Choice of Law and Jurisdiction Clauses in Transnational Labour Contracts. Issues and Challenges arising out of the CJEU’s Decision in the “Ryanair case”: Applicable Law and Competent Court for “peripatetic workers” and “workers via the web”

The aim of the speech is to investigate, based on the laws of the Europe Union (hereinafter the "EU"), what the applicable law and forum should be in the case of employment contracts and relationships that include transnational components because the work is performed in more than one Member State or non-Member State. As we know, some years ago, the EU identified particular connecting criteria in the field of workrelated contracts besides the (Private Law) general principle of free choice between the parties. The "place of work" – that is, the "place where the service is habitually performed" – is prominent among these, and plays a central role in identifying both the applicable law [Regulation EC no. 593/2008 (hereinafter "Rome I")] and the competent jurisdiction [Regulation EC no. 1215/2012 (hereinafter "Brussels I bis”)]. The problem here is that this criterion becomes an issue each time the place of work cannot be localised within a single State, either because the work is performed in a variety of different locations, as is the case with lorry drivers or airline pilots and flight attendants (hereinafter referred to as "peripatetic work"), or because it is performed remotely in a "virtual location" – the web, that is – as is the case with designers, translators, IT workers, etc. (hereinafter the so-called "work via the web"). We should clarify that in addition to the now classic form of work – that is, the result of the technological revolution of the 1970s – known as "teleworking" (in which workers have lasting relations with a single employer, but perform their work remotely), this latter category ("work via the web") also includes the type of work that has recently been introduced as a result of the so-called "gig-economy", in which performance often last only for a short, or a very short, time because they are provided by workers who work remotely (especially through the use of IT platforms) but for a multiple, changing set of beneficiaries (so-called "crowdworking"). The most notable example of "crowdworking" is Amazon Mechanical Turk, a digital platform based in the USA that offers clients services via the web (for example, the classification of photographic archives or the design of advertising campaigns) at low cost, because they are divided into micro-tasks performed by workers (crowdworkers) who have been selected via the web using an algorithm. These pre-selected workers therefore perform the micro-tasks they are allocated in exchange for compensation without needing to move from their home country. The issue that is generally raised in relation to "work via the web" is being able to understand the notion of "place of work" that applies in these cases. Clearly, both the applicable law and the forum will vary depending on the solution that has been adopted, which will have an evident impact on the costs (and competitive advantages for companies1 ) associated with this type of work. The question is therefore whether the notion of "place of work" – which is, as we have said, the cornerstone of the currently applicable EU regulations for defining both applicable law and forum in the event of a dispute – may be interpreted in such a way as to provide a satisfactory response (including for anti-dumping purposes) vis-à-vis this type of work, or whether the rules need to be supplemented or amended. It should be stressed here that although the Court of Justice of the European Union (the CJEU) has ruled on the notion of "place of work", and defined its boundaries, on a number of occasions, it has only done so with reference to "peripatetic workers". It is therefore necessary to verify whether this notion of "place of work" as defined by the CJEU can also be used for "workers via the web". Because this question is a complex one, it needs to be tackled in two separate parts: the first dedicated to the issue of applicable law, and the second to jurisdiction. The first section will begin with a brief review of the current rules on applicable law as they pertain to employment relations with a transnational component. We will then consider the broad nature of the "habitual place of work" criterion as it refers to "peripatetic workers", and seek to identify its rationale. Finally, we will ask the question of whether this notion can be used for "workers via the web", or whether reference must be made to other rules. We will then draw some brief conclusions. In the second section, attention will be paid to the development of European legislation (from the 1968 Brussels Convention to the current EU Regulation, no. 1215/2012) on the issue of determining jurisdiction in cross-border disputes in Europe in the field of individual contracts of employment, including in the light of the case law of the Court of Justice, with a particular focus on the cases of employees carrying out their activity in more than one country. This analysis will assess the possibility of extending these rules and principles to the crowdworking phenomenon from the dual perspective of crowdworkers domiciled outside the EU but carrying out their activity for an employer (the crowdsourcer) domiciled in an EU Member State, and, vice versa, of crowdworkers domiciled in the EU but carrying out their activity for an employer domiciled outside the EU. Finally, a brief reference will be made to the role that representative associations of employees such a trade Union, on the one hand, and collective redress mechanisms (such as class actions) on the other, can play in this field to enhance the enforcement of employees’ rights. We will then offer some brief conclusions related to this second section