Rome Convention (Art. 6, paragraph 2, ) and Regulation « Rome I » (Art. 8, paragraph 2)

Determination of the country in which of from which the work is habitually carried out in the area of international transport

In the area of international transport, the judgments of the Court of Justice of the European Union « Koelszch » (case C-29/10, Heiko Koelzsch v État du Grand Duché de Luxembourg of 15 March 2011) and « Voogsgeerd » (case C-384/10, Jan Voogsgeerd v Navimer SA of 15 December 2011) clarified how to interprete the criterion of the country in which or from which the worker habitually carries out his/her work (first criterion).

In accordance with the aforementioned judgments, it is the country in which or from which, in the light of all the factors which characterise that activity, the employee performs the greater part of his/her obligations towards his/her employer.

Moreover, depending on the particular circumstances of each case, those factors which must be taken into account to the country in which or from which the employee performs the greater part of his/her obligations are, in particular, the country :

from which the employee carries out his transport tasks/where the employee must report before discharging his/her tasks,
where the employee receives the instructions concerning his/her tasks;
where the employee organizes his/her work;
where the employee’s work tools are to be found;
where the transport is principally carried out;
where the goods are unloaded;
where the employee returns after completion of his/her tasks.

Lastly, in the specific case of maritime transport, the Court also considered in its judgement “Voogsgeerd” that if it is apparent that the place (country) from which the employee carries out his transport tasks and also receives the instructions concerning his tasks is always the same, that place must be considered to be the place (country) where he habitually carries out his work.