EU dismissal protection: for better and for worse

Zef Even

Pursuant to Article 30 of the EU Charter of Fundamental Rights every worker has the right to protection against unjustified dismissal in accordance with Union law and national laws and practices. This already makes clear that dismissal law requires knowledge of both national and EU law. And indeed: dismissal law is part of the shared competence between the Union and the Member States. Article 153 of the TFEU clearly states that the Union shall support and complement the activities of the Member States in, among others, the field of protection of workers where their employment contract is terminated.This seems good news for the employee. Improving his or her dismissal position is obviously welcome. In practice, workers are indeed frequently protected from dismissal by EU law. Dismissal is for instance prohibited in case of sex discrimination (Article 14 of Directive 2006/54/EC) or due to a transfer of undertaking (Article 4 of Directive 2001/23/EC). Regulation (EU) 2016/679, the General Data Protection Regulation (‘GDPR’), protects the data protection officer. Article 38 of the GDPR clarifies that the data protection officer is not just protected from receiving instructions on the exercise of his or her tasks, but he or she shall furthermore “not be dismissed” for performing his or her tasks.But can a Member State increase the level of dismissal protection? In light of the above it seems logical that it can. And indeed, the ECJ allowed this in its recent case Leistritz (ECJ 22 June 2022, C-534/20). That case concerned German legislation that goes further than Article 38 of the GDPR in protecting the data protection officer from dismissal. Basically, that officer can only be dismissed under German law for reasons that constitute a reason for summary dismissal. The ECJ permits such increased level of protection: Member States are allowed to impose more stringent protective measures. However, the ECJ added that there are limitations. The protective measures must be compatible with the Treaties. Germany can therefore only impose stricter rules insofar as these are compatible with EU law and, in the case at hand, with the GDPR in particular. The dismissal protection cannot undermine the objectives of the GDPR, which would be the case if it prevented any dismissal of data protection officers that are not qualified for the job or who do not act in accordance with the GDPR.Strange as this perhaps may seem, it is not unique that EU law drops the national bar needed to dismiss a worker. In the ECJ case AGET Iraklis (ECJ 21 December 2016, C-201/15), the Court ruled that national legislation under which collective redundancies require the prior consent of a public authority is in violation of EU law if, on account, for example, of the criteria in the light of which that authority is called upon to take a decision or of the specific way in which it interprets and applies those criteria, any actual possibility for the employer to effect such collective redundancies is, in practice, ruled out. In fact, such legislation constitutes an interference in the exercise of the freedom to conduct a business and, in particular, the freedom of contract which employers have.EU law may therefore both improve the level of dismissal protection granted to the worker by the laws of the Member States, but it may also limit this level of protection. This shows that EU law may have a profound influence on the day-to-day employment law practice in Member States. This is not only the case when it involves dismissal law. On the contrary. The influence of EU law on the law of a Member State is also made perfectly clear in the jurisdiction of Romania in a case included in this edition. The Romanian court held that, although national legislation on transfers of undertakings requires a transfer of ownership, ECJ case law prevails. This means in the underlying case that, in the absence of a contractual agreement, a transfer of undertaking can still be established even if the transferee concludes new employment contracts with the employees. This and other interesting cases are presented to you. Enjoy!

Zef Even

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