Seite - 124 - in Austrian Law Journal, Band 2/2016

ALJ 2/2016 The Brussels I Regulation Recast 124 II. The Extension of Territorial Scope: Defendants from Third States As a rule, the 44/2001 Brussels I Regulation was applicable only if the defendant was domiciled in an EU Member State. If an action was filed against a third-state defendant, the court in a Member State determined its international jurisdiction on the basis of the national law of this State. This principle remains in force also after the Recast. However, it no longer applies to jurisdiction over consumer contracts and individual contracts of employment (Arts. 6, 18(1), 21(2)). Employees and consumers can thus rely on the protection offered by the Brussels I Regulation in disputes with employers and traders from third states (Arts. 6, 18(1), 21(2)).10 This additional protection applies only to consumers and workers when they are in the position of a claimant. On the contrary, consumers and employees from third states, when they are in the position of a defendant, do not fall within the scope of the Brussels I regime. A trader or an em- ployer from an EU Member State can still rely on the jurisdiction rules in the national law of the forum state in the proceedings against employees or consumers from third states. Nor does the discussed extension of the territorial scope of the Regulation apply to disputes arising from in- surance contracts. The extension of the applicability of the Brussels I regime to third-state defendants could also produce detrimental effects to the weaker party. For instance, some national laws provide for even more claimant-friendly rules on international jurisdiction.11 This concern, which is not par- ticularly relevant for consumer disputes, is much more relevant for disputes relating to employ- ment contracts. Here the protective jurisdictional rule in the Brussels I Regulation (now Art. 21(2)) does not go as far as to establish a proper forum actoris.12 Rather, the place where the employee habitually carries out his work is where an action can be brought.13 In most cases, this place will correspond to the place of the employee’s domicile, but not necessarily. In addition, unlike in consumer cases, most national laws of the EU Member States have traditionally contained special protective rules of jurisdiction over employment contracts.14 Often these rules are considerably more employee-friendly than those determined in the Brussels I Regulation. They offer jurisdic- tional bases such as forum actoris (based on either the nationality or domicile of the employee) or they provide for a jurisdictional basis when at least a part – although not a predominant or even a significant one – of the work was performed within the jurisdiction. Moreover, generally appli- cable exorbitant bases of jurisdiction could also be invoked, thus enabling the employee to bring a lawsuit in his own country (such as the presence of the defendant’s assets within the jurisdic- 10 A certain extension of the applicability of the Brussels I regime towards defendants from third states was achieved already in the previous Regulation – but only where these had a branch, agency, or other establishment in one of the Member States and the dispute arose from the operation of this branch, agency, or other establishment (Art. 18/2 and Art. 15/2). In such cases, the defendant was deemed to be domiciled in that Member State. 11 Peter Mankowski, in EUROPÄSCHES ZIVILPROZESS- UND KOLLISIONSRECHT – KOMMENTAR, BRUESSEL IA-VO Art. 21 Brüssel Ia-VO Rz 72 (Thomas Rauscher ed., 2016); Sandrine Giroud, Niklaus Meier & Rodrigo Rodriguez, Le règlement Bruxelles I bis, un modèle pour une nouvelle convention de Lugano? in LE NOUVEAU RÈGLEMENT BRUXELLES I BIS 419, 430 (Emmanuel Guinchard ed., 2014). 12 See also id. Art. 21 Brüssel Ia-VO Rz 72. 13 Due to the CJEU’s extensive construction of the “habitual place of work” by the (CJEU 15. 3. 2011, C-29/10, Heiko Koelzsch/État du Grand-Duché de Luxembourg), the second alternative in Art. 21(1) – jurisdiction in the place of the engaging business – has lost its practical significance. 14 See Commission Staff Working Paper, Impact Assessment, Accompanying Document to the Proposal for a Regu- lation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Brussels, 14. 12. 2010 SEC(2010) 1547 final, 22 and 62–63, available at: http://ec.europa.eu/justice/policies/civil/docs/sec_2010_1547_en.pdf (last visited 3. 1. 2016).