The ECJ has ruled on the jurisdictional test to be applied when determining where international cabin crew working in multiple EU countries should bring their employment claims.

The Court concluded that a number of different factors had to be considered in the round to determine the place where the crew member could be said to "habitually work".  Importantly, the question could not be answered by simply identifying a crew member's "home base" (Noguiera and ors v Crewlink; Osacar v Ryanair).

Background law

Article 19(2)(a) of the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation) provides that an employer domiciled in a Member State may be sued in another Member State: "where the employee habitually carries out his work". Furthermore, in relation to employment contracts it provides that: "the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules provide for". One of the main objectives of the Brussels I Regulation was to allow the claimant to easily identify which court he may bring an action in.

Council Regulation (EEC) No 3922/91 of 16 December 1991 on the harmonisation of technical requirements and administrative procedures in the field of civil aviation (Regulation No 3922/91), although now repealed and replaced, required that: "an operator shall nominate a home base for each crew member". Annex III 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".

In this case, the question that had been referred to the Court was: was the concept of "place where the employee habitually carries out his work" comparable to the "home base" in order to establish the jurisdiction of the court in which proceedings were brought by an employee who is a member of the air crew of an airline, or is assigned to it?

Facts

The Claimant had his "home base" in Belgium under a contract of employment with Ryanair. He brought an employment claim in Belgium. Ryanair challenged the jurisdiction of the Belgian courts on the grounds that there was a close and real connection between the dispute and the Irish courts. They pointed to the fact that the contract of employment was performed on an aircraft registered in Ireland, the contract was concluded in Ireland when head office affixed its signature and the Claimant was subject to tax in Ireland.

It was initially decided that the Belgian courts did not have jurisdiction and the Claimant appealed. The jurisdiction clause in the Claimant's contract could not be relied on by Ryanair, and so the question of jurisdiction needed to be decided in light of Article 19(2)(a) of the Brussels I Regulation. It followed that when work by an employee is carried out on the territory of more than one Member State, as is with aircrew, a circumstantial approach was needed and the question arose of whether "habitually carries out work" could be compared with "home base" to determine jurisdiction.

Decision

The ECJ said that the scope of "the place where the employee habitually carries out his work" should be interpreted broadly. Where there is no effective centre of professional activities - because the employment contract is performed in several Member States – it must be interpreted as referring to the place where the employee performs the essential part of his duties in relation to his employer.

With employment in the transport sector, the courts should take into account the place where:

• the employee carries out his transport-related tasks;
• the employee returns after his tasks, receives instructions and organises his work;
• the employee's work tools are to be found; and
• the aircraft aboard which the work is habitually performed are stationed.

The result was that the concept of "place where the employee habitually performs his work" could not be compared to the "home base". However, this does not mean that "home base" is irrelevant. It is still a factor which is likely to play a significant part in identifying the place where the employee habitually performs his work.

Comment

This decision means that, when trying to determine which Member State is the "place where the employee habitually carries out his work" for the purposes of aircrew who perform their employment contract in the territory of several Member States, it is essential to use a circumstantial method to reflect the true nature of the legal relationships and take into account all the factors that characterise the activity of the employee. This includes taking into account the definition and concept of "home base" but the two concepts cannot be equated for the purposes of determining the jurisdiction in which to bring proceedings.

Nogueira and ors v Crewlink; Osacar v Ryanair