Short answer
Article 8 of the Rome I Regulation governs, and it produces a layered answer rather than a single one.
A choice of law in the contract is valid, but it operates against a floor:
"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." —
So for an employee who relocates and works remotely from Portugal under a contract choosing German law, German law governs — but Portuguese mandatory employment protections continue to apply to the extent they are more protective.
The employee's remote location is likely to become the country "from which" work is habitually carried out under Article 8(2), which means the comparison law changes when they move. That is the practical risk: the contract does not change, but the floor underneath it does.
The cascade in Article 8
Article 8 is deliberately structured as sequential steps.
Article 8(2) — habitual place of work. The contract is 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". The country is "not deemed to have changed if he is temporarily employed in another country".
Article 8(3) — engaging place of business. Where the applicable law cannot be determined under paragraph 2, the law of the country where the place of business through which the employee was engaged is situated.
Article 8(4) — closer connection. Where it appears from the circumstances as a whole that the contract is more closely connected with another country, the law of that other country applies.
The Court of Justice has recently emphasised that this structure is not accidental:
"although the content of Article 8(2) to (4) of the Rome I Regulation differs only slightly from that of Article 6(2) of the Rome Convention, its structure reflects the EU legislature's intention to clarify, by using separate paragraphs, the different steps of the reasoning to be followed by national courts" —
Work through the steps in order. Jumping to the escape clause is a common analytical error.
"In which or from which" is what makes remote work workable
The words "or, failing that, from which" were added by Rome I and are the key to remote and mobile work. They mean the test does not fail merely because the employee performs work in several countries or in none in particular.
In Koelzsch (C-29/10) and Voogsgeerd (C-384/10), the Court developed the approach for employees working in more than one State, directing national courts to identify the place from which the employee effectively carries out their working duties — the base of operations, in substance rather than in form.
For a fully remote employee the analysis is usually straightforward: they work from their home country. Where they log in, where they receive instructions, where their equipment is, and where they return between assignments all point the same way.
The harder cases are hybrid arrangements — three days at home in Spain, two days at the Paris office — and genuinely itinerant roles.
Note also the temporary-employment carve-out. A short secondment does not change the habitual place. A permanent relocation does, and the line between them is factual.
The escape clause, and a recent twist
Article 8(4) lets a court disregard the result of paragraphs 2 and 3 where the contract is more closely connected with another country.
Schlecker (C-64/12) is the leading authority on when to use it, and it also corrects a widespread assumption:
"in so far as the objective of Article 6 of the Rome Convention is to guarantee adequate protection for employees, that article must ensure that the law applied to the contract of employment is the law of the country with which that contract is most closely connected. That interpretation should not necessarily result in the application, in all cases, of the law most favourable to the employee" —
Closest connection is the test; employee-favourability is not.
Two very recent judgments have pushed this further. In Locatrans (C-485/24, 11 December 2025) and Hortis GRC (C-768/24, 9 July 2026), the Court held that "another country" for the purposes of the escape clause can be the very country whose law the parties chose. The escape clause can therefore operate to give priority to the chosen law, where the contract is most closely connected with that country.
That reverses the intuitive framing. The escape clause is not a one-way ratchet against the employer's choice; it is a genuine closest-connection inquiry that can land either way.
What the floor actually covers
Article 8(1) protects "provisions that cannot be derogated from by agreement" under the otherwise-applicable law. Typically that includes minimum wage, working time and rest, minimum notice and dismissal protection, statutory leave, and discrimination protections.
It does not import the whole of the other country's employment law. Purely default rules that the parties may contract out of locally are not within the floor.
The practical method is comparative and provision-by-provision: identify the otherwise-applicable law under Article 8(2) to (4), list its non-derogable provisions relevant to the dispute, and compare each against the chosen law.
Separately, Article 9 preserves overriding mandatory provisions — rules a country regards as crucial for safeguarding its public interests, applicable irrespective of the otherwise-applicable law. Article 9(2) always allows the forum to apply its own. Article 9(3) allows effect to be given to those of the country of performance only where they render performance unlawful, which is a narrow gateway.
Four questions that are not this question
Remote-work projects fail when these are conflated. They are governed by different instruments and can each point to a different country.
- Applicable employment law — Rome I Article 8. The subject of this article.
- Social security — Regulation (EC) No 883/2004 and its implementing regulation, with their own rules on the applicable legislation, multi-state working and the A1 certificate. A social-security outcome does not determine the employment-law outcome.
- Income tax — bilateral double-taxation treaties and national law, including permanent-establishment risk created by an employee working from another country.
- Jurisdiction — Brussels Ia Regulation 1215/2012, Section 5, which lets an employee sue in their own place of habitual work and restricts jurisdiction agreements. In Nogueira (C-168/16 and C-169/16) the Court addressed the analogous "place where the employee habitually carries out his work" for jurisdiction purposes.
An employer can perfectly well face German governing law, Portuguese mandatory protections, Portuguese social security and a Portuguese forum, all at once.
Practical implications
The contract is not the control. A choice-of-law clause is worth having — it fixes the governing law and reduces uncertainty — but it cannot lower the floor.
Relocation changes the analysis. An employee who moves to another Member State can change the comparison law without any contractual amendment. Employers running remote-work policies should require prior notification and approval of a change in work location, and should treat approval as a decision with legal consequences rather than an HR formality.
Document the base of operations. Where work is hybrid or itinerant, contemporaneous records of where duties are actually performed will decide a later dispute.
Re-paper deliberately. For a long-term relocation, the cleaner route is often a local contract or a local employing entity rather than stretching the original contract across a border.
Operational checklist
- Identify the country in which, or failing that from which, the employee habitually works.
- Distinguish temporary assignment from permanent relocation.
- Work Article 8 in order: 8(2), then 8(3), then 8(4).
- Test Article 8(4) honestly in both directions; it can support the chosen law.
- List the non-derogable protections of the comparison law and compare provision by provision.
- Check Article 9 overriding mandatory provisions separately.
- Run social security, tax and jurisdiction as separate analyses.
- Require notification and approval before an employee changes work country.
Conclusion
Rome I Article 8 gives an employer a governing law but not a clean slate. The chosen law applies subject to the non-derogable protections of the country in which, or from which, the employee habitually works — and for a remote employee that is usually where they sit.
The recent case law is a useful corrective in both directions. Schlecker confirms that the test is closest connection rather than employee-favourability, and Locatrans and Hortis GRC confirm that the escape clause can point back to the parties' chosen law. The analysis is genuinely a search for where the contract belongs — which is why it has to be done on the facts, and redone when those facts change.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.