Koelzch Notes

Koelzch

Facts

By a contract of employment signed in Luxembourg on 16 October 1998, Mr Koelzsch, a heavy goods vehicle driver, domiciled in Osnabrück (Germany), was engaged as an international driver by Gasa. That contract contains a clause which refers to the Luxembourg Law of 24 May 1989 on contracts of employment (Mémorial A 1989, No 35, p. 0612), and a clause conferring exclusive jurisdiction on the courts of that State.

Gasa is a subsidiary of Gasa Odense Blomster amba, a company established under Danish law. Its business consists in the transport of flowers and other plants from Odense (Denmark) to destinations situated mostly in Germany, but also in other European countries, by means of lorries stationed in Germany, namely in Kassel, Neukirchen/Vluyn and Osnabrück. Gasa does not have a seat or offices in Germany. The lorries are registered in Luxembourg and the drivers are covered by Luxembourg social security.

Following the announcement of the restructuring of Gasa and a reduction in transport activities from Germany, the employees of that undertaking set up, on 13 January 2001, a works council ('Betriebsrat') in that State, to which Mr Koelzsch was elected on 5 March 2001 as an alternate member.

By letter of 13 March 2001, the director of Gasa terminated Mr Koelzsch's contract of employment with effect from 15 May 2001.

National Law Provisions

Article 34(1) of the Luxembourg Law of 18 May 1979 reforming works councils (Mémorial A 1979, No 45, p. 0948) provides:

'During their term of office, the members and alternate members of the various works councils cannot be dismissed; any dismissal notified by an employer to a member of a works council shall be treated as null and void.'

Paragraph 15(1) of the Kündigungsschutzgesetz (German Law on protection against dismissal) states:

'The dismissal of a member of a works council... shall be unlawful unless facts exist which justify dismissal by the employer on a compelling ground without prior notice, and unless the authorisation required under Paragraph 103 of the Betriebsverfassungsgesetz [Law on the organisation of enterprises] is given or replaced by a judicial decision.

Proceedings by Koelzch

As that first set of proceedings before the Luxembourg courts was definitively terminated, Mr Koelzsch, on 1 March 2007, brought an action for damages against the État du Grand-Duché de Luxembourg pursuant to the first paragraph of Article 1 of the Loi du 1 er septembre 1988 relative à la responsabilité civile de l'État et des collectivités publiques (Law of 1 September 1988 concerning the civil liability of the State and of public authorities) (Mémorial A 1988, No 51, p. 1000) by invoking maladministration on the part of its judicial services.

Mr Koelzsch claimed in particular that those judicial decisions had breached Article 6(1) and (2) of the Rome Convention in declaring that the mandatory rules of German law on protection against dismissal were not applicable to his contract of employment and by turning down his application to have a reference for a preliminary ruling made to the Court of Justice in order to clarify, in the light of the facts of the case, the criterion of the habitual place of performance of the work.

Question

Is the rule of conflict in Article 6(2)(a) of the Rome Convention..., which states that an employment contract is governed by the law of the country in which the...

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