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European Labour Law Network

Recent European Labour Law Highlights

04-11-2015: Cedefop survey “Matching skills and jobs in Europe”
The Cedefop survey was launched in 2014 and asked 49 000 adult employees (aged 24 to 65) across all 28 Member States how their skills and qualifications match the needs of their jobs. Employees face a constant challenge to learn new things to keep up with rapidly changing skill demands. The recession that followed the 2008 financial crisis reduced the number of jobs, the number of good jobs available, and increased the number of temporary jobs, which limit skill development. The conclusion is that to overcome skill mismatches, more and better jobs that invest in people’s skills are needed. The IVET (initial vocational education and training) programmes are essential, but good jobs themselves need to be enablers of long-term careers.

04-11-2015: Commission Communication ‘A new start for jobs and growth in Greece’
The Euro Summit of 12 July 2015 asked the Commission to help support job and growth creation in Greece in the next three to five years, by mobilizing up to €35 billion (under various EU programmes) to fund investment and economic activity. Now the European Commission has revealed plans to help Greece maximise its use of EU funds.
The Jobs and Growth Plan for Greece goes hand in hand with comprehensive reforms that are being planned under the European Stability Mechanism, to be negotiated between Greece and its international partners.

04-11-2015: Tripartite Social Summit for Growth and Employment
On 15 October 2015, EU leaders and social partners met at the Tripartite Social Summit for Growth and Employment, focusing on boosting jobs, growth and conversion in Europe.
President Juncker said: "From the Investment Plan for Europe to the Energy Union, Digital Single Market, Capital Markets Union, to the completion of Economic and Monetary Union, our agenda is in full stream. Social partners at national and EU levels are key to success."

04-11-2015: Reference for a preliminary ruling to the ECJ in 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?

05-10-2015: Reaction of SEDEC members to the forthcoming Labour Mobility Package of the Commission
The European Commission will present a Labour Mobility Package by the end of 2015. The goal is to support more efficient and fairer labour mobility, and to tackle fraud and abuse, by way of a better coordination of social security systems, a targeted review of the Posting of Workers Directive and an enhanced EURES (the European job mobility portal).
The European Committee of the Regions' Commission for Social Policy, Education, Employment, Research and Culture (SEDEC) organised a debate together with stakeholders, and have called on the EU executive to act strongly to safeguard fair working conditions for mobile workers, uphold social standards and ensure their proper enforcement.

05-10-2015: Judgment in the ECHR case of Dedecan and Ok v. Turkey (22685/09 and 39472/09)
Mustafa Dedecan and Metin Ok are Turkish nationals, public-sector employees (teachers in state schools), and they are members of the trade union Eğitim ve Bilim Emekçileri Sendikası – Eğitim-Sen (Union of employees in education and science).
On 15 February 2005 Mr Dedecan and Mr Ok took part in a demonstration organised by a civil-society group bringing together various trade unions. A disciplinary investigation was opened against them, and as a disciplinary sanction, any advancement in grade was suspended for one year. Moreover, they were subsequently transferred to other towns.
Mr Dedecan and Mr Ok brought proceedings before the administrative courts to have the transfer decisions set aside, but the courts dismissed their appeals and considered that Mr Dedecan and Mr Ok, by acting in support of a political party in spite of the importance and specific nature of the teaching profession, they no longer satisfied the conditions for exercising their roles as teachers. Upon appeal, the Supreme Administrative Court upheld the administrative courts’ judgments.
The ECHR held that their transfers had been based on their having taken part in a demonstration organised by their trade union, and had thus amounted to a breach of their right to freedom of association as provided for by Article 11 (freedom of assembly and association). The just satisfaction was set at EUR 1,500 each to Mr Dedecan and Mr Ok (non-pecuniary damage).

05-10-2015: A-G Opinion in ECJ Case on employer insolvency (ECJ C-292/14 Stroumpoulis and others)
The Advocate-General concluded that Directive 80/987/EEC is applicable to the outstanding wage claims to seamen that provided maritime labour on a vessel flying the flag of a country which is not a member of the European Union, of which the owner was an undertaking that has its registered office in that third country, but his real seat in a Member State where the seamen are working and where the undertaking has been declared insolvent according to the law of the said Member State. The fact that the employment contracts of the seamen were governed by the law of the third country and the fact that the undertaking did not contribute to the financing of the guarantee institution of the Member States is not relevant.
Moreover, the Advocate-General was of the opinion that the obligation as laid down in Article 29 of Act n° 1220/1981 is not to be considered as an ‘equivalent protection’ as meant in Article 1(2) of Directive 80/987.

21-09-2015: Own-initiative report of the Committee on Employment and Social Affairs on EU Strategic Framework on Health and Safety at Work 2014-2020
The own-initiative report of the Committee on Employment and Social Affairs (Rapporteur: Ole Christensen) stresses among others that addressing the challenges of health and safety in the workplace in Europe requires the application of legislative and non-legislative initiatives. Therefore, it enumerates additional concrete measures that should be included in the framework presented by the Commission in order to achieve the objective. After the presentation of the draft report in June, Members tabled 382 amendments, which were discussed on 15 September. The vote is planned on 23 September.

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.

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’.

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.