European Employment Law Cases

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Issue 3, 2023 Expand all abstracts

Challenging times

Authors Zef Even

Zef Even

    Following the ECJ’s preliminary ruling in case C-587/20, the Danish Eastern High Court has ruled that a politically elected sector convenor of a trade union was protected against discrimination on the grounds of age under the Danish Anti-Discrimination Act.

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

2023/22 Limits for determining types of work in a collective agreement that justify the chaining of fixed-term employment (SK)

Keywords Fixed-term employment, Collective agreement, Discrimination
Authors Radoslava Lichnovská
AbstractAuthor's information

    The Supreme Court of the Slovak Republic (Najvyšší súd Slovenskej republiky) has ruled that the situations described in a collective agreement which justify a further extension of a fixed-term employment relationship must justify the temporary nature of their performance. The collective agreement must also specify the reasons for the temporary need to carry out those works. It is not allowed that the employer states in the employment contract the reason for the renewal of the fixed-term employment relationship merely by reference to the fact that the employee is performing the works defined in the collective agreement without stating a substantive reason satisfying the justification for doing so.

Radoslava Lichnovská
Radoslava Lichnovská is a counsel at Taylorwessing e/n/w/c advokáti s.r.o.
Case Reports

2023/23 Employers must bear the cost of eyewear purchased by employees using display screens (RO)

Keywords Health and Safety
Authors Andreea Suciu and Teodora Mănăilă
AbstractAuthor's information

    The obligation to provide workers who use display screen equipment with a special corrective appliance may be met by the direct provision of the appliance to the worker by the employer or by reimbursement of the necessary expenses incurred by the worker, but not by the payment of a general salary supplement to the worker, found the Court of Appeal following an ECJ ruling.

Andreea Suciu
Andreea is Managing Partner of Suciu – The Employment and Data Protection Lawyers, Bucharest, Romania.

Teodora Mănăilă
Teodora is an attorney-at-law at Suciu – The Employment and Data Protection Lawyers, Bucharest, Romania.
Case Reports

2023/24 European Works Council: appropriate training and expert advice (IR)

Keywords Information and Consultation
Authors Katie Doyle
AbstractAuthor's information

    An Irish Workplace Relations Commission (‘WRC’) decision has provided guidance on the right of European Works Council (‘EWC’) members to appropriate training and expert advice and assistance.

Katie Doyle
Katie Doyle is an associate at Mason Hayes & Curran.
Case Reports

2023/25 Transfer of business concerning temporary work agencies (AT)

Keywords People who transfer/refuse to transfer
Authors Andreas Tinhofer and Gaudenz Küenburg
AbstractAuthor's information

    The Austrian Supreme Court has ruled that it is a transfer of an undertaking where workers employed by a temporary employment agency are later re-employed by a new temporary employment agency and hired out to the same user undertaking. The plaintiff employee was found to have an ongoing employment relationship with the new temporary employment agency.

Andreas Tinhofer
Andreas Tinhofer is a partner at Zeiler Floyd Zadkovich.

Gaudenz Küenburg
Gaudenz Küenburg is a junior associate at Zeiler Floyd Zadkovich.

    This article deals with the aftermath of the ECJ’s CCOO judgment (14 May 2019, C-55/18), which has been a major issue in various EU jurisdictions. The article consists of two parts. This first part introduces the case, its primary consequences in Germany and deals with a comparison of legal requirements throughout Europe. The second part will discuss some particular consequences in Germany.

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

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

    This article deals with the aftermath of the ECJ’s CCOO judgment (14 May 2019, C-55/18), which has been a major issue in various EU jurisdictions. The article consists of two parts. This second part discusses some particular consequences in Germany.

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

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

2023/28 Break times under ‘stand-by duty’: working time or not? (GE)

Keywords Working Time
Authors Andre Schüttauf and Tim Rossmann
AbstractAuthor's information

    The German Federal Administrative Court (Bundesverwaltungsgericht, ‘BVerwG’) has held that break times under stand-by duty are not automatically classified as working time within the meaning of Article 2(1) of the Working Time Directive 2003/88/EC (the ‘Directive’).
    Qualifying stand-by duty as working time requires that the worker’s obligation to be on call significantly restricts their possibilities to freely organize the time in which their professional services are not needed and to pursue their own interests from an objective point of view. This must be assessed in each individual case.
    According to the BVerwG, Section 5(2) Sentence 1 No. 2 of the Working Hours Ordinance (Arbeitszeitverordnung, ‘AZV’) which regulates the crediting of break times to working hours is, in its current version, incompatible with the concept of working time under Union law within the meaning of Article 2(1) of the Directive and therefore must not be applied.

Andre Schüttauf
Andre Schüttauf is an attoney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

Tim Rossmann
Tim Rossman is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

    A worker involved in the EU-funded ‘Turkey III’ project acted as a whistleblower, alerting to potential passive corruption with an audit contract, at a time when Belgian law had not implemented Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law (the ‘Whistleblowing Directive’). The Labour Tribunal of Brussels recognized her whistleblower status and deemed her dismissal for serious cause retaliatory and so manifestly unreasonable.

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

ECJ 28 September 2023, case C-320/21 P and C-321/21 P (Ryanair v. Commission), Miscellaneous

Ryanair DAC – v – European Commission, EU case

Keywords Miscellaneous, Freedom of establishment

    It was not necessary for the aid measure of Denmark and Sweden in favour of the airline SAS to benefit all undertakings that suffered damages caused by the COVID-19 pandemic.


ECJ 14 September 2023, case C-113/22 (TGSS (Refus du complement de maternité), Gender Discrimination, Pension

DX – v – Institutio Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS), Spanish case

Keywords Gender discrimination, Pension

    The pension supplement granted by Spain solely to mothers who are recipients of an invalidity pension, when they have two or more children, to the exclusion of fathers in a comparable situation, was likely to constitute direct discrimination on the ground of sex, contrary to the directive on equal payment.


ECJ 12 October 2023, case C-57/22 (Ředitelství silnic a dálnic), Paid leave

YQ – v – Ředitelství silnic a dálnic, Czech case

Keywords Paid leave

    A worker who was unlawfully dismissed and then reinstated in his or her employment, is entitled to paid annual leave for the period between the date of the dismissal and the date of his or her reinstatement, as he or she is already entitled, under national law, to wage compensation during that period.


ECJ 5 October 2023, case C-496/22 (Brink’s Cash Solutions), Collective Redundancies

El – v – SC Brink’s Cash Solutions SRL, Romanian case

Keywords Collective Redundancies

    National legislation which does not require an employer to consult individually the workers affected by projected collective redundancies, where those workers have not appointed workers’ representatives, and which does not require those workers to appoint such representatives, is not precluded, provided that that legislation makes it possible, in circumstances beyond the control of those workers, to guarantee the full effect of Directive 98/59/EC.


ECJ 12 October 2023, case C-45/22 (Service fédéral des Pensions), Social insurance

HK – v – Service fédéral des Pensions, Belgian case

Keywords Social insurance

    When national rules against overlapping with regard to independent benefits are applicable, it is allowed for a Member State to provide, in its legal system, for the purpose of calculating the amount of benefit to be paid, either that the total amount of income taken into account by those national rules must be divided by the number of benefits concerned or that it is appropriate to divide by that same number the proportion of income which exceeds the ceiling in respect of overlapping laid down by those national rules.


ECJ 19 October 2023, case C-660/20 (Lufthansa CityLine), Working time, Part time work, Other forms of discrimination

MK – v – Lufthansa CityLine GmbH, German case

Keywords Working time, Part time work, Other forms of discrimination

    National legislation which makes the payment of additional remuneration for part-time workers and comparable full-time workers uniformly contingent on the same number of working hours being exceeded in a given activity give rise to less favourable treatment of part-time workers, which is contrary to EU law, unless such treatment is justified on objective grounds.

Pending Cases

Case C-329/23, Age Discrimination

HB – v – Federal Republic of Germany, reference lodged by the Verwaltungsgericht Karlsruhe (Germany) on 6 June 2023

Keywords Age Discrimination
Pending Cases

Case C-367/23, Working Time, Fundamental Rights

EA – v – Artemis security SAS, reference lodged by the Cour de cassation (France) on 9 June 2023

Keywords Working Time, Fundamental Rights
Pending Cases

Case C-329/23, Social Insurance

Sozialversicherungsanstalt der Selbständigen – v – Dr. W M, Bundesminister für Soziales, Gesundheit, Pflege und Konsumentenschutz, reference lodged by the Verwaltungsgerichtshof (Austria) on 25 May 2023

Keywords Social Insurance
Pending Cases

Case C-531/23, Working Time, Gender Discrimination

HJ – v – US, MU, reference lodged by the Tribunal Superior de Justicia del País Vasco (Spain) on 5 July 2023

Keywords Working Time, Gender Discrimination
Pending Cases

Case C-519/23, Free Movement

European Commission – v – Italian Republic, action brought on 10 August 2023

Keywords Free Movement