The Advocate General has given his opinion that the employment contracts of cabin crew fall within the jurisdiction of the country where, or from which, the employee principally carries out his obligations vis-à-vis his employer.

Jurisdiction of employment contracts

An employment contract will often state the law of the country which will apply to the contract and purport to confer jurisdiction on the courts of the same country to determine a dispute. However, in the EU, under the 2001 Brussels Regulation and the Recast Brussels Regulation, special rules apply to employment contracts.

Subject to certain exceptions, an employee may bring a claim in the courts of the EU member state:

  • in which the employer is domiciled; or
  • where (or from where) the employee habitually carries out his work (or the last place where he did so); or
  • if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.

The question before the Court of Justice of the European Union (ECJ) is what is the correct jurisdiction for an employee to bring a claim when they perform their duties in multiple member states?

The case

Nogueira and others v Crewlink Ltd C-168/16; Moreno Osacar v Ryanair, formerly Ryanair Ltd C-169/16

Six cabin crew employed by Crewlink and assigned to work for Ryanair out of Charleroi airport in Brussels, brought claims in the Belgian courts for unpaid wages, overtime pay and severance pay. The employers argued that the Belgian courts had no jurisdiction and that the Irish courts must determine the claims.

Both Crewlink and Ryanair are Irish companies and their registered office is in Ireland. The employment contracts of the cabin crew were in English and were stated to be governed by Irish law and conferred jurisdiction on the Irish courts. However, the employment contracts stated that the employees' homebase, where they would start and finish work, was Charleroi airport in Brussels and the employees were required to live within an hour of the airport.

At first instance the labour court in Charleroi held that the Belgian courts did not have jurisdiction to hear the claims. The claimants appealed and the Mons Higher Labour Court in Belgium referred the question to the ECJ as to how "the place where the employee habitually carries out his work" should be interpreted for mobile workers in the international air transport sector.

The Advocate General's opinion

The Advocate General was of the view that "the place where the employee habitually carries out his work" is the place where, or from which, the employee principally carries out his obligations for his employer. In deciding this, the court should take into account a number of factors:

  • the place where the employee starts and ends his working day (which was of overriding importance)
  • the place where the aircraft on which he carries out his work is habitually based
  • the place where the employee is made aware of instructions communicated by his employer and organises his working day
  • the place where he is contractually required to live
  • the place where an office made available by the employer is situated
  • the place where the employee would attend if unfit for work or in the event of disciplinary problems.

It is for the Belgian courts to apply the factors and reach their own view. However, in the Advocate General's opinion, the Belgian courts should have jurisdiction as the factors "unequivocally designate the courts of the place where Charleroi airport is situated". Whether the employees were employed by Crewlink or Ryanair was not relevant and nor was the nationality of the aircraft in determining where the cabin crew habitually carried out their work.

The Advocate General's role is to give independent opinions for European cases before the ECJ considers its judgment and his opinion is not binding on the court but will be considered by the ECJ before its judgment is given at a later date. The Belgian court must then dispose of the case in accordance with the ECJ's decision.

Although this case specifically relates to the international air transport sector, the opinion is in line with other case law on jurisdiction. Employers with employees who work in multiple member states should consider the implications for their contracts of employment if the ECJ follows the Advocate General's opinion.