Court of Justice 24 January 2019, C-603/17 (Peter Bosworth and Colin Hurley v Arcadia Petroleum Limited and Others.)

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In this Opinion delivered in Case C-603/17 (Bosworth and Hurley v Arcadia Petroleum), Advocate General Saugmandsgaard Øe opines that a company director exercising total control and autonomy over day-to-day management is not in a relationship of subordination and therefore does not hold an 'individual contract of employment' within the meaning of Section 5 of Title II of the Lugano II Convention, with the shareholders' power of revocation being insufficient to establish such subordination. In the alternative, the AG opines that where Section 5 does apply, a claim by an employer against an employee constitutes a 'matter relating to' an individual contract of employment regardless of its substantive legal basis—including tort—provided the conduct complained of is factually connected to the duties performed under the employment relationship, since the protective and mandatory character of Section 5 precludes circumvention through strategic pleading in tort. On the question of employer identity within a corporate group, the AG further opines that a company not formally party to the employment contract may nonetheless be treated as 'employer' under Section 5 either where the employee de facto performs services under its direction, or where it brings claims against the employee in respect of conduct arising from performance of the contract with the formally contracting company.AI