Skip to main content

European Labour Law Network

04-11-2015: Reference for a preliminary ruling on Freedom of movement for workers (ECJ Case C- 341/15 (Maschek))
In this case, the Verwaltungsgericht of Vienna referred to the ECJ the following questions:
1. Is national legislation, such as the provision at issue of Paragraph 41a(2) of the Wiener Besoldungsordnung 1994, which in principle does not allow an employee who has, at his own request, terminated the employment relationship with effect from a particular date an entitlement to an allowance in lieu of leave within the meaning of Article 7 of Directive No 2003/88/EC (1) compatible with Article 7 of Directive 2003/88/EC? If not, is a provision of national law which lays down that every employee who, at his own request, terminates an employment contract must make every effort to use up any outstanding entitlement to annual leave by the end of the employment relationship and that, in the event of termination of the employment relationship at the request of the employee, an entitlement to an allowance in lieu of leave arises only if, also in the event of request being made for annual leave beginning on the day of the application to terminate the employment relationship, the employee was unable to take a period of leave corresponding to the full extent of an entitlement to an allowance in lieu of leave compatible with Article 7 of Directive 2003/88/EC?
2. Is it to be assumed that there is only to be an entitlement to payment of an allowance in lieu of leave if the employee who was unable due to incapacity to work to use up his leave entitlement immediately before the termination of his employment relationship (a) without unnecessary delay (and therefore in principle before the date of termination of the employment relationship) made his employer aware of his incapacity to work (e.g. due to illness) and (b) without unnecessary delay (and therefore in principle before the date of termination of the employment relationship) provided proof (e.g. through a doctor’s sick note) of his incapacity to work (e.g. due to illness)? If not, is a provision of national law which lays down that there is only to be an entitlement to an allowance in lieu of leave if the employee who was unable due to incapacity to work to use up his leave entitlement immediately before the termination of his employment relationship (a) without unnecessary delay (and therefore in principle before the date of termination of the employment relationship) made his employer aware of his incapacity to work (e.g. due to illness) and (b) without unnecessary delay (and therefore in principle before the date of termination of the employment relationship) provided proof (e.g. through a doctor’s sick note) of his incapacity to work (e.g. due to illness) compatible with Article 7 of Directive 2003/88/EC?
3. According to the case-law of the Court of Justice of the European Union (cf. judgments of the Court of Justice of 18 March 2004 in Gomez, C-342/01, paragraph 31; of 24 January 2012 in Dominguez, C-282/10, paragraphs 47 to 50; of 3 May 2012 in Neidei, C-337/10, paragraph 37) the Member States are free to grant an employee a statutory entitlement to leave or to an allowance in lieu of leave above the minimum entitlement guaranteed by Article 7 of Directive 2003/88. In addition, the entitlements laid down by Article 7 of Directive No 2003/88 have direct effect (cf. judgments of the Court of Justice of 24 January 2012 in Dominguez, C-282/10, paragraphs 34 to 36; of 12 June 2014 in Bollacke, C-118/13, paragraph 28). In the light of that interpretation given to Article 7 of Directive 2003/88/EC, does a situation in which the national legislature allows a certain class of persons an entitlement to an allowance in lieu of leave significantly above the requirements of that provision of the directive have the effect that, as a result of the direct effect of Article 7 of Directive 2003/88/EC, those persons who were, contrary to the terms of the directive, refused an entitlement to an allowance in lieu of leave by that national legislation are also entitled to an allowance in lieu of leave to the extent significantly above the requirements of that provision of the directive, and which is allowed by the national legislation to the persons favoured by that provision? (C-341/15)

22-07-2015: Request for a preliminary ruling on collective redundancies (ECJ Case C-201/15 (AGET Iraklis))
The Greek Simvoulio tis Epikratias referred the following questions:
1. Is a national provision, such as Article 5(3) of Law No 1387/1983, which lays down as a condition in order for collective redundancies to be effected in a specific undertaking that the administrative authorities must authorise the redundancies in question on the basis of criteria as to (a) the conditions in the labour market, (b) the situation of the undertaking and (c) the interests of the national economy compatible with Directive 98/59/EC in particular and, more generally, Articles 49 TFEU and 63 TFEU?
2. If the answer to the first question is in the negative, is a national provision with the aforementioned content compatible with Directive 98/59/EC in particular and, more generally, Articles 49 TFEU and 63 TFEU if there are serious social reasons, such as an acute economic crisis and very high unemployment? (C-201/15)

22-07-2015: Request for a preliminary ruling on Directive 78/2000 (ECJ Case C-188/15 (Bougnaoui and ADDH)
The French Cour de Cassation referred the following question:
‘Must Article 4(1) of Council Directive 78/2000/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (1) be interpreted as meaning that the wish of a customer of an information technology consulting company no longer to have the information technology services of that company provided by an employee, a design engineer, wearing an Islamic headscarf, is a genuine and determining occupational requirement, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out?’ (C-188/15)

30-06-2015: German Federal Labour Court referred questions to the ECJ on dynamic reference clauses
The German Federal Labour Court referred questions to the ECJ on dynamic reference clauses in employment contracts in connection with the interpretation of section 613a of the German civil code. The main question is whether section 613a of the civil code is in conformity with Article 3 of Directive 2001/23/EG and Article 16 of the Charta of Fundamental Rights of the European Union. (Source)

30-06-2015: German Federal Labour Court referred questions to the ECJ on discrimination of bogus applications
The German Federal Labour Court referred a question to the ECJ on a discrimination issue of bogus applications. The court asked, whether applicants can claim compensation because of discrimination even though they submitted a bogus application.

Federal Labour Court of 18 June 2015, 8 AZR 848/13 (A) (Source)

16-06-2015: Commission refers Estonia to EU Court of Justice over successive fixed-term employment in the academic sector
The European Commission has referred Estonia to the European Court of Justice; it states that the Estonian law limit of a maximum of 5 years of successive fixed-term employment contracts, with less than 2 months between the contracts, does not provide sufficient protection against abuse arising from the use of successive fixed-term employment contracts or relationships in the academic sector.
In Estonia, the academic year knows a summer closure period of 2,5 months, thus allowing fixed-term contracts covering the academic year, which will never be converted into a contract of indefinite duration because of interruption period. The Commission holds that this does not provide effective protection against abuse arising from successive fixed-term employment. (Source)

02-06-2015: A-G Opinion in Request for a preliminary ruling on Fixed-term work (ECJ Case C-177/14 (Regojo Dans))
Ms Regojo Dans has 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 Tribunal Supremo therefore decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
(1) Does the definition of ‘fixed-term worker’ in clause 3(1) of the framework agreement on fixed-term work ... include ‘non-permanent staff’ (‘personal eventual’) who are currently governed by Article 12 of [the LEBEP] … and ‘non-permanent staff’ who were previously governed by Article 20(2) of Law 30/1984 …?
(2) Is the principle of non-discrimination in clause 4(4) of the framework agreement on fixed-term work … applicable to such ‘non-permanent staff’, so that they may be granted the right to receive and be paid the remuneration in respect of length of service which is paid to career civil servants, staff engaged under employment contracts for an indefinite duration, interim (non-established) civil servants and staff engaged under fixed-term employment contracts?
(3) Do the rules, laid down in the two aforementioned Spanish laws, whereby the appointment of such ‘non-permanent staff’ and the termination of their appointment are not — on account of the positions of trust involved — subject to any restrictions, come within the objective grounds which under clause 4 may justify different treatment?’
A-G Mengozzi concluded that:
(1) Clauses 2(1) and 3(1) of the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which is set out in the Annex to Council Directive 1999/70/EC of 28 June 1999, are to be interpreted as meaning that it is for the Member States to define the employment contract or employment relationship. However, the referring court must ensure that that definition does not result in the arbitrary exclusion of the category of non-permanent staff from the protection afforded by the framework agreement. Indeed, non-permanent staff must be afforded such protection where the nature of their relationship with the public authorities is not substantially different from the relationship between persons who, under Spanish law, fall within the category of workers and their employers.
(2) Clause 3(1) of the framework agreement is to be interpreted as meaning that the automatic termination of the appointment of a worker on account of the termination of the appointment of his line manager is an objective condition determining the end of the employment relationship, even though the employment relationship may also come to an end simply on the decision of the line manager.
(3) In order to assess whether workers are engaged in the ‘same or similar’ work within the meaning of clause 3(2) of the framework agreement, it must be determined whether, in the light of a number of factors, such as the nature of the work, training requirements and working conditions, those workers can be regarded as being in a comparable situation. In the light of the objectives of the framework agreement, the concept of ‘the same or similar’ work cannot be interpreted strictly. The specific nature of the tasks for the performance of which the fixed-term contract was concluded and the inherent characteristics of those tasks cannot therefore be taken into account in order to determine whether the workers are engaged in ‘the same or similar’ work. Nor can account be taken of the — actual or merely potential — performance of a second activity, which differs from the common activity, since that second activity is merely an activity which is incidental to the common activity.
(4) Clause 3(2) of the framework agreement is to be interpreted as meaning that, where there is no comparable permanent worker in the same public authority or the same department of a public administration, that worker must be sought amongst the permanent workers whose employment conditions were defined by the same entity and who are engaged in the same or similar work.
(5) Clause 4(1) of the framework agreement is to be interpreted as meaning that a length-of-service increment comes within the concept of an ‘employment condition’ within the meaning of that provision.
(6) Rules governing the appointment of non-permanent staff and the termination of their appointment on a discretionary basis cannot constitute an objective ground justifying a difference in treatment within the meaning of clause 4(1) of the framework agreement. However, the objective of rewarding the loyalty of the staff at a public authority is such an objective ground. Nevertheless, the refusal to grant a length-of-service increment to a member of staff who has completed more than 30 years of service in the public authority cannot be regarded as appropriate for achieving such an objective. As for the specific nature of the tasks for the performance of which the fixed-term contract was concluded and the inherent characteristics of those tasks, they do constitute an ‘objective ground’ within the meaning of clause 4(1) of the framework agreement. The exercise by the fixed-term worker of authority not enjoyed by the comparable permanent worker cannot, however, justify the less favourable treatment of the fixed-term worker. (C-177/14)

19-05-2015: Request for a preliminary ruling on EC Regulation No 44/2001 (ECJ Case C-47/14 (Holterman Ferho Exploitatie BV and Others))
This request for a preliminary ruling was made by the Dutch Supreme Court (Hoge Raad der Nederlanden). The questions referred are:
1. Must the provisions of Section 5 of Chapter II (Articles 18-21) of Regulation (EC) No 44/2001 be interpreted as precluding the application by the courts of Article 5(1)(a) or of Article 5(3) of that Regulation in a case such as that at issue here, where the defendant is held liable by the company not only in his capacity as director of that company on the basis of the improper performance of his duties or on the basis of unlawful conduct, but quite apart from that capacity, is also held liable by that company on the basis of intent or deliberate recklessness in the execution of the contract of employment entered into between him and the company?
2(a). If the answer to question 1 is in the negative, must the term ‘matters relating to a contract’ in Article 5(1)(a) of Regulation (EC) No 44/2001 then be interpreted as also applying to a case such as that at issue here, where a company holds a person liable in his capacity as director of that company on the basis of the breach of his obligation to properly perform his duties under company law?
2(b). If the answer to question 2(a) is in the affirmative, must the term ‘place of performance of the obligation in question’ in Article 5(1)(a) of Regulation (EC) No 44/2001 then be interpreted as referring to the place where the director performed or should have performed his duties under company law, which, as a rule, will be the place where the company concerned has its central administration or its principal place of business, as referred to in Article 60(1)(b) and (c) of that Regulation?
3(a). If the answer to question 1 is in the negative, must the term ‘matters relating to tort, delict or quasi-delict’ in Article 5(3) of Regulation (EC) No 44/2001 then be interpreted as also applying to a case such as that at issue here, where a company holds a person liable in his capacity as director of that company on the basis of the improper performance of his duties under company law or on the basis of unlawful conduct?
3(b). If the answer to question 3(a) is in the affirmative, must the term ‘place where the harmful event occurred or may occur’ in Article 5(3) of Regulation (EC) No 44/2001 be interpreted as referring to the place where the director performed or should have performed his duties under company law, which, as a rule, will be the place where the company concerned has its central administration or its principal place of business, as referred to in Article 60(1)(b) and (c) of that Regulation? (C-47/14)

23-04-2015: Request for a preliminary ruling on age discrimination and remuneration (ECJ Case C-20/13 (Unland))
This reference was made by the German Verwaltungsgericht Berlin (administrative court) for a preliminary ruling dealing with Directive 2000/78/EC and age discrimination.
1. Is European primary and/or secondary law, here in particular Directive 2000/78/EC, to be interpreted as a comprehensive prohibition of unjustified age discrimination, such that it also covers national rules on the remuneration of Land judges?
2. If Question 1 is answered in the affirmative: does the interpretation of this European primary and/or secondary law mean that a national provision under which the level of the basic pay of a judge on establishment of the status of judge, and the subsequent rise in that basic pay, is dependent on his age constitutes direct or indirect age discrimination?
3. If Question 2 is also answered in the affirmative: does the interpretation of this European primary and/or secondary law preclude the justification of such a national provision by the legislative aim of making payment for professional experience and/or interpersonal skills?
4. If Question 3 is also answered in the affirmative: does the interpretation of European primary and/or secondary law, where a non-discriminatory right to remuneration has not been implemented, permit a legal consequence other than retrospective remuneration of those discriminated against at the highest pay step in their pay grade?
5. Does the legal consequence of infringement of the prohibition of discrimination in that case follow from European primary and/or secondary law itself, here in particular Directive 2000/78/EC, or does the claim follow only from the point of view of failure to implement the rules of European law in accordance with the claim to State liability under European Union law?
6. Does the interpretation of European primary and/or secondary law preclude a national measure which makes the claim to (retrospective) payment or compensation dependent on the judges' having enforced that claim in good time?
7. If Questions 1 to 3 are answered in the affirmative: does it follow from the interpretation of European primary and/or secondary law that a transitional law - under which existing judges are placed on a step of the new system solely according to the amount of the basic pay they attained under the old (discriminatory) law on remuneration on the transition date, and according to which further progression to higher steps is thereupon calculated essentially according to the periods of experience attained since the entry into force of the transitional law, irrespective of the judge's absolute period of experience - constitutes a perpetuation of the existing age discrimination, continuing until the highest pay step is reached in each case?
8. If Question 6 is also answered in the affirmative: does the interpretation of European primary and/or secondary law conflict with a justification of this unrestricted, continuing difference in treatment by the legislative aim whereby the transitional law is to protect not (only) the acquired rights of existing judges existing on the transition date but (also) the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration, and new judges are to be paid better than existing judges?
9. Can the continuing discrimination against existing judges be justified by the fact that the regulatory alternative (individual placement also of existing judges according to periods of experience) would involve increased administrative expenditure?
10. If such justification is rejected in Question 7: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing judges, permit a legal consequence other than retrospective and continuing remuneration of existing judges at the highest pay step in their pay grade?
11. If Questions 1 to 3 are answered in the affirmative and Question 6 is answered in the negative: does it follow from the interpretation of European primary and/or secondary law that a provision of a transitional law which secures faster pay progression from a certain pay step onwards for existing judges who had reached a certain age at the time of transition than for existing judges who were younger on the transition date constitutes direct or indirect age discrimination?
12. If Question 9 is answered in the affirmative: does the interpretation of European primary and/or secondary law conflict with a justification of this difference in treatment by the legislative aim of protecting not the acquired rights existing on the transition date but only the expectation of the lifetime income in the respective pay grade that was forecast to be paid under the old law on remuneration?
13. If such justification is rejected in Question 10: does the interpretation of European primary and/or secondary law, until a non-discriminatory right to remuneration has been implemented also for existing judges, permit a legal consequence other than that of securing - retrospectively and on a continuing basis - the same pay progression for all existing judges as the favoured judges referred to in Question 9? (C-20/13)

23-04-2015: Reference for a preliminary ruling on parental leave for judges (ECJ Case C-222/14 (Maïstrellis))
This reference was made by the Greek Symvoulio tis Epikrateias (Council of State) for a preliminary ruling dealing with Directive 96/34/EC on parental leave. A Greek judge was denied parental leave for his newborn child, because his wife was unemployed and physically capable to take care of the child. This was in line with Greek legislation on civil servants.
The Symvoulio tis Epikrateias would like to know whether this national legislation is in line with the provisions of Directive 96/34/EC and Directive 2006/54/EC, in so far as they are applicable. (C-222/14)

09-04-2015: Reference for a preliminary ruling on Freedom of movement for workers (ECJ Case C-298/14 (Brouillard))
In this case C-298/14, the Belgian Council of State referred the following questions to the European Court of Justice:
“Are Articles 45 and 49 TFEU and Directive 2005/36 of 7 September 2005 on the recognition of professional qualifications to be interpreted as applying in a situation where a Belgian national, who resides in Belgium and who has not pursued a professional activity 1 in another Member State, relies in support of his application to participate in a competition to recruit legal secretaries at the Belgian Cour de cassation on a degree awarded by a French university, namely a vocational master’s degree in law, economics and management, private law, lawyer-linguist specialism, awarded on 22 November 2010 by the University of Poitiers in France?
Is the office of legal secretary at the Belgian Cour de cassation, in respect of which Article 259 duodecies of the Judicial Code makes appointment conditional on holding a doctorate or licentiate degree in law, a regulated profession within the meaning of Article 3 of Directive 2005/36 of 7 September 2005?
Is the office of legal secretary at the Cour de cassation, the duties of which are defined in Article 135 bis of the Judicial Code, employment in the public service within the meaning of Article 45(4) TFEU, and is the application of Articles 45 and 49 TFEU and Directive 2005/36 of 7 September 2005 on the recognition of professional qualifications therefore precluded by Article 45(4) TFEU?
If Articles 45 and 49 TFEU and Directive 2005/36 of 7 September 2005 apply in the present case, must they be interpreted as precluding the selection board charged with the recruitment of legal secretaries at the Cour de cassation from making participation in that competition conditional on the holding of a doctorate or licentiate degree in law awarded by a Belgian university, or on recognition by the French Community, which has competence in the field of education, that the master’s degree awarded to the applicant by the University of Poitiers in France is equivalent to the qualification of doctorate, licentiate degree or master’s degree in law awarded by a Belgian university?
If Articles 45 and 49 TFEU and Directive 2005/36 of 7 September 2005 apply in the present case, must they be interpreted as requiring the selection board charged with the recruitment of legal secretaries at the Cour de cassation to compare the applicant’s qualifications resulting from his degrees as well as from his professional experience with those resulting from a doctorate or licentiate degree in law awarded by a Belgian university and, if necessary, to impose a compensation measure on him under Article 14 of Directive 2005/36?” (C-298/14)

27-03-2015: Reference for a preliminary ruling on Article 56 TFEU (ECJ Case C-25/14 Union des syndicats de l’immobilier (UNIS))
The question referred to the European Court of Justice is:
“Is compliance with the obligation of transparency flowing from Article 56 TFEU a mandatory prior condition for the extension, by a Member State, to all undertakings within a sector, of a collective agreement under which a single operator, chosen by the social partners, is entrusted with the management of a compulsory supplementary social security scheme for employees?” (C-25/14)