European Employment Law Cases

About this journal  

Subscribe to the email alerts for this journal here to receive notifications when a new issue is at your disposal.

Issue 4, 2022 Expand all abstracts

Life loves a tragedy

Authors Zef Even

Zef Even
Case Reports

Access_open 2022/31 Indirect discrimination of trade union members by applying collective bargaining agreement rather than internal legal act (LT)

Keywords Collective Agreements, Other Forms of Discrimination
Authors Ieva Povilaitienė, Indrė Mažeikaitė and Viktorija Minkevičiūtė
AbstractAuthor's information

    The Lithuanian Supreme Court (the ‘Supreme Court’) has found that trade union members were discriminated against in a case where an employer granted non-union members more extended annual leave than union members based on their collective bargaining agreement.

Ieva Povilaitienė
Ieva Povilaitienė is a partner at TGS Baltic Lithuania.

Indrė Mažeikaitė
Indrė Mažeikaitė is an associate at TGS Baltic Lithuania.

Viktorija Minkevičiūtė
Viktorija Minkevičiūtė is an associate at TGS Baltic Lithuania.

    The Danish Supreme Court has recently addressed the question whether it constituted discrimination to dismiss an employee who refused to work on a Saturday due to their religion.

Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding.

    Following last year’s decision in Forstater – v – CGD Europe and others, the Employment Appeal Tribunal has confirmed that gender critical beliefs are protected philosophical beliefs. Nevertheless, this protection is not limitless and an employer can still take appropriate action to protect others’ rights without discriminating unlawfully.

Anna Bond
Anna Bond is a Senior Associate in Lewis Silkin LLP.

Lucy Lewis
Lucy Lewis is a partner in Lewis Silkin LLP.

    Following last year’s ruling by the Employment Appeal Tribunal that her ‘gender critical’ beliefs were protected under the Equality Act 2010, Maya Forstater has won her discrimination claim.

Lucy Lewis
Lucy Lewis is a partner in Lewis Silkin LLP.

    In a decision of 16 May 2022, the Belgian Court of Cassation ruled that the habitual place of work used for the purposes of identifying the competent jurisdiction by virtue of Article 19(2)(a) of the Brussels I Regulation must be determined based on a circumstantial method including both quantitative and qualitative criteria.

Gautier Busschaert
Gautier Busschaert is an attorney at Van Olmen & Wynant.

    According to the Dutch Supreme Court, contractors enjoy protection under the Temporary Agency Work Directive (2008/104/EC) if they qualify as a temporary worker under the Directive. For this assessment a court has to inter alia determine whether the worker has an employment relationship with the temporary-work agency, using the definition of ‘employment relationship’ of the CJEU and not the definition under Dutch law. The Supreme Court ruled that the Court of Appeal had wrongly ruled that independent workers in general also enjoy the protection of the Dutch implementation legislation of Article 6(2) of the Directive.

Verona Twilt
Verona Twilt is a student at Erasmus School of Law and Editorial Assistant of EELC.

    The 9th Senate of the German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) has (once again) submitted a request for a preliminary ruling to the ECJ concerning leave law. It is asking for clarification as to whether the employer is obliged under EU law to (again) grant paid leave to an employee who, although not ill during the leave itself, had to remain in quarantine at home by official order during this period.

Paul Schreiner
Paul Schreiner is a partner at Luther Rechtsanwaltsgesellschaft mbH.

Nina Stephan
Nina Stephan is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

    A recent Irish Labour Court judgment has found that it was correct for overtime and certain other allowances to be excluded from the calculation of payment for annual leave, and that the timeframe for the backdating of the claim was that set down in Irish legislation.

Karen Hennessy
Karen Hennessy is a solicitor at Mason Hayes & Curran LLP.

    The legal obligation of the employer to request the performance of overtime in writing does not eliminate the possibility of the employee to prove the overtime by any other means.
    In the case at hand, although the employer provided by way of internal regulations the framework for recording working hours and performance of overtime, the court was not bound to limit its legal assessment to it.

Andreea Suciu
Andreea Suciu is Managing Partner of Suciu - Employment and Data Protection Lawyers.

Teodora Manaila
Teodora Manaila is an attorney-at-law at Suciu - Employment and Data Protection Lawyers.

ECtHR 5 July 2022, app. no. 815/18 (Association of Civil Servants and Union for Collective Bargaining –‍ v ‍– Germany), Unions, Collective Agreements

Association of Civil Servants and Union for Collective Bargaining – v – Germany

Keywords Unions, Collective Agreements

    It can be within the State’s margin of appreciation to adopt legislation which renders conflicting collective agreements concluded by minority trade unions inapplicable.


ECtHR 8 November, app. no. 64480/19 (Moraru –‍ v ‍– Romania), Other Forms of Discrimination

Elena Moraru – v – Romania

Keywords Other Forms of Discrimination

    Refusal of application because the applicant is too short found discriminatory based on size (art. 14 ECHR).


ECtHR 13 December 2022, app. No. 26968/16 (Florindo de Almeida Vasconcelos Gramaxo –‍ v ‍– Portugal), Privacy

Florindo de Almeida Vasconcelos Gramaxo – v – Portugal

Keywords Privacy

    Dismissal based on GPS tracking of company vehicle by a device installed by the applicant’s employer with his full knowledge: no violation of the ECHR

    No systemic problem with vetting process to combat corruption and to restore public trust in the justice system.


ECJ 15 December 2022, case C-311/21, (TimePartner Personalmanagement), Temporary agency work

CM – v – TimePartner Personalmanagement GmbH, German case

Keywords Temporary Agency Work

    A collective agreement which offers lower pay to temporary agency workers compared to workers recruited directly must provide for countervailing benefits and must be able to be reviewed by the judiciary.


ECJ 29 September 2022, case C-3/21 (Chief Appeals Officer and Others), Social insurance

FS – v – The Chief Appeals Officer, the Social Welfare Appeals Office, the Minister for Employment Affairs and the Minister for Social Protection, Irish case

Keywords Social insurance

    The concept of ‘claim’ in Article 81 of Regulation No 883/2004 refers only to an application made by a person who has exercised his or her right to freedom of movement to the authorities of a Member State which is not competent under the conflict rules laid down by that regulation and EU law, in particular the principle of effectiveness, does not preclude the application of national legislation which makes the retroactive effect of an application for child benefit subject to a limitation period of 12 months.


ECJ 13 October 2022, case C-199/21 (Finanzamt Österreich), Social insurance

DN – v – Finanzamt Österreich, Austrian case

Keywords Social insurance

    According to the Court of Justice, a person in receipt of pensions in two Member States is entitled to family benefits in accordance with the legislation of those two Member States. When the receipt of such benefits in one of those Member States is precluded pursuant to the national legislation, the priority rules referred to in Article 68(1) and (2) of Regulation No 883/2004 do not apply. The Court further held that national legislation which allows the recovery of family benefits awarded, where the parent entitled to such benefits pursuant to that legislation has not applied for them, to the other parent, whose application has been taken into account, in accordance with that provision, by the competent institution, and who in fact bears the entire cost associated with the maintenance of the child, is precluded.


ECJ 18 October 2022, case C-677/20 (IG Metall and ver.di), Information & Consultation

Industriegewerkschaft Metall (IG Metall), ver.di - Vereinte Dienstleistungsgewerkschaft – v – SAP SE, SE-Betriebsrat der SAP SE, German case

Keywords Miscellaneous

    Where national law requires, in respect of the company to be transformed, a separate ballot for the election of employees’ representatives nominated by the trade unions, that electoral arrangement must be preserved.


ECJ 13 October 2022, case C-713/20 (Raad van bestuur van de Sociale verzekeringsbank), Social insurance

Raad van bestuur van de Sociale verzekeringsbank – v – X & Y., Dutch case

Keywords Temporary agency work

    A person residing in a Member State who carries out, through a temporary employment agency established in another Member State, temporary work assignments in the territory of that other Member State, is during the intervening periods between those temporary work assignments subject to the national legislation of the Member State in which he or she resides, providing that, by reason of the temporary contract, the employment relationship ceases during those periods.


ECJ 13 October 2022, case C-593/21 (Herios), Miscellaneous

NY – v – Herios SARL, Belgian law

Keywords Miscellaneous

    The goodwill indemnity which has been paid by the principal to the main agent in respect of the customer base brought by the subagent is capable of constituting, for the main agent, a substantial benefit. However, the payment of a goodwill indemnity to the subagent may be regarded as not being equitable, within the meaning of Article 17(2)(a) of Directive 86/653/EEC, where the subagent continues his or her commercial agency business in relation to the same clients and for the same products but in the context of a direct relationship with the main principal, which replaced the main agent that had previously engaged him or her.


ECJ 13 October 2022, case C-344/20 (S.C.R.L. (Religious clothing)), Religious discrimination

L.F. – v – S.C.R.L., Belgian case

Keywords Religious discrimination

    According to the Court of Justice, religion and belief must be regarded as a single ground of discrimination, otherwise the general framework for equal treatment in employment and occupation provided for by EU law, in particular by Directive 2000/78, will be undermined.

    National legislation which provides for the fixing of a maximum age limit of 30 years for participation in a competition aimed at recruiting police commissioners constitutes prohibited age discrimination.


ECJ 20 October 2022, case C-604/20 (ROI Land Investments Ltd), Competency

ROI Land Investments Ltd. – v – FD, German Case

Keywords Competency

    A person who is not domiciled in a Member State may be sued in a court of the Member State where the employee habitually carries out his/her work, if he was not the formal employer but has warranted performance by the formal employer. Unfortunately, no English translation of the case is available.


ECJ 20 October 2022, case C-301/21 (Curtea de Apel Alba Iulia and Others), Age Discrimination

Curtea de Apel Alba Iulia and Others – v – YF and Others, Romanian Case

Keywords Age Discrimination

    A national provision which, as applied in domestic case law, results in a higher salary for persons who entered into service before that provision cafe into force, does not constitute age discrimination. Moreover, Directive 2000/78 only protects the grounds mentioned in Article 1 of that Directive.


ECJ 1 December 2022, case C-653/20 P (EUIPO –‍ v ‍– Vincenti), Miscellaneous

EUIPO – v – Guillaume Vincenti, EU Case

Keywords Miscellaneous

    An appeal against the General Court’s annulment of decision not to promote an EUIPO employee was dismissed.


ECJ 8 December 2022, case C-731/21, (Caisse nationale d’assurance pension), Social Insurance

GV – v – Caisse nationale d’assurance pension, Luxembourg case

Keywords Social Insurance

    Cross-border workers do not need to register a civil partnership that was entered into in another Member State to be granted a survivor’s pension.


ECJ 24 November 2022, case C-638/20 (MCM (Aides financières pour études à l’étranger)), Social Insurance

MCM – v – Centrala studiestödsnämnden, Swedish case

Keywords Social Insurance

    A Member State can require, in order to provide study grants, that the child of a returned migrant worker has a connection with the Member State of origin, provided that such requirement applies to other nationals as well.


ECJ 15 December 2022, joined cases C-40/20 and C-173/20 (Presidenza del Consiglio dei Ministri e.a. (Chercheurs universitaires)), Fixed-Term Work

Various employees – v – Presidenza del Consiglio dei Ministri and Others, Italian case

Keywords Fixed-Term Work

    A university can extend a fixed-term contract with another fixed-term contract, without making this conditional of objective reasons connected with temporary or exceptional requirements. Also, the Court rules on various other issues.


ECJ 15 December 2022, case C-366/21 P, (Maxime Picard / European Commission), Miscellaneous

Maxime Picard – v – European Commission, EU case

Keywords Miscellaneous

    Successful appeal of EC official against an application of transitional provisions regarding pension.

Pending Cases

Case C-518/22, Age Discrimination, Disability Discrimination

J.M.P. – v – AP Assistenzprofis GmbH, reference lodged by the Bundesarbeitsgericht (Germany) on 3 August 2022

Keywords Age Discrimination, Disability Discrimination
Pending Cases

Case C-540/22, Social Insurance

Various applicants – v – Staatssecretaris van Justitie en Veiligheid, reference lodged by the Rechtbank Den Haag (The Netherlands) on 11 August 2022

Keywords Social Insurance
Pending Cases

Case C-548/22, Fixed-Term Work, Part Time Work, Working Times

M.M. – v – Presidenza del Consiglio dei Ministri, Ministero della Giustizia, Ministero dell’Economia e delle Finanze, reference lodged by theGiudice di pace di Fondi (Italy) on 18 August 2022

Keywords Fixed-Term Work, Part Time Work, Working Times
Pending Cases

Case C-589/22, Collective Redundancies

J.L.O.G. and J.J.O.P. – v – Resorts Mallorca Hotels International S.L., reference lodged by the Tribunal Superior de Justicia de las Islas Baleares (Spain) on 7 September 2022

Keywords Collective Redundancies
Pending Cases

Case C-549/22, Social Insurance

X – v – Raad van bestuur van de Sociale verzekeringsbank, reference lodged by the Centrale Raad van Beroep (The Netherlands) on 18 August 2022

Keywords Social Insurance
Pending Cases

Case C-630/22, Religious Discrimination

JK – v – Kirchliches Krankenhaus, reference lodged by the Bundesarbeitsgericht (Germany) on 10 October 2022

Keywords Religious Discrimination
Pending Cases

Case C-673/22, Parental Leave

C.C.C. – v – Tesorería General de la Seguridad Social (TGSS) and Instituto Nacional de la Seguridad Social (INSS), reference lodged by the Juzgado de lo Social n.º 1 de Sevilla (Spain) on 27 October 2022

Keywords Parental Leave
Pending Cases

Case C-631/22, Disability Discrimination

J.M.A.R. – v – CaNaNegreta, S.A., reference lodged by the Tribunal Superior de Justicia de las Islas Baleares (Spain) on 7 October 2022

Keywords Disability Discrimination
Pending Cases

Case C-650/22, Other Forms of Free Movement

Federation Internationale de Football Association (FIFA) – v – BZ, reference lodged by the Cour d’appel de Mons (Belgium) on 17 October 2022

Keywords Other Forms of Free Movement
Pending Cases

Case C-706/22, Information and Consultation

Konzernbetriebsrat der O SE & Co. KG – v – Vorstand der O Holding SE (Holding SE), reference lodged by the Bundesarbeitsgericht (Germany) on 17 November 2022

Keywords Information and Consultation