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European Employment Law Cases

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Issue 3, 2022 Expand all abstracts
Editorial

Towards a European Convention?

Keywords Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Authors Zef Even

Zef Even
Case Reports

Access_open 2022/20 Entry fee to access a collective agreement does not constitute discrimination (BG)

Keywords Collective Agreements, Unions, Other Forms of Discrimination, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Authors Kalina Tchakarova
AbstractAuthor's information

    The Bulgarian Supreme Court of Cassation has held that it is not discriminatory to require an accession fee to a collective agreement for employees who are not members of a union, provided that this does not exceed the (direct and indirect) financial obligations of members.


Kalina Tchakarova
Kalina Tchakarova is a partner at Djingov, Gouginski, Kyutchukov and Velichkov.
Case Reports

2022/21 The right to collective action recognised by the European Social Charter has no direct effect says the Belgian Supreme Court (BE)

Keywords Unions, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Authors Gautier Busschaert
AbstractAuthor's information

    In a decision regarding the legality of the prosecution of a group of strikers following a road blockade, the criminal chamber of the Belgian Supreme Court has stated rather surprisingly that Article 6(4) of the European Social Charter (right to collective action) could not be directly invoked by the strikers as it lacked clarity and precision, thus requiring supplementary regulation of this right by national legislation.


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

2022/22 Liability for harassment and bullying in the workplace (DK)

Keywords Health and Safety, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Authors Christian K. Clasen
AbstractAuthor's information

    An employer has been held liable for not preventing and tackling a group of employees’ bullying of another employee contrary to the employer’s obligations under the Danish Working Environment Act.


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

2022/23 Workers not paid for holiday can claim compensation for entire engagement (UK)

Keywords Paid Leave, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Authors Tarun Tawakley
AbstractAuthor's information

    In a decision with major implications across the UK gig economy and beyond, the Court of Appeal has ruled that workers who were incorrectly classified as independent contractors and not paid for holiday they took can claim compensation for the whole period of their engagement.


Tarun Tawakley
Tarun Tawakley is a partner at Lewis Silkin LLP.
Case Reports

2022/24 Burden of proof in proceedings on overtime compensation (GE)

Keywords Working Time, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Authors Othmar K. Traber
AbstractAuthor's information

    A judgment of the Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) of 4 May 2022 has further consolidated the standards developed specifically for the distribution of the burden of proof in the context of compensation claims for the performance of overtime by the employee. The burden of proof lies with the employee and cannot be met by giving mere circumstantial evidence (cf. BAG, judgment of 10 April 2013 – 5 AZR 122/12). Following this recent decision, a different result also does not result from the obligation under Union law to introduce a system for measuring the daily working time of the employee. The background to this is the discussion initiated by the court of first instance as to whether the interpretation of the Working Time Directive 2003/88/EC requires that the employee be granted relief in the process concerning the payment of overtime, since the national legislature has not yet sufficiently transposed the Directive. The BAG has now decided that it is up to the federal legislator to decide on the specific design of the system. Moreover, the BAG found that the Directive’s scope is limited to working time law as a regulatory matter of occupational health and safety law, but the Directive does not provide the Member States with any guidelines on remuneration issues. In contrast, it does not affect the burden of proof in favour of employees in overtime compensation proceedings.


Othmar K. Traber
Othmar K. Traber is a partner at Ahlers & Vogel Rechtsanwälte PartG mbB in Bremen, www.ahlers-vogel.com.
Case Reports

2022/25 Is a period of stand-by considered to be ‘working time’? (IT)

Keywords Working Time, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Authors Ornella Patané
AbstractAuthor's information

    The Italian Supreme Court has held that a period of stand-by not to be working time when the employee is free to rest and devote themself to leisure activity, without any specific obligation as to vigilance concerning the workplace. In this case there was a waiting period only, during which the employee was obliged to work only after an alarm for which the payment of an indemnity was provided as well as compensatory rest.


Ornella Patané
Ornella Patané is a partner at Toffoletto De Luca Tamajo, Milan.
Case Reports

2022/26 The lack of evidence of working time records shall not affect an employee’s salary rights corresponding to the work performed at the employer’s request (RO)

Keywords Working Time, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Authors Andreea Suciu and Laura Dănescu
AbstractAuthor's information

    The Bucharest Court of Appeal has (partially) changed a decision issued by the Bucharest Tribunal and ordered an employer to pay a claimant employee the differences in salary rights representing bonus for overtime hours worked, bonus for hours worked on days of weekly rest, bonus for hours worked on legal holidays and bonus for hours worked at night, even in the absence of working time records.


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

Laura Dănescu
Laura Dănescu is a Senior Associate at Suciu – Employment and Data Protection Lawyers.
Case Reports

2022/27 Should the stand-by duty of military personnel be remunerated as an allowance, as regular salary or should it count as overtime work? (SI)

Keywords Working Time, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Authors Petra Smolnikar and Tjaša Marinček
AbstractAuthor's information

    The Supreme Court of the Republic of Slovenia has issued a judgment concerning the remuneration for the performance of stand-by duty by a person in the military and the issue of whether it falls within Directive 2003/88/EC concerning certain aspects of the organisation of working time. It was held that the time spent on stand-by duty, during which the plaintiff did not actually work but was required to be on stand-by at a particular place and was then at the employer’s disposal, without being able to go home or elsewhere, was to be regarded as working time. The Court found that, notwithstanding national legislation to the contrary, the plaintiff was entitled to the remuneration provided for in their contract of employment for full-time work, that is to 100% of the basic salary.


Petra Smolnikar
Petra Smolnikar is founder and manager of PETRA SMOLNIKAR LAW, Ljubljana.

Tjaša Marinček
Tjaša Marinček is a student assistant at PETRA SMOLNIKAR LAW, Ljubljana.
Case Reports

2022/28 Domino’s pizza delivery drivers are self-employed independent contractors not employees (IR)

Keywords Employment Status, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Authors Sarah O’Mahoney
AbstractAuthor's information

    This case originated in an assessment by the Revenue Commissioners that pizza delivery drivers who had worked for the taxpayer company in 2010 and 2011 were ‘employees’ and, as such, were taxable under Schedule E to the Taxes Consolidation Act 1997. A Tax Appeals Commissioner (TAC) upheld this assessment, whose decision, in turn, was upheld by the High Court (HC). The HC distilled the questions raised by the TAC’s decision to four core issues: mutuality of obligation, substitution, integration and the written terms of the contract (and the weight that it should be given). The HC found no error of law by the TAC and dismissed the appeal, which decision was then appealed to the Court of Appeal (CA). The CA, sitting in a panel of three with one judge dissenting, found that the drivers were in fact and in law engaged by the company on contracts for services and were thus independent contractors, not employees.


Sarah O’Mahoney
Sarah O’Mahoney is a professional support lawyer at Mason Hayes & Curran, Dublin.
Case Reports

2022/29 A requirement to offer or accept a minimum amount of work is not a prerequisite of worker status (UK)

Keywords Employment Status, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Authors Colin Leckey
AbstractAuthor's information

    In this case an individual needed to establish that he was an employee or a worker as part of his claim that he was entitled to paid holidays. The dispute centred on the fact that there was no commitment to offer or accept a minimum amount of work. The Court of Appeal concluded that such a commitment is not a requirement of worker status and that a panel committee member was, therefore, a worker entitled to paid holidays.


Colin Leckey
Colin Leckey is a partner at Lewis Silkin LLP.
Case Reports

2022/30 Protection of trade secrets: entrepreneurial protection concept as door opener for statutory legal protection (GE)

Keywords Miscellaneous, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Authors Susanne Burkert-Vavilova
AbstractAuthor's information

    The first instance Labour Court of Aachen has issued one of the first judgments on the prerequisites of trade secret protection under the German Trade Secrets Act (Geschäftsgeheimnisgesetz). It well illustrates that employers who have so far not installed an adequate secrecy management taking care of the protection of their trade secrets and critical know-how are well advised to do so swiftly. A rude awakening is imminent if the legal protection of secrets is denied in court because one’s own measures were not taken, not appropriate or not sufficiently documented. Also, the judgment makes findings on the extent and scope of the claimant’s burden of presentation and proof in trade secret litigation under the Trade Secrets Act.


Susanne Burkert-Vavilova
Susanne Burkert-Vavilova is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.
Rulings

ECJ 7 July 2022, case C-576/20 (Pensionsversicherungsanstalt (Périodes d’éducation d’enfants à l’étranger)), Social Insurance

CC – v – Pensionsversicherungsanstalt, Austrian case

Keywords Social Insurance, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Abstract

    Child-raising periods in another Member State are to be included when determining the old-age pension, provided that the worker worked an paid contributions in the home Member State both before and after transferring the worker’s place of residence to another Member State where those child-raising periods were carried out.

Rulings

ECJ 7 July 2022, joined cases C-257/21 and 258/21 (Coca-Cola European Partners Deutschland), Other Fundamental Rights, Working Time

Coca-Cola European Partners Deutschland GmbH – v – LB and RG, German case

Keywords Other Fundamental Rights, Working Time, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Abstract

    A provision on supplementary allowance for night work does not implement Directive 2003/88 and hence does not implement Union law within the meaning of Article 51(1) of the Charter.

Rulings

ECJ 1 August 2022, case C-411/20 (Familienkasse Niedersachsen-Bremen), Social Insurance

S – v – Familienkasse Niedersachsen-Bremen der Bundesagentur für Arbeit, German case

Keywords Social Insurance, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Abstract

    A Member State cannot exclude Union citizens who are nationals of another Member State from entitlement to family benefits during the first three months of their residence in that Member State if they are not in receipt of national income during that period, while a national of the Member State concerned who returns to that Member State after having resided in another Member State in accordance with EU law is entitled to such benefits on return without receiving such income.

Rulings

ECJ 14 July 2022, case C-743/19 (Parliament v Council (Siège de l’Autorité européenne du travail)), Miscellaneous

European Parliament – v – Council of the European Union, EU case

Keywords Miscellaneous, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Abstract

    It is for the EU legislature to decide on the location of the seat of the European Labour Authority, not the Member States.

Rulings

ECJ 7 July 2022, case C-377/21 (Zone de secours Hainaut - Centre), Part time work

Ville de Mons, Zone de secours Hainaut-Centre – v – RM, Belgian case

Keywords Part time work, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Abstract

    It is allowed to apply the pro rata temporis principle to prior activities performed as volunteer firefighter when determining the firefighter’s ‘financial seniority’. Unfortunately, no English translation of the judgment is available.

Rulings

ECJ 1 August 2022, case C-352/20 (HOLD Alapkezelő), Miscellaneous

HOLD Alapkezelő Befektetési Alapkezelő Zrt. – v – Magyar Nemzeti Bank, Hungarian case

Keywords Miscellaneous, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Abstract

    Union law on remuneration policies of investment managers may apply to the dividends paid to employee shareholders who fall within the personal scope of this policy.

Rulings

ECJ 15 September 2022, case C-22/21 (Minister for Justice and Equality (Ressortissant de pays tiers cousin d’un citoyen de l’Union)), Work and residence permit

SRS, AA – v – Minister for Justice and Equality Irish case

Keywords Work and residence permit, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Abstract

    The concept of ‘any other family members who are members of the household of the Union citizen having the primary right of residence’ in point (a) of the first subparagraph of Article 3(2) of Directive 2004/38/EC refers to persons who have a relationship of dependence with that citizen, based on close and stable personal ties, forged within the same household, in the context of a shared domestic life going beyond a mere temporary cohabitation entered into for reasons of pure convenience.

Rulings

ECJ 15 September 2022, case C-58/21 (Rechtsanwaltskammer Wien), Social insurance, pension

FK – v – Rechtsanwaltskammer Wien, Austrian case

Keywords Social insurance, Pension, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Abstract

    The conflict rules in Article 13(2) of Regulation (EC) No 883/2004 are not applicable when a person who resides in one Member State where the centre of interests of his or her activities is also situated, whilst pursuing an activity in two other Member States. Furthermore, EU law precludes national legislation which makes the award of an early retirement pension applied for conditional on the waiver by the person concerned of the right to practice as a lawyer, without taking into account, in particular, the Member State in which the activity concerned is pursued.

Rulings

ECJ 22 September 2022, case C-120/21 (LB (Prescription du droit au congé annuel payé)), Paid leave

LB – v – TO, German case

Keywords Paid leave, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Abstract

    The right to annual leave precludes national legislation according to which the right to annual leave can expire without having enabled the worker to exercise that right.

Rulings

ECJ 22 September 2022, case C-518/20 (Fraport), Paid leave

XP – v – Fraport AG Frankfurt Airport Services Worldwide, German case

Keywords Paid leave, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Abstract

    Article 7 of Directive 2003/88/EC and Article 21(2) of the Charter preclude national legislation under which the entitlement to paid annual leave, acquired by a worker during the leave year in the course of which that worker actually worked before finding him or herself in a state of total invalidly or incapacity for work due to illness which has persisted since, may lapse, either at the end of a carry-over period authorised under national law, or even at a later stage, where the employer has not, in good time, enabled the worker to exercise that entitlement.

Pending Cases

Case C-271/22-C-275/22, Paid Leave

Various employees – v – Keolis Agen SARL, reference lodged by the Conseil de prud’hommes d’Agen (France) on 21 April 2022

Keywords Paid Leave, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Pending Cases

Case C-270/22, Fixed-Term Work

G.D., A.R, C.M. – v – Ministero dell’istruzione, Istituto nazionale della previdenza sociale (INPS), reference lodged by the Tribunale ordinario di Ravenna (Italy) on 22 April 2022

Keywords Fixed-Term Work, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Pending Cases

Case C-331/22, Fixed-Term Work

KT – v – Departamento de Justicia de la Generalitat de Catalunya, reference lodged by the Juzgado de lo Contencioso-Administrativo No 17 de Barcelona (Spain) on 17 May 2022

Keywords Fixed-Term Work, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Pending Cases

Case C-284/22, Social Insurance

CK – v – Familienkasse Bayern Nord, reference lodged by the Sozialgericht Nürnberg (Germany) on 26 April 2022

Keywords Social Insurance, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Pending Cases

Case C-331/22, Fixed-Term Work

HM, VD – v – Generalitat de Catalunya, reference lodged by the Juzgado de lo Contencioso-Administrativo No 17 de Barcelona (Spain) on 19 May 2022

Keywords Fixed-Term Work, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Pending Cases

Case C-377/22, Other Forms of Free Movement

LR – v – Ministero dell’Istruzione, Ufficio scolastico regionale Lombardia, Ufficio scolastico regionale Friuli Venezia Giulia, reference lodged by the Tribunale Amministrativo Regionale per il Lazio (Italy) on 10 June 2022

Keywords Other Forms of Free Movement, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Pending Cases

Case C-411/22, Social Insurance

Thermalhotel Fontana Hotelbetriebsgesellschaft m.b.H. – v – Bezirkshauptmannschaft Südoststeiermark, reference lodged by the Verwaltungsgerichtshof (Austria) on 21 June 2022

Keywords Social Insurance, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Pending Cases

Case C-404/22, Information and Consultation

Ethnikos Organismos Pistopoiisis Prosonton & Epaggelmatikou Prosanatolismou (EOPPEP) – v – Elliniko Dimosio, reference lodged by the Dioikitiko Protodikeio Athinon (Greece) on 16 June 2022

Keywords Information and Consultation, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Pending Cases

Case C-415/22, Social Insurance

JD – v – Acerta – Caisse d’assurances sociales ASBL, Institut national d’assurances sociales pour travailleurs indépendants (Inasti), Belgian State, reference lodged by the Tribunal du travail francophone de Bruxelles (Belgium) on 20 June 2022

Keywords Social Insurance, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Pending Cases

Case C-496/22, Collective Redundancies

EI – v – SC Brink’s Cash Solutions SRL, reference lodged by the Curtea de Apel București (Romania) on 22 July 2022

Keywords Collective Redundancies, Juridisch, Arbeidsrecht, Europees recht (EU Recht)
Pending Cases

Case C-477/22, Working Time, Miscellaneous

ARST S.p.A. – Azienda regionale sarda trasporti – v – Various employees, reference lodged by the Corte suprema di cassazione (Italy) on 15 July 2022

Keywords Working Time, Miscellaneous, Juridisch, Arbeidsrecht, Europees recht (EU Recht)