Case C-674/26, Sarazek – a tort with an employment contract standing behind it
Section 5 of the Brussels I bis Regulation exists to stop employers choosing the forum. The Bundesarbeitsgericht asks whether choosing the cause of action achieves the same thing.
Facts
p is suing L before the German labour courts. The claims, as the referring court describes them, “have a solely legal basis” — that is, they are founded in tort rather than in the contract — and on that footing jurisdiction would lie under Article 7(2) of Regulation (EU) No 1215/2012, in the courts for the place where the harmful event occurred. But there is an employment relationship between the parties, and the tort is linked to it in time, in place and in subject matter. Section 5 of Chapter II (Articles 20 to 23) lays down separate, protective jurisdiction rules for “matters relating to individual contracts of employment”, which an employee cannot be made to waive in advance. The Bundesarbeitsgericht — Germany’s Federal Labour Court — wants to know whether the tortious framing takes the case out of Section 5, or whether the surrounding employment relationship brings it in. (Sarazek is a fictitious name assigned under the Court’s anonymisation practice; it does not correspond to any party.)
Questions Referred
Must Article 20(1) of Regulation (EU) No 1215/2012 be interpreted as meaning that ‘matters relating to individual contracts of employment’ also form the subject matter of the proceedings where the claims lodged have a solely legal basis and there is therefore jurisdiction under point 2 of Article 7 of Regulation (EU) No 1215/2012 in matters relating to tort or delict, but there is a temporal, local and/or material link between the tort or delict and an employment relationship between the parties?
Sources
OJ notice C/2026/4577 (EUR‑Lex) · Case file on CURIA · Regulation (EU) No 1215/2012
Comment
The question is short and the stakes are not. Section 5 is one of the Regulation’s three protective regimes — alongside those for insured persons and consumers — and its whole design rests on the weaker party being sued only at home and being able to sue in a choice of places. If an employer can step outside it by pleading the same facts as a tort, the protection is worth exactly as much as the pleader’s ingenuity, and Article 23’s ban on pre-dispute jurisdiction agreements becomes a formality.
The Court has been here once, in the other direction. In Case C‑47/14, Holterman Ferho Exploitatie (ECLI:EU:C:2015:574) a company sued its former director for misconduct in the performance of his duties, pleading both contract and tort under Articles 5(1) and 5(3) of the predecessor Regulation No 44/2001. The Court held that, provided the director had in fact performed services for and under the direction of the company in return for remuneration — that is, provided he was a worker — Section 5 applied and precluded recourse to either of the special jurisdictions. The label attached to the claim did not matter; the relationship did. Holterman is not quite this case, because there the claims arose from the performance of the duties themselves. Sarazek asks what happens one step further out, where the tort is not a breach of the employment obligations but is connected to the employment by time, place and subject.
That is where the referring court’s triad — “temporal, local and/or material link” — will do the work, and the “and/or” is the part to watch. A material link (the tort concerns the work) is a strong candidate for bringing a claim within Section 5, since it is hard to see how a wrong done in performing the job is not a matter “relating to” the contract. A merely temporal or local link — the parties happened to be at work when it occurred — is a much weaker one, and treating it as sufficient would sweep in wrongs with no real connection to the employment beyond coincidence. The Court’s approach to the parallel consumer provisions, which require the claim to be sufficiently closely connected to the contract to be inseparable from it, suggests it will draw the line at the material link and treat time and place as evidence of it rather than substitutes for it.
Two things make this reference more than a technical one. The first is who asked: the Bundesarbeitsgericht refers rarely and precisely, and a question this narrow from that court signals a genuine split in the German case law rather than a doubt for its own sake. The second is the direction of travel. Since the Regulation’s recast the Court has read the protective sections generously, and it would be surprising to see it hand employers a route around Section 5 that depends on nothing more than the choice of legal basis.