Employment contract and applicable law

Source: Supreme Court, Social Ch., 9th July 2015, n° 14-13.497
Labour Law / International Law

An employee had been hired for a part-time work, as a program director, by a Spanish foundation; she signed another employment contract with another employer in order to obtain the status of private secretary in charge of the expositions. Both contracts mentioned that they were under, for the first one, the Spanish Law, and for the second one, the Belgian Law.

The employee was afterwards dismissed by the foundation resulting from the impossibility to maintain her work position in Paris, as well as by the other employer.

She seized the Labour Court in order to obtain the payment of various sums under the breach of both employment contracts, under the extra hours, under the compensation for undeclared work and compensation for her pension loss, in accordance with the provisions of French Law;

The Court of Appeal has not granted her request and has dismissed the application of French Law.

The Supreme Court, in accordance with the articles 3 and 6 of the Rome Convention dated June 19th 1980 concerning the applicable law to the contractual obligations, disagrees with the analysis of the Court of Appeal and decides that:

The article 3 of the Convention states that "the contract is governed by the law chosen by the parties, that they can designate the applicable law to the whole or only part of their contract" and the article 6 adds that "the choice of the applicable law by the parties to an employment contract cannot have the incidence to deprive the employee of the protection insured by the imperative provisions of the law, which would be applicable to him, and failing a choice, in accordance with the provisions of the second paragraph of this said text; that according to this paragraph, the contract is governed, failing a choice by the parties: a) by the law of the country where the employee usually works, or b) if the employee does not usually work in the same country, by the law of the country where is established the company that hired the employee, unless it results from all the circumstances, that the employment contract is more related to another country, in which case the law of this other country is applicable."

The Court of Appeal, in order to dismiss the application of the French Law to the requests submitted by the employee against two of her employers, held that the contract, written in Spanish, concluded with the Foundation, states that will be applied to this contract the status of Spanish workers and the Spanish collective convention of the office workers and that the contract signed with the other employer provides that it will end in the form provided by the Belgian Law.

It adds that "The employee, who claims a fraud from her employers and the exercise of a constraint resulting from her pregnancy state and her economic dependence at the time of the signature of the contracts, does not produce any element supporting her arguments, only based on the chronology of the signatures of the litigious contracts; that perfectly mastering the Spanish language, she could not mistake about the incidence of the contract signed on December 12th 2002; that regarding the delay to appeal against the dismissal, provided by the Spanish Law, she does not prove in what its brevity would deprive her from the access to a judge in order to justify the application of the public order rules of the French Law; that the fact that she is domiciled and works most of the time in France, is not sufficient to establish the fraud claimed, being said that her functions necessarily made her travel abroad."

The Supreme Court criticized the judgement, saying that the Court of Appeal, which noted that the place where the employee usually worked was in France, and did not research, as she was asked, whether the provisions of the Belgian and Spanish Laws, chosen by the parties and related to the different requests of the employee, protected her more than the imperative provisions of the French Law, which would have had to be applied, if no such choices were made.