The European Union as an area of freedom, security and justice has created a community which adheres to unified laws. In matters regulated by labour law (individual and collective) as well as social security law, the above aim may be met by introducing unified regulations, allowing for identical ways of resolving conflicts of labour law issued in work relations where there is a foreign element present. In order to assure the legal stability within work relations, national regulations concerning international private labour law had to be replaced by unified conflicts of law norms. These norms are then to be applied by both employees and employers of EU member states as well as applied in work relations situations (individual or collective) where there are third parties involved. EU private international law is a collection of international private labour law regulations issued by EU institutions, which unanimously and in a unifying fashion describe the legal situations of the parties to a work relationship, where there is a foreign element present, allowing for the application of foreign laws based on citizenship, residency, where the headquarters of one of the parties is located, where the work is carried out or where the action has taken place (e.g. the place of the work related accident).

The conflict rule included in Article 9 of Regulation No. 864/2007 regulates the collisions of national collective labour laws only in matters relating to the liability of individuals (workers, employers) participating in collective actions, in connection with the initiated or planned industrial action. The provision contains a determinant to indicate the relevant provisions of the collective labour law, which govern the responsibility of the organisation representing the professional interests of the parties to the collective dispute for damage caused by a planned or carried out collective labour dispute. The law applicable to assess the legal implications of the effects of intentional and/or carried out collective action is the collective labour law of the Member State in which the industrial action was initiated or had been announced. It should be noted that Article 9 of this regulation has applied the formula used in Article 4, paragraph 2 of this Regulation, defining the relationship between the general principle of liability for the obligations arising out of non-contractual agreements and the exceptions to the rule under which the applicable law is lex loci damni (Article 4, paragraph 1). In the event of any liability of the participants of a collective dispute, Article 9 of the Regulation No. 864/2007 in fine states as an appropriate collective labour law of the Member State in which the action is to be or has been taken.

Regulation No. 864/2007 on the law applicable to non-contractual obligations (“Rome II”) allows parties, a person or entity who is liable in tort and the victim, to conclude an agreement to submit the non-contractual obligation to the chosen national system of substantive law (Article 14, paragraph 1). Because the agreement can be concluded by the parties to a non-contractual obligation arising out of tort, therefore it should be obvious that before the creation of such a relationship there is no basis to conclude an agreement on the selection of applicable law. However, in Article 14, paragraph 1, point “a” of the Regulation, the right of the parties to submit the non-contractual obligations to the law chosen by the parties after the event causing the damage has occurred, has been limited. For the reasons given above, this claim would not be necessary if, in Article 14, paragraph 1, point “b” of the Regulation it was not decided that in the event of a non-contractual obligation between the parties engaged in economic activities it is permissible to conclude such an agreement and prior to the event causing the damage. Article 14, paragraph 1, point “b” does not apply to individual labour relations, because the employee acting as a party to a non-contractual obligation is not engaged in economic activity.

Directive 2009/38/EC of the European Parliament and of the Council on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (Recast) entered into force 20 days following its publication in the Official Journal of the EU of May 16, 2009 (Article 18). It is to be implemented in the internal order of labour law of the EU Member States no later than June 5, 2011. Article 16 of the Directive in question obliges the authorities of EU Member States to implement the Directive by way of bringing into force laws, regulations and administrative provisions necessary to comply with its provisions. The authorities of the EU Member States may entrust the obligation to bring the Directive into force to the social partners. Nevertheless, they must ensure that no later than on June 5, 2011 the social partners negotiate and sign collective bargaining agreements which are generally applicable in a given Member State and whose provisions would implement the provisions of Directive 2009/38/EC in the national system of labour law.

Directive 2009/38/EC introduces a number of changes in the European standards laid down in Directive 94/45/EC. Its purpose is to raise the level of the rights to information and consultation of employees employed in European work establishments. Directive 2009/38/EC is without prejudice to the basic rights of employees of the European Union.

Freedom of choice

The first sentence of Article 3, paragraph 1 of the Rome Convention stipulates that “the contract shall be governed by the law chosen by the parties.” Thus, the most important provision of the Rome Convention approved the achievements of the internal rules of private international law of the Member States of the European Economic Community. Freedom of the contracting parties with an international element to choose the law applicable to regulate the content of the rights and obligations of labour relations has a long tradition in Europe. The authors of the report commenting that provision of Article 3 of the Rome Convention, draw attention to the established since 1910 judicial French doctrine of autonomy de la volonté, freedom of choice of law enshrined in 1896, in German law, and even before, because already in 1865 formulated the implementing rules for the Italian Civil Code, the principle of freedom of contract under which the parties have the legal contractual relations with a foreign component of the national system to choose the substantive law applicable to regulate the rights and duties of these relations. In precedents mentioned in the report, including international treaties, national legislation, the English and Scottish court decisions support the contention that in the Member States of the European Economic Community, there was full compliance of opinion that parties to contractual relations should have the assurance of full freedom of choice of the national system of substantive law under which all rights and obligations will be determined.

European legislation governing the social security rules and procedures for implementing national systems of social security laws for the insured persons (employees, the self-employed and their families), moving within the European Union. The EU legislature provides the rules of European social security law, which coordinate the different national social security schemes, in order not to deprive any person entitled to benefits of social security under the rule of any national legal system of social security entitlements to benefits, to protect the rights acquired and ensure that the insured persons applying for benefits from another Member State receive equal treatment with the nationals of that Member State and to prevent the accumulation of social security benefits because of this reason. European social security law governing therefore conflicts of law of national social security legislation, using the method of coordination as a technique which allows for the adaptation of separate legislation in social security relations, in which there are foreign elements. The legal standards used to coordinate the foreign social security systems of EU Member States do not differ from the standards used to regulate the substantive conflicts of labour enforced in various countries. In the case of coordination and conflict laws, the determinants used in the provisions of private international labour law suggest appropriate systems of substantive law that should be used by the parties in legal relationships involving a foreign element, and by bodies applying the law.

Preparation of the Rome Convention

With an initiative to draft a convention regulating conflicts of norms of substantive law relevant to contractual obligations, was requested by the authorities of the Benelux. On August 8, 1967, the permanent representative of Belgium, acting on the authority of Belgium, Luxembourg and the Netherlands provided the Commission with the European Economic Community draft convention on the law applicable to contractual obligations with the proposed establishment of a commission of experts – representatives of other Member States of the EEC to take legislative work aimed at unification of different national rules of international private law. The opening meeting of the legislative work that led to the adoption of the Rome Convention (“Rome I”) was held on February 26–28, 1969. In his opening speech, Chairman of the Governmental Experts T. Vogelaar, Director-General of the Commission on the common market and the adoption of the national laws of the Member States of the EEC, specified targets that should be implemented by the Convention. In his opinion, the draft convention was to lead to full unification of conflict of law rules within the common market. The same conflict of law rules applicable to conflict resolution of the substantive rules relating to the obligations under the contract should be valid in six Member States of the EEC, not only in their mutual relations, but also the legal relations with third countries.

Introduction

The Brussels Convention was adopted on September 27, 1968. It entered into force in 1973 after ratification by six countries of the EEC. Since the beginning of its drafting the Convention was intended as a legal instrument that fulfils two basic functions in international processes of civil cases. It governs both the national courts’ jurisdiction in proceedings involving an international element, and lays down the conditions for recognition and enforcement of judicial authorities of other Member States. Recognising the relation between these categories of cases to a large extent contributed to equal treatment of parties. It also promoted the unification of the rules of civil procedure due to the necessity of recognition of judgements handed down in cases handled by the same or different procedural rules. This caused the rules of conduct to resemble each other. The success of the Convention consisted of rapprochement and unification of rules of civil procedure in force in six Member States of the EEC. These concepts have gained acceptance not only in the Member States of the European Economic Community, but also in the countries of the European Free Trade Association – EFTA, which are not members of the EEC. Article 63 of the Brussels Convention obliges Member States to the EEC, the European Communities, the European Community to accept its provisions. Its scope is limited to the Member States that are members of one of these international organizations in Europe, the predecessor of the European Union.

Introduction

The subject of private international labour law consists of the procedural laws governing the scope of the labour courts in disputes against the background of industrial relations with a foreign element. The procedural norms of international labour law determine the jurisdiction of the labour courts and the recognition by courts and enforcement authorities of judgements in matters of employment law issued by foreign labour courts. Procedural norms of international labour law also set out the rules for enforcement of foreign labour courts and other competent authorities to resolve disputes of claims stemming from an employment relationship with an international element. International procedural labour law does not include standards for ruling in conflicts between the relevant provisions of procedural law, although usually in conflict with the provisions remain in force in the Member State in which courts are established and the rules of the country or countries in which the parties are resident or established in reside parties of a dispute involving an employment relationship with an international element. In principle, labour courts ruling in cases involving such claims make decisions according to the procedural laws applicable in the Member State in which the jurisdictional court meriti is located. The competent courts, therefore, rule on the basis of lex fori. It should be noted, however, that appropriate with national rules, procedural rules often contain special rules that apply to employment relationships involving a foreign element.

The preamble to the Regulation states that the applicable law must be determined on the basis of where the damage occurs, irrespective of the country or countries in which indirect consequences could occur (point 15). The general rule adopted in Article 4, paragraph 1 of the Regulation is regarded as the proper rule for the contractual obligation arising from the tort law of the country where the damage occurred. Lex loci delicti commissi is the basic solution for the obligations in all Member States of the European Union. In the preamble to Regulation No. 864/2007 (point 15) it was found that application of this principle in practice, where the elements of the case are determinanted to various countries, is different. Such a situation leads to uncertainty in the determination of the competent national system of substantive law. Therefore, point 17 of the preamble to the Regulation adopted by the applicable law should be determined on the basis of where the damage occurs, irrespective of the country or countries in which indirect consequences could occur. In the event of injury to persons or damage to property, the country in which the damage occurs should be the country where the damage was caused to person or property. Article 4, paragraph 1 of the Regulation develops these rules and provides that the law is the law of the country in which the damage occurs irrespective of the country in which the event occasioning the injury, and regardless of what country or countries there are indirect consequences of that event.