European Employment Law - Case Study

Case note MJ
Maastricht Journal of European and

Comparative Law
‘From Rome to Rome’ – 2017, Vol. 24(2) 298–322
ª The Author(s) 2017
Cross-border employment Reprints and permissions:
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DOI: 10.1177/1023263X17709754
contract. European maastrichtjournal.sagepub.com
Private International Law:

Intertemporal law and
foreign overriding
mandatory laws
Case C-135/15 Greek Republic v. Grigorios Nikiforidis,
EU:C:2016:774
Stephan Rammeloo*
Abstract
To what extent are Greek saving laws, resulting in payment cuts in the public sector (that is
employment conditions), capable of overriding the applicable (German) law? A dispute arising
from an employment relationship between the Greek Republic and an employee habitually car-
rying out work in Germany, gave rise to preliminary questions having regard to the temporal
scope of EU Regulation No. 593/2008 (the ‘Rome I Regulation’)1 and, closely related thereto, the
functional reach of Article 9(3) of that Regulation in respect of ‘foreign’ mandatory laws, in light of
the principle of sincere cooperation enshrined in Article 4(3) TEU. An analysis of the Advocate
General’s Opinion and the Court of Justice of the European Union’s (CJEU) ruling is followed by
critical commentary and suggestions for future EU legislative amendments to the Rome I regime.
Keywords
European Private International Law (Reg. 593/2008), Cross-border employment relationship,
Applicable law, Foreign overriding mandatory laws
1. Regulation No. 593/2008/EC of the European Parliament and of the Council of 17 June 2008 on the law applicable to
contractual obligations (Rome I), [2008] OJ L 177/6.
*
Maastricht University, Maastricht, The Netherlands
Corresponding author:
Stephan Rammeloo, Maastricht University, Maastricht, The Netherlands.
Email: s.rammeloo@maastrichtuniversity.nl
Rammeloo 299
1. Introduction
An adequately functioning Single Market presupposes that cross-border employment relationships benefit
not only from a satisfactory degree of legal certainty and predictability in view of the applicable law, but also
from a well-balanced legal and socio-economic ‘level playing field’. However, in the absence of a substantive
and uniform European Union labour law, international employment relationships still remain anchored to
national law. In everyday practice the law which is commonly referred to as the lex laboris or the ‘proper law’
of the employment contract, can only be indirectly ascertained by recourse to the ‘interface’ between EU law
instruments harmonizing the Private International Law (PIL) of the Member States.2
A complicating factor, however, is that the so called ‘mandatory’ socio-economic laws of
different legal orders may override the law which, normally, would be designated as the proper
law of the contract. This was exactly the situation in Greek Republic v. Nikiforidis,3 where Greek
Saving Laws resulted in public sector payment cuts (that is, employment conditions).4 The out-
come of the preliminary ruling proceedings was of pivotal importance as it not only defined
intertemporal EU PIL standards for long-running cross-border employment relationships, but also
demarcated the reach and the overriding force of ‘foreign’ mandatory laws.
The aim of this article is to explicate EU PIL having regard to the applicable law to cross-border
international employment relationships as it stands after the CJEU’s judgment in Greek Republic v.
Nikiforidis. First, the heart of the matter of the dispute in the main proceedings, the main observations
and preliminary questions lodged by the German Federal Labour Court (Bundesarbeitsgericht) and the
core observations of the CJEU’s judgment will be briefly summarized. Commentary on the CJEU’s
preliminary ruling will be preceded by a brief historical overview of European PIL on contractual
obligations. This survey includes, as being particularly relevant to long-running employment relation-
ships, the methodology of PIL having regard to the issue of transitory law (Statutenwechsel).
Thereafter the CJEU’s ruling is analysed in detail. The extensive Opinion of the Advocate General
and the, divergent, observations of the CJEU having regard to intertemporal EU conflict of laws in
respect of cross-border employment relationships will be consecutively unraveled and subjected to a
critical analysis. Thereafter some suggestions will be made for future amendments to the Rome I
regime. A similar approach in four ‘stages’ (Opinion of the Advocate General, CJEU judgment,
criticism and suggestions for future legislative changes) will follow in respect of the nature and
status of ‘foreign’ overriding mandatory laws, including the duty of cooperation imposed on EU
Member States as enshrined in Article 4(3) TEU. Finally, overall conclusions will be made.
2. Case C-135/15 Greek Republic v. Grigorios Nikiforidis

A. Main proceedings and preliminary questions
The dispute in the aforementioned case unrolled as follows.5 Grigorios Nikiforidis was employed,
since 1996, as a primary school teacher in Nuremberg, which was run by the Greek Republic.
2. Private International law, hereinafter referred to as ‘PIL’, is also occasionally referred to as the ‘conflict of laws’
throughout this article.
3. Case C-135/15 Greek Republic v. Grigorios Nikiforidis, EU:C:2016:774.
4. This description was taken from L. Günther, ‘German Federal Labour Court on Foreign Mandatory Rules and the
Principle of Cooperation among EU Member States’, Conflictoflaws.net (2015), http://conflictoflaws.net/2015/german-
federal-labour-court-on-foreign-mandatory-rules-and-the-principle-of-cooperation-among-eu-member-states/.
5. The facts are rendered in full in Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 17-23.
300 Maastricht Journal of European and Comparative Law 24(2)
From the period beginning October 2010 to December 2012, Greece reduced Nikiforidis’s gross
remuneration (previously calculated in accordance with German collective bargaining law) on
account of Greek Laws implementing agreements that Greece had concluded with the European
Commission, the European Central Bank and the International Monetary Fund (UN).6 Nikiforidis
commenced court proceedings in Germany claiming, inter alia, additional remuneration for the
period from October 2010 to December 2012.
Whilst classifying the Greek laws mentioned reducing Nikiforidis’s gross remuneration as
‘overriding mandatory provisions’ within the meaning of PIL, the German Federal Labour Court
observed that the outcome of the dispute in the main proceedings turned on whether those Greek
mandatory laws could apply – directly or indirectly – to an employment relationship conducted in
Germany and subject to German law, which did not permit such reductions.
As Nikiforidis had entered into the employment relationship in 1996, but was subjected to a so
called Änderungskündigung in 2010 (termination with reengagement on amended terms), the
German court firstly had to establish which of the following two legal instruments was applicable
to the dispute: the 1980 EC Rome Convention on the Law Applicable to Contractual Obligations
(RCC)7 or its successor, the Rome I Regulation. The latter source entered in force on 17 December
2009 and is applicable to ‘contracts concluded after 17 December 2009’ (Article 28 thereof).
Second, and depending on the outcome of this question, in case the Rome I Regulation was not
applicable to the main proceedings, would Article 34 of the German EGBGB8 permit a court to
take into account the overriding mandatory provisions of any other state (here, the overriding
provisions of Greece), whereas, at least, according to the literal wording of Article 9(2) and (3) of
the Rome I Regulation account can only be had to the mandatory provisions of the lex fori (here,
Germany) or of the legal order where the contract has to be performed (again, Germany as the loci
laboris was clearly located in Germany).
The German Federal Labour Court decided to stay proceedings and refer the following ques-
tions to the CJEU for a preliminary ruling:
1. Is the Rome I Regulation applicable under Article 28 of that regulation to employment

relationships exclusively in the case where the legal relationship was formed by a contract
of employment entered into after 16 December 2009, or does every subsequent agreement
by the contracting parties to continue their employment relationship, whether with or
without variation, render that regulation applicable?
2. Does Article 9(3) of the Rome I Regulation exclude solely the direct application of over-
riding mandatory provisions of another country in which the obligations arising out of that
contract are not to be performed, or have not been performed, or does that provision also
6. (GR) Law No. 3833/2010 laying down urgent measures to address the crisis in public finances (Official Gazette of the
Hellenic Republic, Part I, No 40 of 15 March 2010) (Νόμος 3833/2010 Προστασία της εθνικής οικονομίας - Επείγοντα
μέτρα για την αντιμετώπιση της δημοσιονομικής κρίσης); and (GR) Law No. 3845/2010 on measures for applying the
support mechanism for the Greek economy of the euro area Member States and the International Monetary Fund
(Official Gazette of the Hellenic Republic, Part I, No 65 of 6 May 2010) (Νόμος 3845/2010 Μέτρα για την εφαρμογή του
μηχανισμού στήριξης της ελληνικής οικονομίας από τα κράτη - μέλη της Ζώνης του ευρώ και το Διεθνές Νομισματικό
Ταμείο).
7. Convention on the Law Applicable to Contractual Obligation opened for signature in Rome on 19 June 1980, [1980] OJ
L 266/1.
8. (DE) Preliminary Title to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch). This is commonly
abbreviated to ‘EGBGB’.
Rammeloo 301
exclude indirect regard to those mandatory provisions in the law of the Member State the
law of which governs the contract?
3. Is the principle of sincere cooperation enshrined in Article 4(3) TEU relevant, for legal
purposes, for the decision of national courts on whether overriding mandatory provisions of
another Member State are directly or indirectly applicable?9
Essentially, the main proceedings turned on the interpretation of the EU transitory law and
mandatory law provisions of private international law, having regard to employment contracts.
B. Main observations and the judgment of the CJEU

In view of the first preliminary question which related to the temporal scope of the Rome I
Regulation, the CJEU observed that the referring court was essentially asking:
whether Article 28 (…) must be interpreted as meaning that that regulation applies solely to employ-
ment relationships established on the basis of a contract concluded after 16 December 2009 or as
meaning that it also applies to employment relationships entered into on that date at the latest which the
parties agree, after that date, to continue, with or without variation.10
While establishing that Article 28 of the Rome I Regulation does not distinguish between different
contract types and finding that the initial employment relationship was entered in to in 1996, that is
before the Rome I Regulation entered in force, the CJEU observed that
it follows from the need for uniform application of EU law and from the principle of equality that the
terms of a provision of EU law which makes no express reference to the law of the Member States for
the purpose of determining its meaning and scope must normally be given an autonomous and uniform
interpretation throughout the European Union. As Article 28 of the Rome I Regulation makes no
express reference to the law of the Member States, it should therefore be interpreted autonomously and
uniformly.11
As Article 28 of the Rome I Regulation makes no express reference to the law of the Member
States, it should therefore be interpreted autonomously and uniformly. Article 10 of the Rome I
Regulation, pursuant to which questions related to the existence and validity of a contract, or of
any term of a contract, are to be determined by the law which would govern it under that regulation
if the contract or term were valid, does not cast doubt on this conclusion. That provision, which
does not deal with the temporal scope of the Rome I Regulation, was not a relevant issue in
relation to the first referred question.12
Although the Rome I Regulation basically applies as a result of the mutual agreement of the
contracting parties which has manifested itself on or after 17 December 2009:
it must be determined whether a variation of an employment contract concluded before 17 December

2009, agreed between the parties to that contract on or after that date, can lead to a new employment
9. Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 24.

10. Ibid., para. 25 (emphasis added).
11. Ibid., para. 28, 29, referring to earlier judgments in Case C-66/08 Kozłowski, EU:C:2008:437, para. 42; and Case C-
108/16 PPU Dworzecki, EU:C:2016:346, para. 28.
12. Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 29, 30.
contract being regarded as having been concluded between those parties on or after that date, for the
purposes of Article 28 of the Rome I Regulation, so that that contract would fall within the regulation’s
temporal scope.13
Rather than providing for a ‘hard and fast’ demarcation, the CJEU favoured a different approach
by stating, ‘Although Commission Proposal COM(2005) 650 final of 15 December 2005 for a
regulation of the European Parliament and the Council on the law applicable to contractual
obligations (Rome I) envisaged the inclusion within the scope of the regulation of ‘contractual
obligations arising after its entry into application’,14 the reference to such obligations was replaced
in Article 28 of the Rome I Regulation by a reference to ‘contracts’ concluded from 17 December
2009. Whilst the reference, proposed by the Commission, to contractual obligations arising after
the entry into application of that regulation covered, in addition to contracts concluded after its
entry into application, the future effects of contracts concluded before then, that is to say, obliga-
tions arising from the latter after then, this was not transposed in to the wording of Article 28 of the
Rome I Regulation. The Rome I Regulation pertains exclusively to contracts concluded on or after
17 December 2009, the date on which that regulation became applicable, pursuant to Article 29
thereof:
It follows that, contrary to what the referring court envisaged, any agreement by the contracting parties,
concluded after 16 December 2009, to the continuation of the performance of a contract concluded
previously cannot have the effect of making the Rome I Regulation applicable to that contractual
relationship without thwarting the EU legislature’s clearly expressed intentions.
That choice would be called into question if any, even minor, variation, on or after 17 December 2009,
to a contract that was initially concluded before that date was sufficient to bring that contract within the
scope of the Rome I Regulation.
Furthermore, it would be contrary to the principle of legal certainty and would, more specifically,
have an adverse effect on predictability of the outcome of litigation and on certainty as to the law
applicable, which, according to Recital 6 of Preamble to the Rome I Regulation, constitutes an
objective of the regime, to conclude that any variation made to the initial contract by mutual
agreement, on or after 17 December 2009, brings that contract within the scope of the regulation
and, ultimately, makes that contract subject to conflict-of-law rules, other than those applicable when
it was initially concluded.
On the other hand, the possibility remains, as the Commission pointed out in its written observations,
that a contract concluded before 17 December 2009 may be subject, on or after that date, to a
variation agreed between the contracting parties of such magnitude that it gives rise not to the mere
updating or amendment of the contract but to the creation of a new legal relationship between the
contracting parties. Accordingly, the initial contract should be regarded as having been replaced by
a new contract, concluded on or after that date, for the purposes of Article 28 of the Rome I
Regulation.15

15. Ibid., para. 34-37 (emphasis added).
Rammeloo 303
In view of the CJEU it was therefore for
(…) the referring court to determine whether, in the present instance, the contract concluded between Mr
Nikiforidis and his employer underwent a variation agreed between the parties of such magnitude on or
after 17 December 2009. If it did not, the Rome I Regulation would not be applicable in the main proceed-
ings. In the light of all the foregoing considerations, the answer to the first question is that Article 28 of the
Rome I Regulation must be interpreted as meaning that a contractual employment relationship that came into
being before 17 December 2009 falls within the scope of the regulation only in so far as that relationship has
undergone, as a result of mutual agreement of the contracting parties which has manifested itself on or after
that date, a variation of such magnitude that a new employment contract must be regarded as having been
concluded on or after that date, a matter which is for the referring court to determine.16
Preliminary questions 2 and 3 were dealt with jointly by the CJEU. These questions in their
essence boiled down to
first, whether Article 9(3) of [the Rome I Regulation] must be interpreted as precluding overriding
mandatory provisions other than those of the State of the forum or of the State where the obligations
arising out of the contract have to be or have been performed from being taken into account, directly
or indirectly, by the court of the forum pursuant to the national law applicable to the contract and,
secondly, what requirements might arise from the principle of sincere cooperation, enshrined in Article
4(3) TEU, in relation to the direct or indirect taking into account of those other overriding mandatory
provisions by the court of the forum.17
The CJEU established the derogatory nature of Article 9 which enables the court of the forum to
take in to account public interest considerations in exceptional circumstances. That exception has
to be interpreted in a strict manner, however. Applying mandatory rules from states, other than
those exhaustively listed in Article 9(2) and 9(3) of the Rome I Regulation, would, as the CJEU
declared, a fortiori jeopardize employment contracts regulated by Article 8 and affect the foresee-
ability of the substantive rules applicable to such contracts.18
The CJEU thus observed:
Article 9 of [Rome I] must therefore be interpreted as precluding the court of the forum from applying, as
legal rules, overriding mandatory provisions other than those of the State of the forum or of the State
where the obligations arising out of the contract have to be or have been performed. Consequently, since,
according to the referring court, Mr Nikiforidis’s employment contract has been performed in Germany,
and the referring court is German, the latter cannot in this instance apply, directly or indirectly, the Greek
overriding mandatory provisions which it sets out in the request for a preliminary ruling.19
But contrary to what one might expect this is not where the ‘story’ ends, as the CJEU further
observed:
Article 9 of [the Rome I Regulation] does not preclude overriding mandatory provisions of a State
other than the State of the forum or the State where the obligations arising out of the contract have to
16. Ibid., para. 38, 39.

18. Ibid., para. 47, 48.
be or have been performed from being taken into account as a matter of fact, as [Rome I] harmonises
conflict-of-law rules concerning contractual obligations and not the substantive rules of the law of
contract.20
Accordingly, it had to be ascertained whether the mandatory Greek laws at stake in the Nikiforidis
case (that is, Law No. 3833/2010 and Law No. 3845/2010) were capable of being ‘classified’ as
such laws.21 As stipulated by the CJEU:
Examination of the principle of sincere cooperation enshrined in Article 4(3) TEU does not enable a
different conclusion to be reached. That principle does not authorise a Member State to circumvent the
obligations that are imposed upon it by EU law and accordingly is not capable of permitting the
referring court to disregard the fact that the list of overriding mandatory provisions to which effect may
be given, as set out in Article 9 of [Rome I], is exhaustive, in order to give effect, as legal rules, to the
Greek overriding mandatory provisions at issue in the main proceedings.22
The CJEU (Grand Chamber) thus provided the following answers to the preliminary ruling
questions:
1. Article 28 of Regulation (EC) No 593/2008 of the European Parliament and of the Council
of 17 June 2008 on the law applicable to contractual obligations (Rome I) must be inter-
preted as meaning that a contractual employment relationship that came into being before
17 December 2009 falls within the scope of the regulation only in so far as that relationship
has undergone, as a result of mutual agreement of the contracting parties which has
manifested itself on or after that date, a variation of such magnitude that a new employment
contract must be regarded as having been concluded on or after that date, a matter which is
for the referring court to determine.
2. Article 9(3) of Regulation No 593/2008 must be interpreted as precluding overriding mandatory
provisions other than those of the State of the forum or of the State where the obligations arising
out of the contract have to be or have been performed from being applied, as legal rules, by the
court of the forum, but as not precluding it from taking such other overriding mandatory
provisions into account as matters of fact in so far as this is provided for by the national law
that is applicable to the contract pursuant to the regulation. This interpretation is not affected by
the principle of sincere cooperation laid down in Article 4(3) TEU.23
3. Comments
A. European Private International Law on contractual obligations – ‘from Rome to Rome’
Any commentary to Greek Republic v. Nikiforidis presupposes a proficient insight in to the way in
which the EU PIL acquis on contractual obligations has developed over recent decades,24 as
20. Ibid., para. 51, 52 (emphasis added).

21. Ibid., para. 53.
22. Ibid., para. 54 (emphasis added), with reference to, by analogy, Case C-537/11 Manzi and Compagnia Naviera
Orchestra, EU:C:2014:19, para. 40.
24. For a more in depth treatment of the acquis see, S. Rammeloo, ‘European Private International Law: Quo Vadis? A
Methodological Journey from Maastricht to Amsterdam, Lisbon and further – Future Challenges’, in M. de Visser and
Rammeloo 305
notably two of these developments, namely intertemporal European PIL and the legal status of
‘foreign’ overriding mandatory laws, have wide ramifications, not only for individuals like Mr
Nikiforidis, but also, as will be established, for the functional reach of EU scale financial restruc-
turing and stability programs.
In 1973, a first draft text for a European Convention on the Law Applicable to Contractual
and Non-Contractual Obligations was published. The very same year, however, following the
Danish, Irish and British accession to the (then) European Community, this draft was curtailed
and the chapter on non-contractual obligations was removed altogether. It was not until June
1980 that, in Rome, a Convention on the Law Applicable to Contractual Obligations (RCC) was
signed by the Member States. An important, or perhaps one should even say the preeminent,
reason for its protracted entry in force (in April 1991) was the highly controversial issue of the
status of ‘foreign’ mandatory laws overriding the outcome of the process of ascertaining the
applicable law, a solid reason for many of the (then) EC Member States not to promptly ratify the
Convention.
Following the entry in to force of the Treaty of Amsterdam and the ‘pillar change’ affecting
European PIL,25 in the sense that European PIL ‘Conventions’ were transformed into Regula-
tions,26 a Commission conciliation round was held on the RCC. On 15 December 2005, a pre-draft
for a Regulation on the Law Applicable to Contractual Obligations was published. This pre-draft,
however, was considerably amended again in the text version of 29 November 2007,27 as the clock
was turned back on many initially proposed changes. On 17 December 2009, the final text of the
Rome I Regulation entered in force.28 Certain explanatory text parts written with a view to the
initial 2005 proposal ‘survived’, however, as they were taken up in the Preamble to the Rome I
Regulation. This legislative flaw makes it fairly complicated to take ‘authority’ from that Preamble
as may from doctrinal sources.29
A.P. van der Mei (eds.), The Treaty on the European Union 1993-2013: Reflections from Maastricht (Intersentia,
2013), p. 337-353.
25. Currently, Article 81 TFEU (formerly Article 65 TEC) as enshrined in Chapter 3, Judicial Cooperation in Civil Matters
includes ‘the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction’.
26. The CJEU was thus directly attributed the power of uniform interpretation (i.e., ‘protocols’ no longer to be signed by
most if not all ‘contracting’ EU Member States).
27. For detailed treatment compare, inter alia, S. Leible and M. Lehmann, ‘Die Verordnung über das auf vertragliche
Schuldverhältnisse anzuwendende Recht (“Rom I”)’, 54 Recht der internationalen Wirtschaft (2008), p. 528;
P. Mankowski, ‘Der Vorschlag für die Rom I-Verordnung’, 25 Praxis den Internationalen Privat- und Verfah-
renrechts (2006), p. 101; P. Lagarde, ‘Remarques sur la propositioned règlement de la Commission Europeènne sur
la loi applicable aux obligations contractuelles (Rome I)’, Revue critique de droit international privé (2006),
p. 331; O. Lando and P.A. Nielsen, ‘The Rome I Proposal’, 3 Journal of Private International Law (2007), p. 29;
S.F.G. Rammeloo, ‘Via Romana. Van EVO naar Rome I – Nieuw Europees IPR inzake het recht dat van toe-
passing is op verbintenissen uit overeenkomst’, 3 Nederlandse Internationaal Privaatrecht (2006), p. 239; T.H.M.
Van Wechem, ‘Rome I: verscholen ingewikkeldheden’, in T.H.M van Wechem (ed.), Europese conflictrefels voor
de overreenkomst en de onrechtmatige daad; Rome I en II – Zicht op zekerheid nog ver weg (T.M.C. Asser Press,
2008), p. 5.
28. See also, Corrigendum to Regulation No. 593/2008/EC of the European Parliament and of the Council of 17 June 2008
on the law applicable to contractual obligations (Rome I), [2009] OJ L 309/87.
29. Compare, T.H.M Van Wechem, in T.H.M. van Wechem (ed.), Europese conflictrefels voor de overreenkomst en de
onrechtmatige daad; Rome I en II – Zicht op zekerheid nog ver weg, p. 7, 8. Apart from this, altogether the Preamble
amounts to no more than three pages which ‘explains’ the Regulation as a whole.
B. EU intertemporal EU conflict of laws on contractual obligations – ‘RCC’ or the Rome I

Regulation?
1.‘Statutenwechsel’ – Private International Law methodology
From the early days of the Rome I Regulation, intertemporal complications were to be expected.
By their very nature, long-lasting contractual relationships are susceptible to intertemporal or
transitory law-related complications, thereby considerably thwarting legal certainty.30 In the Niki-
foridis case, the CJEU was first requested to provide for a preliminary ruling demarcating the
scope ratione temporis of the Rome I Regulation, and to do so in a preferably workable manner.
Generally speaking, one could say the options were as such: either that the CJEU could decide in
favour of a ‘one size fits it all’ formula; or of ‘Einzelfallgerechtigkeit’ (that is, leaving room for a
proper and meticulous case by case analysis). The struggle preceding the CJEU’s ruling is well-
reflected in the Advocate General’s and the CJEU’s lengthy observations.
Reiterated briefly, the relevant facts tell us that the employment relationship between the Greek
Republic and Mr Nikiforidis entered into in 1996 was subjected to an ‘Änderungskündigung’ in
2010 (termination with reengagement on amended terms). If there was no explicit ‘termination
with reengagement’, the chances that this employment conflict would have culminated in a
preliminary question pertaining to transitory law would have been greatly diminished, as any
amended but continued employment relationship would presumably remain governed by the
‘RCC’ (which entered in to force in April 1991, and was replaced by the Rome I Regulation
on 17 December 2009, the latter according to Article 28 being applicable to ‘contracts concluded
after 17 December 2009’). However, as the facts obviously differ from this hypothesis, the crucial
question concerning which of the two European PIL instruments should apply, inevitably needed
to be answered.31
In the methodological framework of PIL, transitory law questions are commonly referred to as
Statutenwechsel, in this case boiling down to the question of which (European, international or
national) conflict of law instrument is applicable in a given case, running a legal relationship, the
conflict of law regime is subject to changes. The wording of Article 28 of the Rome I Regulation is
in itself incapable of providing conclusive answers, as this proviso does not solve the question of
whether the 2010 arrangement between employer and employee must be considered as a new
contract, concluded after December 2009. In this respect, the Preamble is unable to provide any
guidance on this issue, let alone provide any conclusive answers.
It must therefore be asked, theoretically speaking, which PIL ‘tools’ provide a, preferably
satisfactory, solution to these issues. Generally speaking, an answer to the question at stake may
be found indirectly, either via a ‘neutral’ conflict of law approach, by submitting the question to
either the lex fori (the law of the legal order where the court resides, in the Nikiforidis case:
Germany), or the lex causae (the law of the legal order that would have applied if the contract
would existed, which again in the case of Nikiforidis would be German law). Another option
would be to adhere to an autonomously formulated and directly applicable ‘material’ criterion.
30. S. Rammeloo, in M. de Visser and A.P. van der Mei (eds.), The Treaty on the European Union 1993-2013: Reflections
from Maastricht, p. 243.
31. The outcome to this question is far from theoretical, as it also bears a fundamental impact on the answer to the second
preliminary question having regard to the status of ‘foreign’ mandatory laws as will be observed (compare with Section
4.C. below).
Rammeloo 307
2. Opinion of the Advocate General

The Advocate General decided to adopted the first method. To be more precise, Article 10(1) of
the Rome I Regulation states: ‘The existence and validity of a contract, or of any term of a
contract, shall be determined by the law which would govern it under this Regulation if the
contract or term were valid’.32 In view of the fact that, inter alia, ‘as a contract is inextricably
linked to the legal system governing the particular contract (and) EU law contains no provisions
governing the issue of the conclusion of contracts’,33 it would not be feasible to create ‘an
autonomous concept of the conclusion of a contract’.34
The Advocate General’s Opinion also follows a teleological interpretation of the law. By
harmonizing the conflict-of-law rules, the EU legislature sought, inter alia, to increase legal
certainty in relation to determination of the law applicable.35 It is thus for German law to determine
whether there has been, in the period since 17 December 2009, such amendment of the employment
contract concluded between the parties that it can be regarded as constituting the conclusion of a new
contract. That contract would then be governed by the conflict-of-law rules contained in the Rome I
Regulation.36
Intriguing is the appreciation given by the Advocate General to the outcome of such an inquiry,
insofar as
[t]his would appear unlikely having regard to the facts set out in the order for reference. The employ-
ment relationship between the parties was entered into on 16 September 1996 and no amendments were
made to the employment contract from 17 December 2009 until the disputed unilateral reduction in
pay’, although, admittedly, any such ‘approach cannot be applied in a mechanical manner and in
particular should not cover long-term obligations.37
This assertion is intriguing because not only the content of the contractual employment conditions
but (also?) the time span – the period between the entry in force of the Rome I Regulation and the
material changes in the employment conditions – would play a role.
The downside of this approach, as conceded by the Advocate General, is that potentially
speaking, long-lasting contractual relationships could be ‘governed still by “old” conflict-of-law
rules even many years after the Rome I Regulation entered into force’.38
32. This conflict of law approach is well-known as the ‘Baron von Mönchausen’ rule, referring to the baron who allegedly
managed to escape from a swamp by pulling his own hair. Although, strictly speaking, the Advocate General’s rea-
soning seems to be based on circular reasoning, as the question whether or not ‘Rome I’ is applicable ratione temporis
cannot be taken from applying a proviso (Article 10 of the Rome I Regulation) from a law source of which it is (still)
uncertain whether it is applicable or not. This complication is absorbed though for two reasons: (i) Article 8(1) of the
RCC provides for exactly the same principle; (ii) and furthermore, as the CJEU observed in Case C-135/15 Greek
Republic v. Grigorios Nikiforidis, para. 30, Article 10 ‘which does not deal with the temporal scope of the Rome I
Regulation, is not relevant in connection with the answer to be given to the first question referred’.
33. Opinion of Advocate General Szpunar in Case C-135/15 Greek Republic v. Griogios Nikiforidis, EU:C:2016:281, para.
41.
34. Ibid.
35. Ibid., para. 40-46.
3. Judgment of the CJEU

The CJEU did not endorse the Advocate General’s reasoning. The CJEU’s point of departure was
that Article 28 of the ‘Rome I Regulation’ must be interpreted ‘autonomously and uniformly’.39
According to the drafting history of Article 28 of the ‘Rome I Regulation’,40 it follows that,
contrary to what the referring court envisaged, ‘any agreement by the contracting parties, after
16 December 2009, to continue performance of a contract concluded previously cannot have the
effect of making the Rome I Regulation applicable to that contractual relationship without thwart-
ing the clearly expressed intention of the EU legislature’.41 It is, to put it in other words, not for the
contracting parties to ‘frame’ their long-lasting contractual relationship to the effect of ‘making’
the Rome I Regulation applicable, as ‘even [a] minor, variation made by the parties, on or after 17
December 2009, to a contract initially concluded before that date were sufficient to bring that
contract within the scope of the Rome I Regulation’.42 On the other hand, however,
a variation agreed between the contracting parties of such magnitude that it gives rise not to the mere
updating or amendment of the contract but to the creation of a new legal relationship between the
contracting parties, so that the initial contract should be regarded as having been replaced by a new
contract, concluded on or after that date, for the purposes of Article 28 of the Rome I Regulation.43
4. Critical analysis
In what way is the CJEU’s approach more or less satisfactory than the approach advocated by the
Advocate General? If one leaves out taking in to consideration the ‘time span’ between the date of
entry in force of the Rome I Regulation and the moment changes in the employment relationship
are introduced,44 neither approach seems preferable: both the lex causae oriented approach (that is,
pursuant to Article 10 of the Rome I Regulation it would be for German law to decide, probably on
a case by case analysis) and the CJEU’s criterion (‘a variation being of such magnitude (…)’) at
the end of the day unavoidably end up in the famous – if not notorious – Sorites proof of having to
‘weigh’ all employment conditions.45 As a consequence, ex post legal certainty (that is, following
amendments to the contract conditions) is reduced considerably, if not altogether.

40. Ibid., para. 34, citing the wording of the initial Proposal for a Regulation of the European Parliament and the Council
on the law applicable to Contractual Obligations, COM(2005) 650 final, preceding the final text of ‘Rome I’ must be
recalled here: whereas this draft text still envisaged the inclusion of ‘contractual obligations arising after its entry into
application’, the reference to such obligations was replaced in Article 28 of the Rome I Regulation by a reference to
‘“contracts” concluded from 17 December 2009’.
44. Compare, the Opinion of Advocate General Szpunar in Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para.
45 and 46.
45. The ‘sorites paradox’ prescribes that if a heap is reduced by a single grain at a time, at what exact point does it cease to
be considered a heap? For literature criticizing the lack of predictability, see K. Duden, ‘Comment to Greek Republic v.
Nikiforidis’, Europäische Zeitschrift für Wirtschaftsrecht (2016), p. 940: ‘Der EuGH gibt für die Abgrenzung keine
weiteren Kriterien vor. Verstärkt wird die entstehende Unsicherheit dadurch, dass konsequenterweise auch hier ein
Rückgriff auf nationale Vergleichspunkte zugunsten eines autonomen europäischen Verständnisses verwehrt bleiben
müsste’.
Rammeloo 309
5. Suggestions for future legislative amendments to the ‘Rome I’ Regime

The foregoing observations justify asking whether not the CJEU could have perhaps opted for
another, more satisfactory, alternative, taking in to account legal certainty and predictability. It is
worth asking how far the European Private International Law acquis, notably a preliminary ruling
on the temporal scope of EU Regulation No. 864/200746 (the Rome II Regulation) on the Law
Applicable to Non-contractual Obligations, can provide workable guidelines.47 Analogous reason-
ing in the context of the Rome I regulation does not seem recommendable though: unlike con-
tractual obligations that are presumably entered in to as a result of the mutual consent of both
parties; the interest to protect ‘involuntary creditors’ (that is tort victims) in the case of non-
contractual obligations which underpins the Rome II Regulation, clearly prevails over the interest
of legal certainty and predictability for long-lasting (employment as well as many other) contrac-
tual relationships.48
Another approach which can be derived from national PIL legislature deserves notice. As
Article 17 of the RCC demarcated the temporal scope in the same manner as Article 28 of the
Rome I Regulation; a few decades ago, academics and practitioners faced similar complications in
view of long-lasting employment relationships which were entered into before the RCC became
operational, but which did not expire until many years after. Under German law attempts were
made to tackle this problem via the intertemporal law proviso of Article 220(1) of the (then)
German Private International Law Code of 1986, which stipulated: ‘In the case of contracts
concluded before the 1 September 1986, the existing international private law remains applica-
ble’.49 This demarcation line thus attributed retroactive effect to ‘new’ PIL rules, in particular with
a view to employment relationships entered into before September 1986, but which were not yet
terminated at that date.50
46. Regulation No. 864/2007/EC of the European Parliament and of the Council of 11 July 2007 on the law applicable to
non-contractual obligations (Rome II), [2007] OJ L 199/40.
47. Case C-412/10 Deo Antoine Homawoo v. GMF Assurances SA, EU:C:2011:747, para. 37: ‘Articles 31 and 32 of (…)
“Rome II”, read in conjunction with Article 297 TFEU (require) national courts to apply the Regulation only to events
giving rise to damage occurring after 11 January 2009 and that the date on which the proceedings seeking compen-
sation for damage were brought or the date on which the applicable law was determined by the court seized have no
bearing on determining the scope ratione temporis of the Regulation’.
48. Compare G. Van Calster, ‘Which strap on which boot? CJEU rejects Von Mönchausen in Nikiforidis without sug-
gesting an alternative. And it leaves effet utile stranded in the mud’, GAVC Law (2016), https://gavclaw.com/2016/10/
28/which-strap-on-which-boot-cjeu-rejects-von-munchausen-in-nikiforidis-without-suggesting-alternative-and-it-
leaves-effet-utile-stranded-in-the-mud/, who comments on the Nikiforidis case, saying that the European Parliament
observed that, ‘[u]nlike in the case of torts and delicts, contracts are entered into deliberately and voluntarily. It is
essential for the parties to know that the provisions on applicable law contained in this Regulation will apply only to
contracts concluded after its date of application. Therefore proceedings brought after the date of application concerning
contracts concluded before that date will apply the Rome Convention’.
49. Author’s translation, original: ‘Auf vor dem 1. September 1986, abgeschlossene Vorgänge bleibt das bisherige
Internationale Privatrecht anwendbar’.
50. Compare, S. Rammeloo, Das neue EG-Vertragskollisionsrecht. Die Artt. 4, 5 und 6 des Übereinkommens über das auf
vertragliche Schuuldverhältnisse anzuwendende Recht vom 19.6.1980. Eine rechtsvergleichende Analyse objektiver
Vertragsanknüpfungen (Carl Heyman, 1992), p. 244 et seq., with reference to doctrine. For current German transitory
law, see, inter alia, Preliminary Title to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzsbuch), https://
dejure.org/gesetze/EGBGB. See further, D. Martiny, ‘Art. 28 Rom I-VO Rn. 3’, in F.J. Säcker et al. (eds.), Münchener
Kommentar zum Bürgerlichen Gesetzbuch (Beck, 2015); H.J. Sonnenberger, ‘Art. 220 EGBGB’, in F.J. Säcker et al.
(eds.), Münchener Kommentar zum Bürgerlichen Gesetzbuch (4th edition, Beck, 2006), comment 24.
How would, hypothetically speaking, this approach work out under the auspices of the Rome I
Regulation? It arguably would have provided considerably more guidance. Three transitory law
fact constellations can be distinguished: (i) generally speaking, the Rome I Regulation would
replace the previously applicable PIL rules to contracts of employment concluded before 17
December 2009, which, however, have not expired at that date. It is, after all, questionable why
employment relationships should remain subjected to ‘ancient’ European conflict of law rules for
many years after the date on which they were entered into. With a view to (ii) employment
relationships concluded before December 2009, amended before 2009, either in detail or in
‘magnitude’, but not having expired at that date, then without a doubt the Rome I Regulation
would equally apply. Finally, and this seems far more preferable to the ‘magnitude’ criterion being
fulfilled ad hoc, (iii) with a view to employment relationships commenced before December 2009
but amended after (such as in the dispute between the Greek Republic and Mr Nikiforidis) one
may assume that labour law disputes may be brought under the auspices of the Rome I Regulation
as well: either as a new contract (‘magnitude’ of changes), or as ‘the same’ contract (where no such
‘magnitude’ exists).
Audacious as the approach advocated here indeed may seem at first sight,51 one may, on the
other hand, ask whether or not the approach adopted by the CJEU is worse than the ‘disease’. It
must be immediately admitted, however, that neither the wording nor the legislative history would
have allowed the CJEU to manifestly deviate from the drafters’ intentions, but in the course of
future consultation rounds with a view to revising the Rome I Regulation, amending the temporal
scope is an issue which deserves much-needed attention. After all, it must be borne in mind that
besides employment relationships, there are also many other long-lasting contractual relationships
(distribution, finance, cooperation, franchise, rendition of services, renting, and so on), which are
currently ‘surviving’ changes in European PIL. A European level playing field necessitates legal
certainty and predictability, which is also the case from a transitory law perspective.
Such discussion is, however, for the future to deal with. It seems apt to conclude the following
for now: in line with the drafting history of the Rome I Regulation which undeniably limits the
range of all conceivable options to interpret intertemporal PIL vis-á-vis contracts, the CJEU
autonomously introduced the ‘magnitude’ of the change in employment conditions criterion, rather
than committing itself to a ‘one-size-fits-it-all’ formula. This outcome not only results in a high
degree of legal uncertainty, but it may also lead to a blurred image and to time and money
consuming arbitrary decisions in court proceedings. Even more, the ‘magnitude’ criterion could
be abused, or at least interpreted with a view to other aims, as it enables courts to lift Von
Savigny’s blindfold: the substantive outcome of the dispute as a whole may be framed in the
awareness of the fundamental change under ‘Rome I’ in respect of the highly controversial issue of
foreign mandatory laws overriding the process of finding the normally applicable lex laboris.
51. Compare, L. Günther, ‘German Federal Labour Court on Foreign Mandatory Rules and the Principle of Cooperation
among EU Member States’, Conflictoflaws.net (2015), http://conflictoflaws.net/2015/german-federal-labour-court-on-
foreign-mandatory-rules-and-the-principle-of-cooperation-among-eu-member-states/: ‘the legislative procedure shows
that the drafters decided consciously against a retroactive effect of the Rome I Regulation (cf. von Hein, in: Thomas
Rauscher [ed.], EuZPR/EuIPR, Munich, 2011, Art. 8 Rome I para.16). While Art. 24(3) of the Proposal for a Reg-
ulation of the European Parliament and the Council on the law applicable to contractual obligations (Rome I), COM
(2005) 650 final, provided for a limited retroactive effect, this transitional provision was deleted and did not become a
part of the final Rome I Regulation’.
Rammeloo 311
C. RCC and the Rome I Regulation on foreign overriding mandatory laws

1. Standard conflict of law rule for employment relationships: legal continuity
Before unraveling the lengthy Opinion of the Advocate General in relation to the second prelim-
inary question pertaining to the extent to which foreign mandatory laws may override the lex
laboris which would normally apply, it seems appropriate to briefly explain the European conflict
of law rule designating that lex laboris for ‘standard’ cross-border employment conflicts first.
Under the RCC, the law applicable to individual employment contracts had to be designated via
the conflict rule contained in Article 6 thereof. This proviso has been retained and renumbered as
Article 8 of the ‘Rome I Regulation’, and has been amended in detail only. The latter proviso reads
as follows:52
1. An individual employment contract shall be governed by the law chosen by the parties in
accordance with Article 3. Such a choice of law may not, however, have the result of
depriving the employee of the protection afforded to him by provisions that cannot be
derogated from by agreement under the law that, in the absence of choice, would have been
applicable pursuant to paragraphs 2, 3 and 4 of this Article.
2. To the extent that the law applicable to the individual employment contract has not been
chosen by the parties, the contract shall be governed by the law of the country in which or,
failing that, from which the employee habitually carries out his work in performance of the
contract.
3. The country where the work is habitually carried out shall not be deemed to have changed
if he is temporarily employed in another country.
4. Where the law applicable cannot be determined pursuant to paragraph 2, the contract shall
be governed by the law of the country where the place of business through which the
employee was engaged is situated.
5. Where it appears from the circumstances as a whole that the contract is more closely
connected with a country other than that indicated in paragraphs 2 or 3, the law of that
other country shall apply.
Bearing in mind the minor differences in substance between the conflict rules contained in
Article 6 of the RCC and Article 8 of the Rome I Regulation, the CJEU’s reasoning in its
Koelzsch53 and Voogsgeerd54 rulings, namely that considerable weight must be placed on the
interest of legal continuity in the area of EU PIL pertaining to contracts, is conceivable.55
52. Emphasis added. The sole amendments to Article 6 of the RCC can be seen with reference to the italicized words in the
original quotation.
53. Case C-29/10 Koelzsch v. Luxembourg, EU:C:2011:151. For commentary, see CJCE Système MINIDOC, ‘Notes aux
arrêts de la Cour de justice’, Curia (2009), http://curia.europa.eu/jcms/upload/docs/application/pdf/2009-05/notes_05.
pdf.
54. Case C-384/10 Voogsgeerd, EU:C:2011:842. For commentary, see CJCE – Système MINIDOC, ‘Notes aux arrêts de la
Cour de justice’, Curia (2009), http://curia.europa.eu/jcms/upload/docs/application/pdf/2009-05/notes_05.pdf.
55. Thus, explicitly, the CJEU held in Case C-29/10 Koelzsch v. Luxembourg, para. 45, 46 that the interpretation of Article
6 of the RCC is ‘consistent also with the wording of the new provision on the conflict-of-law rules relating to indi-
vidual contracts of employment, introduced by Regulation No 593/2008’ (emphasis added). For in depth discussion,
compare, inter alia, S.F.G. Rammeloo, ‘Grensoverschrijdende arbeid. Favor laboratoris, Statutenwechsel en eenvor-
mige interpretatie van Europees IPR’, in T.M. de Boer et al. (eds.), Strikwerda’s conclusies – Opstellen aangeboden
The lex laboris, which is held applicable to ‘standard’ employment conflicts, will thus hardly
ever result in salient conflicts.56 The contrary must be said, however, in view of mandatory laws
potentially overriding the lex laboris, as is the case in the context of the Rome I Regulation, which
as will be seen below, provides for a quite drastic change in trajectory.
2. The nature and status of foreign mandatory laws under the Rome I Regulation: legal discontinuity?
Given that the lex laboris (German law) was not as such being contested in the dispute between the
Republic of Greece and Mr Nikiforidis, the conflict boiled down to the question of whether the
relevant Greek laws, as ‘foreign’ overriding mandatory provisions, were allowed to reduce Mr
Nikiforidis’s income, especially as such a reduction was obviously not permissible under the
German lex laboris.
The question is therefore: what exactly constitutes ‘mandatory laws’ and how are they regulated
under EU PIL? Where its predecessor Article 7 of the RCC remained silent, Article 9(1) of the
Rome I Regulation provides an autonomous definition of ‘mandatory laws’57 which was codified
following the CJEU’s judgment in Arblade:58
Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a
country for safeguarding its public interests, such as its political, social or economic organisation, to
such an extent that they are applicable to any situation falling within their scope, irrespective of the law
otherwise applicable to the contract under this Regulation.
Such laws apply on the basis of what, according to PIL terminology, is commonly referred to as
their Geltungswille, namely ‘regardless of the law governing the legal relationship under exam-
ination. In other words, those provisions themselves determine their scope, which cannot be
restricted even where conflict-of-law rules designate other law as applicable to the assessment
of the legal relationship concerned’. 59 The Greek laws, which derived from economic
aan Mr. L. Strikwerda ter gelegenheid van zijn afscheid als advocaat-generaal bij de Hoge Raad der Nederlanden
(Kluwer, 2011), p. 395.
56. This observation may as well serve as additional argument in view of the suggestion made on the temporal scope, see
Section 4.B.5.
57. As a distinct legal phenomenon in PIL they were firstly defined by P. Francescakis, ‘Quelques precisions sur les lois
d’application immediate et leurs rapports avec les règles de conflits des lois’, Review critique de droit international
privé (1966), p. 1.
58. Joined Cases C-369/96 and C-376/96 Arblade, EU:C:1999:575. For a flood of comments see, CJCE – Système
MINIDOC, ‘Notes aux arrêts de la Cour de Justice’, Curia (2009), http://curia.europa.eu/jcms/upload/docs/application/
pdf/2009-05/notes_05.pdf. For recent writings on overriding mandatory laws under the reign of the Rome I Regulation
in a general contractual context, see, G. Van Calster, European Private International Law (2nd edition, Bloomsbury,
2016), p. 229 et seq.; J. Hill and M. Maíre Ní Shuilleabhaín, Clarkson & Hill’s Conflict of laws (Oxford University
Press, 2016), Ch. 4; R. Freitag, ‘Art. 9 RomI-VO, Art. 16 Rom-II VO als Superkollisionsnormen des Internationalen
Schuldrechts? – Gedanken zum Verhältnis zwischen internen und externen Lücken des EuIPR’, Praxis des Inter-
nationalen Privat- und Verfahrensrechts (2016), p. 418; P. Mankowski, ‘Drittstaatliche Embargonormen Aussenpolitik
im IPR, Berücksichtigung von Fakten statt Normen: Art. 9 Abs. 3 Rom I VO im praktischen Fall (zu Cour d’Appel de
Paris, 25-2-2015, 12/23757)’, Praxis des Internationalen Privat- und Verfahrensrechts (2016), p. 487. For in particular
employment relationships and mandatory laws: R. Callsen, Eingriffsnormen und ordre public Vorbehalt im inter-
nationalen Arbeitsrecht – ein deutsch-französischer Vergleich (Nomos, 2015).
59. Opinion of Advocate General Szpunar in Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 65 (emphasis
added), referring, inter alia, to M. Hellner, ‘Third Country Overriding Mandatory Rules in the Rome I Regulation: Old
Rammeloo 313
arrangements concluded between Greece and the European Commission, the European Central
Bank and the International Monetary Fund, undeniably qualified as a species of such laws, and
indeed were claimed to be applied.
The next question therefore must be: the mandatory laws of which ‘foreign’ legal orders can,
may, or perhaps even must be taken into account by courts? Theoretically speaking first, such
mandatory laws can originate (i) from the lex fori (here, German law), (ii) from the lex causae, for
in particular employment contracts referred to as the lex laboris (again, German law), or (iii) from
any other, closely connected ‘foreign’ system of law (here, Greek law claiming to be applied).
Under the law, currently applicable from 17 December 2009, Article 9(2) and (3) of the Rome I
Regulation, whilst not covering mandatory laws emerging from the lex causae,60 solely set certain
standards for categories (i) and (iii):
1. Nothing in this Regulation shall restrict the application of the overriding mandatory pro-
visions of the law of the forum.
2. Effect may be given to the overriding mandatory provisions of the law of the country where
the obligations arising out of the contract have to be or have been performed, in so far as
those overriding mandatory provisions render the performance of the contract unlawful. In
considering whether to give effect to those provisions, regard shall be had to their nature
and purpose and to the consequences of their application or non-application.
In view of ‘foreign’ mandatory laws, the wording of Article 9(3) of the Rome I Regulation only
allows effect to be given to ‘mandatory provisions of the law of the country where the obligations
arising out of the contract have to be or have been performed’, whereas its predecessor, Article 7
(1) of the RCC referred to ‘mandatory rules of the law of another country [that is potentially
speaking any other ‘foreign’ country] with which the situation has a close connection’. One may
thus conclude that geographically (and therefore also functionally) speaking, the scope of Article 9
(3) of the Rome I Regulation has been considerably restricted.
The facts in Greek Republic v. Nikiforidis61 clearly show that as the court proceedings took
place in Germany, Greek mandatory laws did not emanate from the lex fori (or even the lex
laboris), and, this is where the pain came from, as Greece was not the country ‘where the
obligations arising out of the contract have to be or have been performed’ either. Strictly speaking,
and in clear contrast to Article 7(1) of the RCC, there seemed to be no discretion for the courts to
take into account (let alone apply) those mandatory laws under the auspices of the Rome I
Regulation.
Wine in New Bottles?’, 5 Journal of Private International Law, (2009), p. 451-454; and M. McParland, The Rome I
Regulation on the Law Applicable to Contractual Obligations (Oxford University Press, 2015), p. 697-705.
60. According to the Opinion of Advocate General Szpunar in Case C-135/15 Greek Republic v. Grigorios Nikiforidis,
para. 76, there is a satisfactory explanation for that, as ‘the issue of the permissibility of their application does not arise
at all. In that regard it is irrelevant whether or not the lex causae is identical to the law of the court which is hearing the
case (lex fori)’.
61. Interestingly, another dispute in national court proceedings did not challenge preliminary questions, compare P.
Mankowski, Praxis des Internationalen Privat- und Verfahrensrechts (2016), p. 487.
3. Opinion of the Advocate General

No less than 73 paragraphs62 reflect the Advocate General’s struggle in attempting to formulate –
if not to frame63 – a more or less ‘satisfactory’ Opinion on the question of whether, and if so, to
what extent ‘foreign’ mandatory laws other than, according to the literal wording of Article 9(3),
the country where the contract is to be performed may override the lex causae, and whether and to
what extent Article 4(3) TEU comes into play.
The point of departure of the Advocate General’s reasoning was that if the RCC was applicable:
The Republic of Germany has reserved the right, under Article 22(1)(a) of the Rome Convention, not
to apply Article 7(1). As the German Government rightly notes in its written observations, on account
of this reservation Article 7(1) of the Rome Convention cannot apply in the main proceedings before
the German court.64
As the concept of ordre public is regulated by Article 21 of the ‘Rome I Regulation’ and therefore
must be distinguished from mandatory laws,65 it is observed that for the latter a ‘catalogue of a
priori privileged provisions cannot be created’,66 for the reason that ‘the scope of such provisions
does not arise directly from their wording. The court deciding a particular case determines their
application on a case-by-case basis’.67
The origin of the overriding mandatory provisions, notably of a third state is ‘the greatest
controversy’.68 The controversy over Article 7(1) of the RCC was ‘reflected in the travaux
préparatoires for the [sic] Rome I Regulation’,69 ultimately culminating in two restrictions. First,
effect may be given to the provisions of the state where the obligations arising out of the contract
have to be or have been performed. Secondly, that is permissible only in so far as those provisions
render the performance of the contract unlawful.70
What is notably questionable is, ‘the extent to which EU law can prohibit, restrict or require the
application of specific overriding mandatory provisions’.71 A strict adherence to Article 9(3) of the
Rome I Regulation
62. Opinion of Advocate General Szpunar in Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 53-126.
63. Compare my comments to the Opinion and judgment below.
64. Opinion of Advocate General Szpunar in Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 58, followed by
a shortcut (ibid., para. 59-61), whereby the Advocate General did not discuss the debate as to the question raised by the
Commission of whether pursuant to the reservation contained in Article 22 of the RCC, this would rule out any
possibility to, nevertheless, consider foreign overriding mandatory provisions.
65. Opinion of Advocate General Szpunar in Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 65-70, 79, ‘Use was
made of that reservation by Ireland, Germany, Lithuania, Luxembourg, Portugal, Slovenia and the United Kingdom’.
67. Ibid., para. 72, 73.
68. Ibid., para. 78 (emphasis added), although it was stated, ‘I even get the impression that the interest of legal literature in
the issue has been largely disproportionate to its rather limited practical importance’.
69. Ibid., para. 80. In his Opinion, the Advocate General set out the view of protagonists (fair decisions based on legitimate
interests; international harmony and reduction of forum shopping) when it comes to taking into account the mandatory
laws of third states. G. Van Calster, European Private International Law, p. 230, depicts the other side of the coin: i.e.
Member States showing concern ‘especially because of the impact on their financial services sector (UK, Germany,
Luxembourg)’.
added).
Rammeloo 315
as advocated by Germany, would according to the Opinion of the Advocate General, not be
consistent with the objective of the Rome I Regulation for the following reasons. Firstly, the
‘rationale and objectives’ in many cases ‘may also be in the interest of another Member State’,72
and secondly states have a legitimate interest in ‘the court hearing the case’.73 Thirdly, establishing
such a different treatment of mandatory provisions of the forum state and of a third state promotes
forum shopping (‘it would thus be possible to imagine that, if proceedings relating to the same
matter of dispute were initiated before a Greek court, it would undoubtedly apply its own over-
riding mandatory provisions pursuant to Article 9(2) of the Rome I Regulation’).74 Finally, con-
cerns that mandatory provisions of a third state could prejudice legal certainty and render decisions
unpredictable, was considered unconvincing.75
An excessively strict interpretation cannot, therefore, be placed on the concept of ‘country
where the obligations are to be or have been performed’, apart from the fact that ‘there is no
outright presumption that Germany alone is the place where the obligation is performed in the
main proceedings in this case’.76 However, as the Advocate General continued,
since the referring court found that Germany alone is the place where the contract in question is
performed and has not directly requested an interpretation of Article 9(3) of the Rome I Regulation in
that respect, I propose that the Court address only the issue which forms the subject matter of the
second question: application of, and substantive regard to, foreign overriding mandatory provisions’.77
Hence:
application of overriding mandatory provisions is one thing, and substantive regard to foreign over-
riding mandatory provisions (“materiell-rechtliche Berücksichtigung ausländischer Eingriffsnor-
men”)78 is another. In that respect the referring court points to the German case-law and legal
literature which allow regard to be had to foreign overriding mandatory provisions – in the context
of applying German law as the lex causae – as matters of fact.79

73. Ibid., para. 86-88.
75. Ibid., para. 90, whilst comparing Article 9 of the RCC with the regime contained in Article 21 of the Rome I Reg-
ulation on ordre public.
76. Ibid., para. 91-15, whilst a functional comparison is made as to the complex nature of ‘the place of performance of the
obligation in question’ as per Article 7(1) of Regulation No. 1215/2012/EU of the European Parliament and of the
Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and com-
mercial matters, [2012] OJ L 351/1.
added).
78. Compare, L. Günther, ‘German Federal Labour Court on Foreign Mandatory Rules and the Principle of Cooperation
among EU Member States’, Conflictoflaws.net (2015), http://conflictoflaws.net/2015/german-federal-labour-court-on-
foreign-mandatory-rules-and-the-principle-of-cooperation-among-eu-member-states/: This is ‘how German courts used
to consider third country overriding mandatory provisions before the Rome I Regulation entered into force. As Art. 7
(1) of the Rome Convention on the law applicable to contractual obligations from 19 June 1980 was never adopted in
Germany, the German courts had to rely on blanket clauses in the lex causae allowing such consideration within the
framework of substantive law rather than applying them pursuant to conflict of laws rules’.
79. Opinion of Advocate General Szpunar in Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 97. Article 34
of the already mentioned German EGBGB which was repealed with effect from 17 December 2009, provided:
And although the practical difference between the application of, and substantive regard to, an
overriding mandatory provision is almost imperceptible, and although the Commission’s fear that
the permissibility of substantive regard to a foreign overriding mandatory provision could lead to
circumvention of the restrictions laid down in Article 9(3) of the Rome I Regulation, was acknowl-
edged, an interpretation whereby any other possibility of having regard to overriding mandatory
provisions of a third state is ruled out, was believed to be excessively strict.
On the contrary, in every legal system there are provisions which contain undefined terms. They
could be, for example, ‘morality’, ‘good faith’, ‘legitimate interest of the party’ or ‘good beha-
viour’. They serve to provide the courts with the appropriate discretion. I have no doubt that in the
context of applying such provisions, account can be taken – as matters of fact – of the legal rules
in force in other states. This concerns primarily those legal rules which arise from the need to
safeguard objectively justified interests and which are appropriately linked to the contractual
relationship under examination. I have no doubt that in such situations there is application of the
applicable law which governs the contract concerned. In other words, it is not a derogation from
the application of the lex causae.80
Meanwhile,
the application thereof or substantive regard [of third country mandatory laws] – is not automatic. The
court hearing the case has a large degree of discretion which is intended to enable it to give a fair
decision that has regard to the legitimate interests of the parties and also the interests of the States
whose law affects the legal relationship concerned (…)
The possibility cannot be ruled out that in the present case the referring court will not have regard to
the provisions of Greek law in their entirety and will consider only a partial reduction in Mr Nikifor-
idis’s pay to be legitimate. That court may also rule – as did the court of second instance in this case the
German Landesarbeitsgericht (Higher Labour Court) – that having regard to the provisions of Greek
law is contrary to the fundamental principles of German labour law.81
According to the Advocate General’s Opinion, Article 9(3) of the Rome I Regulation ‘does not
preclude indirect substantive regard to foreign overriding mandatory provisions where that is
permitted under the law of the State whose law governs the contract’,82 consequently, it must
be considered whether the principle of sincere cooperation between Member States laid down in
Article 4(3) TEU requires effect be given to the Greek laws referred to above.83 Fundamental as
the duty to cooperate may be, regard must nevertheless be had to its scope, as it binds Member
States solely insofar they apply EU law. In that respect, it is considered irrelevant whether or not
the law applicable to the employment contract was designated by EU PIL.
In answering the third question, it is thus essentially irrelevant whether the applicability of
German law to that contract arises from the Rome I Regulation or from German conflict of law
rules implementing the RCC. The issue of having regard to Greek Laws No. 3833/2010 and No.
3845/2010 is an essential element indicating a possible link between the main proceedings and the
‘Nothing in this subsection shall restrict the application of rules of German law in a situation where they are mandatory
irrespective of the law otherwise applicable to the contract’.
80. Ibid., para. 101-106.
81. Ibid., para. 109-110.
82. Ibid., para. 112.
83. Ibid., para. 114.
Rammeloo 317
application of EU law. First, Decision 2010/32084 – pursuant to which the two Greek laws were
adopted – is addressed to Greece and not Germany. Therefore, it cannot – even in the light of
Article 4(3) TEU – require a German court to not apply the provisions of German law, which after
all is applicable to the employment relationship at issue. Secondly, as the Commission correctly
pointed out, the obligation to reduce the pay of persons employed in the public sector does not,
with the exception of certain bonuses and allowances, arise directly from Decision 2010/320.
Thirdly, as the order for reference shows, the provisions of German employment law do not
preclude a reduction in the pay of workers employed in Greek public institutions in Germany,
but merely require that the employer fulfils certain conditions applicable to a rider to an employ-
ment contract or to termination with reengagement on amended terms.
In light of the foregoing, the Advocate General considered that it was not possible to derive
from the principle of sincere cooperation – laid down in Article 4(3) TEU – an obligation to give
effect to the provisions of another Member State, even where they serve to ensure that that state
satisfies its EU obligations. This applies both to a situation where a court considers having regard
to such provisions as matters of fact in the context of applying the lex causae, and to a situation
where the court applies Article 9(3) of the Rome I Regulation. However, as the Advocate General
asserted, Article 9(3) in fine of the Rome I Regulation expressly provides that, in considering
whether to give effect to those provisions, regard is to be had to their nature and purpose and to the
consequences of their application or non-application, as the case may be. In his view, that means
that, in taking a decision on whether to give effect to those provisions pursuant to Article 9(3) of
the Rome I Regulation, the court must have regard to the fact that they were adopted by another
Member State in order to fulfil obligations arising from its EU membership. However, that does
not determine the final decision that the seized court will take in that respect.85
4. Judgment of the Court

As correctly pointed out, this is the first time that the CJEU has ruled on Article 9 of the Rome I
Regulation (the Unamar ruling was rendered in the context of the Rome Convention).86 Its
observations having regard to the preliminary questions two (foreign overriding mandatory laws)
and three (cooperation duty under Article 4(3) TEU) are ‘condensed’ in to a mere 16 paragraphs.87
The CJEU began its analysis by intrinsically linking the subject-matters of foreign overriding
mandatory laws and ‘the principle of sincere cooperation as enshrined in Article 4(3) TEU, in
relation to the direct or indirect taking into account of those other overriding mandatory provisions
by the court of the forum’.88 Having set out the nature and content of Article 9 of the ‘Rome I
Regulation’, the CJEU observed that this proviso derogates from the principle that the applicable
law is to be freely chosen by the parties to the contract, and has to be interpreted strictly.89
84. Council Decision of 10 May 2010 addressed to Greece with a view to reinforcing and deepening fiscal surveillance and
giving notice to Greece to take measures for the deficit reduction judged necessary to remedy the situation of excessive
deficit, [2010] OJ L 145/6.
85. Opinion of Advocate General Szpunar in Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 118-126.
86. G. Van Calster, ‘Von Munchausen ft. von Savigny. Szpunar AG in Nikiforidis’, GAVC Law (2016), https://gavclaw.
com/tag/c-13515-hellenic-republic-v-grigorios-nikiforidis/.
87. Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 40-56. Compare, the observations made in the Advocate
General’s lengthy Opinion.
89. Ibid., para. 42-22, citing its earlier case law, Case C-184/12 Unamar, EU:C:2013:663, para. 49.
Furthermore, the EU legislature sought to restrict disturbances to the system of conflict of laws
caused by the application of overriding mandatory provisions, other than those of the state of the
forum. Thus, ‘whilst Commission Proposal COM(2005) 650 final took up the possibility, provided
for by the Rome Convention, of giving effect to overriding mandatory provisions of a State which
has a close connection with the contract concerned, that option was removed by the EU
legislature’.90
Moreover, to permit the court of the forum to apply overriding mandatory provisions of the
legal order of Member States, other than those which are expressly referred to in Article 9(2) and
(3) of the Rome I Regulation, would be liable to jeopardize the full achievement of the regulation’s
general objective, which, as stated in Recital 16 of the Preamble to the Rome I Regulation, is legal
certainty in the European area of justice.91
Acceptance that the court of the forum has such a power would increase the number of over-
riding mandatory provisions applicable by way of derogation from the general rule set out in
Article 3(1) of the Rome I Regulation and, more specifically, for employment contracts, in Article
8(1) of that regulation and would therefore affect the foreseeability of the substantive rules
applicable to the contract.92 Finally, giving room to
overriding mandatory provisions other than those referred to in Article 9 (…) could affect the objective
pursued by Article 8 thereof, which is intended to ensure, as far as possible, compliance with the
provisions protecting the employee that are laid down by the law of the State in which he carries out his
work.93
Article 9, thus being formulated in an exhaustive manner, precludes Member State courts
other than those of the State of the forum or of the State where the obligations arising out of the
contract have to be or have been performed. Consequently, since, according to the referring court, Mr
Nikiforidis’s employment contract has been performed in Germany, and the referring court is German,
the latter cannot in this instance apply, directly or indirectly, the Greek overriding mandatory provi-
sions which it sets out in the request for a preliminary ruling.94
However, as the CJEU continued, foreign overriding laws
other than the State of the forum or the State where the obligations arising out of the contract have to
be or have been performed from being taken into account as a matter of fact, in so far as this is
provided for by a substantive rule of the law that is applicable to the contract pursuant to the
regulation.95
This approach is regarded as consistent as the Rome I Regulation solely harmonizes conflict of
laws, and not substantive laws. Accordingly, must the referring court (here the German court)
ascertain whether the Greek mandatory laws at stake are capable of being taken into account when
90. Ibid., para. 45, citing the Draft Report of the European Parliament on the proposal for a regulation of the European
Parliament and of the Council on the law applicable to contractual obligations (Rome I), 2005/0261(COD), p. 15.
91. Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 46
93. Ibid., para. 48, citing by analogy, Case C-29/10 Koelzsch v. Luxembourg, para. 42.
Rammeloo 319
assessing the facts of the case, which are relevant in the light of the substantive law applicable to
the employment contract at issue in the main proceedings?96
In view of preliminary question 3 having regard to the principle of cooperation as enshrined in
Article 4(3) TEU, the CJEU ruled that this principle
does not enable a different conclusion to be reached. That principle does not authorise a Member State
to circumvent the obligations that are imposed upon it by EU law and accordingly is not capable of
permitting the referring court to disregard the fact that the list of overriding mandatory provisions to
which effect may be given, as set out in Article 9 of the Rome I Regulation, is exhaustive, in order to
give effect, as legal rules, to the Greek overriding mandatory provisions at issue in the main proceed-
ings (…).97
5. Critical analysis
In contrast with the interpretation to the first preliminary question, the CJEU’s ruling regarding the
second and third questions run more or less parallel to the Advocate General’s Opinion. Views are
not diverging as regards the autonomous98 and strict99 interpretation that Article 9 calls for.
Furthermore, the drafting history is quite clear, in that ample debates show there is no room
whatsoever for taking into account ‘foreign’ mandatory laws other than the state of the forum
or the state where the obligations arising out of the contract have to be or have been performed.100
96. Ibid., para. 52, 53.

97. Ibid., para. 54, citing its earlier case law Case C-537/11 Manzi and Compagnia Naviera Orchestra, para. 40.
98. Opinion of Advocate General Szpunar in Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 36, referring
to J. Harris, ‘Mandatory Rules and Public Policy under the Rome I Regulation’, in F. Ferrari and S. Leible (eds.),
Rome I Regulation, The Law Applicable to Contractual Obligations in Europe (Sellier, 2009), p. 298.
99. Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 44. Compare, L. Günther, ‘German Federal Labour
Court on Foreign Mandatory Rules and the Principle of Cooperation among EU Member States’, Conflictoflaws.net
(2015), http://conflictoflaws.net/2015/german-federal-labour-court-on-foreign-mandatory-rules-and-the-principle-of-
cooperation-among-eu-member-states/. The current proviso of Article 9 of the Rome I Regulation ‘deliberately
restricted the scope of Art. 9 (3) to overriding mandatory provisions of the place of performance’. But this geo-
graphical and functional restriction was also subject to severe criticism, for being far too manifestly common law
based. In this sense, see P. Mankowski quoted by M. Stürner, ‘Mankowski, Peter: Interessenpolitik und europäisches
Kollisionsrecht. Rechtspolitische Überlegungen zur Rom I- und zur Rom II-Verordnung’, RabelsZ. (2013), p. 402 et
seq., commenting the latter’s work: P. Mankowski, Interessenpolitik und europäisches Kollisionsrecht. Rechtspoli-
tische Überlegungen zur Rom I- und zur Rom II-Verordnung (Nomos, 2011): ‘Auch die Beschränkung der Anwen-
dung drittstaatlichen Eingriffsrechts in Art. 9 III Rom I-VO wertet Mankowski als einen Erfolg englischer
Interessenpolitik und geißelt die Vorschrift als einen “Rückschritt gleichsam in die Steinzeit des IPR.”‘
100. Article 9(3) was clearly inspired by the common law approach, notably the case law of the English courts (for
example the judgment in (UK) Foster v. Driscoll, [1929] 1 KB 470) which is based on the assumption that, not having
regard to foreign overriding mandatory provisions can sometimes result in a breach of the public policy of the state of
the forum based on ‘comity of nations’. S. Leible and M. Lehmann, 54 Recht der internationalen Wirtschaft (2008),
p. 543, reiterate, however, the complicated nature of this ‘place of performance’ as is demonstrated by CJEU con-
cerning Article 7(1) of the Recast Regulation No. 1215/2012 and provide the following example: company A
(residing in Member State X) contractually agrees with company B (residing in Member State Y) to transfer shares in
a subsidiary company residing in Member State Z. The contractual performances of A and B are due in Member State
X and Y. Mandatory merger control laws of Member State Z thus must under Article 9(3) remain unconsidered
though.
So far, so good, one might be inclined to think, but the observation that ‘foreign’ overriding
laws other than the categories just mentioned may nevertheless (also) be ‘taken into account as a
matter of fact, in so far as this is provided for by a substantive rule of the law that is applicable to
the contract pursuant to the regulation’.101 Explicitly holding that this was consistent as Rome I
‘solely harmonises conflict of laws, and not substantive laws’102 seems to be a grave misconcep-
tion, for more than one reason. First, it should be asked what the added value of this ‘escape’ is.
How ‘effective’ can any such substantive rule be, especially when it derives from the lex laboris
only (here, German law)?103 And how must courts proceed while ‘ascertaining whether Laws No
3833/2010 and No 3845/2010 are capable of being taken into account’?104 Second, the outcome to
this query ultimately depends on (i) an ‘interpretation’ under the lex laboris;105 depending on
proceedings that law may not coincide with the lex fori!106 If Mr Nikiforidis, pursuant to Article 21
of Regulation No. 1215/2012 (the Recast), commenced court proceedings in the Member State
where the defendant resided (that is Greece), then the outcome would arguably be different. Even
although the factual constellation (that is, Greek government as employer, Mr Nikiforidis habi-
tually working in Germany) would be identical, Greek courts no doubt would ‘take into account’,
and probably apply, Greek mandatory laws under the reign of ‘their’ lex fori under Article 9(2) of
the Rome I Regulation.107 The foregoing objections gain even more weight when one realizes that
the ‘other’ mandatory laws, not falling within the ambit of Article 9(2) and 9(3) of the Rome I
Regulation, indirectly originate from ‘agreements Greece had concluded with the European Com-
mission, the European Central Bank and the International Monetary Fund (UN)’.108 Last, but
certainly not least, as correctly observed by Van Calster, ‘Err, here I really do not follow. Surely
such de facto circumvention of Article 9’s restrictive scope negates its effet utile’.109

102. L. Günther, ‘German Federal Labour Court on Foreign Mandatory Rules and the Principle of Cooperation among EU
Member States’, Conflictoflaws.net (2015), http://conflictoflaws.net/2015/german-federal-labour-court-on-foreign-
mandatory-rules-and-the-principle-of-cooperation-among-eu-member-states/: ‘Still, Art. 9 (3) Rome I Regulation
should not prohibit indirectly considering the content of [other?] third country overriding mandatory provisions as a
matter of fact within the scope of blanket clauses of the substantive lex causae’. (emphasis added).
103. K. Duden, Europäische Zeitschrift für Wirtschaftsrecht (2016), p. 940 inter alia wonders ‘wo eine materiell-rechtliche
Berücksichtigung endet und eine Anwendung als Rechtsvorschrift anfängt’. Remarkably positive, on the contrary, as
concerns legal certainty, is D. Valdini, ‘Die faktische Berücksichtigung anderer als der in Art. 9 Rom I genannten
Eingriffsnormen ist weiterhin zulässig’, GWR (2016), p. 488.
104. Case C-135/15 Greek Republic v. Nikiforidis, para. 53.
105. According to P. Mansel and K. Thorn, ‘Europäisches Kollisionsrecht 2016: Brexit ante portas!’, Internationalen
Privat- und Verfahrenrechts (2017), p. 32, under German law, §138 of the Civil Code would have to be used as
yardstick, BGH June 22, 1972, II ZR 113/70 BGHZ, 59, 82, 85 et seq. This proviso on ‘Sittenwidrigkeit’ (in a PIL
context: ‘ordre public’) is however a rough brush and not equipped to deal with fine tuning super mandatory laws like
that at case in Nikiforidis. Compare further K. Duden, Europäische Zeitschrift für Wirtschaftsrecht (2016), p. 940 with
further reference to case law of the German Federal Court and doctrinal sources.
106. Compare, the Opinion of Advocate General Szpunar in Case C-135/15 Greek Republic v. Grigorios Nikiforidis.
107. Though not fully certain, it is not unlikely that for this very reason Mr Nikiforidis preferred to start court proceedings
in Germany.
108. G. Van Calster, European Private International Law, p. 231, underscores ‘[t]here’s nothing to suggest that “overriding
mandatory law” may not also include provisions of EU law’.
109. G. Van Calster, GAVC Law (2016).
Rammeloo 321
6. Suggestions for Future Legislative Amendments to the ‘Rome I’ Regime (bis)

The Advocate General’s impression that ‘the interest of legal literature in the issue [of over-
riding foreign mandatory laws] has been largely disproportionate to its rather limited practical
importance’,110 and that Article 7(1) of the RCC was ‘innovative’, may have been true for
many years, but in this era, as the CJEU’s ruling demonstrated, pose new challenges.111 It is
appropriate to ask whether the functional scope of Article 9(3) of the Rome I Regulation,
when compared with its predecessor, Article 7(1) of the RCC, has not been narrowed too
much. In light of macro-economic European and/or UN restructuring programs, legislative
changes to the current PIL regime contained in the Rome I Regulation deserve scrutiny at the
very least.
In that respect it is quite ironic that fairly soon after the financial crisis broke out,
Wautelet raised the question: ‘When Rome meets Greece. Could Rome I help the Greek
debt restructuring?’.112 At issue were ‘outstanding Greek bonds, many of the bonds issued
governed by English law or the law of New York’, the PIL instrument of ‘foreign’ (here,
Greek) mandatory laws directly impacting the terms of the debt. The parallels to Greek
Republic v. Nikiforidis are striking, as the conclusion of Wautelet stated: ‘[g]iven the limita-
tions imposed by Article 9.3 of the Rome I Regulation on the application of foreign man-
datory rules, the Regulation may offer a very limited protection’.113 And Wautelet was not
the only one.114
All in all, the concerns that Article 9 of the Rome I Regulation needs to be further clarified and that
further preliminary references are needed to shed further light of its interpretation, may well be con-
ceived as an understatement.115 One may thus well ask why, in its drafting stage, the Rome I Regulation
was not enriched with a brand new subsection 4, which more or less parallel to Article 3(4) would
provide for the following: the law chosen or objectively applicable ‘shall not prejudice’,116 or, at least,
110. Opinion of Advocate General in Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 78. In a comparable
sense, see O. Lando and P.A. Nielsen, 3 Journal of Private International Law (2007), p. 46.
111. S. Leible and M. Lehmann, 54 Recht der internationalen Wirtschaft (2008), p. 542. In 2008 the authors already
qualified mandatory laws as ‘immer haüifiger und wichtiger (…)’. Compare, M. Cremer, ‘Embargovorschriften als
Eingriffsnormen, Kollisionsrechtliche und rechtstatsaüchliche Probleme der Beachtung drittstaatlicher Embargos’,
Bucerius Law Journal (2016), p. 18. Compare also, R. Freitag, Praxis des Internationalen Privat- und Verfahrensrechts
(2016); and P. Mankowski, Praxis des Internationalen Privat- und Verfahrensrechts (2016), p. 488.
112. P. Wautelet, ‘When Rome meets Greece: could Rome I help the Greek debt restructuring?’, Conflictoflaws.net (2012),
http://conflictoflaws.net/2012/when-rome-meets-greece-could-rome-i-help-the-greek-debt-restructuring/.
113. Ibid.
114. Compare, J. Von Hein, ‘The procedural impact of the Greek debt crisis: The CJEU rules on the applicability of the
Service Regulation’, Conflictoflaws.net (2015), http://conflictoflaws.net/2015/the-procedural-impact-of-the-greek-
debt-crisis-the-cjeu-rules-on-the-applicability-of-the-service-regulation/. Compare further and extensively A.J.
Berends, ‘Why overriding mandatory provisions that protect financial stability deserve special treatment’, 61 Neth-
erlands International Law Review (2014), p. 69.
115. P. Mansel and K. Thorn, Internationalen Privat- und Verfahrenrechts (2017), p. 32: ‘Freilich bleibt (…) auf Art. 9
Rom-I VO noch manches klarungsbedürftig und hart somit weiterer Voraberntscheidungsfragen’.
116. The Commission explicitly aims at preventing circumvention of EU law, see Proposal for a Regulation of the Eur-
opean Parliament and of the Council on the law applicable to contractual obligations, COM(2005) 650 final, p. 9. This
seems, a fortiori, apt when the facts do not show any tie with non-EU legal orders, compare, T.H.M. Van Wechem, in
T.H.M van Wechem (ed.), Europese conflictrefels voor de overreenkomst en de onrechtmatige daad; Rome I en II –
Zicht op zekerheid nog ver weg, p. 21, referring, a contrario, to Case C-381/98 Ingmar-Eaton, EU:C:2000:605
allow for ‘taking into consideration’117 the application of provisions emanating from Community law
(and, possibly, UN law).
4. Overall conclusions
The CJEU’s interpretative ruling in Greek Republic v. Nikiforidis is crucial within the context of
the law applicable to cross-border employment relationships, as it defines both the temporal
‘scope’ of the Rome I Regulation and the functional reach of ‘foreign’ mandatory laws in the
area of contract law, in the context of Article 9 thereof.
In view of the first preliminary matter having regard to the scope ratione temporis of ‘Rome I’,
the CJEU’s interpretation seems hard to transpose in to everyday legal practice. The ‘magnitude’ of
the amended employment conditions involved being the decisive criterion with a view to estab-
lishing whether such amendments, when made after 17 December 2009 (that is when the Rome I
Regulation entered in force) to a contractual relationship entered into before that date must be
considered to have resulted in a ‘new’ contract entered into or not, is hard to establish. It not only
requires the meticulous unravelling of all circumstances on the basis of a case by case analysis, but
the outcome of this process is also likely to be highly unpredictable and potentially even arbitrary,
as it may be influenced beforehand due to the divergent ways that ‘foreign’ mandatory laws are
regulated under ‘ancient’ RCC and the ‘new’ Rome I Regulation respectively. This ‘magnitude’
criterion should therefore, at some point in the future, be re-contemplated by the EU legislature
when revising the Rome I Regulation regime.
The second and third preliminary matter – the legal status of ‘foreign’ mandatory laws other than
those enshrined in Article 9(3) of the Rome I Regulation and the duty imposed on EU Member
States to cooperate (Article 4(3) TEU) – pose complications of their own. Foreign overriding laws
other than those of the state where obligations arising out of the contract have to be or have been
performed, according to the wording and drafting history of Article 9 of the Rome I Regulation, do
not need to be taken into account ‘directly’, however, they may be considered as matters of ‘fact’
insofar as this is provided for by a substantive rule of the law that is applicable to the contract
pursuant to the regulation. This interpretation undeniably widens the functional reach of the (perhaps
too) narrowly worded proviso contained in Article 9(3) of the Rome I Regulation, in a manner which
may be hard to handle in practice and at the cost of legal certainty and predictability.
Against the specific background of the dispute in main proceedings (mandatory laws enshrined
in national laws of a Member State but originating from EU and International socio-economic
restructuring programs), taking into account similar conflict situations, it seems defensible to
suggest a legislative adjustment of Article 9 of the Rome I Regulation. This proviso deserves to
be enriched with a new subsection 4 enabling, at least, the consideration of foreign mandatory laws
directly or indirectly originating from EU law, and perhaps even from international (UN) law.
(Concerning the termination of commercial agency, despite the fact that Californian law was chosen. The CJEU held
that EU protective mandatory rules were applicable).
117. The question whether such mandatory laws would apply indeed, following the possibility for courts to consider them,
is obviously a distinct question, not being debated here.

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Case note MJ

Maastricht Journal of European and

Private International Law:

2. Case C-135/15 Greek Republic v. Grigorios Nikiforidis

1. Is the Rome I Regulation applicable under Article 28 of that regulation to employment

B. Main observations and the judgment of the CJEU

it must be determined whether a variation of an employment contract concluded before 17 December

9. Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 24.

13. Ibid., para. 33 (emphasis added).

In view of the CJEU it was therefore for

16. Ibid., para. 38, 39.

20. Ibid., para. 51, 52 (emphasis added).

B. EU intertemporal EU conflict of laws on contractual obligations – ‘RCC’ or the Rome I

2. Opinion of the Advocate General

3. Judgment of the CJEU

39. Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 29.

5. Suggestions for future legislative amendments to the ‘Rome I’ Regime

C. RCC and the Rome I Regulation on foreign overriding mandatory laws

3. Opinion of the Advocate General

72. Ibid., para. 88.

4. Judgment of the Court

However, as the CJEU continued, foreign overriding laws

96. Ibid., para. 52, 53.

101. Case C-135/15 Greek Republic v. Grigorios Nikiforidis, para. 51.

6. Suggestions for Future Legislative Amendments to the ‘Rome I’ Regime (bis)

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