Page - 123 - in Austrian Law Journal, Volume 2/2016

ALJ 2/2016 Aleš Galič 123 risk of litigation, their level of knowledge, and access to legal information and advice.3 These par- ties should not be discouraged from suing by being compelled to bring action before the courts in the Contracting State in which the other party to the contract is domiciled.4 Pursuing a claim in a foreign jurisdiction would rarely be a realistic option for a weaker party – due to the higher cost risk, the loss of time due to travel, unfamiliarity with the foreign court and law system, as well as the language of the proceedings. Thus the right of access to court would remain guaranteed on a purely theoretical level only; it would, however, be ineffective in practice. Mutatis mutandis, the same reasoning applies to the weaker party who must act as a defendant in a foreign jurisdiction. Defending a claim in a foreign jurisdiction is usually unrealistic for a consumer, employee, or the insured. The legal framework of protection concerning consumer and insurance contracts was established already in the 1968 Brussels Convention.5 However, individual employment contracts were ignored in the mentioned Convention,6 consequently subjecting them to the general rules and to the special rule on contractual obligations. Certain steps towards better protection of employees were taken in the case law of the CJEU7 and, later, in the 1989 amendment to the Brussels Con- vention.8 The protection of employees was further extended in the Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which further elaborated the system applying to consumer and insurance disputes. On 10 January 2015 the Brussels I Regulation Recast (Regulation No. 1215/20129) entered into force, marking the implementation of the long-awaited reform of the Brussels regime. Certain changes adopted through this reform also affect the protective jurisdictional regime for the weaker parties. The special protective jurisdictional regime consists of three main elements: (1) additional and favourable bases for jurisdiction are available for the weaker party when he acts as the claimant, such as the place of the claimant’s domicile in consumer and insurance disputes or the place where the employee habitually carries out his work in individual labour disputes; (2) a restriction prescribing that the weaker party, when in the position of a defendant, may only be sued in the place of his domicile; (3) the possibility for the parties to enter a jurisdiction agreement departing from the aforementioned jurisdictional regime is significantly restricted. 3 E.g., High Court – Queen’s Bench Division (UK) 7. 11. 2005 – [2005] EWHC 2115 – The Channel Tunnel Group Ltd & Ors. See also PETER STONE, EU PRIVATE INTERNATIONAL LAW (2010) 123, Giuliano and Lagarde Report on the Conven- tion on the law applicable to contractual obligations, OJ C 282, 31. 10. 1980, 1. 4 For consumer disputes see, e.g. CJEU 19. 1. 1993, C-89/91, Shearson Lehmann Hutton; for a comprehensive over- view of the CJEU’s case law concerning jurisdiction in labour disputes, see the Opinion of AG Trstenjak delivered on 16 December 2010 in C-29/10, Heiko Koelzsch/Luxembourg, paras. 53–58. The case relates to the determination of the applicable law for labour contracts, but the findings are equally relevant for the issue of jurisdiction. For disputes relating to insurance contracts, see CJEU 13. 7. 2000, C-412/98, Group Josi/UGIC. 5 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, OJ L 299, 31. 12. 1972, 32–42. 6 At that time it was expected that international labour law would be subject to regulation in a separate conven- tion, however this plan has never materialised. See Abbo Junker, Arbeitsverträge im Internationalen Privat- und Prozessrecht, in FESTSCHRIFT FÜR PETER GOTTWALD ZUM 70. GEBURTSTAG 293, 296 (Burkhard Hess et al. eds., 2014). 7 CJEU 26. 5. 1982, C-133/81, Ivenel/Schwab. 8 The Convention, signed in San Sebastian on 26 May 1989, upon the accession of the Kingdom of Spain and the Portuguese Republic to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. 9 Official Journal of the European Union, 20 December 2012, L 351/1.