In employment law with foreign aspects, there is often the question of which law should rule on, for example, dismissal, i.e. which law should be applied in the process. Our Dutch labor law attorney in Amsterdam knows the answer to this. Do you work as an expat abroad but for a Dutch company, for example? Then the following applies.
Not always the employment contract determines which law is applied. Dutch labor law can be more favorable, because it offers the employee a lot of protection.
What if parties have not regulated this in the employment contract?
In these situations, the Rome Convention is important. If the parties have not regulated this in the employment contract and have not made a choice of law, paragraphs 2 to 4 of Article 8 Rome I contain so-called rules of referral.
Law of the country in which the employee, in performance of the contract, habitually carries out his work
The legal relationship between employer and employee is then governed by the law of the country in which or, failing that, from which the employee, in performance of the contract, habitually carries out his work. Thus, the country in which the employee habitually works determines, in principle, which law applies. So if you work in The Netherlands, Dutch labor law might be applicable.
In a judgment of March 15, 2011 (C-29/10, ECLI:EU:C:2011: 151, Koelzsch), the Court of Justice of the European Union (“CJEU”) established criteria for designating the country where the employee habitually works. This means that the term “country where the employee habitually works” must be interpreted broadly, also for the protection of the employee (paragraphs 42-43).
The majority of the activities in The Netherlands? Dutch law applies
It refers to the place where or from where the employee actually carries out his professional activities, or at least where he carries out the majority of his activities.
Relevant points of view are: the place
- (1) from where the employee performs his assignments,
- (2) where he receives his instructions for his assignments,
- (3) where he organizes his work,
- (4) where the instruments of labor are located, and further
- (5) in what places the task is mainly performed, and
- (7) to which place the worker returns after his assignments.
Is this all in The Netherlands, for example? Then Dutch law applies.
The court applying Article 8(2) Rome I must take all points of view into account.
If the country of habitual employment cannot be determined
Only if the country of habitual employment cannot be determined, the employment contract is governed by the law of the country in which the establishment where the employee is employed is located.
Ties with another country
However, an employee may still have closer ties with another country (Article 8(4) Rome), for example, the Netherlands.
This must then be:
- (1) the country where the employee pays taxes and duties on labor income,
- (2) the country where he is affiliated to social security and the various pension, health insurance and disability schemes and
- (3) the criteria relating to the determination of wages and other working conditions.
Again, the judge must consider all the circumstances of the case.
Would you like advice on international labor law? Call one of our Dutch attorneys in Amsterdam specializing in international labor law.
Contact a Dutch qualified Employment Law attorney in Amsterdam
Please contact us if we can assist you with any labour relations matters. Our Dutch lawyers in Amsterdam will advocate on your behalf with strong and knowledgeable legal counsel. For further information about Dutch of international Employment and Labor Law, please contact our Employment Contract lawyer in Amsterdam: 0031 20 5221999