21-09-2015: Complaint in the ECHR case of Langner v. Germany (14464/11)
The case concerns Mr Langner’s complaint that he was dismissed from his job in local government for criticising his superior at a staff meeting. He accused his superior, the Deputy Mayor for Economy and Housing, of having ordered the unlawful demolition of a block of flats in 1995/1996. Mr Langner was dismissed and instituted labour law proceedings in the Saxon Labour Court of Appeal. The Court held that the decision taken by the Deputy Mayor on the permit had been lawful and that the nature of the accusations were likely to damage the latter’s reputation, and to seriously interfere with the working atmosphere within the Housing Office. Mr Langner’s appeal was thus dismissed and subsequently the Federal Constitutional Court refused to entertain his constitutional complaint.
Relying on Article 10 (freedom of expression), Mr Langner complains that his dismissal breached his right to freedom of expression. (14464/11)
21-09-2015: ECJ Judgment in a case on working time (ECJ Case C-266/14 (Federación de Servicios Privados del sindicato Comisiones obreras))
The request has been made in the course of proceedings between the Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) and Tyco. The latter company employs workers that have to travel to their customers, sometimes more than 100 km per drive. It refused to consider the time spent travelling between home and customers as ‘working time’, within the meaning of point (1) of Article 2 of Directive 2003/88/EC, thus regarding it as a rest period.
Tyco calculated daily working hours by counting the time elapsing between when its employees arrived at the premises of the first customer of the day and when those employees left the premises of the last customer, account being taken only of the time of the work on the premises and of the journeys getting from one customer to another.
With regard to the concept of ‘working time’, within the meaning of point (1) of Article 2 of Directive 2003/88, the Court has repeatedly held that the directive defines that concept as any period during which the worker is at work, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practices, and that that concept is placed in opposition to rest periods, the two being mutually exclusive. There are no derogations allowed from Article 2. Then the Court mentions that the concepts of ‘working time’ and ‘rest period’ within the meaning of Directive 2003/88 constitute concepts of EU law which must be defined in accordance with objective characteristics, by reference to the scheme and purpose of that directive. It then proceeds to assess the situation to see whether the elements of the concept of ‘working time’ are fulfilled.
Finally, the Court decides that, when workers do not have a fixed or habitual place of work, point (1) of Article 2 of Directive 2003/88/EC prescribes that the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’. (C-266/14)
21-09-2015: ECJ Judgment in a case on transfer of undertaking (ECJ Case C-160/14 (Ferreira da Silva e Brito and Others)
Air Atlantis SA (‘AIA’), operating in the non-scheduled air transport (charter flights) sector, was wound up. However, 3 months later, the company Transportes Aéreos Portugueses (‘TAP’), which was AIA’s main shareholder, began to operate some of the flights which AIA had already contracted to provide for the future, before it was wound up. TAP also operated a number of charter flights, a market on which it had not hitherto been active, as the routes in question were routes previously served by AIA. To that end, TAP used some of the equipment which AIA had previously used for its activities, in particular four aeroplanes. TAP also assumed responsibility for the payment of charges under the related leasing contracts and took over the office equipment which was in AIA’s possession and which the latter used at its premises in Lisbon (Portugal) and Faro (Portugal), as well as other material assets. In addition, TAP recruited some former AIA employees.
Mr Ferreira da Silva e Brito and other applicants were dismissed during collective dismissal rounds in AIA. They brought an action against the collective redundancy of AIA before the Tribunal de Trabalho de Lisboa (Lisbon Labour Court) by which they sought reinstatement within TAP and the payment of remuneration. The case went up all the way to the Supremo Tribunal de Justiça, held that the collective redundancy was not tainted by any illegality. Moreover, in spite of the requests of parties to make a reference to the Court of Justice for a preliminary ruling, the Supremo Tribunal de Justiça observed that it was not obliged to do so, because recourse to EU law was not necessary in order to resolve the dispute before them and, in addition, no question concerning the interpretation of that law had arisen. It said that the ECJ had developed settled case-law on this topic that was clear enough.
The applicants in the main proceedings then brought an action before the Varas Cíveis de Lisboa for a declaration of non-contractual civil liability against the Portuguese State, claiming that the latter should be ordered to make good certain material damage caused by the allegedly manifestly unlawful judgment of the Supremo Tribunal de Justiça.
Therefore, the Varas Cíveis de Lisboa (Court of First Instance, Lisbon) referred the questions to the ECJ.
The ECJ ruled that in this case, a transfer of undertaking had occurred. Moreover, since the concept of transfer of undertaking frequently gives rise to difficulties of interpretation in the various Member States and the lower courts in this case came to conflicting conclusions, a court or tribunal of last instance is obliged to make a reference to the Court for a preliminary ruling concerning the interpretation of that concept under Article 267(3) TFEU. Lastly, the ECJ held that a national provision on State liability which requires that the decision given by that court or tribunal which caused the loss or damage was set aside, is not allowed when such setting aside is, in practice, impossible. (C-160/14)
22-07-2015: ECJ Case C-229/14 (Balkaya)
In 2013, the company Kiesel Abbruch terminated the contracts of employment of its employees (counting 19 persons), including Mr Balkaya, and ceased all its business. Kiesel Abbruch did this without notifying the competent public authority (in this case the Bundesagentur für Arbeit) of the projected collective redundancies, because it claimed the number of dismissals was lower than the threshold. Balkaya, however, claimed two other persons who were also employed by Kiesel Abbruch must be counted in that category, in order to determine whether the threshold of 20 persons, laid down in Paragraph 17(1)(1) of the KSchG (the legislation implementing the Directive on Collective Redundancies), was attained.
The first person was Mr L., the director of the company, who did not hold any shares in Kiesel Abbruch and was director jointly with another director (together entitled to act on behalf of the company). The second person was Ms S., undergoing training within the company to re-qualify as an office assistant, funded by the Jobcenter im Landkreis Diepholz (the public employment office for the district of Diepholz). A grant, which was equivalent to the whole of the remuneration due to Ms S. for her work done in the context of her training, was paid to her directly by the Bundesagentur für Arbeit.
Firstly, the ECJ held with regard to Mr L., that the concept of ‘worker’, referred to in Article 1(1)(a) of Directive 98/59, must be given an autonomous and independent meaning in the EU legal order (see, ECJ C‑55/02, Paragraph 49) and must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. In that regard, the essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration (see ECJ C‑596/12, Paragraph 17, and ECJ C‑232/09, Paragraph 39).
The Court has established in its earlier case law that a relationship of subordination can be established with regard to a member of the board of directors of a capital company (see C‑232/09, Paragraph 47, and ECJ C‑596/12, Paragraphs 14, 17 and 18). It is necessary to consider the circumstances in which the board member was recruited; the nature of the duties entrusted to that person; the context in which those duties were performed; the scope of the person’s powers and the extent to which he or she was supervised within the company; and the circumstances under which the person could be removed. Mr L in this case satisfies, prima facie, the criteria for being treated as a ‘worker’ within the meaning of EU law, and thus his dismissal must be taken into account in the calculation of the thresholds laid down in the Directive on Collective Redudancies.
With regard to Ms S., the ECJ held that it is clear from the Court’s well-established case-law that the concept of ‘worker’ in EU law extends to a person who serves a traineeship or periods of apprenticeship in an occupation that may be regarded as practical preparation related to the actual pursuit of the occupation in question, provided that the periods are served under the conditions of genuine and effective activity as an employed person, for and under the direction of an employer (see ECJ C-66/85; ECJ C‑3/90; ECJ C‑188/00; and C‑109/04). Neither the legal context of the employment relationship under national law, nor the origin of the funds from which the person concerned is remunerated and, can have any consequence in regard to whether or not the person is to be regarded as a worker (see C-344/87; ECJ C‑1/97; and C‑188/00). (C-229/14)
22-07-2015: ECJ Case C-177/14 (Regojo Dans)
Ms Regojo Dans had been employed as a non-permanent member of staff (as a civil servant) with several public institutions for thirty-one and a half years. In 2012 she made an application requesting that her right to receive the three-yearly length-of-service increments corresponding to the period during which she had been employed as a public servant be recognised, and that she be paid the sum corresponding to the past four years. Her current employer - the President of the Consejo de Estado - rejected her application. Ms Regojo Dans stated that this rejection constituted a difference in treatment as compared with other public servants, and that such a difference in treatment is contrary to Clause 4 of the Framework Agreement on Fixed-Term Work.
The ECJ held that ms Regojo Dans should be regarded as a fixed-term worker within the meaning of clause 3(1) of the Framework Agreement. The concept of fixed-term worker is autonomous and should only be explained as it is laid down in the Directive: a fixed-term employment contract or relationship is characterised by the fact that the end of that employment contract or relationship ‘is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event’. Consequently, an employment contract or relationship, such as that at issue in the main proceedings, which automatically terminates when the person for whom the duties are discharged ceases to hold his post, must be considered to have a term the end of which is determined by the ‘occurrence of a specific event’ within the meaning of Clause 3(1).
The three-yearly length-of-service increments are ‘employment conditions’ referred to in Clause 4(1) of the Framework Agreement (see i.a. ECJ C‑307/05; ECJ C‑444/09 and C‑456/09). Fixed-term workers must not be treated less favourably than permanent workers in a comparable situation, in the absence of any objective justification. To assess whether there exist permanent workers in a comparable situation, and whether the fixed-term workers are engaged in the same or similar work for the purposes of the framework agreement, the referring court must take account of a number of factors, such as the nature of their work, their qualifications and abilities, the training requirements and the working conditions (see ECJ C‑177/10, Paragraph 66; ECJ C‑273/10, Paragraph 37; and ECJ C‑556/11, Paragraph 43). If Ms Regojo Dans would be found to be in a comparable situation to that of a career civil servant, the referring court would have to ascertain whether there was an objective ground justifying the difference in treatment between those two workers, that difference in treatment stemming in the present case from the refusal to grant the three-yearly length-of-service increments in respect of the applicant’s period of service. When the national legislation in question excludes, without justification on objective grounds, non-permanent staff from the right to receive a three-yearly length-of-service increment granted, inter alia, to career civil servants when, as regards the receipt of that increment, those two categories of workers are in comparable situations, this is not allowed.(C-177/14)
22-07-2015: ECJ Case C-87/14 (Commission v Ireland)
In this case, the Commission brought an action against Ireland under Article 258 TFEU for failure to fulfil obligations.
The Commission asserts that Ireland has implemented Directive 2003/88, but is not correctly applying it to non-consultant hospital doctors (Articles 3, 5, 17(2) and 17(5)). The ECJ refers to the various progress reports on the implementation of Directive 2003/88, compiled during 2013 and 2014 by the Irish authorities and sent to the Commission, and to a declaration of the IMO which concludes that, even if progress has been made in the application of Directive 2003/88, Ireland still does not fully comply with its obligations resulting under that directive. However, it does not suffice for the Commission to refer to these reports; it also needs to prove, without being able to rely on any presumption whatsoever, that the practice alleged to be contrary to that directive can be attributed, in one way or another, to Ireland.
Because the Commission has not proved the existence, in relation to Ireland, of practice contrary to Articles 3, 5, 6 and 17(2) and (5) of Directive 2003/88 relating to the organisation of the working time of NCHD, the ECJ dismisses the action.(C-87/14)
20-07-2015: ECJ Judgment in a case on parental leave (ECJ Case C-222/14 (Konstantinos Maïstrellis v Ypourgos Dikaiosynis, Diafaneias kai Anthropinon Dikaiomaton))
According to Greek law, a male civil servant is not entitled to paid parental leave if his wife does not work or exercise any profession. A male servant is only entitled to paid parental leave if the wife, due to a serious illness or injury, is unable to meet the needs related to the upbringing of the child. Konstantinos Maïstrellis applied for paid parental leave, but his application was rejected because his wife was not working at the time.
The ECJ ruled that national legislation cannot deprive a male civil servant of the right to parental leave on the ground that his wife does not work or exercise any profession. According to the Parental Leave Directive, each of the parents is entitles to parental leave. Therefore, a parent cannot be deprived of the right to parental leave, and the employment status of the spouse cannot prevent the exercise of that right. In Greece, mothers who are civil servants are always entitled to parental leave, whereas fathers who are civil servant are only entitled to parental leave if the mother of their child works or exercises a profession. It follows that the Greek Civil Service Code introduces, in respect of civil servant fathers who want to take parental leave, direct discrimination on grounds of sex contrary to the Employment Equality Directive. (C-222/14)
30-06-2015: ECJ Case C-586/13 (Martin Meat)
This request for a preliminary ruling concerns the interpretation of Chapter 1, paragraphs 2 and 13, of Annex X to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33) (‘the Act of Accession 2003’) and Article 1(3)(c) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1), read in the light of the judgment in Vicoplus and Others (C‑307/09 to C‑309/09, EU:C:2011:64). The request has been made in proceedings between Martin Meat kft (‘Martin Meat’) and Messrs Simonfay and Salburg, who are legal advisers, concerning compensation for Martin Meat with regard to a fine which it is liable to pay for having posted Hungarian workers to Austria without having obtained a work permit for them.
The court ruled
1. Chapter 1, paragraph 2, and paragraph 13, of Annex X to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, must be interpreted as meaning that the Republic of Austria is entitled to restrict the hiring-out of workers on its territory, in accordance with Chapter 1, paragraph 2 of that annex, even though that provision does not concern a sensitive sector, within the meaning of Chapter 1, paragraph 13, thereof.
2. In order to determine whether that contractual relationship must be classified as a hiring-out of workers, within the meaning of Article 1(3)(c) of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, it is necessary to take into consideration each element indicating whether the movement of workers in the host Member State is the very purpose of the supply of services on which the contractual relationship is based. In principle, evidence that such a movement is not the very purpose of the supply of services at issue are, inter alia, the fact that the service provider is liable for the failure to perform the service in accordance with the contract and the fact that that service provider is free to determine the number of workers he deems necessary to send to the host Member State. By contrast, the fact that the undertaking which receives those services checks the performance of the service for compliance with the contract or that it may give general instructions to the workers employed by the service provider does not, as such, lead to the finding that there is a hiring-out of workers. (C-586/13)
02-06-2015: ECJ Case C-65/14 (Roselle)
Under Belgian law, a worker is only entitled to a maternity allowance if, during the six months preceding her maternity leave, she worked for at least 120 working days. Mrs Rosselle, who worked in Flanders, applied for that allowance. Although she had been working for several years, her application was refused because her working status had changed and she had not completed the required minimum contribution period since starting her new employment. The Tribunal du travail (Labour Court) of Nivelles now seeks guidance from the Court on how to interpret the second subparagraph of Article 11(4) of the Maternity Directive, which states that Member States may under no circumstances require for that purpose periods of previous employment in excess of 12 months immediately prior to the presumed date of confinement (birth). The referring court also asks whether refusing to grant Mrs Rosselle a maternity allowance entails discrimination on grounds of sex and thus violates the Equal Treatment Directive.
The ECJ concluded that both the second subparagraph of Article 11(4) of Directive 92/85/EEC (the Maternity Directive), as amended, and Article 14(1)(a) of Directive 2006/54/EC (the Equal Treatment Directive) preclude a Member State from refusing to grant a worker a maternity allowance on the basis that, having obtained non-active status for personal reasons as a public servant in order to start working as a salaried employee, her employment status has changed and she has not accomplished the minimum contribution period required under national law since starting her new employment, if that worker had already been in employment for more than 12 months immediately prior to the presumed date of confinement. (C-65/14)
20-05-2015: ECJ Case C-392/13 (Rabal Cañas)
Mr Rabal Cañas worked as a skilled employee for Nexea. In the course of 2012, Nexea dismissed several workers and in December 2012 Nexea had to close its one establishment in Barcelona and transfer the remaining staff to its other establishment in Madrid. On 20 December 2012, Mr Rabal Cañas (working in Barcelona) was dismissed on economic grounds relating to production and organisation. He contested this dismissal, claiming that it was void on the ground that Nexea had fraudulently circumvented the application of the procedure relating to collective redundancies, which is mandatory under Directive 98/59.
The European Court of Justice held that the Collective Redundancies Directive (Directive 98/59) must be interpreted as precluding national legislation that introduces the undertaking and not the establishment as the sole reference unit. In this case, the effect of applying the criterion of “the undertaking” to establish whether the number of collective redundancies was enough to trigger the information and consultation procedure provided for in Articles 2 to 4 of the Directive, was that the number was too low. Furthermore, for establishing whether ‘collective redundancies’ have been effected, there is no need to take into account individual terminations of contracts of employment concluded for limited periods of time or for specific tasks, when those terminations take place on the date of expiry of the contract or on the date on which that task was completed. When it comes to the existence of collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks, it is not necessary for the cause of such collective redundancies to derive from the same collective contractual framework for the same duration or the same task. (C-392/13)
20-05-2015: ECJ Case C-182/13 (Lyttle and others)
The claimants in this case were employed by Bonmarché, at four different stores. Bonmarché became insolvent and was then transferred to Bluebird, who started a business restructuring process entailing the closure of many stores, including the stores in which the claimants worked. The claimants were dismissed together with the other employees. However, the dismissal process was not preceded by any consultation procedure as referred to in Directive 98/59. Therefore, the claimants contested the validity of their dismissals before the referring court.
The Court held that the term ‘establishment’ in Article 1(1)(a)(ii) of Directive 98/59 must be interpreted in the same way as the term in Article 1(1)(a)(i) of the Directive. According to the case-law of the Court, where an ‘undertaking’ comprises several entities meeting the criteria set out in this case-law, it is the entity to which the workers made redundant are assigned to carry out their duties that constitutes the ‘establishment’ for the purposes of Article 1(1)(a) of Directive 98/59. The definition in Article 1(1)(a)(i) and (a)(ii) of Directive 98/59 requires that account be taken of the dismissals effected in each establishment considered separately. Also, the Court held that the Directive does not preclude national legislation that lays down an obligation to inform and consult workers in the event of the dismissal, within a period of 90 days, of at least 20 workers from a particular establishment of an undertaking, and not where the aggregate number of dismissals across all of the establishments or across some of the establishments of an undertaking over the same period reaches or exceeds the threshold of 20 workers. (C-182/13)
19-05-2015: ECHR Case 6899/12 (Mitrinovski v. the former Yugoslav Republic of Macedonia)
The applicant, Mitrinovski, in 2010 a member of a three-judge panel of the Skopje Court of Appeal, voted for a decision, on 6 December 2010, to replace the order for detention with an order for house arrest on remand of an accused. The Supreme Court, on 10 December 2010, found that the Court of Appeal had no jurisdiction to examine the detainee’s request on the merits and the criminal division of the Supreme Court, which included the court’s president, found that two judges of the Skopje Court of Appeal who had participated in the decision of 6 December had disclosed professional misconduct. In May 2011, upon request of the President of the Supreme Court, the plenary of State Judicial Council (SJC) (of which the President was a member) decided to dismiss Mr Mitrinovski from the office of judge, referring in particular to the decision of 6 December 2010 and stating that his conduct had been unprofessional. Mitrinovski’s appeal before an appeal panel set up within the Supreme Court was dismissed in September 2011.
Mitrinovski complained under Article 6 of the Convention that the SCJ was not an independent and impartial tribune, since the President of the SJC had been a member of the Commission, as well as the President of the Supreme Court.
The Court finds it established that under Article 6 of the Convention that the SCJ was not an independent and impartial tribune. The role of the President of the SCJ in the proceedings failed both the subjective and objective impartiality test. (Case 6899/12)
04-05-2015: ECJ Case C-80/14 (USDAW and Wilson)
Woolworths and Ethel Austin were companies active in the high street retail sector throughout the United Kingdom that became insolvent. Protective awards against the employers were given to some dismissed employees because the consultation procedure provided for in the TULRCA had not been followed. Only employees that had worked at stores with more than 20 employees received this award because the employers claimed that each store was to be regarded as a separate establishment.
The European Court of Justice held that the term ‘establishment’ in Article 1(1)(a)(ii) of Directive 98/59 must be interpreted in the same way as the term in Article 1(1)(a)(i) of that directive. The existing ECJ Case-law on the term ‘establishment’ in that Article 1(1)(a)(ii) stipulates that the term must be interpreted as “designating, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties”. It is not essential in order for there to be an ‘establishment’ that the unit in question is endowed with a management that can independently effect collective redundancies (ECJ C 449/93 Rockfon). In ECJ Case C‑270/05 (Athinaïki Chartopoiïa), the European Court of Justice further clarified that an ‘establishment’, in the context of an undertaking, may consist of a distinct entity, having a certain degree of permanence and stability, which is assigned to perform one or more given tasks and which has a workforce, technical means and a certain organisational structure allowing for the accomplishment of those tasks. The entity in question need not have any legal autonomy, nor need it have economic, financial, administrative or technological autonomy, in order to be regarded as an ‘establishment’. The terms ‘undertaking’ and ‘establishment’ are different and an establishment normally constitutes a part of an undertaking. That does not, however, preclude the establishment being the same as the undertaking where the undertaking does not have several distinct units.
Consequently, where an ‘undertaking’ comprises several entities meeting the criteria set out above, it is the entity to which the workers made redundant are assigned to carry out their duties that constitutes the ‘establishment’ for the purposes of Article 1(1)(a) of Directive 98/59.
Therefore, national legislation is allowed that lays down an obligation to inform and consult workers in the event of the dismissal, within a period of 90 days, of at least 20 workers from a particular establishment of an undertaking, and not where the aggregate number of dismissals across all of the establishments or across some of the establishments of an undertaking over the same period reaches or exceeds the threshold of 20 workers. (C-80/14)
04-05-2015: ECHR Case 45892/09 on ban on strike action (ER.N.E. v. Spain)
The imposed ban on strike action on a police trade union did not infringe its freedom of association
In this case, the trade union (Junta Rectora Del Ertzainen Nazional Elkartasuna (ER.N.E.)), representing the Ertzainas (police officers of the Basque country) requested authorisation for the Ertzainas to take strike action following the collapse of negotiations on police officers’ working conditions. The request was refused on the grounds that the law bars members of the State security forces from exercising the right to strike in any circumstances. The European Court of Human Rights held, unanimously, that there had been no violation of Article 11 (freedom of association) of the European Convention on Human Rights, and/or of Article 14 (prohibition of discrimination).
The need for “law-enforcement agents” to provide an uninterrupted service and the fact that they were armed distinguished them from other civil servants such as judges or doctors, and justified the restriction of their right to organise. The more stringent requirements imposed on them did not exceed what was necessary in a democratic society. Furthermore, the specific nature of the activities in question warranted granting the State a wide margin of appreciation to regulate certain aspects of the trade union’s activities in the public interest, without however depriving the union of the core content of its rights under Article 11. (Case 45892/09)
23-04-2015: ECJ Case C-527/13 (Cachaldora Fernández)
The Spanish national social security institutions calculated the permanent invalidity pension of Ms Cachaldora Fernández taking into account the periods during which Ms Cachaldora Fernández did not pay contributions to the social security scheme, relying on reduced contribution bases, as she had worked on a part-time basis during the period immediately preceding that contribution gap.
The Tribunal Superior de Justicia de Galicia (High Court of Justice, Galicia, Spain) asked the Court whether such a procedure is compatible with Article 4 of Directive 79/7/EEC and with Clause 5(1)(a) of Directive 97/81/EC.
The ECJ held that Directive 97/81/EC did not apply in this case. Article 4(1) of Directive 79/7/EEC was held not to preclude a rule of national law which provides that the contribution gaps existing within the reference period for calculating a contributory invalidity pension, after a period of part-time employment, are taken into account by using the minimum contribution bases applicable at any time, reduced as a result of the reduction coefficient of that employment, whereas, if those gaps follow full-time employment, there is no provision for such a reduction. (C-527/13)
09-04-2015: ECJ Case C-316/13 (Fenoll)
G. Fenoll worked in a “Centre d’aide par le travail” (work rehabilitation centre) from 1 February 1996 to 20 June 2005. According to the employment conditions of his contract, he was entitled to five weeks of fully-paid annual leave per year. However, due to illness he was not in a position to enjoy this annual leave, and upon the end of his contract he claimed pecuniary compensation for these entitlements. This was refused, however, because worker in a Centre d’aide par le travail is not to be considered an employee under French law. The French Cour de Cassation referred to the ECJ the following questions:
“1. Must Article 3 of Directive 89/391/EEC, to which Article 1 of Directive 2003/88/EC of 4 November 2003, determining the scope thereof, refers, be interpreted as meaning that a person placed in a work rehabilitation centre can be classified as a ‘worker’ within the meaning of that Article 3?
2. Must Article 31 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that a person, such as described in the previous question, can be classified as a ‘worker’ within the meaning of that Article 31?
3. Can a person, such as described in the first question, rely directly on the rights conferred on her or him by the Charter in order to obtain an entitlement to paid leave if national legislation does not provide for any such entitlement, and must the national courts, in order to ensure that those rights are fully effective, set aside any contrary provision of national law?”
The ECJ held that the notion of “worker” as laid down in Article 7 of Directive 2003/88/EG and Article 31 Paragraph 2 of the Charter of Fundamental Rights of the European Union must be interpreted to be applicable to a person who works in a work rehabilitation centre such as the one in the proceedings at hand. (316/13)
27-03-2015: ECJ Case C-533/13 (AKT, Auto- ja Kuljetusalan Työntekijäliitto AKT ry)
SAF (Shell Aviation Finland) is an undertaking that supplies fuel to several airports in Finland. In 2010, SAF concluded a contract with the temporary-work agency Ametro Oy. Based on this contract, SAF was required to use temporary agency workers provided by Ametro Oy to replace permanent workers on sick leave, or to deal with peaks of work.
AKT (a trade union) brought an action before the Finnish Employment Tribunal seeking that SAF should pay a financial penalty for having contravened the applicable collective agreement. According to AKT, SAF has employed temporary agency workers permanently and continuously to perform the same tasks as performed by its own workers, which is an improper use of temporary agency workers for the purposes of the collective agreement.
The Employment Tribunal referred preliminary questions to the ECJ about the interpretation of Article 4(1) of Directive 2008/104 (Temporary Agency Work Directive). Questions referred to the ECJ are:
“1. Must Article 4(1) of the Temporary Agency Work Directive 2008/104/EC (1) be interpreted as laying down a permanent obligation on national authorities, including the courts, to ensure by the means available to them that national provisions or clauses in collective agreements contrary to that provision of the directive are not in force or are not applied?
2. Must Article 4(1) of the directive be interpreted as precluding a national provision under which the use of temporary agency labour is permitted only in the cases specially listed, such as to cope with peak periods of work or for work which cannot be given to an undertaking’s own employees to do? May the use of agency workers for a lengthy period in the ordinary work of an undertaking alongside the undertaking’s own employees be defined as a prohibited use of agency labour?
3. If the national provision is found to be contrary to the directive, what methods does a court have for achieving the objectives of the directive where a collective agreement to be observed by individuals is concerned?”
The ECJ held that Article 4(1) of the Directive must be interpreted as meaning that:
“– the provision is addressed only to the competent authorities of the Member States, imposing on them an obligation to review in order to ensure that any potential prohibitions or restrictions on the use of temporary agency work are justified, and, therefore,
– the provision does not impose an obligation on national courts not to apply any rule of national law containing prohibitions or restrictions on the use of temporary agency work which are not justified on grounds of general interest within the meaning of Article 4(1).” (533/14)
27-02-2015: ECJ Case C-238/14 (Commission vs. Luxembourg)
Luxembourg has failed, in the case of occasional workers in the entertainment arts, to fulfil its obligation to prevent the abuse of fixed-term employment contracts. The court declares that, by maintaining in force, with respect to occasional workers in the entertainment arts, derogations from the measures designed to prevent the abusive use of successive fixed-term contracts, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Clause 5 of the Framework Agreement on fixed-term work of 18 March 1999, which is set out in the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. (238/14)
27-02-2015: ECJ Case C-515/13 (Ingeniørforeningen i Danmark)
This case deals with age discrimination, and more specifically the interpretation of Articles 2(2)(a) and 6(1) of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.
Mr Landin worked as an engineer under the provisions of the Danish Law on salaried employees since 1999. With effect from his 65th birthday, on 24 November 2009, Mr Landin applied to have payment of his State retirement pension postponed to a later time so as to increase his pension entitlement. Two years later, his employer notified Mr Landin, then aged 67, of its decision to dismiss him after the expiry of six months (calculated having regard to his seniority, according to the Law on salaried employees). As Mr Landin was over the age of 65 and entitled to a State retirement pension, the employer did not pay him severance allowance under Paragraph 2a(1) of the Law on salaried employees. The employer took the view that under Paragraph 2a(2) of the Law on salaried employees a salaried employee who is entitled to a State retirement pension loses his claim to severance allowance under Paragraph 2a(1), even if he continues to be in active employment and even though he has asked for payment of his State retirement pension to be postponed.
Mr Landin worked the entire notice period and he brought an action, claiming severance allowance under Paragraph 2a(1) of the Law on salaried employees on the basis that the refusal of its payment is contrary to EU law.
The Østre Landsret (Denmark) asked the ECJ whether Member State are allowed to maintain a legal situation whereby an employer must pay an amount of severance pay when dismissing a salaried employee when a salaried employee, upon termination of employment, is entitled to receive a State retirement pension?
The ECJ held that Article 2(1) and (2)(a) and Article 6(1) of Directive 2000/78/EC allow national legislation that provides that a salaried employee who is entitled to receive a State retirement pension shall not receive severance pay upon termination of employment, when that legislation is both objectively and reasonably justified by a legitimate aim relating to employment and labour market policy, and when it constitutes an appropriate and necessary means of achieving that aim. It is for the national court to satisfy itself that this is the case. (C-515/13)
17-02-2015: ECJ Case C-396/13 (Sähköalojen ammattiliitto)
The present case arises from a dispute between a Finnish trade union, Sähköalojen ammattiliitto ry (‘the trade union’), and a Polish undertaking, Elektrobudowa Spółka Akcyjna (‘ESA’).
186 Polish workers concluded employment contracts with ESA in Poland and were posted to and ESA branch in Finland, a construction site of a nuclear power plant.
There are two issues in this case:
Firstly, the Polish company ESA did not pay minimum rates of pay to the employees in accordance with the applicable collective agreements which have been declared universally applicable and thus fall within the scope of Directive 96/71. The collective agreements provide for a calculation of employees’ minimum pay which is based on criteria that are more favourable to employees than those applied by ESA (i.a. the way of categorising employees by pay groups, of classifying pay on the basis of time or piecework, of granting employees a holiday allowance, a daily allowance and compensation for travelling time and of covering their accommodation costs).
Secondly, when the workers went to court, they each individually assigned their pay claims to the trade union, of which they are member. The trade union therefore took over the recovery of the pay claims before the referring court. This practice is allowed in Finnish law, but not under the Polish Labour Code. ESA claims that the law applicable to individual employment contracts are governed by Polish law, and thus the claims cannot validly be transferred to the trade union.
The referred Court asked 11 questions to the ECJ.
As to the second issue, the ECJ held that on the basis of Directive 96/71/EC read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, the Member State of the seat of the undertaking that has posted workers to the territory of another Member State (in this case Poland) — under which the assignment of claims arising from employment relationships is prohibited, may not prohibit a trade union, such as the one from Finland in this case, to bring an action before a court of the second Member State, in which the work is performed (i.c. Finland), in order to recover for the posted workers, pay claims which have been assigned to it in conformity with the law in force in the second Member State.
As to the first issue, the ECJ held that Article 3(1) and (7) of Directive 96/71, read in the light of Articles 56 TFEU and 57 TFEU:
“- does not preclude a calculation of the minimum wage for hourly work and/or for piecework which is based on the categorisation of employees into pay groups, as provided for by the relevant collective agreements of the host Member State, provided that that calculation and categorisation are carried out in accordance with rules that are binding and transparent, a matter which it is for the national court to verify;
- a daily allowance such as that at issue in the main proceedings must be regarded as part of the minimum wage on the same conditions as those governing the inclusion of the allowance in the minimum wage paid to local workers when they are posted within the Member State concerned;
- compensation for daily travelling time, which is paid to the workers on condition that their daily journey to and from their place of work is of more than one hour’s duration, must be regarded as part of the minimum wage of posted workers, provided that that condition is fulfilled, a matter which it is for the national court to verify;
- coverage of the cost of those workers’ accommodation is not to be regarded as an element of their minimum wage;
- an allowance taking the form of meal vouchers provided to the posted workers is not to be regarded as part of the latter’s minimum salary; and
- the pay which the posted workers must receive for the minimum paid annual holidays corresponds to the minimum wage to which those workers are entitled during the reference period.” (C-396/13)
10-02-2015: ECJ Case C-117/14 (Nisttahuz Poclava)
This request was lodged by the Juzgado de lo Social No 23 de Madrid (Spain) on 11 March 2014.
Ms Nisttahuz Poclava, of Bolivian nationality, worked as a cook for a hotel company. Her contract for full-time employment fell within the category of employment contracts of indefinite duration to support entrepreneurs, and was ended abruptly by the employer after 4,5 months, terminating the employment relationship with effect from the date of notice. The contract stated that Ms Nisttahuz Poclava would have a probationary period of one year. This was based on Article 4(3) of Law 3/2012, which was intended to facilitate employment and was an example of the legislative reform in the field of employment prompted by the decisions and recommendations of the European Union on employment policy.
This law provided for a different probationary period than that was normally provided for under Spanish law and that was unrelated to the professional skills of the person recruited. According to the referring court, that provision established an atypical contract with a fixed term of one year, which may be converted into a contract of indefinite duration once that period has elapsed. Furthermore, during the probationary period, the employee has no legal protection against dismissal, notably as regards the form that dismissal may take, the reasons for which a dismissal decision may be taken and the extent to which a dismissal is subject to review by the courts.
Ms Nisttahuz Poclava brought an action against her employer, seeking a declaration that her dismissal was unfair and an order directing her employer either to reinstate her on the same terms as those applicable before the employment contract was terminated or to pay her compensation equivalent to 33 days’ salary per year of service.
The questions referred are:
“Is national legislation under which employment contracts of indefinite duration to support entrepreneurs are made subject to a probationary period of one year, during which the employee may freely be dismissed, contrary to EU law, and is it compatible with the fundamental right guaranteed by Article 30 1 of the [Charter of Fundamental Rights of the European Union]?
Is the probationary period of one year to which employment contracts of indefinite duration to support entrepreneurs are made subject prejudicial to the objectives of, and to the rules laid down in, Directive 1999/70/EC 2 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — clauses 1 and 3?”
The ECJ held that it does not have jurisdiction to answer the questions referred for a preliminary ruling. Firstly, the Charter of Fundamental Rights of the European Union is not applicable, because Law 3/2012 is not implementing EU law. Secondly, the employment contract at issue here, is characterized specifically as a ‘the contract […] to be concluded for an indefinite duration’ (Article 4(2) of Law 3/2012), and therefore it cannot be categorised as a fixed-term contract under Article 3 of the Clause 3 of the Framework Agreement on Fixed-Term Work. (C-117/14)