In the Schlecker case (12 September 2013, C-64/12), the European Court of Justice ruled that article 6(2) of the Rome Convention must be interpreted as meaning that, even where an employee carries out the work in performance of the contract habitually, for a lengthy period and without interruption in the same country, the national court may, under the concluding part of that provision, disregard the law of the country where the work is habitually carried out, if it appears from the circumstances as a whole that the contract is more closely connected with another country.
The Court of Justice had to rule on the application of the escape clause of article 6 Rome Convention (article 8 Rome I Regulation) in “a particular situation”, in the words of Advocate General Wahl (no. 40 of his opinion): “the particular situation in which an employee has performed an employment contract habitually, for a lengthy period and without interruption, in a single country”. In that particular situation, the question arose how the “special rule” of article 6 Rome Convention should be explained and applied. Article 6 Rome Convention is considered to be special compared to articles 3 and 4 Rome Convention, as it aims to protect the employee as the weak party.
On the one hand, the Schlecker case was indeed particular and special. On the other hand, the case was very “ordinary”. For example, no issues of freedom of movement or posting of employees/freedom of services were addressed. The question now arises what the relevance of this judgment will be for cases of international employment in which those issues are addressed – or even beyond, for cases in which the Rome II Regulation might be relevant and where the escape clause of article 4(3) Rome II Regulation is invoked (http://leidenlawblog.nl/articles/new-possibilities-for-argumentation-in-international-labour-law-coming-up) . What is the potential impact of the Schlecker judgment on international labour law and possibly even on issues of corporate social responsibility? How “special” will the rule of article 6 Rome Convention/ the Schlecker judgment finally turn out to be? (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2364358).