European Employment Law Cases

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Issue 1, 2023 Expand all abstracts

Zef Even
Case Law

2023/1 EELC’s review of the year 2022

Authors Luca Calcaterra, Filip Dorssemont, Zef Even e.a.

    Various of our academic board analysed employment law cases from last year.

Luca Calcaterra

Filip Dorssemont

Zef Even

Ruben Houweling

Marianne Hrdlicka

Anthony Kerr

Jean-Philippe Lhernould

Francesca Maffei

Andrej Poruban

Luca Ratti

Jan-Pieter Vos

    The Schleswig-Holstein Regional Labour Court (Landesarbeitsgericht, ‘LAG’) has found that a person who expressed interest in a job through the Internet portal ‘eBay Classifieds’ was an ‘applicant’ within the meaning of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, ‘AGG’) and, provided the other legal requirements are met, eligible for compensation for immaterial damage. The Court further ruled that the hurdles are high for the compensation claim to be countered by the defence of abuse of rights.

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

2023/3 Gender identity as protected characteristic (PL)

Keywords Gender Discrimination
Authors Marcin Wujczyk
AbstractAuthor's information

    Compensation for a breach of equal treatment on grounds of sex and gender identity shall be awarded to a transgender employee who is not issued women’s work clothing.

Marcin Wujczyk
Marcin Wujczyk is a partner at Wardyński & Partners.
Case Reports

2023/4 Neutrality policy of City of Brussels not found discriminatory (BE)

Keywords Religious Discrimination
Authors Gautier Busschaert
AbstractAuthor's information

    In an interim ruling regarding the refusal by the City of Brussels to employ a female candidate wearing an Islamic headscarf, the Brussels Labour Tribunal considered that such a public authority is allowed to pursue a neutrality policy concerning functions that involve contact with the public, thus concluding that the City of Brussels did not discriminate against a female candidate when refusing to employ her on the ground that she wore a religious symbol.

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

    The Dutch Supreme Court has found that a dismissal related to the publication of a book interfered with the employee’s freedom of expression as there was a causal link between the publication of the book and the termination request.

Peter Vas Nunes
Peter Vas Nunes is a retired lawyer, as well as former editor-in-chief of EELC.
Case Reports

2023/6 Legal provisions implementing mandatory Covid-19 health checks for access to work were not in breach of the Constitution (LI)

Keywords Miscellaneous, Other Fundamental Rights
Authors Ieva Povilaitienė, Indrė Mažeikaitė and Viktorija Minkevičiūtė
AbstractAuthor's information

    The Constitutional Court of the Republic of Lithuania has recognised that the requirement for certain industries’ employees to undergo a health check before work or be suspended from work without salary in cases where there was no possibility to transfer such employees to other work in the company due to their health was not in conflict with the Lithuanian Constitution.

Ieva Povilaitienė
Dr. 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.

    In its decision rendered on 19 May 2022, the Luxembourg Court of Cassation (Cour de Cassation de Luxembourg) ruled on the applicable law to the employment contract of an employee of a Luxembourg company who was on long-term secondment in France, most notably regarding the provisions applicable to determining retirement age and its consequence on the employment contract. The employee was hired at the age of 62 by a Luxembourg company pursuant to an employment contract governed by Luxembourg law and a few months later was seconded to France (to work at the head office of the group) for a period of five years. However, when the employee reached the age of 65, his employer informed him by means of a letter that, in accordance with the provisions of Luxembourg law, he was entitled to an old-age pension with the consequence that his employment contract was automatically terminated.
    The Court of Cassation overturned the decision of the Court of Appeal on the ground of insufficient reasoning as it considered that the Court of Appeal did not respond to the arguments put forward by the employee, who had challenged the validity of his secondment (considering that France was the country in which the employee habitually carried out his work).

Michel Molitor
Michel Molitor is the managing partner of MOLITOR Avocats à la Cour SARL in Luxembourg,
Case Reports

2023/8 Mandatory training: free of cost? (NL)

Keywords Terms of employment
Authors Yente Bijloo and Daniëlle Quist
AbstractAuthor's information

    This is the first judgment in the Netherlands regarding training costs and repayment arrangements since implementation of Directive 2019/1152/EU on transparent and predictable working conditions in the European Union (the ‘Directive’). The subdistrict court ruled that the training did not qualify as mandatory training, in light of the employee’s position and the agreements that were made. According to the subdistrict court, the repayment arrangements were legally valid: the employee was obligated to repay the training costs.

Yente Bijloo
Yente Bijloo is an associate at Windt Le Grand Leeuwenburgh Advocaten.

Daniëlle Quist
Daniëlle Quist is an associate at Windt Le Grand Leeuwenburgh Advocaten.

    A recent Irish Labour Court decision held that the complainant was not successful in his claim brought under the transfer of undertakings regulations because there was no transfer of an economic entity.

Meghan McSweeney
Meghan McSweeney is an associate at Mason Hayes & Curran.

    A school director could not take annual leave without affecting the annual leave rights of her colleagues. As no solution was offered by the employer, the Iaşi Court of Appeal found that the school director could not be considered to have abstained from her right to annual leave. In the absence of effective conditions and real possibilities for the employee to actually benefit from the right to leave, the Court awarded the school director compensation for untaken leave.

Andreea Suciu
Andreea is Managing Partner of Suciu I The Employment Law Firm

Teodora Manaila
Teodora is an attorney-at-law at Suciu I The Employment Law Firm, Bucharest, Romania.

    The Finnish Labour Court has held in an interlocutory judgment that whether stand-by time is considered working time depends on the limiting effect of stand-by duty on the use of leisure time. Firefighters who worked as officer firefighters were able to spend their time relatively freely during stand-by periods. For officer firefighters, the Labour Court held that their stand-by time was not to be considered as working time in its entirety. The Labour Court came to the opposite conclusion regarding firefighters working as unit leaders. These firefighters were in practice supposed to stay at the fire station in order for them to comply with the required response time, leading to the conclusion that their stand-by time was considered working time in its entirety.

Janne Nurminen
Janne Nurminen is counsel at Roschier, Attorneys Ltd.

    After several years of resistance, the French Supreme Court has decided to implement – at least partially – the position of the European Court of Justice (ECJ) on the commute time of an itinerant employee between their home and the first and last customer of the day. This commute time can qualify, under certain conditions, as effective working time and should be remunerated as such.

Claire Toumieux
Claire Toumieux is a partner at Allen & Overy LLP.

Susan Ekrami
Susan Ekrami is a counsel at Alle & Overy LLP.
Landmark Ruling

ECJ 12 January 2023, case C-356/21 (TP (Monteur audiovisuel pour la télévision publique)), Discrimination General, Sexual Orientation

JK – v – TP S.A., PTPA, Polish case

Keywords Discrimination General, Sexual Orientation

    The scope of the Framework Directive extends to self-employed workers. The freedom of contract cannot justify refusing to conclude a contract with a self-employed workers for discriminatory reasons.


ECJ 22 December 2022, case C-404/21 (INPS and Repubblica italiana) Miscellaneous, Pension

WP – v – Istituto nazionale della previdenza sociale, Repubblica italiana, Italian case

Keywords Miscellaneous, Pension

    Although a Member State is not obliged to transfer pension amounts to the ECB pension scheme without an agreement between that Member State and the ECB, it must negotiate in good faith with a view to enter into such agreement.


ECJ 22 December 2022, case C-392/21 (Inspectoratul General pentru Imigrări (Acquisition de lunettes par un travailleur)) Health and Safety

TJ – v – Inspectoratul General pentru Imigrări, Romanian case

Keywords Health & Safety

    ‘Special corrective appliances’ include corrective spectacles which can also be used outside work. An employer has either to provide these or reimburse expenses and cannot suffice with a general salary supplement.


ECJ 26 January 2023, case C-613/21 P (Parliament v Carbajo Ferrero), Miscellaneous

European Parliament – v – Fernando Carbajo Ferrero, EU case

Keywords Miscellaneous

    An appeal against the General Court’s nullification of an appointment decision was dismissed.


ECJ 9 February 2023, case C-453/21 (X-FAB Dresden), Privacy

X-FAB Dresden GmbH & Co. KG – v – FC, German case

Keywords Privacy

    The GDPR does not preclude national legislation which enables DPO’s to be dismissed only for just cause, even if not related to the performance of the DPO’s task, insofar as such regulation does not undermine the GDPR’s objectives. A DPO may experience a conflict of interest when other tasks or duties would result in him or her determining the objectives and methods of processing personal data.


ECJ 9 February 2023, case C-402/21 (Staatssecretaris van Justitie en Veiligheid e.a. (Retrait du droit de séjour d’un travailleur turc)), Work and Residence Permit

Staatssecretaris van Justitie en Veiligheid – v – S, E, C, Dutch case

Keywords Work and Residence Permit

    While, in principle, Turkish nationals who already have access to employment may not be subjected to a ‘new restriction’, such restriction may still objectively be justified for the protection of public policy.


ECJ 16 February 2023, joined cases C-524/21 and C-525/21 (Agenţia Judeţeană de Ocupare a Forţei de Muncă Ilfov), Insolvency

IG – Agenţia Judeţeană de Ocupare a Forţei de Muncă Ilfov (C-524/21), Agenţia Municipală pentru Ocuparea Forţei de Muncă Bucureşti – IM (C-525/21), Romanian cases

Keywords Insolvency

    Directive 2008/94/EC precludes unreasonable recovery claims of insolvency benefits.


ECJ 16 February 2023, case C-675/21 (Strong Charon), Transfer

Strong Charon – Soluções de Segurança SA – v – 2045 – Empresa de Segurança SA, FL, Portuguese case

Keywords Insolvency

    The absence of a contractual link between a transferor and a transferee has no bearing on the establishment of the existence of a transfer. In a labor intensive undertaking, the fact that a only very limited number of employees is taken over, without them having specific skills and knowledge essential to the services, is not likely to establish the existence of a transfer.


ECJ 16 February 2023, case C-710/21 (IEF Service), Insolvency

IEF Service GmbH – v – HB, Austrian case

Keywords Insolvency

    Directive 2008/94/EC precludes unreasonable recovery claims of insolvency benefits.


ECJ 2 March 2023, joined cases C-410/21 and C-661/21 (DRV Intertrans), Social Insurance

FU, DRV Intertrans BV, PN, Verbraeken J. En Zonen BV, in criminal proceedings, Belgian case

Keywords Social Insurance

    A1-certificates are binding even if they are suspended, but the court of the ‘host’ Member State may still set them aside if (i) the issuing institution does not cooperate with the procedure of dialogue and reconciliation, and (ii) the right to a fair trial is still guaranteed. The fact that a company holds a Community licence for road transport does not constitute irrefutable evidence in determining which Member States’ social security legislation applies.


ECJ 2 March 2023, case C-270/21 (A (Enseignant d’école maternelle)), Work and Residence Permit

A – v – Opetushallitus, Finnish case

Keywords Work and Residence Permit

    A profession which is subject to qualification requirements by law, but the assessment thereof is to the discretion of the employer, is no ‘regulated profession’ within the meaning of Directive 2005/36.


ECJ 2 March 2023, case C-477/21 (MÁV-START), Working Time

IH – v – MÁV-START Vasúti Személyszállító Zrt., Hungarian case

Keywords Working Time

    Daily rest may not be (partially) replaced by weekly rest, even if they follow each other; this also applies when the weekly rest exceeds the required minimum.


ECJ 23 March 2023, case C-574/21 (O2 Czech Republic), Miscellaneous

QT – v – O2 Czech Republic a.s., Czech case

Keywords Miscellaneous

    Commission which a commercial agent would have received for contracts with new customers or volume increases of contracts with existing customers, if the agency contract would have continued, must be taken into account in determining the indemnity for post-contract benefits. Even if parties used a one-off commission structure, the agent can still be entitled to an indemnity.


ECJ 20 April 2023, case C-650/21 (Landespolizeidirektion Niederösterreich and Finanzamt Österreich), Age Discrimination

FW, CE – v – Landespolizeidirektion Niederösterreich and Finanzamt Österreich, Austrian case

Keywords Age Discrimination

    Refinements of Austrian salary grading system found discriminatory.


ECJ 20 April 2023, case C-52/22 (BVAEB (Adaptation des pensions de retraite)), Age Discrimination, Pension

BF – v – Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und Bergbau (BVAEB), Austrian case

Keywords Age Discrimination, Pension

    Recalculation of pension rights resulting from transition into a new system not found discriminatory.

Pending Cases

Case C-749/22, Paid Leave

I GmbH – v – J R, reference lodged by the Bundesarbeitsgericht (Germany) on 7 December 2022

Keywords Paid Leave
Pending Cases

Case C-8/23, Free Movement

FH – v – Conseil national de l’ordre des médecins, reference lodged by the Conseil d’État (France) on 12 January 2023

Keywords Free Movement
Pending Cases

Case C-796/22, Social Insurance, Part-time Work, Gender Discrimination

Instituto Nacional de la Seguridad Social (INSS) – v – Bernardino, reference lodged by the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) on 30 December 2022

Keywords Social Insurance, Part-time Work, Gender Discrimination
Pending Cases

Case C-36/23, Social Insurance

L – v – Familienkasse Sachsen der Bundesagentur für Arbeit, reference lodged by the Finanzgericht Bremen (Germany) on 25 January 2023

Keywords Social Insurance
Pending Cases

Case C-27/23, Social Insurance

FV – v – Caisse pour l’avenir des enfants, reference lodged by the Cour de cassation du Grand-Duché de Luxembourg (Luxembourg) on 23 January 2023

Keywords Social Insurance
Pending Cases

Case C-41/23, Paid Leave, Fixed-term Work

AV, BT, CV and DW – v – Ministero della Giustizia, reference lodged by the Consiglio di Stato (Italy) on 26 January 2023

Keywords Paid Leave, Fixed-term Work
Pending Cases

Case C-65/23, Privacy, Collective Agreements

MK – v – K GmbH, reference lodged by the Bundesarbeitsgericht (Germany) on 8 February 2023

Keywords Privacy, Collective Agreements
Pending Cases

Case C-116/23, Social Insurance

XXXX – v – Sozialministeriumservice (SMS), Landesstelle Steiermark, reference lodged by the Bundesverwaltungsgericht (Austria) on 27 February 2023

Keywords Social Insurance
Pending Cases

Case C-125/23, Insolvency

Association UNEDIC délégation AGS de Marseille – v – V, W, X, Y, Z, Liquidator of company K, reference lodged by the Cour d’appel d’Aix-En-Provence (France) on 1 March 2023

Keywords Insolvency