On 16 April 2013, the opinion of advocate-general Wahl in the Schlecker case (Case C-64/12) is expected to be made public. In this case, the Dutch Supreme Court referred to the Court of Justice for a preliminary ruling on the “escape clause” in article 6 of the Rome Convention. This article contains rules for private international law (“PIL”) concerning the applicable law on international employment contracts. The interpretation of the escape clause in article 6 of the Rome Convention could, thus, make a difference when indicating the law applicable to an employment contract – and could, thus, determine the level of labour protection which will be offered to the employee.
Possibly the advocate-general will involve the Intercontainer judgment in his discussion of the Schlecker case, in one way or another; advocate-general Strikwerda already did so in his opinion for the Dutch Supreme Court. Indeed, in the Intercontainer case the Court of Justice already ruled on another escape clause in the Rome Convention, namely the escape clause in article 4 paragraph 5 of the Rome Convention, which raises questions on the significance of the Intercontainer case for the interpretation of the escape clause in article 6 of the Rome Convention.The Schlecker case offers the possibility to the advocate-general and the Court of Justice to specifically analyse the escape clause in article 6 of the Rome Convention.
The opinion and the judgment in the Schlecker case should be awaited with curiosity: the issue of labour protection for employees in international situations is currently a very hot one, especially after the judgments of the Court of Justice in the cases Viking, Laval, Rüffert and C./Luxemburg. Possibly the observations of advocate-general Wahl and, later, of the Court of Justice, will offer new possibilities to employees for argumentation to claim (a higher level of) labour protection in international situations.
Schlecker and beyond
In addition, the discussion of the Schlecker-case may possibly lend itself to argumentations situated also outside the area of international labour law. After all, the Rome II Regulation contains an escape clause which is more or less analogous to the escape clauses in article 4 paragraph 5 and article 6 of the Rome Convention. Well then, just as the question can be raised within the Rome Convention as to how far a ruling on the escape clause of article 4 paragraph 5 has implications for the interpretation of the escape clause of article 6 of the Rome Convention, observations on the escape clauses of the Rome convention could, in turn, lead to argumentations about the interpretation of the escape clause in article 4 paragraph 3 Rome II Regulation.
Quoting the Rome II Regulation, we are entering the area of Transnational Corporate Social Responsibility: in this area of Transnational Corporate Responsibility, the Rome II Regulation is to be considered an extremely important legal source. Just a couple of days ago, Liesbeth Enneking reminded us - in her discussion of the Shell case - that it is conceivable that in proceedings started in the Netherlands against a Dutch parent company and its non-European daughter, Dutch tort law is made applicable on the basis of the Rome II Regulation (L.F.H. Enneking, “Zorgplicht van multinationals in Nederland. “Second best” zo slecht nog niet?” Nederlands Juristenblad 2013, issue. 12, p. 748). Article 4 paragraph 3 of the Rome II Regulation is exactly one of the articles of the Rome II Regulation which could allow this outcome to be achieved – and thus, ultimately, constitute the basis for holding a multinational liable. The question now arises what the opinion and the ruling in the Schlecker case will provide as possibilities for argumentation to lawyers of victims of multinationals if they want to rely on article 4 paragraph 3 of the Rome II Regulation.
Viewed in this way, discussions on the Schlecker case could be framed in broader discussions on PIL, including a discussion on the possibilities PIL could offer in achieving social justice.
Interesting in this respect is the attention that is currently paid in Paris, Sciences Po, to the “Global Governance” role of PIL: “Private International Law as Global Governance”, or “PILAGG?” Also, analyses referred to in this Pilagg-research, such as those from Robert Wai, can undoubtedly be of interest in this respect.
“Social justice”, “regulatory function”, “cosmopolitanism”… questions exist on the role of private law in achieving social justice, the “regulatory function” of private law, “cosmopolitanism” in private law etc. – certainly in the current debate on an optional European Civil Code. In debates on social justice etc., the discipline of private international law should not be overlooked, so it already emerges here, when scrutinizing the Schlecker case and when positioning this case in a broader context.