The Czech Supreme Court has ruled that the concept of good moral conduct must be taken into account when assessing whether an employee has breached his or her non-compete obligation and thus whether it is fair to demand that the employee pay a contractual penalty for the breach. The Court annulled the penalty. |
Case Reports |
EELC 2018/46 Limits to a contractual penalty for non-compliance with a non-compete clause (CZ) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Miscellaneous |
Authors | Anna Diblíková |
AbstractAuthor's information |
Pending cases |
Case C-317/18, Transfer, MiscellaneousCátia Correia Moreira – v – Município de Portimão, reference lodged by the Tribunal Judicial da Comarca de Faro (Portugal) on 14 May 2018 |
Journal | European Employment Law Cases, Issue 4 2018 |
Pending cases |
Case C-37/18, MiscellaneousVueling Airlines SA – v – Jean-Luc Poignan, reference lodged by the the Cour de cassation (France) on 19 January 2018 |
Journal | European Employment Law Cases, Issue 4 2018 |
Case Reports |
EELC 2018/41 Spanish Supreme Court now aligned with ECJ’s case law: Limitation to pre-transfer liabilities for new contractor under CBA-led transfers that triggers a non-asset based transfer are not valid (SP) |
Journal | European Employment Law Cases, Issue 4 2018 |
Keywords | Transfer of undertaking, Miscellaneous |
Authors | Luis Aguilar |
AbstractAuthor's information |
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. |
Rulings |
ECJ 19 April 2018, case C-645/16 (CMR), MiscellaneousConseils et mise en relations (CMR) SARL – v – Demeures terre et tradition SARL, French case |
Journal | European Employment Law Cases, Issue 2 2018 |
Keywords | Miscellaneous |
Abstract |
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ECJ Court Watch |
ECJ 6 February 2018, C-359/16 (Altun), Free movement, Social insuranceAltun and others – v – Openbaar Ministerie, Belgian case |
Journal | European Employment Law Cases, Issue 1 2018 |
Keywords | Free movement, Social insurance |
Abstract |
A Member State to which workers have been posted may, in the case of fraud and under certain conditions, ask the courts to disregard an A1 certificate and apply its own social security legislation, including the recovery of contributions. |
Case Reports |
2018/9 Uber’s work status appeal rejected (UK) |
Journal | European Employment Law Cases, Issue 1 2018 |
Keywords | Miscellaneous, Employment status |
Authors | Laetitia Cooke |
AbstractAuthor's information |
Following an appeal by Uber against an employment tribunal (ET) finding last year, which was featured in EELC 2017/10, that its drivers are ‘workers’ and not self-employed contractors (reported in EELC 2017-1), the Employment Appeal Tribunal (EAT) has now upheld the ET’s original decision. The EAT rejected Uber’s arguments that it was merely a technology platform, as well as its statement that it did not provide transportation services. This decision is important as it means that Uber drivers are entitled to certain rights under UK law, such as the right to holiday pay, to the national minimum wage (NMW) and protection against detrimental treatment for ‘blowing the whistle’ against malpractice. Uber has approximately 40,000 drivers (and about 3.5 million users of its mobile phone application in London alone) and so this decision has potentially significant financial consequences for the company. |
Law Review |
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Journal | European Employment Law Cases, Issue 1 2018 |
Authors | Ruben Houweling, Catherine Barnard, Zef Even e.a. |
Abstract |
This is the first time we have produced a review of employment law cases from the previous year, based on analysis by various of our academic board members. But before looking at their findings, we would first like to make some general remarks. |
ECJ Court Watch |
ECJ 25 October 2017, case C-106/16 (Polbud), MiscellaneousPolbud – v – Wykonawstwo sp. z o.o., Polish case |
Journal | European Employment Law Cases, Issue 1 2018 |
Keywords | Miscellaneous |
Abstract |
Member States may not impose mandatory liquidation on companies that wish to transfer their registered office to another Member State. A restriction on freedom of establishment may be justified by overriding reasons in the public interest, such as the protection of the interests of creditors, minority shareholders and employees, but a general mandatory liquidation goes beyond what is necessary to achieve the objective of protecting these interests. |
Case Reports |
2018/10 Liability for not reacting in time to ECJ decision regarding holiday pay (DK) |
Journal | European Employment Law Cases, Issue 1 2018 |
Keywords | Miscellaneous |
Authors | Christian K. Clasen |
AbstractAuthor's information |
The Danish Supreme Court has ruled that the Danish authorities may have incurred liability by failing to act sufficiently quickly to amend the Danish Holiday Act to align it with EU law. |