Presentation 14 April 2021

1. Some recent “Dutch” cases, positioned in
a broader Private International Law
Perspective
“Orwellian language” in Private
International Law?

2. www.mpi.lu
• This RR:
Cfr. Some aspects previous RR:
“regulatory role” PIL, when dealing with issues of
globalization (“neutrality” of PIL)
freedom and protection weak (and vulnerable) parties in
PIL
• Meanwhile developments legislative and case law
Continuing on previous presentations and publications
2

3. www.mpi.lu
• This presentation: focus on recent “Dutch” case law
“Dutch”:
Dutch Courts,
Court of Justice as Dutch cases referred to Court by
Netherlands
• Particularly focusing on decision Dutch Supreme Court
29 May 2020 – labour law
This presentation (content and perspective)
3

4. www.mpi.lu
• Mainly about labour law.
But (when zooming out of particular case/theme) will also
mention in that context decision CSR “Shell Nigeria”
• As related to each other, can be put under same “umbrella”
4

5. www.mpi.lu
• Labour law and recent case law
• Cross-border employment, PIL applicable law sources:
Rome 1: rules applicable law, art. 8 on employment
contracts
Posting Directive: hard core rules country where work
carried out temporarily
So focus on some PIL-aspects Labour Law, employment contracts
5

6. www.mpi.lu
• Start with Dutch case, case Dutch Supreme Court 29
May 2020
• Case itself: “simple”
• (purely) rules applicable law Rome 1 Regulation,
Case Dutch Supreme Court 29 May 2020 “Turkish airline”
6

7. www.mpi.lu
• Purely one particular aspect article 8: last paragraph article
8: “closer connection” – sometimes venom in the tail?
• Interesting when keep in mind:
preamble Rome 1, ratio article 8:
(23) “As regards contracts concluded with parties regarded
as being weaker, those parties should be protected by conflict-
of-law rules that are more favourable to their interests than the
general rules.”
7

8. www.mpi.lu
• 1. An individual employment contract shall be governed by the law chosen by the parties in accordance with
Article 3. Such a choice of law may not, however, have the result of depriving the employee of the
protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in
the absence of choice, would have been applicable pursuant to paragraphs 2, 3 and 4 of this Article.
• 2. To the extent that the law applicable to the individual employment contract has not been chosen by the
parties, the contract shall be governed by the law of the country in which or, failing that, from which the
employee habitually carries out his work in performance of the contract. The country where the work is
habitually carried out shall not be deemed to have changed if he is temporarily employed in another country.
• 3. Where the law applicable cannot be determined pursuant to paragraph 2, the contract shall be governed
by the law of the country where the place of business through which the employee was engaged is situated.
• 4. Where it appears from the circumstances as a whole that the contract is more closely connected with a
country other than that indicated in paragraphs 2 or 3, the law of that other country shall apply.
(See Article 8 Rome 1 Regulation, “individual employment contracts”)
8

9. www.mpi.lu
• Case Dutch Supreme Court May 2020: at SC purely about
last paragraph article 8 Rome 1 (par. 4)
case: aviation sector;
Turkish airline, Dutch pilot, fired (choice made for Turkish
law)
Pilot: relying on Dutch mandatory rules labour protection
when started procedure in the Netherlands (art. 8 par. 1 plus 2
Rome 1)
Turkish airline to Supreme Court
• Brief discussion this case hereafter, mentioning meanwhile
several cases Court Justice: CJEU Ryanair and CJEU Schlecker
Case in context (in context previous case law CJEU Ryanair and Schlecker)
9

10. www.mpi.lu
• CJEU Ryanair (Nogueira) Aviation sector. About rules
jurisdiction (Brussels 1), about “habitual working place”
(Belgium/Ireland?). CJEU: how decide habitual working
place (with attention for attempts, strategy Ryanair)
• Conclusion Belgian courts: working place = Belgium, thus:
- even though forum choice Ireland employee may sue
in Belgium.
- same line reasoning concept “habitual place work”
applicable law
Case Dutch Supreme Court in context Ryanair (following Ryanair)
10

11. www.mpi.lu
• Case SC Turkish airline May 2020:
in line Turkish airline, pilot in Netherlands, fired, …
First instance and Court Appeal Amsterdam:
Netherlands = habitual working place,
- where pilot could sue (despite forum choice),
- and also relevant applicable law (normally applicable
law) – mandatory Dutch rules (article 8 par. 1 plus par. 2
Rome 1).
11

12. www.mpi.lu
• But: before Dutch Supreme Court:
Turkish airline complaining about way arguing by Court
Appeal escape-clause “closer connection” article 8 par. 4
Rome 1,
Court Appeal Amsterdam had said:
could rely on Dutch mandatory rules protecting against
fired (escape-clause not applicable)
But Supreme Court:
Court appeal not well argued about escape-clause article
8 Rome 1 (last paragraph). Referred to another Court of
Appeal to decide
In line with CJEU Ryanair, BUT
12

13. www.mpi.lu
• What about this “escape clause”?? CJEU Schlecker
• Schlecker: (“Dutch” case)
very long habitual work in the Netherlands: escape-clause!?
• CJEU in Schlecker: even then possibility application escape-
clause (with some instructions)
“Escape clause”!? Case Dutch Supreme Court in context Schlecker, After
Schlecker
13

14. www.mpi.lu
• case Schlecker: escape-clause might lead to German law –
less favorable for employee in substantive way
• Here, “Turkish case”: as far as escape-clause would be
applied (escape-clause argued by Turkish airline):
• Turkish law completely
Thus, so, even if in line CJEU Ryanair, possibility plot twist
at the end, with “venom in the tail” for employee?
14

15. www.mpi.lu
• might say:
- Perhaps Court Appeal Amsterdam (just) not
justified well/in correct way, maybe just sloppy
- and see very recent lower case law other cases
against same Turkish airline
But so
Possible risk, “sword of Damocles”?
Escape-clause and “protection”?
Advocate-General before Dutch SC in Turkish case:
issues escape-clause and “protection” (even if
agree that “protection” should not be understood as “most
favourable in substantive way”, issues)
15

16. www.mpi.lu
• In any case broader issues protection,
anno 2021 “protection” weak parties not yet
crystallised, also other issues “protection”
cfr. literature
Escape-clause? Escape-clause and protection? Broader, beyond
(ZOOMING OUT of particular case/escape-clause)
16

17. www.mpi.lu
• Cfr. broader/other cases, e.g.:
• Pending Case Hungarian truck drivers Silo-Tank,
Court Appeal: “Hungarian law” (as law habitual work
place/close connection)
Supreme Court
awaiting new Court of Appeal, pending. Difficulties
“country habitual work”, here in road sector
• Situation posting, Posting Directive: “mind your step”:
sometimes seems protection, but boomerang – sometimes
tricky, sometimes “mind the gap”, issues where sue, …
This Dutch case AND BEYOND (in labour law)
17

18. www.mpi.lu
• Case FNV (“van den Bosch”, “Dutch” case): truck drivers in
Netherlands, Hungarian wages, road transport, Posting Directive (hard core
rules of country where working temporarily)
CJEU 1 December 2020: Posting Directive in principle applicable road
sector
But need … : “a sufficient connection”
Scholars: discussions on case (what means/what means for case itself)
Regarding POSTING: recent case CJEU (“Dutch” case): case C-815/18 (FNV):
recently CJEU on applicability Posting Directive in road sector
18

19. www.mpi.lu
• Interesting, point out myself: opinion Bobek in case C-815/18 (30 April
2020),
“Orwellian” language in sense of misleading, tricky … language
• pick up from opinion: “Orwellian” language, from perspective employee
(cfr. sub-title of this presentation)
cfr. Maybe Schlecker? Cfr. Maybe case Dutch Supreme Court 29 May
2020?
(tricky, misleading, deceptive), especially if “in the name of” protection
triggering remark, triggering also to broader analysis “protection”/freedom
and limitation thereof
Opinion Bobek in FNV-case: “Orwellian language”
19

20. www.mpi.lu
• “Orwellian” protection or not: POTENTIAL analyzing issues of
globalization from perspective “protection” weak and vulnerable parties:
On the one hand “protection”: not crystallised issues
But at same time: in any case acknowledged that weak and issue
In context globalization: protection weak parties is/should be point of
attention
• Can be seen broader, cfr. e.g. theme CSR, “vulnerable” parties
POTENTIAL studying “protection”
20

21. www.mpi.lu
• Zooming out even more. In that context, perspective, cfr; also Dutch
Shell Nigeria case
decision Dutch Court of Appeal 29 January 2021
besides this particular case, other cases/legislative developments:
issues in theme CSR, i.a.:
- Rome II basic rule (art. 4): preamble Rome II “fair, reasonable balance
between interests” … but…
- issues jurisdiction and interaction jurisdiction – applicable law (rules
applicable law and overriding mandatory rules) etc.
Cfr. Current calls attribute regulatory role to PIL in issues of globalisation
Broader (ZOOMING OUT EVEN MORE, but still Dutch case law): Cfr. Dutch
case Shell Nigeria case, theme of CSR
21

22. www.mpi.lu
Cfr. E.g. Hamburg young PIL scholars March and sustainable
development goals later on this year.
Includes issues applicable law and certainly also includes
issues of jurisdiction, in interaction/relation with applicable law.
Access to justice …
Thus of interest also MPI Luxembourg!?
RELEVANCE for MPI LUXEMBOURG
22