Borgarting Court of Appeal

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1 Page 1 of 7 Borgarting Court of Appeal COURT: Borgarting Court of Appeal decision DATE: 16 August 2013 PUBLISHED: LB KEYWORDS: Civil procedure. Legal venue. Individual working conditions. Article 19(2)(a) Lugano Convention. Section 4-5(4) Dispute Act. SUMMARY: Following a concrete assessment, the court of appeal concluded than an Italian national permanently hired out to an Irish airline and temporarily stationed in Norway could instituted proceedings against the airline in a dispute concerning employment protection in Norway; see Article 19(2)(a) of the Lugano Convention. Statements on special considerations related to working conditions in the international transportation sector. References: LOV (Dispute Act), LOV LK-A19 (Dispute Act) PROCEEDINGS: Moss District Court TMOSS Borgarting Court of Appeal LB ( ASK-BORG/04). PARTIES: A (Advocate Christen Horn Johannessen) versus Ryanair Limited, represented by the board chairman (Advocate Stine Haukebø, Advocate Pål Kvernaas). AUTHOR: Court of appeal judge Kristin Robberstad, court of appeal judge Øystein Hermansen, court of appeal judge Sidsel B. Lindseth. References in the text: LOV (Dispute Act), LOV (Dispute Act), LOV (Dispute Act), LOV (Dispute Act), LOV (Dispute Act), LOV (Dispute Act), LOV (Dispute Act), LOV LK-A21 (Dispute Act) The concerns the question of what is the correct legal venue in an international dispute concerning employment protection. On 3 April 2012, A instituted proceedings against the Irish airline Ryanair Limited, claiming that she was a permanent employee of the airline from 6 April In its reply, Ryanair disputed this, claiming that the case should be dismissed because a dispute in a working relationship cannot, in the company s view, be instituted before the Norwegian courts. A is an Italian national. On 28 March 2012, she signed an offer of employment for three years by the Irish company Crewlink Ireland Ltd, including that she should be hired out to Ryanair as a Cabin Services Agent for the entire period of employment. Prior to signing, A had completed and passed Ryanair s training programme for cabin crew. From the time she joined the company on 6 April 2012 and until she was dismissed by letter of 30 January 2013, she was stationed at Moss Lufthavn Rygge in Norway, and had a duty to live no further than one hours journey from where she was stationed. The reason given for her dismissal was that she had not passed the probation period, which was stipulated to be one year. On 21 June 2013, Moss District Court handed down a decision with the following conclusion: Case TVI-MOSS is dismissed. The district court concluded that the dispute had insufficient links with Norway; see section 4-3 of the Dispute Act, see also section 4-5(4) and Article 19 of the Lugano Convention. A has appealed the district court decision to Borgarting Court of Appeal on time. Ryanair has replied by means of a reply to the appeal.

2 Page 2 of 7 The Norwegian Confederation of Trade Unions (LO), the Norwegian Union of Commercial and Office Employees (HK) and the Confederation of Vocational Unions (YS) have declared accessory intervention in support of A. The district court decision of 9 July 2013 permitted these three labour organisations to act as accessory interveners in the case. LO and HK supported the appeal in a pleading dated 3 July A has made the following claim: 1. Case TVI-Moss is accepted for consideration. 2. The claimant is awarded legal costs before the district court and court of appeal. In support of her claim, she has submitted that the district court has based its decision on incorrect and incomplete facts and an incorrect interpretation of the legal venue rules and of Norwegian case law and the case law of the European Court of Justice. A was and is resident in Norway. Her home base the place where she normally started and ended her working day and where the airline was not responsible for lodging was Rygge airport. There, she received instructions and information, she checked in passengers at the gate and performed airport standby. It is highly uncertain whether she ends up paying tax in Ireland, and there is no documentation to show that she is a member of the Irish national insurance scheme. She should have been covered by the Norwegian national insurance scheme, but her income was too low in The legal venue provision in the employment contract is invalid, and therefore cannot be adopted as part of the facts. It would be practically and financially inconvenient to A to have to instituted proceedings before the Irish courts. Ryanair has stated to the Norwegian immigration authorities that her pay projected earnings in 2012 was 18,780 Euros per year. It has been submitted that the question of the legal venue is in principle the same as in Supreme Court Reports , where the result was that proceedings could be instituted in Norway and before Moss District Court. The decisions of the European Court of Justice in case C-29/10, Koelzsch, and in C-384/10, Voogsgeerd, suggest that an employee can institute proceedings against the employer in the place in which or from which the employee actually carries out his working activities ; see the Koelzsch judgment. The cases concern choice of law, but are also relevant in disputes concerning legal venue. An overall assessment must be conducted of factors that characterise the working activities themselves, in which emphasis must be given the place from which the work is regularly carried out. In the overall assessment, it is irrelevant to consider formal links with Ireland. A habitually performs her work from Norway and the base at Rygge. Moss District Court is therefore the correct legal venue. The Norwegian Confederation of Trade Unions and the Norwegian Union of Commercial and Office Employees lent their support to the appeal in a pleading of 3 July These accessory interveners have largely supported the submissions in the case. It has been submitted that the question of legal venue must be considered in the light of the case law of the European Court of Justice and the fact that Article 8(2) of the Rome I Regulation has been given somewhat different wording from that in Article 6(2) of the Rome Convention, as the provision now clarifies that the employment contract is subject to the law of the country in which or from which the employee normally works. In the view of the accessory interveners, the case raises important questions about Norwegian workplaces and the competition situation in Norwegian and international aviation. These accessory interveners have made the following claim: 1. Case TVI-MOSS is accepted for consideration. 2. Ryanair Limited, represented by the board chairman, is ordered to pay the legal costs of the Norwegian Confederation of Trade Unions before the district court and court of appeal within 14 days. 3.

3 Page 3 of 7 Ryanair Limited, represented by the board chairman, is ordered to pay the legal costs of the Norwegian Union of Commercial and Office Employees before the district court and court of appeal within 14 days. Ryanair Limited has submitted the following claim: 1. The appeal is rejected. 2. Ryanair Limited is awarded legal costs before the district court and court of appeal, with the addition of penalty interest at the statutory rate from the due date until payment is made. In support of the claim, it has been submitted that the dismissal decision of the district court is correct. A was temporarily stationed at Rygge airport, and her work was exclusively linked to international flights on board Irish-registered aircraft. It follows from the Chicago Convention of 1944 that Irish-registered aircraft shall be regarded as Irish territory. Accordingly, A has not habitually performed her work in Norway; see Article 19(2)(a) of the Lugano Convention. She must sue Ryanair in Ireland, not only because Ireland must be regarded as her normal place of work, but also because the business that employed her is located in Ireland; see Article 19(2)(a) and (b) of the Lugano Convention. Ryanair has no company, branch or administration in Norway. Its flights are managed from Ireland. The company only has a crew room for logging in in Norway, where employees stay for a short period in connection with departure. Many of the employees live in Sweden while they are stationed at Rygge airport. A has erred in submitting that there are no differences between her case and the case reported at RG , as the employee in that case had considerable additional responsibilities on the ground. A s tasks on the ground were minimal. During her period of employment, she only spent four percent of her work days on the ground, as airport standby. The working activities of a Cabin Services Agent are largely connected to the flight itself, including security, passenger service during the flight, boarding, passenger safety, sales during the flight and cleaning. All work is managed, organised and administered from Ireland. Case law regarding proceedings against Ryanair before courts in EU countries bound by the parallel provisions in the Brussels Convention shows that the provisions still provide that employees may only sue the company in Ireland. The decisions of the European Court of Justice in case C-29/10, Koelzsch, and case C-384/10, Voogsgeerd, concern choice of law, but still have some applicability to the question of legal venue. In these cases, the European Court of Justice has ordered a comprehensive assessment in which all factors relating to the activities of an employee must be given weight. The European Court of Justice rejected the suggestion that the fact that the employee regularly returns to a state means that this state must be regarded as the normal place of work pursuant to Article 6(2) of the Rome Convention. In both cases, the employees working conditions had stronger links with the relevant country than A s employment relationship has with Norway, and the decisions do not suggest that A s employment relationship has a sufficiently strong link with Norway. It has been submitted that it will not be substantially more burdensome for A to institute proceedings in Ireland. She only has a temporary link with Norway. The cost of travelling and staying in Ireland for a few days is not a sufficiently large expense. Case law from proceedings instituted by employees against Ryanair in Ireland shows that first-instance consideration is informal, and that employees can be represented by a union representative. A does not speak Norwegian, and it must be advantageous for the case to be heard by a court in which hearings are conducted in a language spoken by all of the parties. The court of appeal would note by way of introduction that it does not consider it necessary in the interests of proper and fair consideration of the case to depart from the general rule regarding written consideration of appeals against decisions; see section of the Dispute Act.

4 Page 4 of 7 Pursuant to section 4-5(4) of the Dispute Act, an employee may institute proceedings against an employer at the place where the employee normally performs his work. The provision follows the pattern of the Lugano Convention of The Lugano Convention applies as Norwegian law; see section 4-8 of the Dispute Act, and takes precedence over conflicting national rules; see Supreme Court Reports , paragraphs 33 and 68. Article 19 of the Lugano Convention reads as follows: An employer domiciled in a State bound by this Convention may be sued: 1. in the courts of the State where he is domiciled; or 2. in another State bound by this Convention: (a) (b) in the courts for the place where the employee habitually carries out his work or in the courts for the last place where he did so; or if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated. Ryanair has submitted that Ryanair can only be sued in Ireland, partly because it is there that the business is located and partly because A cannot be said to have carried out work in any one country. It is clear that Ryanair is domiciled in Ireland; see Article 19(1). The company has no business located in Norway. Ryanair has no branch or administration in Norway; see Article 19(2)(b). It has been stated that the company s flights to and from Rygge are organised and managed from Ireland, and the employees including the cabin crew receive their instructions from Ireland. The employer function is primarily exercised from Ireland. The court of appeal notes that it is of no significance that the parties have in section 28 of the employment contract agreed an Irish legal venue, as Article 21(1) of the Lugano Convention provides that such an agreement can only be concluded after the dispute has arisen. The question is whether A habitually carries out his work in Norway; see Article 19(2)(a) of the Lugano Convention. If the answer is yes, Moss District Court is the correct legal venue for the proceedings. The question of legal venue for employees who are stationed at Rygge airport and who work for Ryanair has been decided by the court of appeal before; see RG The case concerned a Cabin Services and Agent and Base Supervisor employed by Ryanair, who had more work tasks on the ground than a Cabin Services Agent has. The court of appeal has concluded that A, in her position as Cabin Service Agent, must also be regarded as habitually working at Rygge, taking into account the distinctive characteristics of international aviation. This court of appeal can in all material respects support the comments of the court of appeal in RG on the interpretive questions raised by the case, and would comment that the design of the Lugano Convention is based on the model of the 1968 Brussels Convention, later the 2001 Brussels Regulation, that applies between EU Member States. When interpreting the Lugano Convention, account must be taken of decisions by the European Court of Justice and decisions by national courts on parallel provisions; see for example Supreme Court Reports , paragraphs 34 and 35, see also section 68, with further references. Great weight must be given to the European Court of Justice s interpretations of parallel provisions in the Brussels Convention/Brussels Regulation; see also Supreme Court Reports Account must also be taken of parallel provisions on choice of law. It is thought to be advantageous for a dispute to be brought before the courts of the country in respect of whose laws an application for enforcement may be made. Within the EU, the Rome Convention, replaced by the Roma I Regulation, lays down rules on choice of law. Norway is not a party, but it is generally assumed that the convention/regulation and the case law of the European Court of Justice relating to these

5 Page 5 of 7 are relevant sources of law in Norwegian international private law. Under Article 8(2) of the Roma I Regulation, account must be taken of the country in which or, failing that, from which the employee habitually carries out his work. The expression or, failing that, from which is intended to codify court case law under Article 6 of the Rome Convention, and a corresponding codification in the Brussels Regulation on legal venue has been adopted but will not enter into force before The relevant part of the provision following the change in Article 21(2)(b(i) reads as follows: in the courts for the place where or from where the employee habitually carries out his work or in the courts for the last place where he did so This change is also intended to codify current law. The European Court of Justice has commented on the parallel provision in the choice-of-law rules several times, including in a statement by a Grand Chamber; see case C-29/10, Koelzsch. The case concerned a truck driver. In its interpretation, the court considered the jurisdiction rules, and the Appeals Selection Committee of the Supreme Court has given weight to this decision by the European Court of Justice in Supreme Court Reports , a case concerning legal venue in respect of a pilot stationed at Oslo Airport, Gardermoen. The pilot worked for a Swedish company, and was resident in Denmark, and was deemed to have habitually worked at Gardermoen; see Article 19(2)(a) of the Lugano Convention. In the Koelzsch case, the European Court of Justice gave considerable weigh to the consideration of protecting the employee as the weak contracting party, see paragraphs 40 42, a consideration that the court has also emphasised pursuant to the Brussels Convention; see for example case C-383/95, Rutten. The provision must be interpreted widely, and with regard to the nature of the work in the international transport sector; see paragraphs In paragraph 49, the subject of assessment is specified in more detail, and the interpretation is summarised in paragraph 50: 49. It must, in particular, determine in which State is situated the place from which the employee carries out his transport tasks, receives instructions concerning his tasks and organises his work, and the place where his work tools are situated. It must also determine the places where the transport is principally carried out, where the goods are unloaded and the place to which the employee returns after completion of his tasks. 50. In those circumstances, the answer to the question referred is that Article 6(2)(a) of the Rome Convention must be interpreted as meaning that, in a situation in which an employee carries out his activities in more than one Contracting State, the country in which the employee habitually carries out his work in performance of the contract, within the meaning of that provision, is that in which or from which, in the light of all the factors which characterise that activity, the employee performs the greater part of his obligations towards his employer. Accordingly, an overall assessment of where or from where A actually worked is decisive. The European Court of Justice has applied this interpretation in subsequent case law. The parties have referred to case C- 384/10, Voogsgeerd. The case concerned work aboard a ship. The court stated the following, among other things: 37. In such a case [the work is performed in more than one country], the factor of the country in which the work is habitually carried out must be understood as referring to the place in which or from which the employee actually carries out his working activities and, if there is no centre of activities, to the place where he carries out the majority of his activities (see Koelzsch, paragraph 45). 38. Therefore, in the light of the nature of work in the maritime sector, such as that at issue in the main proceedings, the court seised must take account of all the factors which characterise the activity of the employee and must, in particular, determine in which State the place is situated from which the employee carries out his transport tasks, receives instructions concerning his tasks and organises his work, and the place where his work tools are to be found (see Koelzsch, paragraphs 48 and 49). 39. If it is apparent from these findings that the place from which the employee carries out his transport tasks and also receives the instructions concerning his

6 Page 6 of 7 tasks is always the same, that place must be considered to be the place where he habitually carries out his work, within the meaning of Article 6(2)(a). As stated at paragraph 32 above, the factor of the place where the employee habitually carries out his work is applied in priority. The court of appeal therefore finds that an overall assessment must be conducted in which the special circumstances of the aviation industry must be taken into consideration, and in which the decisive question is what constitutes the centre of activities, rather than formal circumstances or the employer s links. The court of appeal finds that A began and ended her work at Rygge airport in Norway, and that she was responsible for travelling to and from the airport and organising accommodation no further than one hour away. Even though it has been stated that Ryanair allows employees to reside just across the border in Sweden, it is difficult to ignore the fact that the domicile requirement, due to the distance from Rygge to other countries, makes it natural to reside in Norway, as A has done. Based on the statements of the police in a letter dated 31 May 2013 to counsel for A, employees at Rygge must be paid a separate Norway supplement to their pay. The aircraft are stationed at Rygge. Moreover, other tools such as check-in barriers and premises for receiving work instructions, etc. are located at the airport. A received instructions concerning her work at Rygge. She was required to be present in a crew room on the airport premises for a certain time prior to each individual flight, where she was supposed to ensure that everything was fine and receive instructions, etc. She also worked with passenger check-in. She had some stand-by shifts at the airport, stated to amount to approximately four percent of her working hours in the 10 months she was employed. In addition, she home shifts. She has stated that in December 2012, standby-by shifts at the airport amounted to 16 hours, while home shifts amounted to 36 hours and 40 minutes. No information is available on the performance of significant amounts of work in any other country, other than that the employment contract was concluded and terminated in Ireland. The court of appeal cannot see that it is significant whether the aircraft in which most of the work was carried out must be regarded as Irish territory or not. It appears artificial to conclude that work on board aircraft on international flights by itself establishes a link between the performance of the work and the country of registration. There is no doubt that most of A s work was not carried out in Norway. However, in the view of the court of appeal, there is no requirement that the majority of the working hours must be spent in one country in order for Article 19(2)(a) of the Lugano Convention to apply. The central factor is whether any one place appears to be a centre of work activity. Even though the majority of the work activities were carried out in international airspace, A had a certain volume of clearly defined work tasks on the ground at Rygge. Rygge appears a centre of her work activity, and the residence requirement of no more than one hour from Rygge establishes a link with the area. Article 19(2)(a) of the Lugano Convention must be interpreted widely with respect to the employee as the weak party to the employment contract, and there can be no doubt that it is more burdensome for A to travel to Ireland to institute proceedings there. The court of appeal has taken into account that one intention behind expanding the wording in the Roma I Regulation to also apply to where the work is carried out from is to make it possible to apply the rule to personnel working on board aircraft, if there is a fixed base from which work is organised and where the personnel perform other obligations in relation to the employer (registration, safety checks). Paragraph 2(b) will thus apply more rarely, as the Commission stated on 15 December 2005 in connection with the work on this rule. Legal theory appears to assume that the location of the station should normally be regarded as the centre for the employment relationship. Reference is made to Ketilbjørn Hertz s commentary edition of the Brussels I Regulation, pages : An example of what must presumably be regarded a centre of professional activity is a pilot or other crew member who has a fixed link with a particular airport such that he or she habitually return there after every trip.

7 Page 7 of 7 In this situation, the legal venue should follow the location of this airport regardless of whether a large proportion of the total work is performed while the aircraft is located outside the state in which the airport is located, and regardless of whether the aircraft is registered in another state. The court of appeal cannot see that the national case law from EU countries to which Ryanair has referred suggests a different result. The case law dates to before the decision of the European Court of Justice in the Koelzsch case, and does not appear to be based on the factors identified as decisive here. The appeal has therefore succeeded, and the case is referred for consideration by Moss District Court. Legal costs A has claimed legal costs before the district court and the court of appeal in connection with the consideration of the claim for dismissal. As the claim for dismissal has been the subject of a separate appeal, the costs must be awarded for both courts; see section 20-8(2), second sentence, of the Dispute Act. The dismissal claim has not succeeded, and A has therefore won the case; see section 20-2(1) and (2) of the Dispute Act. In the view of the court of appeal, there are insufficient grounds for applying the exemption provision in the third paragraph. In her appeal, A has stated that the costs linked to the question of dismissal total NOK 30,000. This amount is accepted; see section 20-5 of the Dispute Act. The accessory interveners LO and HK have also claimed legal costs totalling NOK 10,000 before the district court and court of appeal. It is assumed that the expenses a distributed half to LO and half to HK. The amount is accepted; see section 20-1(3) of the Dispute Act, see also section 20-2 and section The decision is unanimous. Conclusion: 1. The case shall be referred. 2. Ryanair Limited shall pay legal costs before the district court and court of appeal of NOK 30,000 thirty thousand to A within two 2 weeks of the pronouncement of the decision. 3. Ryanair Limited shall pay legal costs before the district court and court of appeal of NOK 5,000 five thousand to the Norwegian Confederation of Trade Unions within two 2 weeks of the pronouncement of the decision. 4. Ryanair Limited shall pay legal costs before the district court and court of appeal of NOK 5,000 five thousand to the Norwegian Union of Commercial and Office Employees within two 2 weeks of the pronouncement of the decision.