Increasingly, employees live and work remotely, in addition to the regular cross-border worker who lives just across the border in Germany and/or Belgium. The question is which court has jurisdiction in case the employer or employee wants to start proceedings.
The rules on jurisdiction in cross-border situations are regulated by the Brussels-I bis Regulation.
If an employer wants to start proceedings against an employee who lives abroad, the employer must start these proceedings in the courts of the Member State where the employee is domiciled (Article 22 Brussels-I bis Regulation). For example, if a Dutch company wants to start dismissal proceedings against an employee who lives in Belgium but works in the Netherlands and where Dutch law applies to the employment contract, the employer will still have to go to the Belgian court. The Belgian court will then have to assess this under Dutch law.
However, it is possible for employer and employee to agree on the competent court, a so-called 'choice of forum' (Articles 23 and 25 Brussels-I bis Regulation). This choice of forum must be recorded in writing. What is special about this is that this choice of forum may only be included after the dispute - which is being litigated - has arisen. An agreement in the employment contract on the competent court at the start of this contract is therefore not allowed. However, in the aforementioned example of the dismissal procedure, it is questionable whether an employee will cooperate with this written choice of forum at the moment when it might make it easier for him to be dismissed.
Another possibility is that the employer does start the proceedings in the Netherlands and waits to see if the employee appears. If the employee then appears, it is not the case that the proceedings always continues. In the proceedings, the employee can still appeal to the court's lack of jurisdiction. If the employee does not make this appeal, the court has jurisdiction (Article 26 Paragraph 1 Brussels-I bis Regulation). In the example of the Belgian employee, it may be that the employee believes he is obliged to come to the Netherlands for the proceedings and is not familiar with the rules of the competent court. For this reason, the law includes an explicit duty to inform. This duty means that the court must explicitly point out to the employee the possibility of contesting the court's jurisdiction and what the consequences are (Article 26 Paragraph 2 Brussels-I bis Regulation). In the aforementioned example, this will then quickly lead to the Belgian employee still invoking the lack of jurisdiction, as a result of which the Dutch employer will then still have to start proceedings in Belgium. An employee who does not wish to cooperate with the choice of forum will also not easily agree to the Dutch court during the proceedings, especially if it is pointed out that he has no jurisdiction.
An employee who starts proceedings against the employer must do so in the country where the employer is established or in the country where the employee habitually works (Article 21 Brussels-I bis Regulation). The previous example results in the Belgian employee having to start the proceedings in the Netherlands, as the Dutch employer is located there and the Belgian employee is also employed in the Netherlands. If the Belgian employee is habitually employed in Belgium (e.g. only working from home), the Belgian employee can also start these proceedings in the Belgian courts.
However, at the moment the employee starts the proceedings, the employer is allowed to file a counterclaim before the same court. If the Belgian employee thus starts proceedings in the Netherlands for, for example, claim wages, the employer can still submit a dismissal request to the Dutch court as a counterclaim, without having to go to the Belgian court to do so. This follows from Article 22 Paragraph 2 Brussels-I bis Regulation (in combination with Article 7:686a Dutch Civil Code).
In short, in the case of cross-border workers, it is wise to keep an eye on which court proceedings can be initiated in case of a dispute, to avoid an unauthorised court. This can lead to cumbersome proceedings abroad and higher costs. The applicable employment law, which I wrote about in this article, is not leading in this regard. In the event of such disputes, we are happy to help think about a solution!
