1. 

The preliminary proceedings of which my opinion of today forms part raise two interesting problems of the interpretation of the Convention of Brussels of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. First, one has the opportunity of clarifying whether clauses conferring jurisdiction which the parties to a contract of employment have agreed upon are in every case effective in accordance with Article 17 of the Convention, notwithstanding the contrary provisions of some statutory legislation in regard to the exclusion of the jurisdiction of the national courts dealing with labour relations. If that issue falls to be resolved in the affirmative, the question remains whether in the case of contracts of employment entered into and executed prior to the date of the coming into force of the Convention (that is to say, prior to 1 February 1973) the clauses in question must be considered as effective under Article 54 of the same Convention whenever a court is called upon to deal with a dispute after the afore-mentioned date.

To summarize briefly the facts of the case before us I would recall that on 27 October 1971 Rene Collin, a French national, contracted in the capacity of an employee with Sanicentral, of Saarbrücken, a company with limited liability incorporated under German law, to work in the Federal Republic independently of any establishment. A specific clause of the contract of employment, which was reduced to writing, conferred upon the German courts jurisdiction to decide any disputes arising between the parties in relation to their respective obligations. The employment relationship was terminated on 8 December 1971 and Mr Collin, by a summons dated 26 November 1973, applied to the Tribunal d'Instance, Molsheim (Bas-Rhin), sitting as an industrial relations tribunal for a decree obliging the German company to pay to him certain salary supplements and various allowances. The French court assumed jurisdiction on the view that, under French law, clauses inserted in contracts of employment and purporting to exclude territorial jurisdiction are void.

The Cour d'Appel [Court of Appeal], Colmar, to which the employer applied at second instance, by its judgment of 23 September 1976, confirmed the decision of the court of first instance in so far as it was concerned with the impossibility of excluding jurisdiction, adding that, in any event, Article 17 of the Convention of Brussels could not have been applied in so far as the Convention came into force in France subsequently to the date of the contract of employment concerned. The case was finally brought before the Cour de Cassation [Court of Cassation] (Social Chamber) and that court, by a judgment dated 10 October 1979, submitted to the Court of Justice, by means of a preliminary reference, the following question:

‘Whether, in application of Article 54 of the Brussels Convention, Article 17 of that Convention must be interpreted to mean that, when proceedings have been commenced after 1 February 1973, clauses conferring jurisdiction inserted into a contract of employment concluded before 1 February 1973 which would have been regarded as void by the internal legislation in force at that time must henceforward be deemed to be valid, regardless of the date of the agreements between the parties and of the date of the performance of the work in question.’

2. 

That the Convention must apply in its entirety to contracts of employment appears to me not to be open to question. It is true that the field of employment presents particular aspects which differentiate it considerably from other fields of private law and endow it with numerous elements of public law; it is also true that in more than one State the system of employment relations courts takes account, both in the composition of the tribunal and in certain specialities of procedure, of the need to ensure certain protection for the employee in the course of the litigation, he being the weaker party in the substantive legal relationship. However, it has to be borne in mind that traditionally the individual contract of employment is regarded as falling within the field of private law obligations and that, at all events, the Brussels Convention not only does not exclude the subject of employment from its proper area of application (in distinction to what is provided in regard to social security — see subparagraph (3) of the second paragraph of Article 1) but also does not apply to it rules differing from those by which contractual obligations in general are governed. It is to be observed also that specific provision has been made in regard to certain matters according to the special nature of the interests involved (insurance, instalment sales and loans; the matters assigned by Article 16 to the exclusive jurisdiction of a court of one of the Contracting States) and accordingly, had the States wished disputes arising out of employment to be subject to special rules they would without doubt have made express provision for that. The lack of any special provision justifies the view that it was intended to include employment within the Convention's sphere of application.

Strong confirmation for this view is to be found in the report of the committee of experts which was put before all the governments together with the draft Convention (the so-called ‘Jenard Report’). It is to be noted (at p. 24) that indeed the preliminary proposals envisaged conferring exclusive jurisdiction in regard to disputes arising out of contracts of employment on the courts of the State in which the work is performed, which would have removed any possibility of any contractual prorogation of jurisdiction. But after lengthy debate this approach was rejected for various reasons which the report lists: the expectation that the Community would prepare rules concerning the law applicable to contracts of employment; the existence of numerous categories of employees in different situations and finally indeed the concern not to impede parties from expressing their own wishes in regard to the selection of the proper forum. The report concludes therefore that the general rules of the Convention — including Articles 17 and 18 — apply in regard to contracts of employment at least for such time as the Convention is not amended by agreed provisions regulating the matter.

3. 

What I have said may be sufficient for it to be recognized that a clause conferring jurisdiction contained in a contract of employment is lawful and effective if it meets the conditions laid down by Article 17 of the Convention. Moreover, further support for this is to be found in the fact that that article makes mention of the exceptions to the freedom to exclude jurisdiction (referring to the provisions of Articles 12, 15 and 16) and does not include contracts of employment in those cases.

The approach adopted by the Convention therefore appears to be different from and in contrast to that of some of the national legal systems: in particular it contrasts with French law which regards clauses excluding jurisdiction in contracts of employment as void (Article R 517-1 of the Labour Code in the form approved by decree dated 12 September 1974) and also with Italian law (Article 413, last paragraph, of the Code of Civil Procedure as amended by the Law of 11 August 1973 No 533). Such a situation prompts one to ask whether explanations may exist for the difference in approach, and in any event, what consequences that difference may have on the field of application of the Convention. In regard to the first point, a formalistic argument may be found in the fact that the nullity of clauses excluding jurisdiction in accordance with the above-mentioned national laws has the purpose of safeguarding the rule of territorial jurisdiction; however, what is at stake here is the international jurisdiction of courts, that is to say a different kind of jurisdiction. It could at all events be argued that at the basis of the prohibition against clauses excluding jurisdiction in labour matters is the need to afford the employee more appropriate protection in the area of litigation and that this need exists in not dissimilar manner in both relationships which operate entirely within the national context and relationships which present an international element and fall within the framework of the Convention. It may be added that the relationship between the two positions becomes more prominent when one considers that the Brussels Convention by means of its rules seeks to unify Community judicial activity in civil matters and that in accordance with that approach it seeks to place relationships between courts of the Contracting Member States on a similar level to those between courts of a single country.

Accordingly, in the final analysis, the approach chosen by the authors of the Convention appears to have its roots in a different conception of the employment relationship from that which inspired the provisions of the French and Italian legal systems; I should like to mention also that the approach is probably linked with the expectation of a greater harmonization in the field of employment law as the Jenard Report clearly indicated. Such a harmonization is in my opinion made all the more necessary by the fact that under the present state of affairs the selection of the court, in accordance with Article 17, does not require the existence of any objective connexion between the dispute and the judicial authority upon which jurisdiction is conferred; consequently even a judge who has no links with the socioeconomic reality in which the employment relationship itself has developed may, on the basis of a clause conferring jurisdiction, be called upon to take cognizance of a dispute arising out of a contract of employment.

Lastly, it appears to me to be of interest to mention that according to Article 6 of the Draft Convention on the Law applicable to Contractual Obligations a choice of law made by the parties to an employment contract ‘shall not have the result of depriving the employee of the protection afforded to nim by the mandatory rules of law which would be applicable … in the absence of choice’. There is no doubt a certain degree of similarity between the two problems of the choice of law and the designation of the court which is to have jurisdiction even if, as already noted, they are in fact different matters; and accordingly I find significant the concern shown by that draft Convention not to sacrifice the protection of the worker to complete observance of the principle of freedom of choice.

I pass now to the other question which I set out: Where certain internal legislation of a Member State enacted after the entry into force of the Convention is in conflict with the Convention, quid juris? Independently of the question of whether or not international treaties prevail over the laws of a State — which is answered in the affirmative in certain national constitutions but ignored in others — I consider that the link between Community law and the Convention created in Article 220 of the Treaty of Rome and the function entrusted to the Court of uniformly interpreting the law are sufficient for one to reply that the rules of the Convention must prevail over national law, even the subsequent national law, of a Member State. (As we are aware, after the Convention of Accession the positions of the Contracting Parties and the Member States now coincide.) In other words the position regarding the relationship between Community law and the laws of the Member States which has been laid down on several occasions by this Court must also apply to the Convention envisaged by Article 220 of the EEC Treaty, the uniform interpretation of which this Court is called upon to ensure.

4. 

I stated at the outset the terms of the questions of transitional law which has been presented by the national court. Its solution involves the interpretation of the first paragraph of Article 54 of the Convention.

That provision lays down that the Convention applies to legal proceedings brought subsequently to its coming into force. Consequently the only condition necessary for the operation of the new system of rules, even in regard to disputes relating to relationships entered into prior to the date of the Convention's coming into force, is that the action be brought after that date. The transitional provisions, following techniques already tested in systems of municipal law, attribute significance to the time of commencement of proceedings, thus limiting the application of the new system of rules to proceedings commenced after such time. If a rule of that nature had not been made, it might have been maintained that, on the principle tempus regit actum, the Convention ought to apply also to current proceedings. In order to avoid the inconvenience, especially the practical inconvenience, which a solution of that nature would have brought, the Convention has expediently provided for the transition from the old to the new system and restricted within rational limits the temporal aspect of the application of the new rules.

The criterion adopted in Article 54 does not give rise to any difficulty if the question is one of the regulation of conflicts in time of provisions relating to events or documents which are strictly forensic, that is to say events or documents which are connected with the litigation proceedings themselves. If, however, the rule of the Convention which has to be applied pre-supposes the existence of a document or a relationship which may have come into being before the court proceedings it may be questioned whether the same criterion continues to be valid. A theory might indeed be propounded whereby Article 54 refers to provisions of the Convention of the first type whereas for those linked to the working of the substantive relationship between individuals their applicability would be limited to cases in which the relationship had been formed after the entry into force of the Convention.

I have already had occasion to note, in the opinion delivered on 17 November 1976 in Case 25/76 Segura v Bonakdarian [1976] ECR 1851 at p. 1867, that the Convention lays down certain features of substantive law ‘as conditions precedent for the formalities required by the Convention to be fulfilled’, which it is the function of the Convention to regulate. In other instances (as in the cases envisaged in Article 17), the expression of the parties' desire to achieve a certain forensic result is set in a contractual context, that is, in a context of substantive law. But what is important, for the purposes of the Convention, is the effect to be given to a specific instrument (in this case the clause of exclusion inserted in the contract of employment): to be more precise the forensic effect — which cannot take place except in the context of litigation and therefore after the litigation has been commenced — independently of the contractual context.

In these circumstances I consider that Article 54 falls to be interpreted in a manner which makes provisions of the Convention of the nature of Article 17 applicable even if the legal relationship in question pre-dated the entry into force of the Convention. Accordingly, the rule which recognizes the lawfulness of clauses excluding jurisdiction applies also to those contracts which were entered into prior to that date.

In this case the view adopted by the French appellate court was influenced by the fact that at the time when the clause excluding jurisdiction was entered into it was subject only to national law (the Convention not then being in force) and under that law, as has been seen, the clause was regarded as void. This kind of situation might raise a doubt as to whether Article 54 had, so to speak, the power of reviving an agreement which ab initio had been denied legal validity. But this doubt may be removed by three classes of consideration. First, a finding of nullity made by the law of one State does not prevent a different finding being arrived at by another judicial yardstick (that being, in this case, the Convention). The actual existence of the agreement being beyond dispute, its legal effect may be determined in a different manner if looked at from the standpoint of a different set of rules. Secondly, in so far as it has to be accepted that what is involved is the subsequent revival of a clause which was radically defective at the date of the agreement, the point may be made that there is no reason why a legislative provision may not regulate a particular matter with retroactive effect; and particularly so in the field of the validation of instruments which were initially radically defective, given that the possibility of such validation is conferred by many systems of law even on private individuals, subject to certain conditions. It is to be noted that in the field of private law retroactive acts encounter a limit only in certain particular situations: and that is, as a rule, in the case of accrued rights and decrees judicially pronounced; apart from cases such as that the legislature is free to lay down rules even for the past. But the consideration which appears to me to be compelling is a further one. It is not necessary to attribute any retroactive effect to Article 17 as read with Article 54 for the simple reason that the question of the validity or nullity of the clause excluding jurisdiction was relevant only for the purposes of the litigation and, as I have already noted, its effect in terms of litigation only came in for debate after the Convention had come into force. In short, in my opinion, the annulling effect of French law in the present case has always remained inoperative inasmuch as only the substantive and not the procedural aspects of the contract of employment had been acted upon prior to 1 February 1973. When the prerequisite for the creation of any procedural effects — namely, the commencement of judicial proceedings — was met the Convention had then entered into force.

5. 

In conclusion I consider that the Court should reply to the question raised by the French Cour de Cassation (Social Chamber) by judgment of 10 January 1979 as follows: ‘Articles 17 and 54 of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted to mean that in judicial proceedings commenced after the entry into force of the Convention clauses conferring jurisdiction agreed upon in the context of contracts of employment prior in date to 1 February 1973 are to be regarded as valid even if they would have been considered void according to the national law in force at the time when the contract was entered into.’