The European Court of Justice (ECJ) has ruled that an exclusive choice of forum clause in Ryanair cabin crew contracts of employment was unenforceable, appearing to confer jurisdiction on the Irish courts, and failing to meet requirements of the 2001 Brussels Regulation.
A group of five claimants were employed by Irish company Crewlink, to work for Ryanair as cabin crew members. All claimants signed contracts of employment which were in English, and confirmed to be governed by Irish law. The contracts contained a choice of forum clause which conferred jurisdiction on the Irish courts.
The contracts stated that the claimants’ services were to be performed in Ireland, as they were carried out on an aircraft registered in Ireland. However, the claimants’ “home base” was set as Charleroi airport (near Brussels). The cabin crew employees, whose “home base” was confirmed as Charleroi airport, received their instructions at Charleroi, routinely began and ended their working day there, and were contractually required to live within an hour of the airport.
When the employees were unfit to work, they were required to attend Charleroi airport to complete a form, which was then forwarded to the employer’s head office in Dublin. Any disciplinary procedures were carried at Charleroi also, although subsequent stages of the process were carried out from Dublin.
The claimants, whose employment ended in 2011, brought various claims in the Belgian courts against Ryanair and Crewlink. The claims raised included those for unpaid wages, overtime pay, enhanced pay for night work and severance pay. The employers argued that the Irish courts had jurisdiction to determine the claims.
The claimants argued that there was no link between them and Ireland, since they had never lived or worked there. Initially a labour court in Charleroi held that the Belgian courts did not have jurisdiction to determine the claims. The claimants subsequently appealed, and the appeal court made reference to the exclusive jurisdiction clause (ECJ), asking how the term “place where the employee habitually carries out his work” should be interpreted for mobile workers in the international air transport sector, and in particular, whether it is similar to the concept of an airline’s “home base” as defined in Regulation 3922/91 below.
Crewlink and Ryan Air, both Irish companies, argued that the Irish courts had jurisdiction to determine claims brought by crew members who lived in Belgium and worked out of Charleroi Airport, as the claims were brought before 10 January 2015, the 2001 Brussels Regulation applied.
Council Regulation (EEC) 3922/91 focuses specifically on the technical requirements and administrative procedures for the civil aviation industry, defined “home base” as:
”The location nominated by the operator to the crew member from where the crew member normally starts and ends a duty period or a series of duty periods and where, under normal conditions, the operator is not responsible for the accommodation of the crew member concerned.”
Aviation companies are required to nominate a home base for each crew member. The home base is used, among other things, to determine minimum rest periods.
Advocate General Saugmandsgaard Øe stated that, as the cabin crew performed their work in multiple member states, it was not possible to identify a single location where their work was carried out. However, considering relevant case law under the Brussels Regulation, and the Rome I Regulation on choice of law, it was also possible for the national court to identify the “place from which” they carried out their obligations. The ECJ, agreeing with the Advocate General, held that the “place where the employee habitually carries out his work” under the 2001 Brussels Regulation is the place from which the worker carries out the essential part of their duties.
Applying previous case law, the ECJ held that it is for national courts to determine the correct location, based on a number of factors, including the place from which the employee usually carries out their tasks; the place where they receive their instructions; the place from which the work is organised; and the place where they return to on completion of their duties.
The factual findings categorically pointed to the Belgian courts having jurisdiction, with Charleroi airport being the place from which the employees carried out their work. In the Advocate General’s view, the nationality of the aircraft was irrelevant in determining the place where the claimants consistently carried out their work. In the case of the cabin crew members, that was likely to be Charleroi airport.
The ECJ agreed with the Advocate General that the choice of forum clause, which claimed to confer exclusive jurisdiction on the Irish courts, was unenforceable. Article 21 of the 2001 Brussels Regulation prohibits exclusive jurisdiction clauses except where they are agreed between the parties after a dispute has arisen. Consequently, an employee cannot be prohibited from bringing a claim before courts which have jurisdiction under Articles 18 and 19 of the 2001 Brussels Convention.
Where a contract of employment states that the law of a certain country is to apply, it often also claims to confer jurisdiction on the courts of the same country to resolve any disputes. However, when considering the appropriate jurisdiction in a case with a potential connection to an EU member state, it is also important to consider the 2001 Brussels Regulation and the Recast Brussels Regulation (which applies to legal proceedings initiated on or after 10 January 2015). These EU regulations state that legal proceedings should be issued in their country of domicile, regardless of nationality.
However, under both the 2001 Brussels Regulation and the Recast Brussels Regulation, particular jurisdiction rules apply in regards to individual employment contracts, which protect the employee as “the weaker party” to the contract (Articles 18 and 19 and Recital 13, 2001 Brussels Regulation; Articles 20 and 21 and Recitals 15 and 18, Recast Brussels Regulation).
Subject to certain exceptions, an employee may sue an employer either in the courts of the member state where the employer is domiciled, or in the courts of the “place where the employee habitually carries out his work, or in the courts for the last place where he did so”. An employee who does not habitually work in any one country may sue the employer in the state where the business in which the employee is engaged is or was situated (Article 19, 2001 Brussels Regulation; Article 21, Recast Brussels Regulation).