Page - 130 - in Austrian Law Journal, Volume 2/2016

ALJ 2/2016 The Brussels I Regulation Recast 130 performing work in different countries, and even in the event in which no proper “base” can be established40), questions are raised whether it makes sense at all to still retain the second option as well.41 Nevertheless, the Recast did not bring any changes in this regard. V. Jurisdiction based on entering an appearance A protective jurisdictional regime favourable for the weaker party can only be effective if it is concurrently ensured that the weaker party may not, in principle, contractually agree to another jurisdiction to the detriment of the procedural protection of sections 3-5 of the Brussels I Regula- tion. Therefore, Arts. 13, 17, and 21 considerably limit the power of the other party to the con- tract to depart from procedural protection by means of a jurisdiction agreement. Otherwise, looking at the situation realistically (as the CJEU determines in another context42), the weaker party would be exposed to agreeing to terms drawn up in advance by the other party without being able to influence the content of those terms. When entering into an employment contract, the average worker, consumer, or insured does not give due consideration to the jurisdiction clause that forms a part of the contract, especially in the context of a pre-formulated standard contract. For this reason, jurisdiction agreements (to the detriment of the jurisdictional norms of Sections 3-5) cannot already be included in the con- tract. Only subsequent jurisdiction agreements (agreements concluded after the dispute has already materialised) are admissible. At this stage even an average worker, consumer, or insured should be attentive as to the determination of the forum for the resolution of disputes and give due consideration to the potential proposal of the other party to enter into a jurisdiction agree- ment. It follows from Art. 24 (which corresponds to Art. 26 in the Recast) that if the weaker party enters, as a defendant, an appearance without contesting jurisdiction, the court may not declare the lack of jurisdiction of its own motion if the provisions of Sections 3-5 are not complied with. Entering an appearance in such a manner amounts to a tacit prorogation of jurisdiction, which is also possible in disputes covered by Sections 3-5. In the context of the jurisdictional regime concern- ing insurance contracts, the CJEU confirmed this finding in Bilas.43 A different question, however, is whether in the early stage of proceedings (such as when it serves the claim and instructs the defendant to file a defence plea) the court should forewarn the defendant that the proceedings were brought in a court that lacks jurisdiction and that he may raise a (timely) objection as to the lack of jurisdiction. If such a requirement is not imposed, this can seriously impede the effectiveness of the protective jurisdictional regime. There is no guaran- tee that certain employers or traders, for example, would not deliberately file actions against workers in courts lacking jurisdiction, counting on the probability that the weaker party, unfamil- iar with the protective regime of the Brussels Regulation and not represented by a lawyer, would fail to raise a timely objection about the lack of jurisdiction.44 Furthermore, the lack of uniform 40 CJEU 15. 3. 2011, C-29/10, Heiko Koelzsch/État du Grand-Duché de Luxembourg. 41 Uglješa Grušić, Should the Connecting Factor of the “Engaging Place of Business” be Abolished in European Private International Law? 62ICLQ, 173 (2013). 42 CJEU 4. 6. 2009, C-243/08, Pannon GSM Zrt./Erzsébet Sustikné Győrfi. 43 CJEU 20. 5. 2010, C-111/09, Česká podnikatelská pojišťovna as, Vienna Insurance Group/Michal Bilas. 44 See, e.g., Uglješa Grušić, Submission and Protective Jurisdiction under the Brussels I Regulation, 43 CMLR, 947, 953 (2011).