APPROFONDIMENTI

Many non-EU based marine employers seek the application of favourable laws for their employment contracts. Generally, the more flexible legislation of a non-EU State is agreed as well as a clause stipulating that State’s exclusive jurisdiction.

Despite such choice would virtually encounter no limits in common law systems, it may likely be ineffective before the Courts of EU Member States.

In that case, Articles 6, 21(2) and 23 of the Brussels I bis regulation (Regulation (EU) No 1215/2012) will apply as clearly stated by the CJEU in the leading cases Mahamdia v Algeria (2012) and Osacar v Ryanair (2017).

The CJEU explained that article 23 no. (2) does not allow the drawing up of jurisdiction clauses preventing the employee from initiating proceedings before the Courts competent according to Article 21, i.e. those of the EU State where the seafarer has been habitually working. Any jurisdiction clause inserted into the contract of employment may only have the effect of providing employees with additional competent fora to file their claims against the employer.

Moreover, should the employee sue his employer before any EU Member State Court, he will be entitled to invoke all rules of local labour law that cannot be derogated from in that EU State, pursuant to article 8 of the Rome I regulation (Regulation (EC) No 593/2008). This may turn to be particularly beneficial towards crewmembers’ cases as, for instance, employers shall bear the burden to prove a well-founded justification for the dismissal of the employee (in Italy, Supreme Court decision no. 2622/1998).

In the light of the above, marine employers are advised to seek specialised professional counsel when drafting employment contracts containing exclusive jurisdiction clauses and in case of litigation, in order to carefully consider the actual available defences before the Courts of EU Member States.