important, they should not be pursued from vacation destinations. Conversely, if there is no possibility for rest to be prevailing, work - related needs prevent its enjoyment and the days off shall remain to be enjoyed26. Whether this organizational solution is beneficial to the personnel’s efficiency and peace of mind is debatable. IV. “WORKATION” AND THE LAW APPLYING TO THE WORK RELATIONSHIP If we speak of work carried out during vacations, in line with the meaning of “workation” and not of the more general concept of “smart working” or, however, remote work, interpreting Regulation (EC) No. 593 / 200827, at Article 8(2), is very easy, almost as if the Regulation had foreseen and intended to solve the problem of identifying the applicable national law. Indeed, it make reference to 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 where the work is habitually carried out shall not be deemed to have changed if he is temporarily employed in another country”28. Days off are, by their very nature, a temporary situation and, therefore, irrelevant. Nor can Article 8(4)29 be invoked, which reads “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”. That connection cannot result from a temporary condition, such as staying in a vacation destination, irrespective for how long, when enjoying days off. Moreover, it is quite clear that “workation” cannot affect the identification of the applicable national law, if it is borne in mind that the place where the days off are enjoyed is chosen by the employee at his or her own discretion, who is free to go where she or he pleases, without any need to inform his or her employer of that choice. As well implied by Regulation (EC) No. 593 / 2008, at Article 8(2), the place where the work is carried out (in any possible sense)30 26 See Italian Council of State, Fourth Chamber, 13 April 1992, no. 392, in Giur. it., 1992, III, 944. 27 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). 28 On the mandatory reference to the place where the work is habitually carried out, see Court of Appeal of Rome, 7 February 2017, ord., in Variaz. temi dir. lav., website, 2017. 29 See Italian Court of Cassation, 1 April 2021, no. 9105, ord., in Variaz. temi dir. lav., website, 2021. 30 The specifications given by Regulation (EC) no. 593 / 2008, at Article 8(2), in this regard are irrelevant, for the purpose of classifying the “workation” case. 106 ENRICO GRAGNOLI
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