Seite - 125 - in Austrian Law Journal, Band 2/2016

ALJ 2/2016 Aleš Galič 125 tion). Hence, if Art. 21(2) of the Brussels I Recast is interpreted as eliminating and replacing the national laws of the Member States, an employee whose habitual place of work is not in the EU (and who was not engaged by a business situated in an EU Member State) can no longer estab- lish the jurisdiction of any court in the EU against an employer without a domicile or a deemed domicile in the EU. Some authors submit that the Articles 18(1) and 21(2) of the Recast Brussels I Regulation merely lay down additional bases (an EU-wide “minimum standard”) for jurisdiction against third-state defendants, without abolishing the possibility for the employees to invoke broader jurisdiction rules in the national law.15 The opposite view is that national rules of jurisdiction do not apply if the matter falls within the scope of Arts. 18(1) or 21(2).16 Some authors believe that the wording in Arts. 17 and 20 – that the jurisdiction norms in the chapters concerning consumers and employees are “without prejudice to Article 6” – leaves no doubt that national jurisdiction rules can still be relied on as stipulated in Art. 6.17 However this is not the case. The reference to Art. 6 in Arts. 17 and 20 of the Brussels I Recast indeed means that this Article remains applicable also in consumer and labour disputes. Yet the problem is that there is now a certain restriction of the scope of its applicability in Art. 6. Article 6(1) reads as follows: “If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to (emphasis added) Articles 18(1), 21(2) [...] be determined by the law of that Member State.” Articles 18 and 21 contain jurisdiction rules for disputes against non-EU based traders and employers. So the decisive question concerns the relation, in light of the phrase “subject to”, between Art. 6, on the one hand, and Arts. 18(1) and 21(2), on the other. It could represent an exception to the general rule that a non-EU based defendant can be sued pursuant to national jurisdiction rules. Yet it can also be construed as providing merely for an additional option for the claimant. In any case, the grammatical interpretation calls primarily for construction of the wording “subject to Art. 18(1), 21(2)” in Art. 6(1) and not merely the wording “without prejudice to Art. 6” in Arts. 17 and 20. One should look for answers concerning this interpretation in the legislative history. One of the most ground-breaking amendments of the Commission’s first Draft Proposal of the Brussels I Recast was the extension of all rules of jurisdiction to defendants domiciled in third states.18 This controversial plan was rejected by most member states and it was agreed to extend merely some 15 Miriam Pohl, Die Neufassung der EuGVVO – im Spannungsfeld zwischen Vertrauen und Kontrolle, 33 IPRAX, 109, 109– 114 (2013), Tanja Domej, Die Neufassung der EuGVVO – Quantensprünge im europäischen Zivilprozessrecht, 78 RABELSZ, 508, 523 (2014); Florian Scholz, Alles neu im Europäischen Zivilprozessrecht? 26 ECOLEX, 4, 5 (2015); Andrea Bonomi, Jurisdiction over Consumer Contracts, in THE BRUSSELS I REGULATION RECAST 213, 230 (Andrew Dickinson & Eva Lein eds., 2015). 16 Paul Vlas, in EUROPEAN COMMENTARIES ON PRIVATE INTERNATIONAL LAW, VOLUME I, BRUSSELS IBIS REGULATION Art. 6 Brussels Ibis Regulation Rz 1 (Ulrich Magnus & Peter Mankowski eds., 2016); Mankowski, supra note 11, Art. 20 Brüssel Ia-VO Rz 2, Art. 21 Brüssel Ia-VO Rz 72; Giroud, Meier & Rodriguez, supra note 11, 430-432; Hélènevan Lith, Jurisdiction – General Provisions, in THE BRUSSELS I REGULATION RECAST 113, 124 (Andrew Dickinson & Eva Lein eds., 2015); Beatriz Campuzano Diaz, Las normas de competencia judicial internacional del Reglamento 1215/2012 y los demandados domiciliados fuera de la UE: Análisis de la reforma, REVISTA ELECTRONICA DE ESTUDIOS INTERNACIONALES, Dec. 2014, 16 et seqq. available at: dialnet.unirioja.es/descarga/articulo/4956064.pdf (last visited 15. 1. 2016). 17 Pohl, supra note 15, 111; Domej, supra note 15, 523; Scholz, supra note 15, 5. On the contrary, some authors believe that the grammatical interpretation clearly leads to exactly the opposite result: Giroud, Meier & Rodri- guez, supra note 11, 430–432. 18 Brussels, 14. 12. 2010 COM(2010) 748 final 2010/0383 (COD) Proposal for a Regulation of the European Parlia- ment and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commer- cial matters (Recast).