Employment in more than one country - place where the employee habitually carries out his work - place of business through which the employee was engaged

European Court of Justice - Also in case of employment in more than one country at the same time, the criterion of "place where the employee habitually works" should in principle apply. The criterion "place of business through which the employee was engaged" is a subsidiary criterion and refers exclusively to the business which engaged the employee.

On 15 December 2011, the Court once again (see also our Newsflash of 31 March 2011) confirmed that also in case of employment in more than one country at the same time, the determination of the law applicable to the employment agreement must be based on the criterion "the country where the employee habitually carries out his work". This is the country in which the employee executes the main part of his obligations towards his employer. All the circumstances characterizing the employment should be taken into account, for example, the place from where the employee actually carries out his work, where he receives his instructions for his tasks, where he organizes his work and where his work tools are located.

Only in cases where, having regard to the circumstances at issue, it is impossible to determine the country in which the work is habitually carried out does the subsidiary criterion "the place of business through which the employee was engaged" applies.

The Court has now explained that this subsidiary criterion refers exclusively to the place of business which engaged the employee and not to that with which the employee is connected by his actual employment. The possession of legal personality does not constitute a requirement which must be fulfilled by the place of business through which the employee was engaged and this place of business must not be part of the same undertaking as the undertaking which is formally referred to as the employer.

HvJ 15 december 2011 - (Voogsgeerd/Navimer - C-384/10))