Last month, at the Paris congress of the ETUC, the Brian Bercusson Award was conferred upon Dr. Raphaël Callsen, a lawyer with the law firm dka (Berlin), for his PhD thesis entitled ‘Overriding mandatory rules and public policy exception in international labour law – A German-French comparison’.
The Award was created as a tribute to the late Labour Law Professor and leading expert on European labour Brian Bercusson. To maintain his legacy and encourage the development of EU labour law, the ETUC and the ETUI, together with the ETUI Transnational Trade Union Rights experts network (TTUR), instituted a special award to honour Bercusson’s outstanding scholarship and dynamic scientific contribution that is of such deep relevance to the work of the European trade union movement.
Interview with Dr. Raphaël Callsen, lawyer with the law firm dka (Berlin)
Original interview from IR Notes 40 – 21 October 2015 (http://links.mailingplus.net/newsl_view.php?data=b32-0ojaa2kkn6suocrhrugtasu493)
You received the Brian Bercusson Award for your doctoral thesis comprising a Franco-German comparative study of the application of conflict-of-law rules applicable to employment contracts concluded with employees carrying out their work in two or more member states. What is the thrust of your work?
The dissertation actually looks at the conflict-of-law rules that govern cross-border employment relationships. The issue lies in determining which law, in labour law terms, is applicable to an employee carrying out his work in at least one member state other than the one in which his employer is situated. To determine which is the applicable law if an employee wishes to contest dismissal, for example, there is a European regulation known as ‘Rome I’, which unified the rules previously in force. The regulation provides that the applicable law shall be that chosen by the parties or, if more favourable to the worker, the law of the country in which the employee carries out his work, or the law of the country where the place of business through which the employee was engaged is situated, or the law of the country that has the strongest links with the employment contract.
Your dissertation seeks to link this standard with the provisions of the European Charter of Fundamental Rights?
Actually, the Charter has the same status as a treaty, and should have a bearing on the interpretation of the Rome I regulation. My approach is to demonstrate that these conflict-of-law rules must be interpreted in the light of fundamental rights. The applicable law is determined by Article 8 of the regulation, but Article 9 makes it possible for the courts not to apply the designated legislation if it is contrary to a ‘law of the forum’, a rule aimed at safeguarding the public interests of the country in which the court has its seat. The idea of my thesis is that this notion of ‘public interest’ must be interpreted in the light of the fundamental rights of the EU. That is to say that if a fundamental right confers entitlement to protection against unjustified dismissal, as envisaged by Article 30 of the European Charter of Fundamental Rights, the national or European judge cannot say that in principle the rules of protection against dismissal that exist at national level are not part of the laws of the forum that govern the employment relationship.
So the courts would be obliged to ensure a minimum level of protection based on the fundamental rights?
If rules offering protection against dismissal exist at national level, the courts would be obliged to apply them if the law designated by application of Article 8 of the European regulation granted a lower level of protection than that guaranteed by the European Charter of Fundamental Rights. If the Rome I regulation is read in the light of the Charter, the result is an improvement in the protection of workers carrying out their activity in several countries.