About the case
The dispute concerned a French employee who habitually carried out his work in France for a Swiss employer engaged in providing IT services to businesses.
The employment contract contained a choice-of-law clause designating Swiss law, and the relationship displayed numerous connections with Switzerland: the employee was paid in Swiss francs into a Swiss bank account, was affiliated with Swiss social insurance schemes, benefited from a favourable Swiss tax regime, and used a Swiss email address and mobile number.
The circumstances of the dispute.
The contract was terminated in accordance with Swiss law, which, unlike French law, did not require a pre-dismissal interview or a statement of reasons in the dismissal letter. The employee sought to rely on these more protective French rules, arguing that the mandatory provisions of French law (the law of his habitual place of work) should apply notwithstanding the choice of Swiss law.
The French Cour de cassation referred two questions to the CJEU: first, whether the law chosen by the parties can also be the law of the country most closely connected with the contract, displacing the mandatory rules that would otherwise apply; and second, whether a court may take into account objective factors, generated during performance of the contract, that connect it with the country of the chosen law.
The Court's reasoning.
The court answered both questions affirmatively.
On the first, it held that the wording of Article 6(2) of the 1980 Rome Convention on the law applicable to contractual obligations does not prevent the country most closely connected with the contract from being the very country whose law the parties chose; where that is the case, national courts must give effect to the chosen law and cannot additionally apply the mandatory provisions of the law of the habitual place of work.
On the second, the assessment must weigh all objective elements defining the employment relationship — but the CJEU drew an important distinction: the choice-of-law clause itself is not evidence that the contract is more closely connected with the chosen country, whereas objective facts generated in performing the contract (payment in Swiss francs, Swiss social security affiliation, Swiss taxation) may be.
The court stressed that the purpose of Article 6 is not to secure the most favourable law for the employee, but to apply the legal system that best reflects the reality of the employment relationship, and it directed national courts to examine whether such connecting factors arise from genuine mutual agreement or were imposed by the employer.
