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Pending Cases

Case C-344/18, Transfer of Undertakings

ISS Facility Services NV – v – Sonia Govaerts, Euroclean NV, reference lodged by the Arbeidshof Gent (Belgium) on 25 May 2018

Journal European Employment Law Cases, Issue 2 2019
Rulings

ECJ 13 June 2019, case C-664/17 (Ellinika Nafpigeia), Transfer of Undertakings, Transfer

Ellinika Nafpigeia AE – v – Panagiotis Anagnostopoulos and Others, Greek case

Journal European Employment Law Cases, Issue 2 2019
Keywords Transfer of Undertakings, Transfer
Abstract

Landmark Rulings

ECJ 14 May 2019, case C-509/17 (Plessers), Transfer of Undertakings, Dismissal/Severance payment

Christa Plessers – v – Prefaco NV, Belgische Staat, Belgian case

Journal European Employment Law Cases, Issue 2 2019
Keywords Transfer of undertakings, Dismissal/severance payment
Abstract

Pending Cases

Case C-675/18, Transfer of Undertakings, Pension

FL – v – TMD Friction EsCo GmbH, reference lodged by the Bundesarbeitsgericht (Germany) on 30 October 2018

Journal European Employment Law Cases, Issue 2 2019
Pending Cases

Case C-674/18, Transfer of Undertakings, Pension

EM – v – TMD Friction GmbH, reference lodged by the Bundesarbeitsgericht (Germany) on 30 October 2018

Journal European Employment Law Cases, Issue 2 2019
Rulings

ECJ 13 June 2019, case C-317/18 (Correia Moreira), Transfer of Undertakings, Employees who Transfer/Refuse to Transfer, Employment Terms

Cátia Correia Moreira – v – Município de Portimão, Portuguese case

Journal European Employment Law Cases, Issue 2 2019
Keywords Transfer of Undertakings, Employees who transfer/refuse to transfer, Employment terms
Abstract

Case Reports

2019/21 Supreme Court rules on liability distribution between transferor and transferee (FI)

Journal European Employment Law Cases, Issue 2 2019
Keywords Transfer of Undertakings, Dismissal/Severance Payment
Authors Janne Nurminen
AbstractAuthor's information

    A municipal federation took back a nursing home operation it had previously outsourced to a contractor. The Finnish Supreme Court held that a transfer of undertaking had taken place and the municipal federation (transferee) was liable to pay the employee compensation for the unlawful termination of the employment contract. Further, the Supreme Court held that the employee had also without a justifiable reason directed the claim for compensation towards the employer company (transferor/the old contractor) and for that reason was liable to pay the legal costs of the employer company.


Janne Nurminen
Janne Nurminen is a Senior Associate with Roschier, Attorneys Ltd in Helsinki, www.roschier.com.
Rulings

ECJ 8 May 2019, case C-486/18 (Dodic), Transfer of Undertakings, Transfer

Jadran Dodic – v – Banka Koper, Alta Invest, Slovenian case

Journal European Employment Law Cases, Issue 2 2019
Keywords Transfer of Undertakings, Transfer
Abstract

    The Finnish Supreme Court held that a transfer of undertaking had taken place in a situation where no contract of transfer was concluded.


Janne Nurminen
Janne Nurminen is a Senior Associate with Roschier, Attorneys Ltd in Helsinki, www.roschier.com
Case Reports

2019/9 The right to object against a transfer in case of incorrect information is not unlimited (GE)

Journal European Employment Law Cases, Issue 1 2019
Keywords Transfer of undertaking, Employees who transfer/refuse to transfer
Authors Nina Stephan
AbstractAuthor's information

    According to German law, every employee has the right to object to the transfer of their employment relationship to the transferee in the case of a transfer of business. However, the right to object is not unlimited. The Federal Labour Court (Bundesarbeitsgericht (‘BAG’)) held that an employee who had worked for the transferee for seven years had lost this right if they had been informed about the transfer.


Nina Stephan
Nina Stephan is an attorney-at-law at Luther Rechtsanwaltgesellschaft mbH

    The Danish Western High Court recently ruled that the Danish Act on Employees’ Rights on Transfers of Undertakings did not apply to two municipalities’ repatriation of home care services after a private-sector service provider went bankrupt.


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

2019/10 Employee’s right of choice between transferor and transferee in the event of a business transfer (NO)

Journal European Employment Law Cases, Issue 1 2019
Keywords Transfer of undertakings, Employees who transfer/refuse to transfer
Authors Bernard Johann Mulder
AbstractAuthor's information

    As a result of a transfer of an undertaking an employee lost her pension scheme rights. The transferor was bound by the pension scheme covering the employee which had been agreed upon in a collective agreement. However, the transferee company gave notification that it did not want to be bound by the collective agreement and, thus, the pension scheme. The Norwegian Supreme Court (Høyesterett) considered this loss a material negative change to the employment relationship. Therefore, the employee had the right to make use of the non-statutory exception rule of the right to insist upon continuation of the employment with the transferor, a non-statutory right of choice.


Bernard Johann Mulder
Bernard Johann Mulder is a professor at University of Oslo, Faculty of Law, Department of Private Law.
Law Review

2019/1 EELC’s review of the year 2018

Journal European Employment Law Cases, Issue 1 2019
Authors Ruben Houweling, Catherine Barnard, Filip Dorssemont e.a.
Abstract

    For the second time, various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Catherine Barnard

Filip Dorssemont

Jean-Philippe Lhernould

Francesca Maffei

Niklas Bruun

Anthony Kerr

Jan-Pieter Vos

Luca Ratti

Daiva Petrylaite

Andrej Poruban

Stein Evju
Article

Constitutional Unamendability in the Nordic Countries

Journal European Journal of Law Reform, Issue 3 2019
Keywords the Nordic constitutions, constitutional unamendability, explicit limits, implicit limits, supra-constitutional limits, review of constitutional amendments
Authors Tuomas Ojanen
AbstractAuthor's information

    With the exception of the Constitution of Norway, the Constitutions of Denmark, Finland, Iceland and Sweden are silent on any substantive limits to the power of constitutional amendment. Until now, the topic of constitutional unamendability has also attracted very little attention in Nordic constitutional scholarship.
    However, some idiosyncrasies making up the identity of the Nordic constitutions, as well as constitutional limits to Nordic participation in European integration, may implicate the existence of some implicit limits to amendment powers. Similarly, international human rights obligations binding upon the Nordic countries, as well as European Union law and European Economic Area law, may impose some external, supra-constitutional limitations on the powers of Nordic constitutional amenders. However, the existence of any implicit or supra-constitutional unamendability is speculative in the current state of evolution of Nordic constitutionalism. This is even more so since the use of constitutional amendment powers are beyond judicial review by the Nordic courts.


Tuomas Ojanen
Tuomas Ojanen is Professor of Constitutional Law, University of Helsinki, contact: tuomas.ojanen@helsinki.fi.
Article

Transformative Welfare Reform in Consensus Democracies

Journal Politics of the Low Countries, Issue 1 2019
Keywords consensus democracy, welfare state, social investment, transformative reform, Belgium and the Netherlands
Authors Anton Hemerijck and Kees van Kersbergen
AbstractAuthor's information

    This article takes up Lijphart’s claim that consensus democracy is a ‘kinder, gentler’ form of democracy than majoritarian democracy. We zoom in on contemporary welfare state change, particularly the shift towards social investment, and argue that the kinder, gentler hypothesis remains relevant. Consensus democracies stand out in regard to the extent to which their political institutions help to overcome the politically delicate intricacies of governing for the long term. We theorize the features that can help to solve the problem of temporal commitment in democracy through processual mechanisms and illustrate these with short case studies of the contrasting welfare state reform experiences in the Netherlands and Belgium.


Anton Hemerijck
Anton Hemerijck is Professor of Political Science and Sociology at the European University Institute (EUI) in Florence, Italy.

Kees van Kersbergen
Kees van Kersbergen is Professor of Comparative Politics at the Department of Political Science of Aarhus University, Denmark.

    Following the ECJ’s decision in Somoza Hermo – v – Ilunion Seguridad, C-60/17 (Somoza Hermo) of 11 July 2018, all eyes were on the Spanish Supreme Court. Since 2016, the Court has ruled a number of times that limitations to the liability of the new contractor established in a collective bargaining agreement (‘CBA’) in the context of a CBA-led transfer were valid (see e.g. EELC 2018/21). Somoza Hermo established that a CBA-led transfer that entails a non-asset-based transfer is a transfer within the meaning of the Acquired Rights Directive. Now the Supreme Court (in a decision dated 27 September 2018 taken with one dissenting opinion) is clear that its doctrine must be reviewed and has therefore held that limitations on pre-transfer liability for a new contractor under a CBA-led transfer that trigger a non-asset-based transfer, are not valid.


Luis Aguilar
Luis Aguilar is an attorney-at-law at Eversheds Sutherland in Madrid, Spain and associate professor of Employment Law at IE University in Madrid, Spain.
Pending cases

Case C-167/18 Transfer, Collective agreement

Unión Insular de CC.OO. de Lanzarote – v – Swissport Spain Aviation Services Lanzarote, S.L., reference lodged by the Tribunal Superior de Justicia de Canarias (Spain) on 2 March 2018

Journal European Employment Law Cases, Issue 4 2018

    The transferee in this case attempted to replace the transferred employees’ salaries with lower in accordance with its collective agreement, compensating for the reduction by means of a ‘personal allowance’, which it then proceeded to reduce by a set percentage based on the age of the employees each time there was a wage increase. The court held that this ‘basket comparison’ method of harmonising the wages of old and new staff was at odds with Directive 2001/23, rejecting the transferee’s argument that the ‘ETO’ provision in that directive permits such an amendment of the terms of employment.


Shamy Sripal
Shamy Sripal works for the Department of Labour Law of Erasmus School of Law.
Rulings

ECJ 11 July 2018, C-60/17 (Somoza Hermo), Transfer of undertakings

Ángel Somoza Hermo, Ilunión Seguridad SA – v – Esabe Vigilancia SA, Fondo de Garantía Salarial (Fogasa), Spanish case

Journal European Employment Law Cases, Issue 3 2018
Abstract

    CBA-led transfer may constitute transfer of undertaking.

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