Seite - 127 - in Austrian Law Journal, Band 2/2016

ALJ 2/2016 Aleš Galič 127 defendants was discussed.26 In addition, the press release of the Council of the EU accompanying the adopted Brussels I Recast stated that “no national rules of jurisdiction may be applied any longer by Member States in relation to consumers and employees domiciled outside the EU.”27 Perhaps this offers a glimpse into how the Brussels I Recast was then understood (although erroneously since the extension in the Brussels I Recast applies to non-EU based traders and employers, not con- sumers and employees). The text of Recital No. 14 does not give answers in this regard either. One would, however, legitimately expect that if such an important change in the concept of the Regulation really was adopted (providing that certain rules of the Regulation apply against non- EU based defendants, although without replacing the national jurisdiction rules), this should at least be indicated in the Recital or framed in clearer terms. The question, however, arises what is objectively the best possible interpretation. By extending the territorial scope, the Brussels I Recast (as confirmed in Recital 14) intended to enhance the procedural protection of employees (and consumers). It would not be compatible with this pur- pose if the newly introduced regime meant that employees who habitually carry out work in a non-Member State were no longer able to invoke favourable bases for jurisdiction in the national law of their countries against third-state employers. It is true that doing away with exorbitant jurisdictions in national laws is a desired goal. It would be incoherent, however, if it were exactly the most vulnerable categories of claimants – in contrast to all other possible categories of claim- ants – who would no longer be able to invoke exorbitant bases of jurisdiction provided for in national laws against non-EU-based defendants. Since there is no provision on “emergency juris- diction” in the Brussels I Regulation, this could, in extreme cases, lead to the denial of justice for employees domiciled in the EU: non-availability of any court in the EU and no guarantee that any third state will accept jurisdiction (or be able to ensure effective access to court). Hence, the objective goal of the norm – when it comes to labour disputes – would support the view that national jurisdiction rules can still be relied on although Art. 18(2) provides for an EU- wide uniform rule applicable also against non-EU-based employers. However, the reference to Art. 6 is identical in both Art. 17 and Art. 20 of the 1215/2012 Regulation, thus it applies to con- sumer disputes as well. Yet, with regard to consumers, the stakes are different. The forum actoris of Art. 18(1) ensures that an EU-domiciled consumer will always be able to sue “at home”. There is no need to maintain the possibility for the consumer to invoke exorbitant national jurisdiction rules of any other EU Member States. Thus, the goal of the norm – when it comes to consumers – would support the interpretation that national jurisdiction rules can no longer be invoked in dis- putes against third-state traders. In addition, the purpose of the (proposed) extension of the applicability of the Brussels I regime towards third-state defendants was not just to protect weaker parties, but also to ensure legal certainty as well as the predictability and transparency of the jurisdictional legal framework and to put EU-domiciled claimants on an equal footing con- 26 Transcripts of the EU parliamentary debate of 19 November 2012, Strasbourg; Available at: http://www.europarl.eu- ropa.eu/sides/getDoc.do?type=CRE&reference=20121119&secondRef=ITEM-017&language=EN&ring=A7-2012-0320 (last visited 3. 8. 2016). 27 Recast of the Brussels I regulation: towards easier and faster circulation of judgments in civil and commercial matters within the EU, Press Release, Brussels, 6 December 2012, available at: http://europa.eu/rapid/press- release_PRES-12-483_en.htm (last visited 3. 8. 2016).