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The determination of the law applicable to the employment contract by the Convention of Rome

!!! N.B. : Please note that the comments which follow do not concern the determination of the law applicable in the case of Posting of workers within the meaning of Directive 96/71/EC, which is a specific application of the Convention of Rome. 

For more information concerning Posting of workers, please consult the specific comments on this topic.

Texts  

The Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 (hereafter mentioned as “the Rome Convention”).  

N.B. : such a Convention has been introduced into Belgian legal order by Act of 14 July 1987 which can be downloaded in French and Dutch language. 

Subject matter 

The Rome Convention applies to employment contracts in any situation involving a choice between the laws of different countries.

 In that regard the said Convention creates a framework of conflict – of – law rules which determines the law applicable to such employment contracts.

Nonetheless, please note that the Rome Convention does not determine :

  • the jurisdiction in matters concerning employment contracts which is determined by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
Moreover, more information concerning this topic can be obtained by contacting the Federal Public Service Justice, in French or in Dutch;
  • the rules regarding work permits 

    For more information concerning this topic, please contact the Regional authorities.
  • the social security rules to be applied

    For more information concerning this topic, please contact the Belgian National Social Security Office, Directorate International Relations (tel. : 0032/2/509/31/11 or, in French language : ContactONSSMigr@onss.fgov.be and in Dutch language : ContactRSZMigr@rsz.fgov.be).
     
  • the fiscal rules to be applied.

    For more information on this topic, please consult the Tax Administrations website in French language or in Dutch language
    Contact center : 00/32/(0)257/257/57.

     

Universal application of the Rome Convention

In case of litigation before the court of a country which is party to the Rome Convention, this Convention applies even though, regarding the employment contract, the contractual parties chose the law of a country which is not party to the Convention. 

N.B.: Nonetheless and on the contrary, in case of litigation before the court of a country which is not party to the Rome Convention, such a Convention does not apply.   

Application in time 

The Rome Convention applies to employment contracts concluded at the latest by 16 December 2009. As regards employment contracts concluded from 17 December 2009, the Rome Convention is replaced by Regulation (EC) n° 593/2008 (“Rome I”).

Rules determining the law to be applied to employment contracts

The general principle is that the parties can choose the law applicable to the employment contract.

Nonetheless, two situations can arise.

The parties to the employment contract chose the law applicable to this contract   

Principle : freedom of choice (Article 3 of the Rome Convention) 

The parties can choose the law to be applied to the employment contract 

  1. Such a choice can be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case.
     
  2. Furthermore, the parties can decide to select the law applicable to the whole of the employment contract or to only a part of such a contract (provided that such a partial application does not prejudice the consistency of the contract).
     
  3. The parties may also at any time agree to subject the employment contract to a law other than that which previously governed it.

Restriction to the freedom of choice principle 

The mandatory rules of the law which would be applicable in the absence of choice (Article 6.1 and 6.2 of the Rome Convention) 

The choice of a country law made by the contractual parties cannot deprive the employee of the protection afforded to him by the mandatory rules of the law which would be applicable in the absence of such a choice, it is to say :

  1. the law of the country in which [or, falling that, from which (as interpreted by the European Court of Justice, inter alia, in the case C-29/10, Heiko Koelzsch v État du Grand Duché de Luxembourg of 15 March 2011)] the employee habitually carries out his work in performance of the contract (first criterion); or
     
  2. if the employee does not habitually carry out his work in any one country [or, falling that, from any one country (as interpreted by the European Court of Justice, inter alia, in the case C-29/10, Heiko Koelzsch v État du Grand Duché de Luxembourg of 15 March 2011)], by the law of the country in which the place of business through which he was engaged is situated (second criterion);
     
  3. Unless it appears from the circumstances as a whole that the employment contract is more closely connected with another country, in which case the contract shall be governed by the law of that other country (third criterion).

 

In the area of international transport, the judgments of the European Court of Justice « Koelszch » (case C-29/10, Heiko Koelzsch v État du Grand Duché de Luxembourg of 15 March 2011) and « Voogsgeerd » (case  C-384/10, Jan Voogsgeerd v Navimer SA of 15 December 2011) clarified how to interprete the criterion of the country in which or from which the work is habitually carried out (first criterion).
 


  The mandatory rules which will apply whatever the law applicable to the employment contract (Article 7 of the Rome Convention)   

 

In case of litigation, the judge applies his “own” national mandatory rules which, under the law of his country must be applied whatever the law applicable to the employment contract, even if the criteria mentioned in article 6 determine the law of another country.

In Belgian labour law, the concept of mandatory rules which apply whatever the law applicable to the employment contract shall be at the supreme discretion of the Belgian labour courts.

 In that regard can be, inter alia, considered as mandatory rules which apply whatever the law applicable to the employment contract, the laws, administrative regulations and collective agreements, which are subject to the provisions of penal law.

Example

 

A Dutch company takes on sales representative in Belgium in order to recruit customers in Belgium.

The sales representative will be permanently employed in Belgium but the parties but, in the employment contract, the parties chose the Dutch labour law to be applied to such a contract.

According to Article 6.1 of the Rome Convention, in that case and although the parties chose the Dutch labour law, a Belgian labour court can apply the Belgian mandatory rules seeing that these rules would apply in the absence of choice (insofar as Belgium is the country in which the sales representative habitually carries out his work) and if  these rules are actually more favourable than the Dutch rules (for instance the notice period rules).

Moreover, in accordance with Article 7 of the Rome Convention, the same court can also apply the Belgian mandatory rules which apply whatever the law applicable to the employment contract.

The parties to the employment contract did not choose the law applicable to this contract

Principle (Article 6.2 of the Rome Convention) 

In that case, the employment contract shall be governed :

  1. by the law of the country in which [or, falling that, from which (as interpreted by the European Cour of Justice, inter alia, in the case C-29/10, Heiko Koelzsch v État du Grand Duché de Luxembourg of 15 March 2011)] the employee habitually carries out his work in performance of the contract (first criterion); or
     
  2. if the employee does not habitually carry out his work in any one country [or, falling that, from any one country (as interpreted by the European Cour of Justice, inter alia, in the case C-29/10, Heiko Koelzsch v État du Grand Duché de Luxembourg of 15 March 2011)], by the law of the country in which the place of business through which he was engaged is situated (second criterion);

    N.B. This second criterion can be subsidiarily taken into account if the first one can not be used.
     
  3. Nonetheless, the two aforementioned criteria do not apply if it appears from the circumstances as a whole that the employment contract is more closely connected with another country.

In the area of international transport, the judgments of the European Court of Justice « Koelszch » (case C-29/10, Heiko Koelzsch v État du Grand Duché de Luxembourg of 15 March 2011) and « Voogsgeerd » (case  C-384/10, Jan Voogsgeerd v Navimer SA of 15 December 2011) clarified how to interprete the criterion of the country in which or from which the work is habitually carried out (first criterion).
 

Example

A Dutch company takes on a sales representative in Belgium to try to recruit customers in Belgium. The sales representative will be permanently employed in Belgium and the parties did not choose the law to be applied to his employment contract.

In that case, on basis of Article 6.2 of the Rome Convention, the law to be applied to the employment contract is the law of the country in which the employee habitually carries out his work, in other words, Belgian labour law.

Restriction to the principle : the mandatory rules which apply whatever the law applicable to the employment contract (Article 7 of the Rome Convention) 

In case of litigation, the judge applies his “own” national mandatory rules which, under the law of his country must be applied whatever the law applicable to the employment contract, even if the criteria mentioned in article 6 determine the law of another country.

In Belgian labour law, the concept of mandatory rules which apply whatever the law applicable to the employment contract shall be at the supreme discretion of the Belgian labour courts.

 In that regard can be, inter alia, considered, as mandatory rules which apply whatever the law applicable to the employment contract, the laws, administrative regulations and collective agreements, which are subject to the provisions of penal law.   

Example

A company which is established in Germany employs a worker (=middel-management employee) in France. Thereafter, this employer opens an office (without legal personality) in Belgium and sends this worker in such an office for an unlimited duration, assigning him/her the task to manage this new office.

 In case of litigation, arising from, for instance, the dismissal of this middle-management employee during his/her employment in Belgium, in accordance with Article 7 of the Rome Convention, a Belgian labour court can apply its”own” mandatory rules which, under the rule of its country, apply whatever the law applicable to the employment contract, even if this court would consider that, in accordance with Article 6.2 of the Rome Convention, the law applicable is the French labour law.   

Contact

Belgian liaison office  

Address of the Belgian liaison office:

FEDERAL PUBLIC SERVICE EMPLOYMENT, LABOUR AND SOCIAL DIALOGUE   

In Dutch language:

Algemene Directie van de Individuele Arbeidsbetrekkingen
Ernest Blerotstraat 1
1070 Brussel
Telephone: + 32 (0)2 233 48 22
Fax: + 32 (0)2 233 48 21
E-mail: iab@werk.belgie.be  

In French language:

Direction générale des relations individuelles du travail
rue Ernest Blerot 1
1070 Bruxelles
Téléphone: + 32 (0)2 233 48 22
Fax: + 32 (0)2 233 48 21
E-mail: rit@emploi.belgique.be  

FPS Employment, Labour and Social Dialogue

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