Gruber Logistics: een einde aan de onduidelijkheid omtrent de rechtskeuze in de individuele arbeidsovereenkomst?

Even though parties to an international employment contract are generally free to choose the law governing their employment relationship, this freedom is far from limitless. In order to protect the employee against an unfavorable choice of law, Article 8 Rome I Regulation provides that the employee cannot lose the protection of the mandatory provisions of the law that would apply to the employment contract in the absence of a choice of law. For a long time, the interpretation of this provision was unclear. Should the mandatory provisions of, for example, the law of the country where employment is habitually performed always be applied or are parties free to choose a more favourable law? Dutch case law does not provide an unequivocal answer to this question. In fact, it shows application of both the first and the second approach. As a result, it is difficult for an employer or employee to determine the law that governs the employment relationship. The Gruber Logistics judgment of the CJEU partly puts an end to this uncertainty. Nevertheless, the judgment leaves a number of important questions unanswered. In this contribution I will consider the Gruber Logistics judgment and some open questions.