Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. The preliminary proceedings of which my opinion of today forms part raise two interesting problems of the interpretation of the Convention of Brussels of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. First, one has the opportunity of clarifying whether clauses conferring jurisdiction which the parties to a contract of employment have agreed upon are in every case effective in accordance with Article 17 of the Convention, notwithstanding the contrary provisions of some statutory legislation in regard to the exclusion of the jurisdiction of the national courts dealing with labour relations. If that issue falls to be resolved in the affirmative, the question remains whether in the case of contracts of employment entered into and executed prior to the date of the coming into force of the Convention (that is to say, prior to 1 February 1973) the clauses in question must be considered as effective under Article 54 of the same Convention whenever a court is called upon to deal with a dispute after the afore-mentioned date.

2. That the Convention must apply in its entirety to contracts of employment appears to me not to be open to question. It is true that the field of employment presents particular aspects which differentiate it considerably from other fields of private law and endow it with numerous elements of public law; it is also true that in more than one State the system of employment relations courts takes account, both in the composition of the tribunal and in certain specialities of procedure, of the need to ensure certain protection for the employee in the course of the litigation, he being the weaker party in the substantive legal relationship. However, it has to be borne in mind that traditionally the individual contract of employment is regarded as falling within the field of private law obligations and that, at all events, the Brussels Convention not only does not exclude the subject of employment from its proper area of application (in distinction to what is provided in regard to social security — see subparagraph (3) of the second paragraph of Article 1) but also does not apply to it rules differing from those by which contractual obligations in general are governed. It is to be observed also that specific provision has been made in regard to certain matters according to the special nature of the interests involved (insurance, instalment sales and loans; the matters assigned by Article 16 to the exclusive jurisdiction of a court of one of the Contracting States) and accordingly, had the States wished disputes arising out of employment to be subject to special rules they would without doubt have made express provision for that. The lack of any special provision justifies the view that it was intended to include employment within the Convention's sphere of application.

3. What I have said may be sufficient for it to be recognized that a clause conferring jurisdiction contained in a contract of employment is lawful and effective if it meets the conditions laid down by Article 17 of the Convention. Moreover, further support for this is to be found in the fact that that article makes mention of the exceptions to the freedom to exclude jurisdiction (referring to the provisions of Articles 12, 15 and 16) and does not include contracts of employment in those cases.

4. I stated at the outset the terms of the questions of transitional law which has been presented by the national court. Its solution involves the interpretation of the first paragraph of Article 54 of the Convention.

5. In conclusion I consider that the Court should reply to the question raised by the French Cour de Cassation (Social Chamber) by judgment of 10 January 1979 as follows: Articles 17 and 54 of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be interpreted to mean that in judicial proceedings commenced after the entry into force of the Convention clauses conferring jurisdiction agreed upon in the context of contracts of employment prior in date to 1 February 1973 are to be regarded as valid even if they would have been considered void according to the national law in force at the time when the contract was entered into.

1 Translated from the Italian.