Polish PIL – International Polish PIL – International Law of Contractual Law of Contractual

ObligationsObligations

Dr. Mateusz PilichDr. Mateusz PilichChair in Int’l Private and Trade Law,Chair in Int’l Private and Trade Law,

University of WarsawUniversity of Warsaw

Sources of the Law Sources of the Law ApplicableApplicable

to Contractual Obligationsto Contractual Obligations

Various SourcesVarious Sources

Sources of lawSources of law National (2011 Act on PIL, special conflicts rules e.g. in 1936 National (2011 Act on PIL, special conflicts rules e.g. in 1936

Law on Promissory Notes and Bills of Exchange, 1936 Law on Law on Promissory Notes and Bills of Exchange, 1936 Law on Cheques), residual rules in the Private International Law Act Cheques), residual rules in the Private International Law Act 2011 (Article 29, 30)2011 (Article 29, 30)

European (Rome I/II Regulations)European (Rome I/II Regulations) InternationalInternational

Both European and international instruments take Both European and international instruments take precedence over the national law provisions (no matter precedence over the national law provisions (no matter whether conflicts or substantive ones)whether conflicts or substantive ones)

The date of entering into the contract is important (see the The date of entering into the contract is important (see the next slide)next slide)

Intertemporal AspectsIntertemporal Aspects

Polish law of conflicts Polish law of conflicts step by step replaced by step by step replaced by the international the international and European and European provisionsprovisions

The 1980 Rome ConventionThe 1980 Rome Convention signed in 2005signed in 2005 ratified in 2007ratified in 2007 replaced by the Rome I Regulation with regard to contracts replaced by the Rome I Regulation with regard to contracts

concluded concluded on and after the 17th of Dec. 2009on and after the 17th of Dec. 2009 Promulgation, entry into force and application of the conventionPromulgation, entry into force and application of the convention

Significance of Significance of Article 17 of the Rome ConventionArticle 17 of the Rome Convention Entry into force of the Rome Convention: 1 August 2007 or 22 Entry into force of the Rome Convention: 1 August 2007 or 22

January 2008?January 2008? Impact of Article 88 of Polish ConstitutionImpact of Article 88 of Polish Constitution

Rome I Regulation applied as from the 17th of December, 2009Rome I Regulation applied as from the 17th of December, 2009

International Sales Law -International Sales Law -the interplay betweenthe interplay between

substantive and conflict substantive and conflict rulesrules

Sales Law of the UN – an Sales Law of the UN – an overwievoverwiev

Poland is a party to the United Nations Conventions:Poland is a party to the United Nations Conventions: on Contracts for the International Sale of Goods, adopted in on Contracts for the International Sale of Goods, adopted in

Vienna, 11 April 1980 (Journal of Laws 1997 No. 45, pos. Vienna, 11 April 1980 (Journal of Laws 1997 No. 45, pos. 286):286): 7799 States – the last States – the last one is Brazilone is Brazil All the most important countries of the international trade, incl. All the most important countries of the international trade, incl.

China, Germany and the USA belong (unlike e.g. the UK)China, Germany and the USA belong (unlike e.g. the UK) on the Limination Period in the International Sale of Goods, on the Limination Period in the International Sale of Goods,

adopted in New York, 14 June 1974 (Journal of Laws 1997 No. adopted in New York, 14 June 1974 (Journal of Laws 1997 No. 45, pos. 282 and 284)45, pos. 282 and 284):: 28 acts of ratification, accession or succession28 acts of ratification, accession or succession All countries of the Central Europe are partiesAll countries of the Central Europe are parties

CISG – Case #1CISG – Case #1

Polish producer of furniture negotiates the Polish producer of furniture negotiates the

contract with the UK undertaking for the sale of its contract with the UK undertaking for the sale of its

products. The parties communicate via Internet products. The parties communicate via Internet

and agree as to the jurisdiction of Polish courts. and agree as to the jurisdiction of Polish courts.

After the first part of the goods has been After the first part of the goods has been

delivered, the British party begins to question the delivered, the British party begins to question the

existence of the contract and refuses to pay the existence of the contract and refuses to pay the

price.price.

Should Polish courts apply CISG?Should Polish courts apply CISG?

CISG – Comments to the Case CISG – Comments to the Case #1#1

(1)(1) Article 1 CISG sounds:Article 1 CISG sounds:

This Convention applies to contracts of sale of goods This Convention applies to contracts of sale of goods

between parties whose places of business are in different between parties whose places of business are in different

States:States:

(a)(a) when the States are Contracting States; orwhen the States are Contracting States; or

(b)(b) when the rules of private international law lead to the when the rules of private international law lead to the

application of the law of a Contracting State.application of the law of a Contracting State.

(2)(2) The Convention applies before Polish courts The Convention applies before Polish courts on the basis on the basis

of the PILof the PIL as the part of a Contracting State’s as the part of a Contracting State’s

substantive law (pursuant to Article 4 of the Rome substantive law (pursuant to Article 4 of the Rome

Convention)Convention)

CISG – Case #2CISG – Case #2

Belarusian company Belarusian company Alpha OOO (limited liability Alpha OOO (limited liability company) company) undertakes undertakes to deliver 2,000 tons of the propan-to deliver 2,000 tons of the propan-butan gasbutan gas. Price fixed as. Price fixed as $$950/t FCA Terespol. After the 950/t FCA Terespol. After the sudden price increase, the deliverer withdraws. The sudden price increase, the deliverer withdraws. The Polish party sues them in Poland for the Polish party sues them in Poland for the damages plus damages plus interestinterest. Belarusian company calls into question the . Belarusian company calls into question the existence of the contract and claims that it could not sign existence of the contract and claims that it could not sign it because it really had no such quantity of gas.it because it really had no such quantity of gas.

Is the transaction covered by CISG? Do we have to apply Is the transaction covered by CISG? Do we have to apply the PIL to find the law applicable to the requirements for the PIL to find the law applicable to the requirements for the contract being concluded? What about the interest the contract being concluded? What about the interest rate and the defense against the claim?rate and the defense against the claim?

CISG – Comments to the Case CISG – Comments to the Case ##22

(1)(1) TThe sale of natural resources used to produce the energy (gas, oil) not excludedhe sale of natural resources used to produce the energy (gas, oil) not excluded from the CISGfrom the CISG..

(2)(2) Formal Formal existence and proof existence and proof of the contractof the contract expressly covered by Article 11 => no expressly covered by Article 11 => no formalities required, no need to apply the national law of any countryformalities required, no need to apply the national law of any country

(3)(3) Essentialia negotii (the necessary content of the contract) specified in Article 14 Essentialia negotii (the necessary content of the contract) specified in Article 14 (quantity and price of goods)(quantity and price of goods)

(4)(4) Interest rate – not specified in Article 78 CISG => in the absence of any general Interest rate – not specified in Article 78 CISG => in the absence of any general rules on interest, we have to apply private international law (Belarusian law rules on interest, we have to apply private international law (Belarusian law applicable according to Article 4 (1)(a) Rome I).applicable according to Article 4 (1)(a) Rome I).

(5)(5) The claimant has to prove the existence of the contract and it is to the defendant The claimant has to prove the existence of the contract and it is to the defendant to show evidence that he was not able to perform his obligation due to the outside to show evidence that he was not able to perform his obligation due to the outside cause out of his control (Article 79).cause out of his control (Article 79).

(6)(6) „„FCA” FCA” stands for stands for „Free Carrier”„Free Carrier” at a fixed place of destination (the seller has to at a fixed place of destination (the seller has to handle out goods to the carrier at this place and so he becomes free from the risk handle out goods to the carrier at this place and so he becomes free from the risk and responsibility)and responsibility)

Law ApplicableLaw Applicableto Contractual Obligations:to Contractual Obligations:the Choice by the Partiesthe Choice by the Parties

Article 3 of the Rome I Article 3 of the Rome I RegulationRegulation

Choice of the law applicable by the parties – the so-called Choice of the law applicable by the parties – the so-called 'subjective' connection'subjective' connection

Consequences of the choice for the court and the parties to the Consequences of the choice for the court and the parties to the contractcontract

Article 3 of the Regulation:Article 3 of the Regulation: The leading role of the choice of law by the partiesThe leading role of the choice of law by the parties The difference between the choice of law and the incorporation of The difference between the choice of law and the incorporation of

substantive rules into the contractsubstantive rules into the contract The effectiveness and validity of the choice (Articles 3 (5) and 10 (1) Rome I)The effectiveness and validity of the choice (Articles 3 (5) and 10 (1) Rome I) UnrestrictedUnrestricted choice choice Express/implied choice, choice of court agreements and the choice of law Express/implied choice, choice of court agreements and the choice of law

applicableapplicable Time factor – the choice subsequent to the conclusion of a contractTime factor – the choice subsequent to the conclusion of a contract Form of the parties' choiceForm of the parties' choice False "international" contracts, escape from the EU law through the third False "international" contracts, escape from the EU law through the third

country's choicecountry's choice

Law ApplicableLaw Applicableto Contractual Obligationsto Contractual Obligationsin the Absence of Choicein the Absence of Choice

Article 4 of the Rome I Article 4 of the Rome I RegulationRegulation

Contains the so-called ‘objective’ connecting factors (as opposed to the Contains the so-called ‘objective’ connecting factors (as opposed to the ‘subjective’ one – the law choice by the parties – in Article 3)‘subjective’ one – the law choice by the parties – in Article 3)

Applicable to the contracts concluded on and after 17 December, 2009 Applicable to the contracts concluded on and after 17 December, 2009 (Article 29)(Article 29)

Covers all the contracts, except fothese falling under Articles 5-8: carriage, Covers all the contracts, except fothese falling under Articles 5-8: carriage, consumer, insurance and employment contractsconsumer, insurance and employment contracts

Essential changes, as compared with Article 4 of the 1980 EC Rome Essential changes, as compared with Article 4 of the 1980 EC Rome Convention on the Law Applicable to Contractual Obligations (see Exhibits):Convention on the Law Applicable to Contractual Obligations (see Exhibits):

The closest connection The closest connection was a general rule under the Convention – is only was a general rule under the Convention – is only supplementary supplementary under the Regulationunder the Regulation

Strict Strict connecting factors for the enumerated types of contracts connecting factors for the enumerated types of contracts (and not only the (and not only the presumptions of the closest connection with certain substantive law as before)presumptions of the closest connection with certain substantive law as before)

The possibility of ‘dismemberment’ of the contract (i.e. its division into parts governed The possibility of ‘dismemberment’ of the contract (i.e. its division into parts governed by various national laws) by the court itself is no longer expressly foreseen (but by various national laws) by the court itself is no longer expressly foreseen (but probably it is still conceivable in exceptional cases) – cf. ECJ C-133/08 probably it is still conceivable in exceptional cases) – cf. ECJ C-133/08 ICFICF

Case studyCase study

German businessman Anton G., living in Bremen (FRG), gave a new German businessman Anton G., living in Bremen (FRG), gave a new BMW car to his son Johann G., habitually resident in Poland, as a BMW car to his son Johann G., habitually resident in Poland, as a birthday present. Polish car registration office calls into question birthday present. Polish car registration office calls into question the validity of the gift. Which law governs the transaction?the validity of the gift. Which law governs the transaction?

Article 4 is applicable:Article 4 is applicable:– We have to look through the whole paragraph 1 – We have to look through the whole paragraph 1 – prima facie prima facie none of 8 none of 8

special types of contracts fits (if the subject-matter of the gift had been the special types of contracts fits (if the subject-matter of the gift had been the immovable, it would probably have fallen under the letter c of the paragraph)immovable, it would probably have fallen under the letter c of the paragraph)

– The ‘resident’ connecting factor is the The ‘resident’ connecting factor is the ‘characteristic performance’ rule in ‘characteristic performance’ rule in par. (2)par. (2) – idea of the Swiss researcher Adolf Schnitzer – idea of the Swiss researcher Adolf Schnitzer

– Anyway, we could apply the rule of Anyway, we could apply the rule of par. (3) if it’s assessed that the contract par. (3) if it’s assessed that the contract is manifestly more closely connectedis manifestly more closely connected with another country with another country

The characteristic performance rule seems to be appropriate => the law of The characteristic performance rule seems to be appropriate => the law of the donor, i.e. the donor, i.e. German lawGerman law, shall apply, shall apply

Eventually, taking into account that the car is to be registered and used in Eventually, taking into account that the car is to be registered and used in Poland, where the donee is resident, there is a basis for the application of Poland, where the donee is resident, there is a basis for the application of Polish lawPolish law under the ‘closer relationship’ rule of par. (3) under the ‘closer relationship’ rule of par. (3)

Carriage contractsCarriage contracts(Article 5 of the Rome I)(Article 5 of the Rome I)

A quite complex regulation of the law applicable to the contracts for A quite complex regulation of the law applicable to the contracts for

carriage (of both passengers and goods)carriage (of both passengers and goods) Peculiarities against the background of Article 4:Peculiarities against the background of Article 4:

Carriage of goods Carriage of goods (par. 1): the law applicable in the absence of the choice by (par. 1): the law applicable in the absence of the choice by

the parties is:the parties is:

1)1) the law at the the law at the habitual residence of the carrierhabitual residence of the carrier, provided that the place of receipt or , provided that the place of receipt or

the place of delivery or the habitual residence of the consignor is also situated in that the place of delivery or the habitual residence of the consignor is also situated in that

countrycountry

2)2) otherwise, the law of the otherwise, the law of the agreed place of deliveryagreed place of delivery

Carriage of passengers Carriage of passengers (par. 2):(par. 2):

1)1) the limited choice of lawthe limited choice of law: (a) of the country of the : (a) of the country of the passenger’s habitual residencepassenger’s habitual residence, ,

(b) of the (b) of the carrier’s habitual residence or central administrationcarrier’s habitual residence or central administration, (c) of the place of , (c) of the place of

departure or destinationdeparture or destination

2)2) In the absence of such a choice, the law of the country of:In the absence of such a choice, the law of the country of:– the the passenger’s habitual residencepassenger’s habitual residence, where the place of departure/destination is situated in this , where the place of departure/destination is situated in this

countrycountry

– the the carrier’s habitual residencecarrier’s habitual residence, where these requirements are not met., where these requirements are not met.

Law ApplicableLaw Applicableto Consumer and Insurance to Consumer and Insurance

ContractsContracts

Consumer contractsConsumer contracts(Article 6 Rome I)(Article 6 Rome I)

Meaning of the term: ‘B2C’ contractsMeaning of the term: ‘B2C’ contracts

Special conflicts rules protecting the weaker party Special conflicts rules protecting the weaker party

against the abuse of the contracting power of the against the abuse of the contracting power of the

professionalprofessional

Every contract (but for the carriage and insurance Every contract (but for the carriage and insurance

contracts) can be qualified as „consumer” contract contracts) can be qualified as „consumer” contract

but…but…

Only a Only a ‘passive’‘passive’ consumer protected by Article 6 consumer protected by Article 6

Rome IRome I

Case #1Case #1

Polish businessman Andrzej J., Polish businessman Andrzej J., permanently resident in Warsawpermanently resident in Warsaw, , spent his spent his holidays in Florida, USAholidays in Florida, USA. During his stay there, he got . During his stay there, he got an an advertisement leaflet in Polishadvertisement leaflet in Polish issued by the issued by the American real estate American real estate agency from Miamiagency from Miami, offering the , offering the holiday appartments on the Gulf holiday appartments on the Gulf of Mexicoof Mexico for the sum of $10,000 p.a., paid in advance. He for the sum of $10,000 p.a., paid in advance. He immediately went to the office of the company and signed the immediately went to the office of the company and signed the contract in English containing i.a. the reference to the General contract in English containing i.a. the reference to the General Terms of Business of the offeror, where the choice of the law of Terms of Business of the offeror, where the choice of the law of British Virgin Islands was inserted. Andrzej J. has only the very British Virgin Islands was inserted. Andrzej J. has only the very basic command of English. As our hero had not paid, the real basic command of English. As our hero had not paid, the real estate agency sued him in Poland for the prime of $10,000 plus estate agency sued him in Poland for the prime of $10,000 plus additional costs. Should the dispute be settled according to the additional costs. Should the dispute be settled according to the law of British Virgin Islands? Otherwise, which law governs the law of British Virgin Islands? Otherwise, which law governs the litigious contract?litigious contract?

Comments to the Case #1 Comments to the Case #1 (I)(I)

Structure of Article 6 quite complexStructure of Article 6 quite complex In the first place the court examines the list of exclusions (par.4) => In the first place the court examines the list of exclusions (par.4) => if there’s any, if there’s any,

the contract falls under Articles 3 and 4the contract falls under Articles 3 and 4 After that, the minimum connection with the country of the After that, the minimum connection with the country of the consumer’s habitual consumer’s habitual

residenceresidence has to be established: has to be established:– either the professional pursues his commercial or professional activity in that countryeither the professional pursues his commercial or professional activity in that country

– or at least he directs, by any means, such activities to that country or to several countries incl. or at least he directs, by any means, such activities to that country or to several countries incl.

that country (see ECJ that country (see ECJ C-585/08 Pammer & Hotel Alpenhof; C-190/11 ; C-190/11 MühlleitnerMühlleitner; C-218/12 ; C-218/12

Lokman EmrekLokman Emrek))

If not => the contract falls under Articles 3 and 4If not => the contract falls under Articles 3 and 4

Was there a choice of law by the parties? => Law chosen to be compared with the Was there a choice of law by the parties? => Law chosen to be compared with the

law at the place of habitual residence of the consumer in order to choose the best law at the place of habitual residence of the consumer in order to choose the best

pro-consumer legal rules (pro-consumer legal rules (the mosaic of various legal solutions the mosaic of various legal solutions arises)arises) Eventually, the law of the consumer’s habitual residence appliesEventually, the law of the consumer’s habitual residence applies

Comments to the Case #1 Comments to the Case #1 (II)(II)

Is our contract covered by Article 6?Is our contract covered by Article 6? Characterization of the contract – it certainly falls under Article 6 Rome I (halidays Characterization of the contract – it certainly falls under Article 6 Rome I (halidays

have nothing to do with business)have nothing to do with business) List of exclusions – effect of the comparison negative:List of exclusions – effect of the comparison negative:

– The contract is not for the supply of services, for the carriage, it is not a financial instrument, The contract is not for the supply of services, for the carriage, it is not a financial instrument, within the framework of the market in financial instruments, as defined in Article 4 (1)(h) Rome within the framework of the market in financial instruments, as defined in Article 4 (1)(h) Rome II

– The contract is related to a right in rem or tenancy of the immovable but it is undoubtedly a The contract is related to a right in rem or tenancy of the immovable but it is undoubtedly a timesharing contract covered by the EC Directive 94/47timesharing contract covered by the EC Directive 94/47

Generally speaking, Generally speaking, it is a consumer contractit is a consumer contract

Minimum connection test (par. 1, 2Minimum connection test (par. 1, 2ndnd part): part):– The offeror (i.e. the professional) makes no direct business activity in PolandThe offeror (i.e. the professional) makes no direct business activity in Poland– Questionable that leaflets in Polish characterize such an activity as directed towards PolandQuestionable that leaflets in Polish characterize such an activity as directed towards Poland

The The contract certainly is not covered by Article 6contract certainly is not covered by Article 6

Could the court eventually invoke the concept of the ‘internationally mandatory Could the court eventually invoke the concept of the ‘internationally mandatory rules’ (otherwise speaking: overriding statutes) to protect the purchaser? rules’ (otherwise speaking: overriding statutes) to protect the purchaser? See See Article 9 Rome I and Article 30 (2) PIL 2011Article 9 Rome I and Article 30 (2) PIL 2011

Insurance contractsInsurance contracts(Article 7 Rome I)(Article 7 Rome I)

The provision under the strong influence of The provision under the strong influence of the the acquis communautaire,acquis communautaire, complicated and complicated and unclearunclear

Some references to the directives Some references to the directives harmonizing the EU insurance market, harmonizing the EU insurance market, paragraphs (2) and (6)paragraphs (2) and (6)

Possible divergencies between Member Possible divergencies between Member States due to the autonomous regulatory States due to the autonomous regulatory powers under paragraphs (3) and (4)powers under paragraphs (3) and (4)

Case #2Case #2

Andrew J., an English businessman Andrew J., an English businessman living in Gdańsk, bought a yacht. The living in Gdańsk, bought a yacht. The German insurer offered him a packet German insurer offered him a packet of insurance, covering both the theft of insurance, covering both the theft and sinking, as well as third party and sinking, as well as third party insurance (insurance of civil liability insurance (insurance of civil liability arising out of the sea navigation). arising out of the sea navigation). What law is applicable?What law is applicable?

Comments to the Case #2Comments to the Case #2

The point of departure in searching the law applicable is the The point of departure in searching the law applicable is the characteristics of the riskcharacteristics of the risk, ,

which may be either a ‘which may be either a ‘large’ large’ or a or a ‘mass’ ‘mass’ risk (as well as the risk in the life insurance, risk (as well as the risk in the life insurance,

which in spite of its specificity belongs to the same group as the ‘mass’ risk itself)which in spite of its specificity belongs to the same group as the ‘mass’ risk itself) Notwithstanding our associations, „large” and „mass” risks are not necessarily the Notwithstanding our associations, „large” and „mass” risks are not necessarily the

same as the „large” or „small” amount of the loss or of the damages – these are same as the „large” or „small” amount of the loss or of the damages – these are

technical terms taken from the 73/239/ECC Directivetechnical terms taken from the 73/239/ECC Directive The risks connected with the yacht and with any other sailing unit are „large” by The risks connected with the yacht and with any other sailing unit are „large” by

definitiondefinition => => Article 7 (2) Rome I applies hereArticle 7 (2) Rome I applies here::– The free choice of lawThe free choice of law

– Otherwise, the law of the insurer’s habitual residence (Otherwise, the law of the insurer’s habitual residence (German lawGerman law) shall apply) shall apply

Should the risk be a ‘small’ risk, then the protective paragraph (3) shall apply:Should the risk be a ‘small’ risk, then the protective paragraph (3) shall apply:– Where is the risk located? Within or outside the EU?Where is the risk located? Within or outside the EU?

– The choice of law by the parties is not freeThe choice of law by the parties is not free

– The law of the place of situation of the risk (i.e. most frequently the law of the policy holder’s The law of the place of situation of the risk (i.e. most frequently the law of the policy holder’s

habitual resindence) – here: habitual resindence) – here: Polish lawPolish law – shall apply – shall apply

Law ApplicableLaw Applicableto Individual Employment to Individual Employment

ContractsContracts

Employment contractsEmployment contracts(Article 8 Rome I)(Article 8 Rome I)

The sounding of the provision basically maintains the underlying The sounding of the provision basically maintains the underlying concepts of Article 6 of the Rome Conventionconcepts of Article 6 of the Rome Convention

Law applicable to individual employment contracts is:Law applicable to individual employment contracts is: the law chosen by the partiesthe law chosen by the parties – which applies as long as it is – which applies as long as it is

remains without prejudice to the legal position of the employee as remains without prejudice to the legal position of the employee as granted to him by the law applicable in the absence of the choice granted to him by the law applicable in the absence of the choice (otherwise, the latter law squeezes out the law chosen and is applied (otherwise, the latter law squeezes out the law chosen and is applied instead)instead)

in the absence of such choice:in the absence of such choice:– Article 8 (2) Rome I: the law of the country Article 8 (2) Rome I: the law of the country in which orin which or, failing that, , failing that, from from

which the employee habitually carries out his work which the employee habitually carries out his work in performance of in performance of the contract (wherein the temporal employment in another country doesn’t the contract (wherein the temporal employment in another country doesn’t alter the law connection)alter the law connection)

– Article 8 (3) Rome I: Article 8 (3) Rome I: failing the requirements stated abovefailing the requirements stated above, the law of the , the law of the country country where the employee’s place of business where the employee’s place of business is situated.is situated.

Case StudyCase Study

Polish track driver Janusz C. works for the Czech international road Polish track driver Janusz C. works for the Czech international road carrier „Alfa” Společnost s ručením omezeným (carrier „Alfa” Společnost s ručením omezeným (Limited Liability Limited Liability CompanyCompany) seated in Ostrava, CZ. His employment contract ) seated in Ostrava, CZ. His employment contract specifies that the place of work is the „Czech Republic and the specifies that the place of work is the „Czech Republic and the whole Europe”. At the same time, Janusz C. still lives in the nearby whole Europe”. At the same time, Janusz C. still lives in the nearby Poland. His truck is registered and stationed in Poland where Poland. His truck is registered and stationed in Poland where „Alfa” has its branch. The employer permanently violates the „Alfa” has its branch. The employer permanently violates the employees’ rights, which finally leads the members of the staff to employees’ rights, which finally leads the members of the staff to establishing the trade union organization. Janusz C. is one of its establishing the trade union organization. Janusz C. is one of its founders and is elected as its president. Two weeks later the founders and is elected as its president. Two weeks later the governing board fires him. Janusz C. brings a claim against his governing board fires him. Janusz C. brings a claim against his employer before the court in Ostrava, arguing that Polish law employer before the court in Ostrava, arguing that Polish law should protect him as the president of the trade union’s unit. The should protect him as the president of the trade union’s unit. The law of which country shall apply?law of which country shall apply?

Comments and RemarksComments and Remarks

At the first sight, the work is not performed in one and the same country – especially At the first sight, the work is not performed in one and the same country – especially

it is not performed in the Czech Republic but rather in Poland and other European it is not performed in the Czech Republic but rather in Poland and other European

countriescountries We don’t know where the employer has its place of business (i.e. his transport base) We don’t know where the employer has its place of business (i.e. his transport base)

– let’s assume it is CZ– let’s assume it is CZ We don’t have any information about the law choice, let’s assume there’s no anyWe don’t have any information about the law choice, let’s assume there’s no any The applicable law – alternatives:The applicable law – alternatives:

– The place in which or from which the contract is performed by the employeeThe place in which or from which the contract is performed by the employee

– The place of the employer’s place of businessThe place of the employer’s place of business

The latter connecting factor should be applied restrictively, i.e. as the ‘last resort’ The latter connecting factor should be applied restrictively, i.e. as the ‘last resort’

((ECJ C-29/10 ECJ C-29/10 KoelzschKoelzsch) only if there is no single country being the employee’s ) only if there is no single country being the employee’s

centre of professional activitycentre of professional activity It seems that it is the place from which our driver usually started his rides and where It seems that it is the place from which our driver usually started his rides and where

his track was kept, i.e. the Czech Republic => Czech law should apply (Article 8(2) his track was kept, i.e. the Czech Republic => Czech law should apply (Article 8(2)

Rome I)Rome I)

Thanks for your Thanks for your attention!attention!