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Aflevering 3, 2020 Alle samenvattingen uitklappen
Editorial

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Article

Access_open 2020/27 Freedom of religion: a tale of two cities

Trefwoorden Religious discrimination
Auteurs Filip Dorssemont
SamenvattingAuteursinformatie

    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.
Article

2020/28 The posting of workers: An EU and Slovak Republic perspective

Trefwoorden Posting of Workers
Auteurs Benita Korosiová en Gabriel Havrilla
SamenvattingAuteursinformatie

    This article discusses some of the problems with the Slovak implementation of the Posting of Workers Directive.


Benita Korosiová
Benita Korosiová is a senior lawyer at HAVRILLA&Co. Law Firm, Bratislava.

Gabriel Havrilla
Gabriel Havrilla is a managing partner at HAVRILLA&Co. Law Firm, Bratislava.
Article

2020/29 Legal status of electronic forms of employment

Trefwoorden Employment status
Auteurs Andrzej Świątkowski
SamenvattingAuteursinformatie

    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))

    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.

    The Bulgarian Supreme Administrative Court in a decision of 24 June 2019 has ruled that the mere comparison between the job descriptions of employees is not sufficient basis for establishing whether the employees are carrying out the same work or work of equal value and the courts should also take into consideration the practical aspects of the work, the specific working conditions and the tasks actually carried out.


Kalina Tchakarova
Kalina Tchakarova is a partner at Djingov, Gouginski, Kyutchukov and Velichkov.

    The Danish Western High Court recently found that an employee who had entered into a severance agreement – and who was represented by her professional organisation during this process – was barred from claiming compensation under the Danish Anti-Discrimination Act, implementing Directive 2000/78.


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

    The Brussels Labour Court of Appeal, in a judgment of 10 September 2019, has ruled that the notion of ‘maternity’ contained in the Belgian Gender Act does not go as far as protecting mothers against discrimination with regards to childcare, since this would confirm a patriarchal role pattern. However, a recent legislative change introducing ‘paternity’ as a protected ground might cast doubt on the relevance of this ruling for the future.


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant, Brussels.
Case Reports

2020/34 Challenge to validity of Workplace Relations Act 2015 unsuccessful (IR)

Trefwoorden Unfair Dismissal, Fair Trial, Miscellaneous
Auteurs Orla O’Leary
SamenvattingAuteursinformatie

    A recent challenge to the constitutionality of the Irish Workplace Relations Commission (WRC) has failed. The applicant in the case at hand argued that the WRC was unconstitutional for two reasons: (a) that the WRC carries out the administration of justice in breach of the general constitutional rule that only the courts may administer justice; and (b) several of the statutory procedures of the WRC were so deficient that they failed to vindicate the applicant’s personal constitutional rights. The High Court of Ireland dismissed both arguments.


Orla O’Leary
Orla O’Leary is a Senior Associate at Mason Hayes & Curran.

    The Federal Labour Court of Germany (Bundesarbeitsgericht, ‘BAG’) had to decide on a case in which an employee argued that his contract was not terminated by a provision that restricted the mutual duties to a certain time period for the yearly season within his contract and that the employer had to employ him during the off season. However, his lawsuit was unsuccessful as the Court found that, even though he did have an indefinite contract, the employer was not obliged to employ and pay him during the off season due to the valid provision of fixed-term employment for the time from April to October during the time of the season.


Othmar K. Traber
Othmar K. Traber is a partner at Ahlers & Vogel Rechtsanwälte PartG mbB in Bremen, www.ahlers-vogel.com.

    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).

    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.
Case Reports

2020/38 Supreme Court rules on the principle of continuity of civil service law in connection with a transfer of undertaking (FI)

Trefwoorden Transfer of Undertakings, Employees Who Transfer, Dismissal/Severance Payment
Auteurs Janne Nurminen
SamenvattingAuteursinformatie

    The Finnish Supreme Court has overturned a Court of Appeal decision regarding a transfer of a municipal civil servant to a company during the privatization of a public utility company. The Supreme Court held that an employment relationship had not been established between the transferee and the unlawfully dismissed municipal civil servant despite the principle of continuity of civil service law. The concrete actions of the transferee had an important role in defining that no employment relationship had been constituted between the dismissed municipal civil servant and the private company.


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

    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

    The Federal Labour Court of Germany (Bundesarbeitsgericht, ‘BAG’) had to decide on a case in which an employee claimed vacation entitlements for the release phase of a partial retirement scheme. Because the employee was released from his work obligation during the release phase of the partial retirement under the so-called ‘block model’ he was not entitled to statutory leave so that the lawsuit was unsuccessful in the final instance.


Othmar K. Traber
Othmar K. Traber is a partner at Ahlers & Vogel Rechtsanwälte PartG mbB in Bremen, www.ahlers-vogel.com.

    The administrative law sector of the Overijssel Court has asked preliminary questions about the level of holiday pay during sickness, in situations where sick pay is lower than regular pay. This enables the ECJ to clarify its case law on holiday pay once more.


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 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/).

    The European Court of Justice (ECJ) has ruled that, while it is for national courts to make decisions about employment status, a courier working for Yodel in the UK appeared to have been correctly classified as self-employed, given the latitude he had over accepting jobs, working for competitors, providing substitutes and deciding his work schedule. The crucial factors were independence and subordination.


Colin Leckey
Colin Leckey is a Partner at Lewis Silkin LLP.
Landmark Ruling

ECJ 16 July 2020, Case C-610/18 (AFMB and Others), Social Insurance

AFMB Ltd. and Others – v – Raad van bestuur van de Sociale verzekeringsbank, Dutch case

Trefwoorden Social Insurance
Samenvatting

    The employer of drivers of heavy goods vehicles employed in international long-distance transport is the transport undertaking that has actual authority over those drivers, that bears, in reality, the cost of their wages and that has actual power to dismiss them.

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

Trefwoorden Employment Status, Paid Leave, Fixed-Term Work
Samenvatting

    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.

Rulings

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

European Commission – v – HM, EU Case

Trefwoorden Miscellaneous
Samenvatting

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

Rulings

ECJ 8 September 2020, case C-119/19 P (Carreras Sequeros), Paid Leave, Miscellaneous

European Commission – v – Francisco Carreras Sequeros and Others, EU Case

Trefwoorden Paid Leave
Samenvatting

    Article 31(2) of the Charter of Fundamental Rights only applies to the minimum four weeks of annual leave.

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

Trefwoorden Transfer of Undertakings, Insolvency
Samenvatting

    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.

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

Trefwoorden Miscellaneous
Pending Cases

Case C-214/20, Working Time

MG – v – Dublin City Council, reference lodged by the Labour Court (Ireland) on 20 May 2020

Trefwoorden Working Time
Pending Cases

Case C-205/20, Free movement

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

Trefwoorden 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

Trefwoorden Private International Law, Applicable Law
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

Trefwoorden Miscellaneous
Pending Cases

Case C-217/20, Paid Leave

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

Trefwoorden Paid Leave
Pending Cases

Case C-233/20, Paid Leave

WD – v – job-medium GmbH in liquidation, reference lodged by the Oberster Gerichtshof (Austria) on 4 June 2020

Trefwoorden Paid Leave
Pending Cases

Case C-232/20, Temporary Agency Work

NP – v – Daimler AG, Mercedes-Benz Werk Berlin, reference lodged by the Ufficio del Giudice di Pace di Lanciano (Italy) on 28 May 2020

Trefwoorden Temporary Agency Work
Pending Cases

Case C-236/20, Fixed-Term Work, Part Time Work, Paid Leave, Other Forms of Discrimination

PG – v – Ministero della Giustizia, CSM — Consiglio Superiore della Magistratura, Presidenza del Consiglio dei Ministri, reference lodged by the Tribunale Amministrativo Regionale per la Emilia Romagna (Italy) on 4 June 2020

Trefwoorden Fixed-Term Work, Part Time Work, Paid Leave, Other Forms of Discrimination
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

Trefwoorden Transfer of Undertakings, Insolvency
Pending Cases

Case C-244/20, Social Insurance, Gender Discrimination, Pension

FCI – v – Instituto Nacional de la Seguridad Social (INSS), reference lodged by the Tribunal Superior de Justicia de Cataluña (Spain) on 8 June 2020

Trefwoorden Social Insurance, Gender Discrimination, Pension
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

Trefwoorden Other Forms of Free Movement
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

Trefwoorden Social Insurance
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

Trefwoorden Working Time, Other Forms of Discrimination
Pending Cases

Case C-265/20, Fixed-Term Work, Part Time Work

FN – v – Universiteit Antwerpen and Others, reference lodged by the Hof van beroep Antwerpen (Belgium) on 15 June 2020

Trefwoorden Fixed-Term Work, Part Time Work
Pending Cases

Case C-328/20, Social Insurance

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

Trefwoorden Social Insurance

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