Rozhodné právo pre cezhraničné činnosti v EÚ

Nariadenie Rím I, kolízne normy, cezhraničná práca, obvyklé miesto výkonu práce, dočasné vyslanie

Rome I Regulation, Conflict of Laws, Cross border work, Habitual Place of Work, Temporary Posting

The freedom of establishment and freedom to provide services enshrined in the Treaty on the Functioning of the European Union ensures the mobility of companies and workers within the EU. Freedom of movement includes the freedom of movement for workers in accordance with Art. 45 TFEU, i. e. every citizen of the Union has access to the labour market in every Member State. As a result, there are business relationships between various national companies within the European Union. When working with foreign companies, it is usually necessary to deploy workers abroad. In addition to executives who must be appropriately qualified, other technical and commercial employees of the national employer also work abroad in various ways.

The article analyzes case law and literature on recurring legal issues in cross-border employment relationships. Using an example case, individual legal problems are presented and explained. First, the author goes into the applicable law. He differentiates between employment relationships with and without an agreed choice of law. With the latter variant the determination of the applicable law depends on the particular individual circumstances and the criteria set out in the case law of the ECJ. In addition to general explanations, the situation of drive truckers, "flying workers" and sea workers is dealt with in detail. In an excursus, the author describes situation of employees who are temporarily posted. Explanations on the drafting of the contract and the place of jurisdiction round off the topic. He comes to the conclusion that it always depends on the individual circumstances of the individual case and that general statements can only be made to a limited extent. He attaches great importance to legal clarity, which can be achieved through agreements and contractual provisions on applicable law and the place of jurisdiction.

The provisions of the Rome I Regulation can also apply in the current pandemic situation.

A German truck driver signed an employment contract with a German freight forwarding company based in Berlin in 2013. The content is that he should work as a truck driver in Sweden. The tours to be driven are only in Sweden for a larger grocery chain with different markets. As remuneration, he receives a certain daily rate for the tours in Sweden and a corresponding hourly rate for overtime. Payroll is carried out via Germany.

He retains his residence in Germany and receives a lump sum for expenses for the return trip. After the "Sweden assignment of up to 3 weeks" he is back in Germany for about 1 week. The accommodation, the flight and the rental car are provided by the German employer. However, the accommodation only serves to ensure that the truck driver can observe his daily rest periods. The trucks are in continuous use around the clock, so that the truck driver cannot spend the rest time in the truck. He does not receive a tax, health insurance or social number. Upon request, he is informed that he is only borrowed from Germany and that the head office in Germany is responsible for everything else.

The employment contract does not regulate the applicable law, it is a typical, standardized employment contract in German. A written form clause is included, according to which changes, extensions and additions to the employment contract must be made in writing.

There is an addition to the employment contract, which shows that the employee is sent to Sweden for a limited period of 5 years at the Swedish subsidiary of the German freight forwarding company.

For health reasons, he is forced to quit the job. In Berlin, he finally concludes a typical termination agreement with a severance pay with the German employer based in Germany. The severance pay is named in accordance with German regulations and stated in gross. A comprehensive compensation clause is also agreed. There are no references to Swedish law, especially not to Swedish labor and social security law. The employer then settles the gross severance pay, deducting both the tax and - according to Swedish law - social security. Under German law only the tax is retained fo the severance pay. The employee does not agree with this. He is suing the employer for payment of the remaining severance pay at the labour court in Berlin.

The question arises of how the legal situation should be assessed.

The central problem of any activity abroad is which legal norms are to be applied in individual cases. This is of great importance for the establishment, change and termination of the employment relationship as well as for the place of jurisdiction.

The main rule of the Rome Convention is that parties can make a choice for any law, Art. 3. (1), 8 (1) Rome I Reg. The parties have freedom of contract. This follows from the Rome I Regulation ¹⁾ .

The decision on the applicable law or parts thereof is the responsibility of the contracting parties in accordance with Art. 3 Rome I Reg. in conjunction with Art. 8 (1) 1 Rome I Reg. The time of the conclusion of the contract is determined autonomously by Union law ²⁾ . It depends on when the parties manifested their agreement ³⁾ . Freelance employee contracts are not covered by Art. 8 (1) Rome I Reg., but so-called sham employment relationships if the criteria for personal dependency exist. Legally ineffective employmen