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European Employment Law Cases

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Aflevering 3, 2021 Alle samenvattingen uitklappen

Zef Even

    The wording of a global exclusion clause in an employment contract also covered claims asserted on the grounds of intentional damage. However, such a clause was invalid in the case at hand because it resulted in a shortening of the statutory limitation periods. Both parties to the employment contract could not therefore refer to such a contractual exclusion clause. The consequence was that the statutory limitation periods applied. The employer can also invoke the invalidity of the exclusion clause, even if it drafted the clause itself. The judgment may also have important consequences for collective agreements.


Jana Voigt
Jana Voigt is senior associate at Luther Rechtsanwaltsgesellschaft in Düsseldorf, Germany.

Pia Schweers
Pia Schweers is associate at Luther Rechtsanwaltsgesellschaft in Essen, Germany.
Case Reports

2021/26 Trade union found liable for organizing an illegal strike (RO)

Trefwoorden Unions
Auteurs Andreea Suciu en Andreea Oprea
SamenvattingAuteursinformatie

    The Craiova Court of Appeal has ruled that a trade union that organized an illegal strike was civilly liable for the entire prejudice caused to the employer due to the interruption of its business activity. The compensation will be calculated based on the damage incurred by the employer, regardless of whether the strike took place for only two hours, as in the case at hand, if the activity of the unit was disrupted for a longer period of time due to such strike action.


Andreea Suciu
Andreea Suciu is Managing Partner of Suciu | The Employment Law Firm.

Andreea Oprea
Andreea Oprea is an Associate at Suciu | The Employment Law Firm.
Case Reports

2021/27 Termination protection applicable to state officials upon termination of their official relationship (BG)

Trefwoorden Disability Discrimination, Unfair Dismissal
Auteurs Kalina Tchakarova
SamenvattingAuteursinformatie

    The Bulgarian Supreme Administrative Court has held that not only employees working under an employment relationship but also state officials enjoy special protection against termination.


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

    Following up on the ECJ’s judgment in the Kalliri case, the Greek Council of State (Conseil d’État) held in a Plenary Session decision that a legal provision of Presidential Decree 90/2003 requiring that candidates for admission to the Greek Officers and Policemen School must be at least 1.70 m, independently of their sex, was indirectly discriminatory against female candidates. It based its decision on Directive 76/207/EEC as well as principles of the Greek constitution.


Effie Mitsopoulou
Effie Mitsopoulou is an attorney-at-law at Effie Mitsopoulou Law Office.

    The UK’s Supreme Court (SC) has ruled that retail staff of the supermarket chain Asda can compare themselves under UK law to higher-paid distribution depot staff for the purposes of an equal pay claim. In a separate case against Tesco, the ECJ subsequently confirmed that the company’s shop workers can rely directly on EU law to compare themselves to distribution centre workers for the purposes of such a claim.


Carolyn Soakell
Carolyn Soakell is a partner at Lewis Silkin LLP.
Case Reports

2021/30 ‘Gender critical’ beliefs are protected philosophical beliefs (UK)

Trefwoorden Other Forms of Discrimination
Auteurs Bethan Carney
SamenvattingAuteursinformatie

    The Employment Appeal Tribunal (EAT) has ruled that ‘gender critical’ beliefs are protected philosophical beliefs for equality law purposes, while confirming that a belief in ‘gender identity’ is also a protected characteristic. This means that it is unlawful to discriminate against someone because they do or do not hold either of those beliefs.


Bethan Carney
Bethan Carney is a Managing Practice Development Lawyer, Lewis Silkin LLP.

    In its decision rendered on 29 September 2020, the Austrian Supreme Court (Oberster Gerichtshof, ‘OGH’) ruled that periods of prior professional services completed with employers in the EU or the EEA other than the current employer must be taken into account for salary classifications to guarantee the freedom of movement of workers under Article 45 TFEU.


Stefan Zischka
Stefan Zischka is Partner at Jank Weiler Operenyi Attorneys at Law / Deloitte Legal Austria.

Christina Feistritzer
Christina Feistritzer is Associate at Jank Weiler Operenyi Attorneys at Law / Deloitte Legal Austria.
Case Reports

2021/32 Grand Chamber confirms no double punishment for illegal employment (SK)

Trefwoorden Other Fundamental Rights
Auteurs Dušan Nitschneider en Danica Valentová
SamenvattingAuteursinformatie

    The Grand Chamber of the Slovakian Supreme Court has unanimously decided that employers cannot be penalised by two different agencies for one violation of employment law rules and that the ne bis in idem principle also applies to two administrative breaches of the law.


Dušan Nitschneider
Dušan Nitschneider is a partner at Nitschneider & Partners.

Danica Valentová
Danica Valentová is a senior associate at Nitschneider & Partners.

    In a decision of 16 June 2021 (6 AZR 390/20 (A)), the German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) referred a question to the ECJ for a preliminary ruling that has been a controversial issue in Germany for some time. The question is whether the possibility of a permanent supply of temporary workers, which is referred to as ‘personnel supply’ (Personalgestellung) in the context of the collective agreement for the public sector, and the exemption from the scope of the German Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, ‘AÜG’) pursuant to Section 1(3) No. 2b AÜG, which allows this provision in the collective agreement, violates the provisions of Directive 2008/104/EC on temporary agency work (the ‘Temporary Agency Work Directive’). Depending on the outcome of the ECJ’s decision, this could have a significant impact on staff leasing often practised in companies operating in the public sector.


Othmar K Traber
Othmar K. Traber is an attorney-at-law and a partner at Ahlers & Vogel Rechtsanwälte PartG mbB.

    Ryanair and Crewlink have finally been found in violation of Belgian mandatory provisions following the ruling of the ECJ in cases C-168/16 and C-169/16 (Nogueira and Others) and ordered to pay certain amounts to the employees involved by virtue of Belgian mandatory provisions. Yet, this trade union victory has a bitter taste for those employees, who were refused their main claim, i.e. to be paid normal remuneration for on-call time at the airport.


Gautier Busschaert
Gautier Busschaert is an Attorney at Van Olmen & Wynant.

    By a majority of 4-3, the Supreme Court of Ireland has held that the Workplace Relations Commission’s power to adjudicate disputes between employers and employees was not unconstitutional. However, the majority of the Supreme Court did find that certain aspects of the Commission’s procedures were unconstitutional, namely the blanket ban on public hearings and the lack of capacity for taking evidence on oath. The Workplace Relations Act 2015 and the Workplace Relations Commission procedures have consequently been amended to address these issues. This case report is a follow-up on EELC 2020/34.


Laura Ryan
Laura Ryan is an Associate at Mason Hayes & Curran.
Landmark Ruling

ECJ 15 July 2021, joined cases C-804/18 and C-341/19 (WABE), Religious Discrimination

IX – v – WABE eV and MH Müller Handels GmbH – v – MJ, German cases

Trefwoorden Religious Discrimination
Samenvatting

    An employer’s need to present a neutral image may justify a prohibition on any visible expression of beliefs, but must correspond to a genuine need, notwithstanding the specific national context end more favourable national provisions.

Landmark Ruling

ECJ 2 September 2021, case C-928/19 P (EPSU), Collective Agreements, Miscellaneous

European Federation of Public Service Unions (EPSU) – v – European Commission

Trefwoorden Collective Agreements, Miscellaeneous
Samenvatting

    The Commission is not bound to give effect to the social partners’ request seeking implementation, at EU level, of the agreement that they have concluded.

Rulings

ECJ 15 July 2021, case C-535/19 (A (Soins de santé publics)), Social Insurance

A (Intervening Party: Latvijas Republikas Veselības ministrija), Latvian case

Trefwoorden Social Insurance
Samenvatting

    Economically inactive Union citizens residing in a Member State other than their Member State of origin have the right to be affiliated to the public sickness insurance system of the host Member State, but not necessarily free of charge.

Rulings

ECJ 15 July 2021, case C-709/20 (The Department for Communities in Northern Ireland), Social Insurance, Other Fundamental Rights

CG – v – The Department for Communities in Northern Ireland, UK Case

Trefwoorden Social Insurance, Other Fundamental Rights
Samenvatting

    British Universal Credit legislation is compatible with the principle of equal treatment guaranteed by EU law, but cannot expose Union citizens and their children to a risk of violation of their rights enshrined in the Charter of Fundamental Rights of the European Union, in particular the respect for human dignity.

Rulings

ECJ 15 July 2021, case C-742/19 (Ministrstvo za obrambo), Working Time

BK – v – Republika Slovenija (Ministrstvo za obrambo), Slovenian case

Trefwoorden Working Time
Samenvatting

    In a limited number of security activities, military personnel are excluded from the scope of the Working Time Directive. The Directive does not prohibit stand-by periods and actual work to be remunerated differently.

Rulings

EFTA 15 July 2021, case E-11/20 (Eyjólfur Orri Sverrisson v The Icelandic State), Working Time

Eyjólfur Orri Sverrisson – v – The Islandic State, Islandic Case

Trefwoorden Working Time
Samenvatting

    Necessary travel time outside working hours constitutes working time.

Rulings

ECJ 15 July 2021, case C-851/19 P (DK/EEAS), Miscellaneous

DK – v – European External Action Service (EEAS), EU Case

Trefwoorden Miscellaneous
Samenvatting

    Internal EU Case. Appeal against disciplinary pension deduction dismissed.

Rulings

ECJ 9 September 2021, case C-107/19 (Dopravní podnik hl. m. Prahy), Working Time

XR – v – Dopravní podnik hl. m. Prahy, akciová společnost, Czech case

Trefwoorden Working Time
Samenvatting

    A stand-by shift with a required response within two minutes makes a break qualify as working time.

Rulings

ECJ 2 September 2021, case C-350/20 (INPS en de maternité pour les titulaires de permis unique), Social Insurance, Work and Residence Permit

OD and Others – v – Istituto nazionale della previdenza sociale (INPS)

Trefwoorden Social Insurance, Work and Residence Permit
Samenvatting

    Third-country nationals with a single work permit obtained in Italy are entitled to childbirth and maternity allowances.

Rulings

ECJ 15 July 2021, joined cases C-152/50 and C-218/20 (SC Gruber Logistics), Applicable Law

DG, EH – v – SC Gruber Logistics SRL (C-152/20) and Sindicatul Lucrătorilor din Transporturi, DT – v – SC Samidani Trans SRL (C-218/20), Romanian cases

Trefwoorden Applicable Law
Samenvatting

    If parties choose the applicable law pursuant to Article 8(1) of the Rome I Regulation, the objectively applicable law (ex Article 8(2-4) does not apply with the exception of ‘provisions that cannot be derogated from by agreement’. Moreover, the choice for the applicable law must be free, but is considered to be made freely even if the employee merely accepts a clause drafted by the employer.

Rulings

ECJ 16 September 2021, case C-410/19 (The Software Incubator Ltd), Miscellaneous

The Software Incubator Ltd – v – Computer Associates (UK) Ltd, UK Case

Trefwoorden Miscellaneous
Samenvatting

    The concept of ‘sale of goods’ referred to in the self-employed commercial agents directive covers the supply of licensed computer software.

Rulings

ECJ 30 September 2021, case C-285/20 (Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Uwv)), Social Insurance

K – v – Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Uwv), Dutch Case

Trefwoorden Social Insurance
Samenvatting

    Article 65 (2 and 5) must be interpreted as applying to applicants who received sickness benefits in another member state if the social security legislation of the competent member state equates receiving sickness benefits to the pursuit of an activity.

Rulings

ECJ 6 October 2021, case C-431/20 P (Tognoli and Others v Parliament), Miscellaneous

Carlo Tognoli and Others – v – European Parliament, EU Case

Trefwoorden Miscellaneous
Samenvatting

    Successful appeal against General Court Order dated 3 July 2020 on rejection of claims regarding recovery of pension amounts. The case is referred back to the General Court for a ruling on the claims made by Mr Tognoli and Others.

Rulings

ECJ 6 October 2021, case C-408/20 P (Poggiolini v Parliament), Miscellaneous

Danilo Poggiolini – v – European Parliament, EU Case

Trefwoorden Miscellaneous
Samenvatting

    Successful appeal against General Court Order dated 3 July 2020 on rejection of claims regarding recovery of pension amounts. The case is referred back to the General Court for a ruling on the claims made by Mr Poggiolini.

Rulings

ECJ 6 October 2021, case C-272/20 P (Veit/ECB), Miscellaneous

Sebastian Veit – v – European Central Bank (ECB), EU Case

Trefwoorden Miscellaneous
Samenvatting

    Mr Veit’s complaint against his salary scale classification was dismissed.

Rulings

ECJ 14 October 2021, case C-583/19 P (Bernaldo de Quirós v Commission), Miscellaneous

Belén Bernaldo de Quirós – v – European Commission, EU Case

Trefwoorden Miscellaneous
Samenvatting

    The ECJ, like the General Court, dismissed the appeal against the imposed disciplinary sanction.

Rulings

ECJ 6 October 2021, case C-538/19 (Casa Naţională de Asigurări de Sănătate en Casa de Asigurări de Sănătate Constanţa), Social Insurance

TS, UT, VU – v – Casa Naţională de Asigurări de Sănătate and Casa de Asigurări de Sănătate Constanţa, Romanian case

Trefwoorden Social Insurance
Samenvatting

    An insured person is entitled to a full cost reimbursement for an allowed medical treatment in the Member State, if the initial medical advice in the Member State led to permission for a medical treatment which differed from the eventual treatment following a second – and better – medical advice in the Member State where he underwent the medical treatment, if there was no time to obtain permission for that second treatment.

Rulings

ECJ 6 October 2021, case C-598/19 (Conacee), Miscellaneous

Confederación Nacional de Centros Especiales de Empleo (Conacee) – v – Diputación Foral de Gipuzkoa, Spanish case

Samenvatting

    Member States may impose additional criteria in reserving the right to participate in public procurement to particular sheltered workshops, provided that they comply with the principles of equal treatment and proportionality.

Rulings

ECJ 28 October 2021, case C-636/19 (CAK), Social Insurance

Y – v – Centraal Administratie Kantoor, Dutch case

Trefwoorden Social Insurance
Samenvatting

Rulings

ECJ 28 October 2021, case C-909/19 (Unitatea Administrativ Teritorială D.), Working Time

BX – v – Unitatea Administrativ Teritorială D., Romanian case

Trefwoorden Working Time
Samenvatting

    Vocational training is working time.

Pending Cases

Case C-304/21, Age Discrimination

VT – v – Ministero dell’Interno, Ministero dell’Interno – Dipartimento della Pubblica Sicurezza – Direzione centrale per le risorse umane, reference lodged by the Consiglio di Stato (Italy) on 12 May 2021

Trefwoorden Age Discrimination
Pending Cases

Case C-301/21, Discrimination General, Age Discrimination

Curtea de Apel Alba Iulia and Others – v – YF and Others, reference lodged by the Curtea de Apel Oradea (Romania) on 11 May 2021

Trefwoorden Discrimination General, Age Discrimination
Pending Cases

Case C-311/21, Temporary Agency Work

CM – v – TimePartner Personalmanagement GmbH, reference lodged by the Bundesarbeitsgericht (Germany) on 18 May 2021

Trefwoorden Temporary Agency Work
Pending Cases

Case C-356/21, Discrimination, Sexual Orientation

JK – v – TP S.A., reference lodged by the Sąd Rejonowy dla m. st. Warszawy w Warszawie (Poland) on 7 June 2021

Trefwoorden Discrimination, Sexual Orientation
Pending Cases

Case C-377/21, Part-time Work

Ville de Mons, Zone de secours Hainaut – Centre – v – RM, reference lodged by the Cour du travail de Mons (Belgium) on 7 June 2021

Trefwoorden Part-time Work
Pending Cases

Case C-392/21, Health and Safety

TJ – v – Inspectoratul General pentru Imigrări, reference lodged by the Curtea de Apel Cluj (Romania) on 24 June 2021

Trefwoorden Health and Safety
Pending Cases

Case C-380/21, Social Insurance

Istituto nazionale della previdenza sociale (INPS) – v – Ryanair DAC, reference lodged by the Corte Suprema di Cassazione (Italy) on 18 January 2021

Trefwoorden Social Insurance
Pending Cases

Case C-404/21, Pension

WP – v – Instituto nazionale della previdenza sociale, Repubblica italiana, reference lodged by the Tribunale Ordinario di Asti (Italy) on 13 January 2021

Trefwoorden Pension
Pending Cases

Case C-427/21, Temporary Agency Work

LD – v – ALB FILS KLINIKEN GmbH, reference lodged by the Bundesarbeitsgericht (Germany) on 14 July 2021

Trefwoorden Temporary Agency Work
Pending Cases

Case C-410/21, Social Insurance

FU, DRV Intertrans BV, reference lodged by the Hof van Cassatie (Belgium) on 5 July 2021

Trefwoorden Social Insurance
Pending Cases

Case C-450/21, Fixed-Term Work

UC – v – Ministero dell’Istruzione, reference lodged by the Tribunale ordinario di Vercelli (Italy) on 20 July 2021

Trefwoorden Fixed-Term Work
Pending Cases

Case C-453/21, Privacy, Unfair Dismissal

X-FAB Dresden GmbH & Co. KG – v – FC, reference lodged by the Bundesarbeitsgericht (Germany) on 21 July 2021

Trefwoorden Privacy, Unfair Dismissal
Pending Cases

Case C-488/21, Social Insurance

GV – v – Chief Appeals Officer, Social Welfare Appeals Office, Minister for Employment Affairs and Social Protection, Ireland, Attorney General, reference lodged by the Court of Appeal (Ireland) on 10 August 2021

Trefwoorden Social Insurance
Pending Cases

Case C-477/21, Working Time

IH – v – MÁV-START Vasúti Személyszállító Zrt., reference lodged by the Miskolci Törvényszék (Hungary) on 3 August 2021

Trefwoorden Working Time