‘From Rome to Rome’ – Cross-border employment contract. European Private International Law: Intertemporal law and foreign overriding mandatory laws
| Author | Stephan Rammeloo |
| Published date | 01 April 2017 |
| Date | 01 April 2017 |
| DOI | http://doi.org/10.1177/1023263X17709754 |
Case note
‘From Rome to Rome’ –
Cross-border employment
contract. European
Private International Law:
Intertemporal law and
foreign overriding
mandatory laws
Case C-135/15 Greek Republic v. Grigorios Nikiforidis,
EU:C:2016:774
Stephan Rammeloo*
Abstract
To what extent are Greek saving laws, resulting in payment cuts in the public sector (that is
employment conditions), capable of overriding the applicable (German) law? A dispute arising
from an employment relationship between the Greek Republic and an employee habitually car-
rying out work in Germany, gave rise to preliminary questions having regard to the temporal
scope of EU Regulation No. 593/2008 (the ‘Rome I Regulation’)
1
and, closely related thereto, the
functional reach of Article 9(3) of that Regulation in respect of ‘foreign’ mandatory laws, in light of
the principle of sincere cooperation enshrined in Article 4(3) TEU. An analysis of the Advocate
General’s Opinion and the Court of Justice of the European Union’s (CJEU) ruling is followed by
critical commentary and suggestions for future EU legislative amendments to the Rome I regime.
Keywords
European Private International Law (Reg. 593/2008), Cross-border employment relationship,
Applicable law, Foreign overriding mandatory laws
*
Maastricht University, Maastricht, The Netherlands
Corresponding author:
Stephan Rammeloo, Maastricht University, Maastricht, The Netherlands.
Email: s.rammeloo@maastrichtuniversity.nl
1.Regulation No. 593/2008/EC of the European Parliament and of the Council of 17 June 2008 on the law applicable to
contractual obligations (Rome I), [2008] OJ L 177/6.
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(2) 298–322
ªThe Author(s) 2017
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DOI: 10.1177/1023263X17709754
maastrichtjournal.sagepub.com
MJ
MJ
1. Introduction
An adequately functioning Single Market presupposes that cross-border employment relationships benefit
not only from a satisfactory degree of legal certaint y and predictabilityin view of the applicable law, but also
from a well-balanced legal and socio-economic‘level playing field’. However, in the absence of a substantive
and uniform European Union labour law, international employment relationships still remain anchored to
national law.In everyday practice the law which is commonly referred to as the lex laboris or the ‘proper law’
of the employment contract, can only be indirectly ascertained by recourse to the ‘interface’betweenEU law
instruments harmonizing the Private International Law (PIL) of the Member States.
2
A complicating factor, however, is that the so called ‘mandatory’socio-economic laws of
different legal orders may override the law which, normally, would be designated as the proper
law of the contract. This was exactly the situation in Greek Republic v. Nikiforidis,
3
where Greek
Saving Laws resulted in public sector payment cuts (that is, employment conditions).
4
The out-
come of the preliminary ruling proceedings was of pivotal importance as it not only defined
intertemporal EU PIL standards for long-running cross-border employment relationships, but also
demarcated the reach and the overriding force of ‘foreign’mandatory laws.
The aim of this article is to explicate EU PIL having regard to the applicable law to cross-border
international employment relationships as it stands after the CJEU’sjudgmentinGreek Republic v.
Nikiforidis. First, the heart of the matter of the dispute in the main proceedings,the main observations
and preliminaryquestions lodged bythe German Federal Labour Court(Bundesarbeitsgericht) and the
core observations of the CJEU’s judgment will be briefly summarized. Commentary on the CJEU’s
preliminary ruling will be preceded by a brief historical overview of European PIL on contractual
obligations.This survey includes, as being particularly relevant to long-running employmentrelation-
ships, the methodology of PIL having regard to the issue of transitory law (Statutenwechsel).
Thereafter the CJEU ’s ruling is analysed in detai l. The extensive Opinion of the Advoca te General
and the, divergent, observations of the CJEU having regard to intertemporal EU conflict of laws in
respect of cross-border employment relationships willbe consecutively unraveled and subjected to a
critical analysis. Thereafter some suggestions will be made for future amendments to the Rome I
regime. A similar approach in four ‘stages’(Opinion of the Advocate General, CJEU judgment,
criticism and suggestions for futurelegislative changes) will follow in respect of the nature and
status of ‘foreign’overriding mandatory laws, including the duty of cooperation imposed on EU
Member States as enshrined in Article 4(3) TEU. Finally, overall conclusions will be made.
2. Case C-135/15 Greek Republic v. Grigorios Nikiforidis
A. Main proceedings and preliminary questions
The dispute in the aforementioned case unrolled as follows.
5
Grigorios Nikiforidis was employed,
since 1996, as a primary school teacher in Nuremberg, which was run by the Greek Republic.
2. Private International law, hereinafter referred to as ‘PIL’, is also occasionally referred to as the ‘conflict of laws’
throughout this article.
3.Case C-135/15 Greek Republic v. Grigorios Nikiforidis, EU:C:2016:774.
4. This description was taken from L. Günther, ‘German Federal Labour Court on Foreign Mandatory Rules and the
Principle of Cooperation among EU Member States’,Conflictoflaws.net (2015), http://conflictoflaws.net/2015/german-
federal-labour-court-on-foreign-mandatory-rules-and-the-principle-of-cooperation-among-eu-member-states/.
5.The facts are rendered in full in Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 17-23.
Rammeloo 299
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