Week 4 PIBL - Employment Contracts | Quizlet

according to Article 20 of the Brussels Regulation, why are employment contracts an exception to Article 4 (the general rule)?

Article 20(1) states that the section on jurisdiction over employment matters operates EXCLUSIVELY from the general/alternative provisions of the Brussels Reg

State the 4 criteria Holterman v Ferho established for a relationship to classify as an "employment contract":

The individual must have been considered an "employee" for a period of time

The individual must have performed services in the company

The individual must have performed those services FOR and UNDER the direction of the employer (= hierarchical employment relationship)

The individual must have received remuneration for his services

other than the Holterman v Ferho criteria, state 2 other aspects that may define an employment contract according to the book (page 91)

1. it is a lasting bond that brings the worker to some extent w/in the organisational framework of the business of the employer (= subordination)

2. it is a de facto employment relationship (= aka, no need for a formal/written contract of employment)

state 2 kinds of disputes that fall w/in the scope of employment of the Brussels Regulation

1. disputes about validity of employment contracts

2. claims stemming from an individual contract of employment/a factual employment relationship (= eg unfair dismissal, remuneration claims, non-performance of work...)

considering the previous flashcards, what is the nature of the definition of an employment contract

IT IS AUTONOMOUS/INDEPENDENT!!!

Under Article 20(2) Brussels Regulation (domicile of a non-EU employer) what characteristic must its EU-based branch/agency/establishment have?

it must be a place of business which has an appearance of permanency, and is materially equipped to negotiate business with customers/third parties

under Article 21(1b), what does its definition of an employee's "habitual place of work" run parallel to?

THE ROME I REGULATION!

-Aka, both Article 21 Brussels and Article 8(2) Rome (jurisdiction & applicable law) follow the same interp of an employee's habitual place of work

-this results in "gleichlauf", AKA when the court that has jurisdiction (the forum) will apply its OWN laws (if 21(1b)) is used under Brussels)

give one example where determining "habitual place of employment" according to the 4 steps would be impossible, thus leading to the use of "engaging place of business"?

WHEN AN EMPLOYEE CARRIES OUT THE MAJORITY OF HIS WORKING ACTIVITIES IN THE HIGH SEAS!!! (= habitual place of work being in NO state!)

however, why is the "engaging place of business" concept merely a secondary connecting factor (between forum & employee)

Because its application is automatically excluded whenever a habitual place of performance IS found!

state how Article 21(2) Brussels Regulation (employment contracts) constitutes an exception to the formal scope of Article 4?

-BECAUSE, Art 21(2) states that an employer NOT domiciled in a Member State may be sued in a court of a Member State in accordance with Art 21(1b) (= aka, in the place of the employee's habitual performance)

-THIS MEANS that the 4 steps for determining habitual performance + the last resort of "engaging place of business" ALSO applies to non-EU employers, causing them to be sued bfr the courts of an EU MS!!!

-PLUS, for the employee to sue on the basis of this it wldnt even be nec for the employee to be domiciled in a MS (so long as he is employed by one!)

however, what does the prev flashcard mean for employees not employed by a business in a MS?

-that EVEN if they are DOMICILED in a MS, if they're not employed WITHIN an MS they'll be unable to sue their employer bfr the courts of a MS!

(= aka, if their habitual place of work and engaging place of business are outside of the EU)