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ECJ Court Watch

Case C-359/16. Social security

Ömer Altun, Abubekir Altun, Sedrettin Maksutogullari, Yunus Altun, Absa NV, M. Sedat BVBA, Alnur BVBA – v – Openbaar Ministerie, reference lodged by the Belgian Hof van Cassatie on 24 June 2016

Journal European Employment Law Cases, Issue 4 2016
Keywords Social security
Case Reports

2016/60 Special protection for disabled employees against termination of employment – international apsects (GE)

Journal European Employment Law Cases, Issue 4 2016
Keywords Disabled employees, Invalid termination, International aspects
Authors Paul Schreiner and Nina Stephan
AbstractAuthor's information

    An employee may bring a claim for invalid termination before the German Labour courts, irrespective of the law governing the employment relationship. In Germany, it is only possible for an employer to dismiss a severely disabled person if the competent state authority grants a permit enabling it to do so. However, this requirement is limited to those with employment agreements under German Law.


Paul Schreiner
Paul Screiner and Nina Stephan are, respectively, a partner and an associate with Luther Rechtsanwaltgesellschaft mbH, www.luther-lawfirm.com.

Nina Stephan

    Article 52(1)(a) of the Romanian Labour Code allows an employer to suspend, without pay, an employee under a disciplinary investigation. However, the Constitutional Court has recently ruled Article 52(1)(a) unconstitutional.


Andreea Suciu
Andreea Suciu is Head of Employment & Pensions with Noerr in Bucharest, www.noerr.com.
ECJ Court Watch

ECJ 17 November 2016, case C-216/15 (Ruhrlandklinik), Temporary agency work

Betriebsrat der Ruhrlandklinik gGmbH – v – Ruhrlandklinik gGmbH

Journal European Employment Law Cases, Issue 4 2016
Keywords Temporary agency work
Abstract

    The definition of ‘worker’ in Directive 2008/104 on temporary agency work includes those who are similar to employees, without having employee status under domestic law.

ECJ Court Watch

Case C-354/16. Part-time work and sex discrimination

Ute Kleinsteuber – v – Mars GmbH, reference lodged by the German Arbeitsgericht Verden on 27 June 2016

Journal European Employment Law Cases, Issue 4 2016
Keywords Part-time work, Gender discrimination
ECJ Court Watch

ECJ 15 November 2016, case C-258/15 (Salaberria Sorondo), Age discrimination

Gorka Salaberria Sorondo – v – Academia Vasca de Policía y Emergencias

Journal European Employment Law Cases, Issue 4 2016
Keywords Age discrimination
Abstract

    Directive 2000/78 does not preclude requiring candidates for the position of police officer to be under 35 years of age. The ECJ distinguishes from its judgment in Vital Pérez.

ECJ Court Watch

Case C-415/16. Working time

David Fernando Leal da Fonseca – v – Varzim Sol – Turismo, Jogo e Animação, SA, reference lodged by the Portuguese on 27 July 2016

Journal European Employment Law Cases, Issue 4 2016
Keywords Working time
ECJ Court Watch

ECJ 10 November 2016, case C-548/15 (De Lange), Age discrimination – tax

J.J. de Lange – v – Staatssecretaris van Financiën

Journal European Employment Law Cases, Issue 4 2016
Keywords Age discrimination, Tax
Abstract

    Tax law may, in principle, allow persons aged under 30 to deduct from their taxable income more vocational training expenses than older persons.

ECJ Court Watch

Case C-443/16. Fixed-term employment

Francisco Rodrigo Sanz – v – Universidad Politécnica de Madrid, reference lodged by the Spanish Juzgado de lo Contencioso-Administrativo de Madrid on 8 August 2016

Journal European Employment Law Cases, Issue 4 2016
Keywords Fixed-term work

    The Industrial Disputes Court considered certain substantive and procedural issues in the context of a claim for sexual harassment and victimisation. This case provides a good illustration of the principles the tribunals apply when examining sexual harassment cases and how these are interpreted by Cypriot employment courts.


Anna Praxitelous
Anna Praxitelous is a lawyer with George Z. Georgiou & Associates LLC, www.gzg.com.cy. This article was originally edited by, and first published on, www.internationallawoffice.com.

    This case confirms that if both the transferor and transferee are affiliated to the same mandatory industry-level pension scheme, following the transfer, the transferee is liable for due but unpaid pension contributions dating from before the date of the transfer.


Zef Even
Zef Even is a lawyer at SteensmaEven, www.steensmaeven.com.

    The Austrian Supreme Court has ruled that the general prohibition of Muslim face veils by an employer does not constitute unlawful discrimination. In this landmark decision, Austria’s Supreme Court expresses the view that an uncovered face is a prerequisite to proper communication. Thus, termination of employment by reason of an employee’s refusal to come to work unless she can wear a face veil is not unlawful under the Austrian Equal Treatment Act. Whether this rule also applies to other religious clothing such as headscarves remains to be seen.


Hans Georg Laimer
Hans Georg Laimer is a partner at zeiler.partners Rechtsanwälte GmbH.

Lukas Wieser
Lukas Wieser is an attorney at law at zeiler.partners Rechtsanwälte GmbH.
ECJ Court Watch

Case C-429/16. Collecive redundancy

Małgorzata Ciupa and Others – v – II Szpital Miejski im. L. Rydygiera w Łodzi, now Szpital Ginekologiczno-Położniczy im dr L. Rydygiera Sp. z o.o. w Łodzi, reference lodged by the Polish Sąd Okręgowy w Łodzi on 2 August 2016

Journal European Employment Law Cases, Issue 4 2016
Keywords Collective redundancy
ECJ Court Watch

ECJ 14 September 2016, joined cases C-184/15 (Martínez Andrés) and C-197/15 (Castrejana López), Fixed-term work

Florentina Matínez Andrés – v – Servicio Vasco de Salud and Juan Carlos Castrejana López – v – Ayuntamiento de Vitoria

Journal European Employment Law Cases, Issue 4 2016
Keywords Fixed-term work
Abstract

    The penalty for abuse of successive fixed-term contracts must be available to all victims of such abuse, including those employed under administrative, rather than employment, law. National law may not require a victim to bring a new action before a different court in order to determine the penalty.

    In one of the first high-profile cases under the Protected Disclosures Act 2014 (i.e. whistleblowing legislation), two employees have successfully secured an injunction in the Circuit Court which prevents their dismissal.


Lucy O’Neill
Lucy O’Neill is an associate at Mason Hayes & Curan, www.MHC.ie.
ECJ Court Watch

Case C-442/16. Free movement

Florea Gusa – v – Minister for Social Protection, Attorney General, reference lodged by the Irish Court of Appeal on 8 August 2016

Journal European Employment Law Cases, Issue 4 2016
Keywords Free movement

    The comparative discussions held during this seminar show that the different jurisdictions make use of – approximately – the same ingredients for their legislation on adult guardianship measures and continuing powers of attorney. Given the common international framework (for example the UN Convention on the Rights of Persons with Disabilities) and given the common societal context (cfr. the strong increase of the ageing population) this may not come as a surprise. Despite these common ingredients, the different jurisdictions have managed to arrive at different dishes spiced with specific local flavours. Given that each jurisdiction bears its own history and specific policy plans, this may not come as a surprise either. The adage ‘same same but different’ is in this respect a suitable bromide.
    For my own research, the several invitations – that implicitly or explicitly arose from the different discussions – to rethink important concepts or assumptions were of most relevance and importance. A particular example that comes to mind is the suggestion to ‘reverse the jurisprudence’ and to take persons with disabilities instead of healthy adult persons as a point of reference. Also, the invitation to rethink the relationship between the limitation of capacity and the attribution of a guard comes to mind as the juxtaposition of the different jurisdictions showed that these two aspects don’t need to be automatically combined. Also the discussion on the interference between the continuing powers of attorney and the supervision by the court, provoked further reflection on hybrid forms of protection on my part. Finally, the ethical and medical-legal approaches may lead to a reconsideration of the traditional underlying concepts of autonomy and the assessment of capacity.


Veerle Vanderhulst Ph.D.
Veerle Vanderhulst works at the Faculty of Law and Criminology, Vrije Universiteit Brussel
Article

Access_open Raising Barriers to ‘Outlaw Motorcycle Gang-Related Events’

Underlining the Difference between Pre-Emption and Prevention

Journal Erasmus Law Review, Issue 3 2016
Keywords Prevention, pre-crime, pre-emption, risk, outlaw motorcycle gangs
Authors Teun van Ruitenburg
AbstractAuthor's information

    Fighting outlaw motorcycle gangs is currently one of the top priorities of many governments around the world. This is due to the notion that outlaw motorcycle gangs do not consist solely of motorcycle enthusiasts. Numerous cases reveal that these clubs, or at least their members, are involved in (organised) crime. In order to tackle these clubs, the former Dutch Minister of Security and Justice announced a whole-of-government strategy towards outlaw motorcycle gangs in 2012. As part of this effort, authorities such as the Dutch National Police, the Public Prosecution Service, the Dutch Tax Authority and local governments aim to cooperate in order to disrupt and restrict outlaw motorcycle gangs by means of Criminal, Administrative and Civil Law. Part of this strategy is to hinder club-related events. This article discusses the latter strategy in light of the distinction between prevention and pre-emption. As the latter two concepts are often used interchangeably, this article attempts to use a more strict division between prevention and pre-emption. Thereby, it becomes apparent that outlaw motorcycle gangs are to some extent governed through uncertainty. The author suggests that maintaining the ‘prevention–pre-emption distinction’ can offer an interesting and valuable point of departure for analysing today’s crime policies.


Teun van Ruitenburg
Teun van Ruitenburg, MSc., is PhD Candidate at the Criminology Department of the Erasmus University Rotterdam.
Article

Access_open The Right to Mental Health in the Digital Era

Journal Erasmus Law Review, Issue 3 2016
Keywords E-health, e-mental health, right to health, right to mental health
Authors Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj
AbstractAuthor's information

    People with mental illness usually experience higher rates of disability and mortality. Often, health care systems do not adequately respond to the burden of mental disorders worldwide. The number of health care providers dealing with mental health care is insufficient in many countries. Equal access to necessary health services should be granted to mentally ill people without any discrimination. E-mental health is expected to enhance the quality of care as well as accessibility, availability and affordability of services. This paper examines under what conditions e-mental health can contribute to realising the right to health by using the availability, accessibility, acceptability and quality (AAAQ) framework that is developed by the Committee on Economic, Social and Cultural Rights. Research shows e-mental health facilitates dissemination of information, remote consultation and patient monitoring and might increase access to mental health care. Furthermore, patient participation might increase, and stigma and discrimination might be reduced by the use of e-mental health. However, e-mental health might not increase the access to health care for everyone, such as the digitally illiterate or those who do not have access to the Internet. The affordability of this service, when it is not covered by insurance, can be a barrier to access to this service. In addition, not all e-mental health services are acceptable and of good quality. Policy makers should adopt new legal policies to respond to the present and future developments of modern technologies in health, as well as e-Mental health. To analyse the impact of e-mental health on the right to health, additional research is necessary.


Fatemeh Kokabisaghi
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.

Iris Bakx
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.

Blerta Zenelaj
Fatemeh Kokabisaghi, Iris Bakx and Blerta Zenelaj are Ph.D. candidates at the Institute of Health Policy and Management, Erasmus University Rotterdam. All authors contributed equally.
Editorial

Access_open Introduction

Journal Erasmus Law Review, Issue 3 2016
Authors Kristin Henrard
Author's information

Kristin Henrard
Kristin Henrard is professor of fundamental rights and minorities at the Erasmus School of Law as well as associate professor International and European Law. She teaches courses on advanced public international law, international criminal law, human rights, and on minorities and fundamental rights.
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