the game makes it all to difficult (“In the light of the very nature of online games of chance, which does not make it easy to situate them in a specific physical location”) to come to a proper location, hence “those games took place where the player is habitually resident.”

[47] “as regards the financial loss alleged to have been sustained on the player account specially created with a view to [claimant’s] participation in online games of chance, or on [claimant’s] personal bank account from which his player account was funded, it must be noted that that loss is only an indirect consequence of the alleged damage, which cannot be taken into account for the purpose of determining the law applicable under [A4(1) Rome II].”

I find all of this quite circular and, importantly, handing claimant a great way to manipulate locus damni hence applicable law by the choice of action aka by claim formulation.

Article 4(3)’s proper law of the tort analysis is left to the referring court, with a reminder that the exception must be interpreted restrictively.

Geert.

EU Private International Law, 4th ed 2024, 4.22 ff, 4.31 ff.

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

There is of course one additional issue on conflict of laws that is part of the Municipio judgment (Municipio de Mariana et al v BHP Group UK Limited and BHP Group Limited [2025] EWHC 3001 (TCC); I discussed the Rome II issue here), namely the question of standing for the municipalities in the English proceedings. I discuss it in an extra post here for to simply insert it in my earlier post would render that post’s title incomplete.

This is discussed [1090] ff and it is worth inserting the alternative arguments in full:

1090. BHP’s case is that the Municipalities’ claims should be dismissed as they do not have the constitutional capacity to bring proceedings abroad. Their bringing of these claims in the Courts of England and Wales constitutes acts that are exclusive to the Federal Government as representative of the Federative Republic of Brazil under Article 21(I) of the Constitution, namely: (a) a waiver of immunity from jurisdiction (such waiver being a prerogative of national sovereignty); and/or (b) establishing a legal relationship with a foreign State.
1091. It is said that the effect of the Municipalities bringing suit in England is to subject themselves to the jurisdiction of this Court, waiving jurisdictional immunity from which they benefit as a matter of Brazilian law. This is an act on the international plane, beyond the autonomy of the Municipality and one that only the Federal Government has the constitutional capacity to carry out. Therefore, Municipalities can only bring claims abroad through or with the Federal Republic of Brazil.
1092. The Claimants’ case is that the Municipalities are local government bodies with their own separate legal personality which have administrative responsibility over defined territories within Brazil. They are thus legal persons distinct from the individuals and businesses whose interests they represent and distinct also from the Federal Republic of Brazil. The Municipalities are recognised as public entities by Article 41(III) of the Civil Code, subject to internal public law, as well as the Constitution.
1093. Under Brazilian law, Municipalities are treated as having the same capacity as a natural person so far as holding and exercising rights is concerned. In those circumstances, it is said that in the absence of express prohibition or limitation, Municipalities are in the same position as any other natural or non-natural legal person. Like any other such person they can therefore sue and be sued, both within Brazil and in courts outside Brazil as any other natural or non-natural legal person.

O’ Farrell J starts with the common ground:

1094. It is common ground that the issue of standing of a party is a matter for the lex fori, that is, the English Court, but the issue of capacity to bring proceedings of the
Municipalities, as creations of Brazilian law, is subject to Brazilian law.
1095. Further, it is common ground that the Municipalities can sue and be sued in their own name before the Brazilian Courts, including in respect of damage to their own property.
1096. The issue is whether the capacity of the Municipalities to bring proceedings for
damages is restricted to domestic proceedings in Brazil and does not extend to foreign proceedings, by reason of the Constitution.

[1097] the judge emphasises her role as holding on the issue as a matter of (proven) fact of foreign law: not as a definitive determination of Brasilian law. Defendants’ expert’s view is is that the Federal Government has exclusive jurisdiction, acting in the name of the Federative Republic of Brazil, to waive immunity from jurisdiction. [1101] the claimants’ expert’s view echoes issues of ‘civil and commercial’ and the meaning of core concepts of foreign sovereign immunity:  his view is that

the Municipalities are not prevented from filing actions outside Brazil under Brazilian law. The legal scholarship on immunity against foreign actions applies only to the so-called acts of sovereignty or acts of state, but not to acts of management. A civil claim for compensation against a foreign private agent, even when made by a public body, such as a Municipality, is not an act of sovereignty or the State, but rather an act of management. In the case of an action seeking compensation for damage caused by environmental degradation brought against private companies based abroad, relations with foreign States are not in question, nor is the participation
of international organisations.

In others words this is a ‘money’ claim, not one related to public power. The judge [1106] prefers this opinion:

As he explained, a distinction must be drawn between sovereignty, the authority of the Federal Republic to govern itself and its laws, and administrative autonomy, the authority of private and public entities to conduct their own affairs, including by means of legal actions. By filing claims in the English Courts, the Municipalities submit to the jurisdiction of this Court to try the claims but that does not extend to any issue of sovereignty. The Municipalities do not purport to exercise any sovereign authority of the Federal Republic when advancing their private law claims. They are not required to surrender any such sovereign authority and the private law claims do not involve any issues of international relations.

Consequently [1108]

there is no constitutional impediment by way of incapacity for the Municipalities to bring proceedings in this jurisdiction. It follows that there they have standing in these proceedings.

A (factual) finding of note.

Geert.

EU Private International Law, 4th ed, 2024, ia 4.82 ff.

I had promised participants of the BIICL Business and Human Rights Annual Forum Annual Conference that I would be putting up my handwritten notes for my keynote, in electronic format. Here they are. It was a great forum.

Geert.

 

FIGC et CONI
Concurrence
L’avocat général Spielmann estime que le droit de l’Union s’oppose à une réglementation qui ne permet pas aux juridictions nationales d’annuler des sanctions sportives illégales

Slagelse Almennyttige Boligselskab Afdeling Schackenborgvænge
Principes du droit communautaire
Interdiction de discrimination : la Cour de justice précise, en rapport avec la loi danoise en matière de logement public, les situations pouvant constituer une discrimination fondée sur l’origine ethnique

Sidi Bouzid
Espace de liberté, sécurité et justice
Protection internationale : le refus par le demandeur de son transfert dans un autre centre d’hébergement ne peut pas justifier le retrait du bénéfice de l’ensemble des conditions matérielles d’accueil

Amazon EU (Tarifs minimaux de livraison de livres)
Libre circulation des personnes
L’imposition, par une mesure nationale, de tarifs minimaux pour la livraison à domicile de livres doit être analysée à la lumière des règles en matière de libre circulation des marchandises

Storstockholms Lokaltrafik
Principes du droit communautaire
RGPD : en cas d’utilisation d’une caméra-piéton lors du contrôle de billets, certaines informations doivent être fournies immédiatement au passager concerné

SACD e.a.
La recevabilité d’une action en contrefaçon du droit d’auteur d’une œuvre collective doit garantir le respect du droit à une protection juridictionnelle effective, en ne rendant pas la procédure prévue inutilement complexe ou coûteuse

Hamoudi / Frontex
Action en dommages et intérêts contre Frontex en cas de renvoi sommaire : la Cour protège le droit à un contrôle juridictionnel effectif

WS e.a. / Frontex (Opération de retour conjointe)
Opérations de retour conjointes : l’arrêt du Tribunal rejetant le recours en indemnité d’une famille de réfugiés syriens contre Frontex après leur transfert de la Grèce vers la Turquie est annulé en grande partie

Commission / Pologne (Contrôle ultra vires de la jurisprudence de la Cour de justice par une cour constitutionnelle)
État de droit : la Cour constitutionnelle polonaise a manqué à plusieurs principes fondamentaux du droit de l’Union en méconnaissant la jurisprudence de la Cour de justice

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

Advocate-General Norkus’ approach in Case C-485/24 Locatrans Sarl v ES, which I reviewed here, focused on identifying a mutually agreed lex laboris and on the assistance the core DNA of the dispute, and the time that issue arose, may offer in identifying that mutual agreement.

The CJEU held last week. While it certainly may be said that the AG’s approach, in particular the reference to locus regit actum, is unorthodox and perhaps a touch convoluted, the CJEU’s approach is simply confusing as Ugljesa Grusic implies.

A reminder that the case formally concerns the Rome Convention, not the Rome Regulation however the provisions do not materially differ.

The novelty of the question in current case is the period of work to be taken into account in determining which law is applicable 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, which parties clearly intend to be the new place of habitual performance.

The CJEU would seem to have sided with the French Government’s approach, that the most recent period of work could be taken into account in the use of the overall escape clause in Article 6, in order to determine, in the light of all of the relevant circumstances, the existence of closer connections with another country than that indicated by the other limbs of Article 6.

The CJEU as Ugljesa excellently summarises, holds that the change in habitual place of performance in its view makes the application of the ordinary test (identification of a habitual place of performance, which then leads to the lex causae) impossible; this then ordinarily triggers as a fall-back the law of the country of the engaging place of business.

However the Court then emphasises the core objective of the provisions on employment contracts: guaranteeing adequate protection for the employee, and the role of the escape clause in that respect: it must ensure that the law applied to the employment contract is the law of the country with which that contract is most closely connected (reference to CJEU Schlecker, [34]).

This then brings the last limb of Article 6(2) of the Rome Convention to the fore: where it is apparent from the circumstances as a whole that the contract of employment is more closely connected with another country, it is for the national court to disregard the connecting factors referred to in Article 6(2)(a) and (b) of the Rome Convention and to apply the law of that other country. The referring court is therefore invited seriously to consider the place where the employee has carried out his or her work on a permanent basis during the most recent period of the performance of his or her contract of employment, which place is intended to become a new habitual place of work, as the ‘proper law’ of the contract, for the Court holds, this is in line with the favor laboris objective. [61] the Court also suggests this assists with predictability however that, as Ugljesa also notes, would seem optimistic.

Like Ugljesa, I would suggest that the law of the intended new habitual place of work should apply as the objectively applicable law under Article 6(2)(a), rather than under the escape clause. This would serve party autonomy, predictability and favor laboris (seeing as the place is mutually agreed) more than the use of the escape clause, the position of which I feel is overpromoted with current judgment.

Geert.

EU Private International Law, 4th ed 2024, 3.39 ff.

Applicable law, cross-border employmentRome ConventionCJEU C‑485/24 Locatrans curia.europa.eu/juris/docume…Court does not seem to follow AG gavclaw.com/2025/09/09/l…CJEU zooms in difficulties of lex voluntatis, focuses on place of business through which employee was engagedMore soonish

— Geert Van Calster (@gavclaw.bsky.social) 2025-12-11T09:49:25.652Z

Barón Crespo / Parlement
Régime de pension complémentaire : les recours de 405 anciens députés européens ou de leurs ayants droit contre la réduction de moitié de leur pension complémentaire sont rejetés

Locatrans
Convention de Rome du 19 juin 1980
Travail dans plusieurs pays : la Cour précise la détermination de la loi applicable en cas de changement du lieu de travail habituel

Ryanair / Commission (TAP ; aide à la restructuration)
Aide d'État
Le recours de Ryanair contre la décision de la Commission approuvant une aide à la restructuration d’un montant de 2,55 milliards d’euros que le Portugal a accordée à TAP est rejeté

Intel Corporation / Commission
Concurrence
Marché des microprocesseurs : le Tribunal confirme la décision de 2023 de la Commission contre Intel mais réduit le montant de l'amende d’environ 140 millions d’euros