Where do air crew perform their work?

A ruling by the Court of Justice of the European Union has established that employees can bring proceedings against their employer in the country where the employees habitually carry out their work.

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According to the Brussels I Regulation (44/2001), employees may sue their employer in the country where they habitually carry out their work. However, it is not always easy to determine where that is. For example, where do air crew of airlines habitually carry out their work? The ECJ has now decided on this issue. 

The case concerned a number of employees at an Irish airline and a company performing services for the airline. The employees were no longer employed and believed they were entitled to various types of compensation. Their home base had been located in Belgium where they had also lived. Based on this, they brought proceedings before the Belgian courts. 

The employers challenged this. The employees’ employment contracts contained a provision stating that any disputes between the parties would be determined by the Irish courts. In addition, the aircrafts on board which the employees performed their work were registered in Ireland and, according to the employers, this also meant that Irish law was the applicable law even if the jurisdiction clause in the employment contracts was not enforceable. 

The Belgian court of the first instance found in favour of the employers, agreeing that the Irish courts had jurisdiction over the dispute. However, the referring court was not equally sure and therefore made a preliminary reference to the ECJ. 

The question referred to the ECJ was essentially whether the concept of ”home base”, which is defined in a regulation on civil aviation in the EU and EU legislation on social security, could be equated with the place where the employees habitually carry out their work as provided for in the Brussels I Regulation. 

Home base
The ECJ ruled that the jurisdiction clause in the employees’ employment contracts did not meet the requirements as to when the usual rules on jurisdiction are applicable. Consequently, the clause was not enforceable and the question had to be decided in accordance with the Brussels I Regulation. 

Further, the ECJ said that when the place where the employees habitually carry out their work cannot be determined with certainty, this issue must be decided on the basis of all circumstances of the case. In the transport sector, it is mainly relevant to take into account the place from where the employees carry out their work, the place where the employees return after having performed their work, the place where the employees receive instructions concerning work and organise their work and, finally, the place where the employees’ work tools are to be found. 

As regards the concept of ”home base”, the ECJ noted that the concept in itself does not determine where the work is habitually carried out but, as regards air crew, it carries significant weight in this assessment.

Norrbom Vinding notes

  • that the ECJ’s ruling confirms that employees can bring proceedings against their employer in the country where the employees habitually carry out their work; 
  • that in situations where it is difficult to establish the place where the employees habitually carry out their work, for instance in the transport sector, it must be taken into account where the employees ”clock in and out”, where the employees organise their workday and receive instructions and where the employees’ work tools are located; and 
  • that the home base plays an essential role in the determination of where air crew perform their work.

The content of the above is not, and should not be a substitute for legal advice.

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