Taikytinos teisės pasirinkimo darbo teisiniuose santykiuose galimybės pagal „Roma I“ reglamentą

Abstract

In this paper, the right to choose law applicable to individual employment contracts under Regulation Rome I that replaced the 1980 Convention on the Law Applicable to Contractual Obligations is discussed. The short evolution of the European choice-of-law rules for employment contracts and principle of parties’ autonomy is revealed. The Regulation Rome I implementation practices as well as expression of such choice and cases of limitations are analysed in the paper, as well. The following questions that arise from provisions on the law applicable to the employment contracts and a wide scope of application of Rome I Regulation are discussed: 1) Do the parties to the employment contract may choose applicable law of any State?; 2) Is it necessary to have a connection between the contract and the State whose law the parties have chosen to apply?; 3) Is there a need of foreign element in the relationship when choosing other State’s law and should it be seen as a foreign element in terms of the Rome I Regulation?; 4) Is the choice of the parties limited to only State law or may it include non-state provisions as well? Practical situations arising from the abovementioned questions are presented in the paper, too.
After analysing individual national laws, case law and doctrine, two types of the interpretation of the principle of autonomy are presented: 1) the first type (which is used in Lithuania and many other European countries), where the parties are completely free and may choose the applicable law, irrespective of the fact that contractual relationship is related to only one state and the fact that the state whose law is chosen by the parties, has no connection with the employment contract; and 2) the second type (which is used in Poland, Germany), where the parties may exercise the freedom of choice of the contractual relationship only when there is an objective connection with the state which law is chosen. Finally, some states provide that the parties may choose only law of a particular state.
However, it is stressed that parties to an employment contract are free to agree on any law to the extent that the agreement improves upon the mandatory minimum standard of protection set by the objectively applicable law.