EUPillar LAG Köln, 14.1.2010

Summary

The claimant was employed by the defendant, an Italian freight forwarder, as a lorry driver for 'the carriage of goods in Italy and abroad'. Within the scope of his work, he carried out a variety of lorry trips with constantly changing points of departure and destination. The defendant terminated the employment relationship. The claimant brought an action for unfair dismissal before the Labour Court of Cologne. He considered international jurisdiction of German courts to be given because the seat of a company run by the managing director of the employer was in Cologne. This was the place where he frequently started or completed his trips from. The court dismissed the action as inapplicable. The claimant appeals against this judgment. The Regional Labour Court dismisses the appeal. The claimant may not avail of the forum of Art. 19(2)(a) Brussels I at the habitual place of employment for his action. Since he carried out trips in a large number of EU Member States with constantly changing places of departure and destination, a habitual place of work cannot be determined. The company in Cologne is an independent company and not an establishment of the defendant. In addition, the forum of Art.19(2)(b) Brussels I requires that the establishment engaged the employee. This was not the case. Therefore, the German courts lack international jurisdiction over the matter. As the court stated correctly, Art. 19.1 and Art. 19.2 (a) Brussels I do not lead to international jurisdiction of German courts. The requirements of Art. 19.2 (b) Brussels I are not met as the plaintiff was under contract to the Italian employer and not to the legally independent German company. Agreeing with this judgment the German literature states that a person working in the international transport of goods does not have a habitual workplace. However, it is arguable that the place from where the delivery driver mostly starts and returns to may be regarded as the habitual workplace. Yet, there is no need for this as the plaintiff has to recur on the international jurisdiction of Italian courts provided through Art. 19.1.