Rome I—employment (art 8)
Rome I—employment (art 8)

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • Rome I—employment (art 8)
  • Definitions
  • Special nature of employment contracts
  • Mandatory provisions
  • Limit on parties freedom to choose applicable law (art 8(1))
  • Applicable law in the absence of choice (art 8(2))
  • Default position (art 8(3))
  • Escape clause (art 8(4))

Brexit: The UK's departure from the EU on exit day, ie Friday 31 January 2020, has implications for practitioners considering applicable law. For guidance, see: Cross border considerations—checklist—Applicable law—Brexit specific.

This Practice Note looks at employment provisions in Regulation (EC) 593/2008, Rome I. Mandatory provisions in the form of overriding mandatory provisions and non-derogations provisions. The restrictions on parties to choose the applicable law is explained as is what to do if no choice is made. The default position if the applicable law cannot be determined is given and the escape clause is set out.

Definitions

Employment contracts are not defined in Regulation (EC) 593/2008, Rome I.

Special nature of employment contracts

Employees are generally regarded as the weaker party in negotiating employment contracts. As a consequence employees are protected by specific rules in Article 8 of Regulation (EC) 593/2008, Rome I as well as recitals (34)–(36) of Regulation (EC) 593/2008, Rome I which are more favourable then the general rules found under Article 3 and Article 4 of Regulation (EC) 593/2008, Rome I.

Mandatory provisions

In the Rome Convention the use of mandatory provisions applied to different forms of provisions and caused some confusion. In Rome I new terminology has been introduced to differentiate between the two. Recitals (34)–(35) of Regulation (EC) 593/2008 , Rome I provide