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Pending Cases

Cases C-524/21 and C-525/21, Insolvency

IG – v – Agenția Județeană de Ocupare a Forței de Muncă Ilfov and Agenția Județeană de Ocupare a Forței de Muncă Ilfov – v – IM, reference lodged by the Curtea de Apel București (Romania) on 24 August 2021

Journal European Employment Law Cases, Issue 4 2021
Keywords Insolvency
Pending Cases

Case C-681/21, Age Discrimination, Pension

Versicherungsanstalt öffentlich Bediensteter, Eisenbahnen und Bergbau, B, reference lodged by the Verwaltungsgerichtshof (Austria) on 11 November 2021

Journal European Employment Law Cases, Issue 4 2021
Keywords Age Discrimination, Pension
Case Reports

Access_open 2021/36 No discrimination of reduced hours employees (DK)

Journal European Employment Law Cases, Issue 4 2021
Keywords Disability Discrimination
Authors Christian K. Clasen
AbstractAuthor's information

    In four recent cases, the Danish Eastern High Court addressed the question of whether it was indirect disability discrimination to dismiss four reduced hours employees (fleksjobbere) as part of a cost-saving process because they lacked essential core skills. The High Court ruled in favour of the employer, stating that the employer was not required to maintain the employees’ employment as it would be incompatible with the new demands for qualifications caused by the cutbacks. Consequently, the dismissals did not constitute indirect disability discrimination.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.
Pending Cases

Case C-574/21, Miscellaneous

QT – v – Czech Republic a.s., reference lodged by the Nejvyšší soud České republiky (Czech Republic) on 20 September 2021

Journal European Employment Law Cases, Issue 4 2021
Keywords Miscellaneous

    A (host) Member State cannot make the exclusion of pension rights from bankruptcy estate dependent on obtaining prior tax approval in that country, if the scheme has already been tax approved in the home Member State, unless there is an overriding reason of public interest to do so. The ECJ’s summary of the case is available on: https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-11/cp210200en.pdf.

    The Court of Appeal (CA) has allowed an appeal by HM Revenue & Customs (HMRC) against a decision that there was insufficient mutuality of obligation and control for football referees to be treated as employees for tax purposes.


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

    The Irish High Court has determined that, pursuant to the definitions of ‘employment contract’ and ‘fixed-term employee’ in the Protection of Employees (Fixed-Term Work) Act 2003 (the ‘2003 Act’), a permanent employee temporarily upgrading to a more senior role on a fixed-term basis, was entitled to protection under the 2003 Act as a fixed-term employee despite the fact that he had the right to revert to his substantive terms and conditions as a permanent employee. The Court held that Council Directive 1999/70/EC on fixed-term work (the ‘Directive’) was not only concerned with an employee’s entitlement to continued employment, but also the nature, quality and terms and conditions of that employment. While Member States have the discretion to provide more favourable treatment to a broader category of employees than the Directive required, they could not define terms left undefined in the Directive or framework agreement on fixed-term contracts so as to arbitrarily exclude certain categories of workers from protection as ‘fixed-term workers’.


Sarah O’Mahoney
Sarah O’Mahoney is a General Knowledge Lawyer at Mason Hayes & Curran.
Rulings

ECJ 11 November 2021, case C-948/19 (Manpower Lit), Temporary Agency Work

UAB “Manpower Lit” – v – ES, ML, MP, VV, RV and EIGE (as joining party), Lithuanian case

Journal European Employment Law Cases, Issue 4 2021
Keywords Temporary Agency Work
Abstract

    Directive 2008/104 also applies if employees are assigned to the European Institute for Equality between Men and Women (EIGE), an EU institution. Unfortunately, no English translation of the case is available yet.

Pending Cases

Cases C-583/21 - C-586/21, Transfer

Various parties, reference lodged by the Juzgado de lo Social n.º 1 de Madrid (Spain) on 20 September 2021

Journal European Employment Law Cases, Issue 4 2021
Keywords Transfer

    If a worker takes annual leave when he is incapacitated for work due to illness, he is entitled to his full salary rather than a reduced amount which he is entitled to during illness.

    The court settles various technicalities on the interpretation of Regulation 883/2004.

Pending Cases

Case C-667/21, Privacy

ZQ – v – Medizinischer Dienst der Krankenversicherung Nordrhein, a body governed by public law, reference lodged by the Bundesarbeitsgericht (Germany) on 8 November 2021

Journal European Employment Law Cases, Issue 4 2021
Keywords Privacy
Rulings

ECJ 25 November 2021, case C-233/20 (job-medium), Paid Leave

WD – v – job-medium GmbH in liquidation, Austrian case

Journal European Employment Law Cases, Issue 4 2021
Keywords Paid Leave
Abstract

    Directive 2003/88 precludes provisions which deny a worker an allowance in lieu for untaken leave when his employment relationship ends, even if the employee terminated it without good cause.

Pending Cases

Case C-680/21, Free Movement

UL, SA Royal Antwerp Football Club – v – Union royale belge des sociétés de football association ASBL, reference lodged by the Tribunal de première instance francophone de Bruxelles (Belgium) on 11 November 2021

Journal European Employment Law Cases, Issue 4 2021
Keywords Free Movement
Rulings

ECJ 11 November 2021, case C-214/20 (Dublin City Council), Working Time

MG – v – Dublin City Council, Irish case

Journal European Employment Law Cases, Issue 4 2021
Keywords Working Time
Abstract

    The Dolj Tribunal has ascertained that a former employee, while acting as school director, by not fulfilling her obligations to schedule the annual leave of school teachers, including herself, cannot claim against the school as the employer for not providing the opportunity to take the annual leave or to inform of the possibility of losing such right. Furthermore, such actions of the former director will lead to the loss of the right to request compensation in case of termination of employment.


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

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

Access_open A Comparative Perspective on the Protection of Hate Crime Victims in the European Union

New Developments in Criminal Procedures in the EU Member States

Journal Erasmus Law Review, Issue 3 2021
Keywords hate crime, victims, victim rights, procedural justice, EU Member States, criminal procedure
Authors Suzan van der Aa, Robin Hofmann and Jacques Claessen
AbstractAuthor's information

    Hate crime victims involved in a criminal procedure experience difficulties that are different from problems encountered by other victims. In trying to meet the specific procedural needs of hate crime victims many EU Member States have introduced protective measures and services in criminal proceedings, but the adopted approaches are widely disparate. By reporting the results of an EU-wide comparative survey into hate crime victims within national criminal procedures the authors aim to: (1) make an inventory of the national (legal) definitions of hate crime and the protection measures available (on paper) for hate crime victims; and (2) critically discuss certain national choices, inter alia by juxtaposing the procedural measures to the procedural needs of hate crime victims to see if there are any lacunae from a victimological perspective. The authors conclude that the Member States should consider expanding their current corpus of protection measures in order to address some of the victims’ most urgent needs.


Suzan van der Aa
Suzan van der Aa, PhD, is Professor of Criminal Law at Maastricht University, the Netherlands.

Robin Hofmann
Robin Hofmann is Assistant Professor at Maastricht University, the Netherlands.

Jacques Claessen
Jacques Claessen is Professor at Maastricht University, the Netherands.
Article

Access_open Ruled by Fear or Safety-Related Empowerment

The Experience and Meaning of Penal Protection Orders in Intimate Partner Violence in the Netherlands

Journal Erasmus Law Review, Issue 3 2021
Keywords intimate partner violence, stalking, protection orders, empowerment, safety, well-being
Authors Irma W.M. Cleven
AbstractAuthor's information

    This study uses a novel approach to understand the experience and meaning of unsafety and the contribution of penal protection orders to victim empowerment in cases of intimate partner violence (IPV). In ten in-depth interviews, IPV survivors reflect on their relationship with their ex-partner and the previous years in which the order against their ex-partner was issued, including its role within the wider process of coming to terms with IPV victimisation and moving on. Depending on expectations of protection orders (POs) enforcement and deterrence, POs enhance one’s safety-related self-efficacy and result in a sense of empowerment. Its meaning can be understood in terms of one’s power from the ex-partner, power to act, status vis-à-vis the offender and the wider community, care/help of the CJS, and unity/togetherness with the wider community. Several implications for theoretical and empirical research and practice are discussed.


Irma W.M. Cleven
Irma W.M. Cleven, MSc, is PhD Candidate at the Department of Criminology of the Erasmus University Rotterdam, the Netherlands.
Article

Access_open Victims’ Fundamental Need for Safety and Privacy and the Role of Legislation and Empirical Evidence

Journal Erasmus Law Review, Issue 3 2021
Keywords needs for safety, victim impact statements, legislation, Empirical Legal Studies, privacy protection
Authors Marijke Malsch
AbstractAuthor's information

    Various laws, guidelines and other types of regulation have been created that introduced new rights worldwide for victims of crime. Many of these rights focus on active victims who wish to step into the open and to orally express their views and experiences in court. Rights and wishes to remain in the background and to preserve one’s privacy received less attention. This article focuses primarily on the wishes of victims that reveal their intention to not play an active role in the criminal process, and on victims who fear an invasion of their safety and privacy. According to the literature, such wishes and needs can be considered to be fundamental. The article questions the empirical basis for the present victim legislation: are the new laws that have been created over the decades founded on empirically established victim needs, or on presumed victim needs? The article concludes with a plea for a more extensive use of empirical findings that shed light on victim wishes in the legislation and the criminal process.


Marijke Malsch
Marijke Malsch is Professor of Empirical Legal Studies at Open Universiteit Netherlands.
Article

Access_open Dutch Penal Protection Orders in Practice

A Study of Aims and Outcomes

Journal Erasmus Law Review, Issue 3 2021
Keywords enforcement practice, victim safety, street level bureaucracy, criminal justice chain, penal protection orders
Authors Tamar Fischer and Sanne Struijk
AbstractAuthor's information

    Penal protection orders (PPOs) aim to protect initial victims from repeat victimisation and in a broader sense from any danger for his or her dignity or psychological and sexual integrity and may therefore be important instruments for victim safety. However, knowledge on the actual practice of the PPOs and the successes, dilemmas and challenges involved is scarce. In this article, we describe the legal framework and actual enforcement practice of Dutch PPOs. The theoretical framework leading our explorative analyses regards Lipsky’s notion of ‘street-level bureaucracy’ and the succeeding work of Maynard & Musheno and Tummers on coping strategies and agency narratives of frontline workers. Using interview data from criminal justice professionals, victims and offenders, we describe the conditions of the enforcement practice and answer the question which coping mechanisms and types of agencies the professionals tend to apply in order to meet the legislative aims and to protect victims as effectively as possible. Results show that the five conditions described by Lipsky are clearly present. So far, in almost all situations the process of monitoring violations is reactive and because knowledge on risk indicators for violent escalation is still limited, it is difficult for frontline workers to decide how many and what type of resources should be invested in which cases. This results in a ‘moving away from clients’ strategy. However, within this context in which reactive enforcement is the default, we also found several examples of coping that represent ‘moving towards clients’ strategies.


Tamar Fischer
Tamar Fischer is Associate Professor of Criminology at the Erasmus Universiteit Rotterdam, the Netherlands.

Sanne Struijk
Sanne Struijk is Professor of Penal Sanctions Law and associate professor of Criminal Law at the Erasmus University Rotterdam, the Netherlands.
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