Page - 129 - in Austrian Law Journal, Volume 2/2016

ALJ 2/2016 Aleš Galič 129 join co-defendants in a court that has jurisdiction for one of them, provided that the general requirements for such a joinder are met.33 Only the weaker party (the employee) can benefit from the new rule. Hence, the employer cannot invoke jurisdiction over co-defendants in the event of claims against several employees. IV. Clarification of the concept of the place where work is habitually carried out The Regulation provides for jurisdiction regarding claims against the employer in the place where the employee habitually carries out his work. The CJEU has already clarified that where the work is performed in more than one Member State, it is the place in which or from which the employee principally discharges his obligations towards his employer34 or “where, or from which, he in fact performs the essential part of his duties vis-à-vis his employer.”35 In this regard, it is decisive whether an employee has an office in a certain state from which he organises his own work activi- ties or those of his employer and to which he returns after each business trip to another country. If such an office exists, it shall be deemed the habitual place of work.36 If this is not the case, then it must be determined where the employee has established the effective centre of his work activi- ties.37 The Brussels I Recast does not bring any real changes with regard to the presented regime. There is a certain distinction in the wording of the new Article 21(1)b, as it refers to a place where or from where the employee habitually carries out his work. Nevertheless, the insertion of the phrase “or from where” merely adopts the criterion of the “base”, which has already been firmly established by the CJEU’s case law on Regulation 44/2001 (see supra). Therefore, this does not amount to a substantial change but rather a clarification, which also brings the definition in the Brussels I Regulation (essentially) in line with Art. 8 of the Rome I Regulation,38 which lays down a conflict-of-laws rule on the applicable law governing contracts of employment. Art. 21(1) of the Regulation also enables employees to bring proceedings in the courts of the place where the business that engaged the employee is or was situated if the employee does not or did not habitually carry out his work in any one country. This option is not really favourable for the employee, but rather more for the defendant. It is, hence, not surprising that the CJEU opted for an extensive interpretation of the first option (habitual place of work), thus narrowing the scope of applicability of the second option.39 Since it now seems that it is (almost) always possible to determine the place where the work is habitually carried out (also in the case of employees 33 Pursuant to Art. 8(1) 1215/2012 Regulation, a jurisdiction for co-defendants is available if the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. 34 CJEU 13. 7. 1993, C-125/92, Mulox IBC Ltd/Hendrick Geels. 35 CJEU 9. 1. 1997, C-383/95, Petrus Wilhelmus Rutten/Cross Medical Ltd. 36 Ibidem. 37 CJEU 13. 7. 1993, C-125/92, Mulox IBC Ltd/Hendrick Geels. 38 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations. 39 CJEU 15. 3. 2011, C-29/10, Heiko Koelzsch/État du Grand-Duché de Luxembourg. The case related to the Rome I Regulation, but its rationale is equally applicable to the Brussels I Regulation; see Alessandra Zanobetti, Employ- ment Contracts and the Rome Convention, the Koelzsch Ruling of the European Court of Justice, 3 CUADERNOS DE DERECHO TRANSNACIONAL, 338 (2011); http://e-revistas.uc3m.es/index.php/CDT/article/view/1340 (last visited 31. 8. 2016); see also CJEU 15. 12. 2011, C-384/10, Jan Voogsgeerd/Navimer SA.