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Rulings

ECJ 9 September 2020, Joined Cases C-674/18 and C-675/18 (TMD Friction), Transfer of Undertakings, Employment Terms, Insolvency

EM – v – TMD Friction GmbH (C-674/18) and FL – v – TMD Friction EsCo GmbH (C-675/18), German cases

Journal European Employment Law Cases, Issue 3 2020
Keywords Transfer of Undertakings, Insolvency
Abstract

    Member States can decide that rules on transfer of undertaking do not apply to supplementary occupational pension scheme accruals pre-transfer, if the transfer has been carried out by an insolvency administrator after the opening of insolvency proceedings.

    The central question in this case was what was the objectively applicable law to an employment contract concluded between a Turkish airline and a Dutch co-pilot, in accordance with Article 8 Rome I. The ruling is particularly interesting for the relation between the habitual place of work and the exception clause and points to the elements that should be taken into account.


Amber Zwanenburg
Amber Zwanenburg is a PhD candidate at the Erasmus University in Rotterdam and member of the editorial board of EELC.

Jan-Pieter Vos
Jan-Pieter Vos is a teacher and PhD candidate at Erasmus University Rotterdam, and member of the editorial board of EELC.

    The Austrian Supreme Court has confirmed that an employer must pay compensation to an employee due to a violation of the employee’s privacy. The employer implemented a GPS system in its company cars without the employee’s knowledge and without legal basis.


Lukas Disarò
Lukas Disarò is an Attorney-at-Law at law Firm MMag. Gregor Winkelmayr, MBA, LL.M (Essex).
Pending Cases

Case C-217/20, Paid Leave

XXXX – v – Staatssecretaris van Financiën, reference lodged by the Rechtbank Overijssel (Netherlands) on 25 May 2020

Journal European Employment Law Cases, Issue 3 2020
Keywords Paid Leave

    The Irish Workplace Relations Commission has found that the termination of a franchise arrangement between a post office and a retail partner and a subsequent arrangement with another retail partner constituted a transfer of undertaking.


Orla O’Leary
Orla O’Leary is a Senior Associate at Mason Hayes & Curran LLP
Pending Cases

Case C-328/20, Social Insurance

European Commission – v – Republic of Austria, action brought on 22 July 2020

Journal European Employment Law Cases, Issue 3 2020
Keywords Social Insurance
Rulings

ECJ 9 July 2020, Case C-70/19 P (Commission – v – HM), Miscellaneous

European Commission – v – HM, EU Case

Journal European Employment Law Cases, Issue 3 2020
Keywords Miscellaneous
Abstract

    Internal EC case. An English translation is not available yet. The relevant case information and available translations are available here.

    Are the outcomes of the CJEU judgments on religious discrimination essentially different from the outcome of similar cases dealing with restrictions on the freedom of religion ruled by the ECtHR?


Filip Dorssemont
Filip Dorssemont is a Professor of Labour Law at Université catholique de Louvain and Guest Professor at Free University of Brussels.
Pending Cases

Case C-220/20, Miscellaneous

XX – v – OO, reference lodged by the Ufficio del Giudice di Pace di Lanciano (Italy) on 28 May 2020

Journal European Employment Law Cases, Issue 3 2020
Keywords Miscellaneous
Rulings

ECJ 16 July 2020, Case C-658/18 (Governo della Repubblica italiana (Statut des juges de paix italiens)), Employment Status, Paid Leave, Fixed-Term Work

UX – v – Governo della Repubblica italiana, Italian case

Journal European Employment Law Cases, Issue 3 2020
Keywords Employment Status, Paid Leave, Fixed-Term Work
Abstract

    Magistrates who perform real and actual duties are entitled to paid leave and can be deemed to be fixed-term workers within the scope of Clause 2(1) of Directive 1999/70.

    The recent spread of the Covid-19 pandemic has shown how economic vulnerability varies considerably across European Member States (MSs), and so does social protection in the European Union (EU). The social and economic consequences of the pandemic have impacted asymmetrically national labour markets and exacerbated existing disparities and contradictions. A measure that most governments have introduced in the immediate aftermath has been that of making financial support available to those self-employed workers who lost fully or in part their income. Most MSs have employed quantitative thresholds to identify those self-employed more in need of public subsidies and have proportioned them according to the pre-pandemic levels of income, on the condition that they have been officially recorded as taxable revenues.
    Despite their heterogeneity, we can reasonably affirm that the self-employed have been one of the most exposed clusters of the labour market to in-work poverty and economic uncertainty, which proved to be particularly problematic in periods of unforeseeable crisis, such as that of 2008 and even more so that of 2020. This article explores the range of EU-level measures designed for the self-employed and questions their potential impact on MSs’ legislation.


Luca Ratti
Luca Ratti is a professor at the University of Luxembourg.
Pending Cases

Case C-262/20, Working Time, Other Forms of Discrimination

VB – v – Glavna Direktsia ‘Pozharna bezopasnost i zaschtita na naselenieto’ kam Ministerstvo na vatreshnite raboti, reference lodged by the Rayonen sad Lukovit (Bulgaria) on 15 June 2020

Journal European Employment Law Cases, Issue 3 2020
Keywords Working Time, Other Forms of Discrimination

    The UK Employment Tribunals and England and Wales Court of Appeal (case [2018] EWCA Civ 2748) have ruled that any Uber driver who has the Uber App switched on, is in the territory where he/she is authorised to work, and is able and willing to accept assignments, is working for Uber under a worker contract. The UK courts disregarded some of the provisions of Uber’s driver agreement. They had been entitled to do so because the relevant provisions of the driver agreement did not reflect the reality of the bargain made between the parties. The fact that Uber interviews and recruits drivers, controls the key information, requires drivers to accept trips, sets the route, fixes the fare, imposes numerous conditions on drivers, determines remuneration, amends the driver’s terms unilaterally, and handles complaints by passengers, makes it a transportation or passenger carrier, not an information and electronic technology provider. Therefore the UK courts resolved the central issue of for whom (Uber) and under a contract with whom (Uber), drivers perform their services. Uber is a modern business phenomenon. Regardless of its special position in business, Uber is obliged to follow the rules according to which work is neither a commodity nor an online technology.


Andrzej Świątkowski
Andrzej Marian Świątkowski is a professor at Jesuit University Ignatianum in Krakow. ((ORCID: 0000-0003-1753-7810))
Pending Cases

Case C-202/20 P, Miscellaneous

Claudio Necci – v – European Commission, European Parliament, Council of the European Union, appeal against judgment of the General Court (Fourth Chamber) of 25 March 2020 in Case T-129/19, Necci – v – Commission

Journal European Employment Law Cases, Issue 3 2020
Keywords Miscellaneous
Pending Cases

Case C-261/20, Other Forms of Free Movement

Thelen Technopark Berlin GmbH – v – MN, reference lodged by the Bundesgerichtshof (Germany) on 15 June 2020

Journal European Employment Law Cases, Issue 3 2020
Keywords Other Forms of Free Movement
Pending Cases

Case C-218/20, Private International Law, Applicable Law

Sindicatul Lucrătorilor din Transporturi, TD – v – SC Samidani Trans SRL, reference lodged by the Tribunalul Mureș (Romania) on 27 May 2020

Journal European Employment Law Cases, Issue 3 2020
Keywords Private International Law, Applicable Law
Pending Cases

Case C-285/20, Social Insurance

K – v – Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Uwv), reference lodged by the Centrale Raad van Beroep (The Netherlands) on 25 June 2020

Journal European Employment Law Cases, Issue 3 2020
Keywords Social Insurance

    The Romanian Court of Appeal has overruled a first instance court’s decision with the effect that the employees working in the public administration/special utilities/budgetary units are entitled to benefit from paid annual leave, in the case of multiple roles, in accordance with Directive 2003/88/EC, Directive 97/81/EC and ECJ rulings.


Andreea Suciu
Andreea Suciu is the Managing Partner of Suciu I The Employment Law Firm (https://suciu-employmentlaw.ro/).

Gabriela Ion
Gabriela Ion is an Associate at Suciu I The Employment Law Firm (https://suciu-employmentlaw.ro/).
Pending Cases

Case C-237/20, Transfer of Undertakings, Insolvency

Federatie Nederlandse Vakbeweging – v – Heiploeg Seafood International BV, Heitrans International BV, reference lodged by the Hoge Raad der Nederlanden (The Netherlands) on 4 June 2020

Journal European Employment Law Cases, Issue 3 2020
Keywords Transfer of Undertakings, Insolvency
Pending Cases

Case C-205/20, Free movement

NE – v – Bezirkshauptmannschaft Hartberg-Fürstenfeld, reference lodged by the Landesverwaltungsgericht Steiermark (Austria) on 8 May 2020

Journal European Employment Law Cases, Issue 3 2020
Keywords Free movement
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