EUPillar BAG, 2.7.2008 – 10 AZR 355/07

Summary

The plaintiff brought an action for payment of contributions to an additional social fund. The courts had to examine the international jurisdiction. The local court as well as the land labour court stated that German courts didn’t have international jurisdiction. The Federal Labour Court confirmed these judgments. It held that the disputed contributions to additional social funds didn’t fall under the term of ‘social security’ within the meaning of Art. 1 (2) (c) Brussels I and were therefore governed by the Brussels I Regulation. Further, Art. 5 no. 1 (a) and no. 3 weren’t applicable because the relations between the parties were based collective agreement provisions. It thirdly stated that in labour proceedings material objections to the claim before the conciliation hearing pursuant to German procedural law couldn’t be considered as a defence which leads to international jurisdiction because of an entering of an appearance within the meaning of Art. 24 Brussels I. Contributions to an additive social fund don’t concern social security in a direct way. However, in terms of the purpose of Art. 1 (2) (c) it is required that claims concern social security immediately. In this respect the decision is correct. Further, collective agreement provisions derive from law and therefore can’t be brought under Art. 5 no. 1 (a) and no. 3 Brussels I. In the present case the action had been expanded by the plaintiff subsequently. After this expansion the defendant hadn’t shown any reaction. If the defendant doesn’t show any reaction one can’t state an entering of appearance within the meaning of Art. 24 Brussels I. Concerning the first part of the action the defendant had raised material objections. The wording of Art. 24 Brussels I doesn’t differentiate in terms of the question which kind of proceedings the defendant enters. It generally seems possible that the period of time before a conciliation hearing falls under the scope of application of Art. 24. The court should have made a preliminary reference in order to obtain an answer to the question if the objections in the present case have to be considered as an entering of appearance.