Flux européens

M. Marc van der Woude est réélu président du Tribunal de l’Union européenne

Entrée en fonctions de nouveaux membres à la Cour de justice et au Tribunal de l’Union européenne et renouvellement partiel du Tribunal

Aucrinde
Espace de liberté, sécurité et justice
Avocate générale Ćapeta : la Charte n’interdit pas d’établir la paternité par prélèvement génétique post mortem

Bervidi
Politique sociale
Discrimination au travail : la protection des droits des personnes handicapées contre les discriminations indirectes s’étend aux parents d’enfants handicapés

MSIG
Principe ne bis in idem : une personne ne peut être poursuivie dans un État membre pour un acte de terrorisme lui ayant déjà valu une condamnation dans un autre État membre, bien que la qualification de l’infraction y soit différente

Banco Santander (Résolution bancaire Banco Popular III)
Libre circulation des personnes
Banco Popular : les droits découlant des actions en nullité et en responsabilité introduites avant la résolution de cette banque sont opposables à Banco Santander

Autriche / Commission (Centrale nucléaire Paks II)
Aide d'État
La Cour de justice annule la décision de la Commission approuvant l’aide de la Hongrie pour la centrale nucléaire Paks II

Positive Group / Conseil
Politique étrangère et de sécurité commune
Guerre en Ukraine : le Tribunal confirme les mesures restrictives contre Positive Group PAO, une entité active dans le secteur russe des technologies de l’information et titulaire d’une licence délivrée par les services de renseignement intérieurs russes

Meta Platforms Ireland / Commission
Rapprochement des législations
Règlement sur les services numériques : le Tribunal annule les décisions de la Commission fixant la redevance de surveillance applicable à Facebook, Instagram et TikTok

Autriche / Commission
Le recours de l’Autriche contre l’inclusion de l’énergie nucléaire et du gaz fossile dans le régime des investissements durables est rejeté

Advocate General Norkus opined early July in Case C-485/24 Locatrans Sarl v ES. At issue is the application of the protective regime for lex contractus viz employees under the Rome Convention (applicable ratione temporis in the case at issue).

The facts of the case echo, but with distinctions, CJEU Weber, Koelzsch, and  Voogsgeerd, as well as Nogueira (Ryanair). 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 opposing views are summarised (23):

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. 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.

(36) the core rule per Koelzsch is

‘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’

In footnote the AG adds 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 (for which he refers to the Handbook, much obliged and humbly noted).

Having summarised the relevant case-law, (51) the Opinion takes a decisive turn when the AG refers to the need to interpret the regime with stability in mind:

[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. 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). (footnotes omitted)

Tempus regit actum is a principle with direct appeal and application for procedural law, for issues of intertemporary law (scope of application ratione temporis, particularly of statute) and for formal validity in private international law. Its application for substantive provisions in private international law is less obvious (there are traces of it of course in Rome I’s Article 3(2) on voluntary change of applicable law, Article 11’s formal validity, and Article 13 incapacity).

For employment contracts, in my opinion the very first agreed “place from where the employee habitually carries out his work” must be seen as an implicit mutual choice of law, and any mutually agreed (or at least  transparent and uncontested) change in said place, as an implicit change in that choice of law. Article 3(2) must then be applied mutatis mutandis

The parties may at any time agree to subject the contract to a law other than that which previously governed it, whether as a result of an earlier choice made under this Article or of other provisions of this Regulation. Any change in the law to be applied that is made after the conclusion of the contract shall not prejudice its formal validity under Article 11 or adversely affect the rights of third parties.

(52) the AG follows a similar approach focused on deciding what it is the parties are actually litigating about, to then fix the lex causae applicable to the claim, to the relevant, mutually agreed, place of habitual employment in force at the time:

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.

(54) the AG like the Commission identifies the nature of the claim as one in which the employee’s dispute concerns the termination of the contract. The facts relevant to the determination of that dispute in casu it seems arise at the end of that contract, hence the most recent period of employment (with fixed place of employment in France) should be taken into account to determine the lex causae. (57) Gleichlauf is mentioned as one of the reasons for suggesting so.

If followed by the CJEU, a sophisticated litigant could of course abuse this approach to formulate their claim in such a way as to lead to an attractive applicable law. However as a general rule the approach seems a solid one to me.

Geert.

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

Opinion Norkus AG this morningFavor laboris in Rome Convention, applicable lawPlace of habitual place of employment must focus on most recent period if place has become fixed, by mutual agreementC‑485/24 Locatrans curia.europa.eu/juris/docume… (citjng ia your truly – sincerely humbled)

— Geert Van Calster (@gavclaw.bsky.social) 2025-07-03T11:57:31.029Z

Puigdemont i Casamajó e.a. / Parlement (Levée de l’immunité parlementaire)
L’avocat général Szpunar propose de rejeter trois moyens du pourvoi introduit par M. Antoni Comín contre l’arrêt du Tribunal rejetant son recours contre la levée de son immunité par le Parlement européen

Shipov
Avocat général Richard de la Tour : l’État membre d’origine d’une personne transgenre a l’obligation de délivrer des documents d’identité conformes à l’identité de genre vécue

Safi
Avocate générale Ćapeta : la citoyenneté de l’Union englobe le droit de ne pas circuler

C.J.
Espace de liberté, sécurité et justice
Une autorité judiciaire ne peut pas refuser d’exécuter un mandat d’arrêt européen et prendre en charge elle-même l’exécution de la peine sans le consentement de l’État qui a émis ce mandat

AW "T"
Principes du droit communautaire
Une juridiction nationale est tenue de considérer comme non avenu l’arrêt d’une juridiction de rang supérieur qui ne constitue pas un tribunal indépendant, impartial et établi préalablement par la loi

CEPD / CRU (Notion de données à caractère personnel)
La Cour de justice précise la portée de la notion de « données à caractère personnel » dans le contexte d’un transfert de données pseudonymisées à des tiers

Latombe / Commission
Principes du droit communautaire
Protection des données : le Tribunal rejette le recours visant à l’annulation du nouveau cadre de transfert de données à caractère personnel entre l’Union européenne et les États-Unis

Zalando / Commission
Rapprochement des législations
Le Tribunal rejette le recours de Zalando contre la désignation de sa plate-forme éponyme comme une très grande plate-forme en ligne

[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.]

DHV v Motor Insurers’ Bureau (Rev1) [2025] EWHC 2002 (KB) is an interesting case to discuss statutory construction of EU law, specifically (and this is mostly how it ended up on the blog) with respect to Rome II’s ‘evidence and procedure’ carve-out and the impact of its recital 33 on same.

Those interested in the use of experts in proceedings generally, may want to read the first 80 or so paras of the judgment as well, for the account by Dias J of the various experts and their credibility is most informative, as is [45]

Two accident reconstruction experts gave live evidence: …..The factual conclusions the court reaches must be based on the totality of evidence, combining expert and all other relevant evidence. The court is not bound by the conclusions of any expert if it offends logic and common sense. We do not have trial by experts. This principle applies with equal force to the other pairs of experts, on Spanish law, actuarial evidence and medico-legal matters. I will not repeat that important warning and qualification. (emphasis added)

Now, to the conflict of laws issues at hand:

The judgment on this issue kicks off with general observations on determining applicable law, and the precise implications of ‘foreign law as fact’ with [82] reference ia to Lambert v MIB as well [83 ff] as how exactly that foreign law needs to be applied: entirely as it has been done by the relevant foreign courts (possibly all the way up to their supreme court), or, if their is evidence (provided by the experts) that these foreign courts have not actually properly applied their own laws, by the English court’s ‘proper’ reading of those laws.

[85] ff then discuss Rome II’s ‘evidence and procedure’ carve-out, which I review in the handbook with reference to all authorities reviewed in current case. Pro memoria, relevant statutory provisions are

Article 1(3)

This Regulation shall not apply to evidence and procedure,
without prejudice to Articles 21 and 22.

Note ! this is a proper and entire carve-out altogether from the scope of the Regulation, different from Article 1(2) which excludes certain issues which as a result of Article 1(1) are within its scope, but are then excepted.

(Articles 21 and 22 are of no relevance to the case at issue; see on those Articles eg Quilombola, X v Y (parental responsibility) or X v Y ( monies viz real estate transaction).

Article 15 ‘Scope of the law applicable’

Article 15
Scope of the law applicable
The law applicable to non-contractual obligations under this Regulation shall govern in particular:
(a) the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;
(b) the grounds for exemption from liability, any limitation of liability and any division of liability c) the existence, the nature and the assessment of damage or the remedy claimed;
(d) within the limits of powers conferred on the court by its procedural law, the measures which a court may take to prevent or terminate injury or damage or to ensure the provision of compensation;
(e) the question whether a right to claim damages or a remedy may be transferred, including by inheritance;
(f) persons entitled to compensation for damage sustained personally;
(g) liability for the acts of another person;
(h) the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation.

Of further relevance is recital 33

According to the current national rules on compensation awarded to victims of road traffic accidents, when quantifying damages for personal injury in cases in which the accident takes place in a State other than that of the habitual residence of the victim, the court seised should take into account all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention.

Wall v Mutuelle of course is the core reference employed although as I have said before, it is wrong to suggest such as the judge does here [87] that “While [the evidence and procedure carve-out] is a derogation from article 15, it must be narrowly construed”.

A first bone of contention is whether Rome II applies at all to the case. It’s probably me who does not quite see how that argument is made. The question in the end is not all that relevant given the answer to the second issue: whether recital 33 has a substantive impact on the case. The judge held it does not.

I have not recently looked at Recital 33, nor done a detailed study of its travaux. That word in fact gives the recital too much credit: a recital can be part of the travaux of a statutory provision. It does not have its own travaux, given that recitals plainly are not EU statutory law. In the case of current recital, it was a plaster to sooth the European Parliament’s failure to introduce what would have been in effect a harmonisation of substantive law on full compensation (the restitutio in integrum principle; the judge here refers ia to prof Dickinson’s discussion of the recital).

Dias J also discusses Halsbury on EU statutory law as a general background to the application of EU law. He is wrong in my opinion to [114] suggest that “the current national rules on compensation” as used in recital 33, are a reference to the applicable lex causae (which he incompletely refers to as the ‘lex loci’: ‘damni’ should be added to that). ‘The current national rules’ refers to ius commune as eg the French version shows: ‘En vertu des règles nationales existantes en matière d’indemnisation des victimes d’accidents de la circulation routière.’

Conclusion [127]: recital 33 is not a legal rule. At the most it may be of relevance in an A4(3) ‘more closely connected’ scenario – which is not the case here.

A case of interest for Rome II. Another example, too, of where continental courts in all likelihood would not have allowed the arguments to run quite to the intensity they were argued here (contributing of course to the costs of proceedings in English courts).

Geert.