Cabin crew exclusive jurisdiction clause doesn’t fly with the CJEU

The Court of Justice of the European Union (CJEU) has shed some light on the criteria to take into account to ascertain which jurisdiction is competent in cross-border employment disputes.

Under the Recast Brussels Regulation, claims in the EU should be brought against a defendant in their country of residence. However, recognising the particular nature of the employment relationship, where one party is weaker (in that employees have less resources and less access to professional advice), special jurisdiction rules provide that employees are able to sue their employer either where the employer is based, or where the employee habitually carries out their work. The question is then to establish where employees do their work. In most cases, this should be relatively straightforward; but the situation becomes more complex for some professions with an international dimension, such as cabin crews.

In Nogueira and others v Crewlink Ireland Ltd, the claimants, who were employed by Crewlink but assigned to work as cabin crew for Ryanair, brought proceedings against their employer for various employment claims in Belgium. However, the presence of a clause in the employment contracts stating that Irish courts had exclusive jurisdiction led Crewlink to contest that the Belgian courts had any jurisdiction to hear the claims. The question was then whether the exclusive jurisdiction clause was enforceable (it wasn’t), and, if not, where the employees “habitually carried out their work” for the purposes of the Recast Brussels Regulation.

Crew members in civil aviation are appointed specific “home bases”, a location where they are required to start and finish their shifts. The claimants’ contracts with Crewlink required them to start and end their day in Charleroi airport, in Belgium. In addition, the crew were contractually required to live less than an hour away from Charleroi. The employees had no link to Ireland, despite the employer’s claim that as the aircrafts worked on were registered in Ireland, the work was in fact carried out in Ireland. The Advocate General dismissed the nationality of the plane as “irrelevant” to determine where employees carried out their work.

The CJEU agreed with the Advocate General (having dismissed the exclusive jurisdiction clause, which it deemed unenforceable), stating that the employees were working in Belgium, and as such Belgian courts did have jurisdiction to hear the claim.

With this decision, the CJEU clarifies the factors to look to in establishing jurisdiction in employment disputes. This will not be simply ascertained by looking at the contract; but rather the way in which the contract is performed by the employee. In the context of civil aviation, the “home base” of those employed as cabin crew, whilst not determinative, is likely to be a significant factor in trying to ascertain where the employee carries out the work. Employers who are based in one jurisdiction, but employ people in another, should therefore be prepared to defend a claim in both.

Nogueira and others v Crewlink Ireland Ltd.

The material contained in this guide is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© Miller Rosenfalck LLP, October 2017

 

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