European Employment Law Cases

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Aflevering 4, 2023 Alle samenvattingen uitklappen

2024 and beyond: never a dull moment

Auteurs Zef Even

Zef Even

Catherine Barnard
Catherine Barnard, Trinity College, Cambridge
Case Reports

2023/31 Burden of proof in case of discrimination due to severe disability (GE)

Trefwoorden Disability Discrimination, Discrimination General
Auteurs Pia Wieberneit

    The German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) found, that in a compensation case, an unsuccessful job applicant regularly meets the burden of proof for the causal link between their severe disability and a discrimination by only alleging a suspected violation of the requirement for the employer to inform the works council about an application of a severely disabled person.

Pia Wieberneit
Pia Wieberneit is associate at Luther Rechtsanwaltsgesellschaft in Essen, Germany.

    On 3 October 2023, the Supreme Court of Lithuania adjudicated on a case under a claim brought by the claimant (the employee) against an international freight transport company (the respondent employer) for a declaration that his dismissal from employment was unlawful.

Vida Petrylaitė
Vida Petrylaitė is an Associate Professor at Vilnius University.
Case Reports

2023/33 European Works Council’s entitlement to reimbursement of expert fees (AT)

Trefwoorden Information and Consultation
Auteurs Thomas Majoros en Andreas Tinhofer

    The costs incurred by a European Works Council for necessary expert consultations are to be borne by the central management. The European Works Council is not obligated to primarily use free services provided by employee representative bodies for legal advice.

Thomas Majoros
Thomas Majoros is an attorney-at-law at Rechtsanwalt Dr. Thomas Majoros.

Andreas Tinhofer
Andreas Tinhofer is an attorney-at-law at Zeiler Floyd Zadkovich.
Case Reports

2023/34 Long-term labour intermediation is outside the scope of the Temporary Agency Work Directive (GE)

Trefwoorden Temporary Agency Work, Transfer of Undertakings
Auteurs Emiliano Maran

    In Case C-427/21 of 22 June 2023, ALB FILS KLINIKEN, the European Court of Justice (the ‘CJEU’) focused on the interpretation of Article 1(1) and (2) of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work (the ‘TAW Directive’), in order to better clarify the scope of the Directive itself in relation to forms of long-term labour intermediation.

Emiliano Maran
Emiliano Maran is a Labour Relations Specialist at FedEx Express, Hoofddorp (Netherlands).

    The Italian Supreme Court with a decision of 2023 confirmed that although in Italy there is no explicit provision on the temporary duration of temporary agency work, this does not preclude this requirement being considered implicit in temporary agency work, in accordance with the Directive 2008/104/EC. Therefore, it will be for the Court to establish, on a case-by-case basis, whether the reiteration of agency work assignments with the same user exceed the limit of a duration that can reasonably be regarded as temporary, in violation of the Italian law and EU rules.

Ornella Patané
Ornella Patané is a partner at Toffoletto De Luca Tamajo, Milan.
Case Reports

2023/36 The transfer of undertakings regime in the succession of the provision of security and surveillance services (PT)

Trefwoorden Transfer of Undertakings
Auteurs Magda Sousa Gomes en Joana Brisson Lopes

    According to the Portuguese Supreme Court of Justice there is no transfer of establishment when a company ceases to provide surveillance and security services to a particular client, following the contracting (by the client) of such services to another company, without any employee or any other resources, skills or organisational instruments having been transferred to the new services provider, which could constitute an ‘economic unit’.
    For this assessment, the Supreme Court has taken into consideration the ruling issued by the Court of Justice of the European Union (‘CJEU’) in Case C-675/21, Strong Charon and the enlightenments about the interpretation of Council Directive 2001/23/EC concerning the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.

Magda Sousa Gomes
Magda Sousa Gomes is an attorney-at-law at SRS Legal.

Joana Brisson Lopes
Joana Brisson Lopes is an attorney-at-law at SRS Legal.
Case Reports

2023/37 Employee protection in the event of a transfer of undertaking (RO)

Trefwoorden Transfer of Undertakings, Dismissal/severance payment
Auteurs Andreea Suciu en Georgia Vasiu

    The Bucharest Court of Appeal has ruled that in a case where a dismissal is initiated after a transfer of undertakings, but the reason for terminating the employment is attributable to the transfer of undertakings and anticipated prior to the actual transfer, the decision is null and void.
    In the case at hand, the real reason for the termination of the employment contract was not believed to be the implementation of the objective restructuring plan per se, but the transfer of undertakings. Thus, even though the dissolution of the job position was considered to be a real one, because the position was no longer part of the organizational chart, the dismissal did not have a serious and objective cause.

Andreea Suciu
Andreea is the Managing Partner of Suciu - The Employment and Data Protection Lawyers

Georgia Vasiu
Georgia is a Senior Associate at Suciu - The Employment and Data Protection Lawyers, Bucharest, Romania.

    The French Supreme Court has recently ruled on two cases concerning paid annual leave. In the first case, the Supreme Court held that an employee whose employment contract is suspended due to an illness, whether of occupational origin or not, continues to acquire paid annual leave rights during this period (Supreme Court, 13 September 2023, no. 22-17.340). In the second case, the Court held that the acquisition of paid annual leave rights due to occupational illness or accident is not limited to one year (Supreme Court, 13 September 2023, no. 22-17.638).

Claire Toumieux
Claire Toumieux is a Partner at Allen & Overy LLP in Paris,

Susan Ekrami
Susan Ekrami is a Counsel at Allen & Overy LLP in Paris,

    The Italian Supreme Court has held that salary paid during holidays must include all the components that are normally paid to the employee when they work. This decision is in line with the judgments of the ECJ and with the purpose of the Working Time Directive 2003/88/EC.

Ornella Patané
Ornella Patané is a partner at Toffoletto De Luca Tamajo, Milan.

ECJ 9 November 2023, case C-477/22-275/22 (Azienda regionale sarda transporti), Working Time

ARST SpA – v – TR, OS, EK, UN, RC, RS, OA, ZB, HP, WS, IO, TK, ME, SK, TF, TC, ND, Italian case

Trefwoorden Working time

    The concept of ‘total accumulated driving time during any two consecutive weeks’ as set out in Article 6(3) of Regulation No 561/2006 only covers ‘driving time’ within the meaning of Article 4(j) of that regulation.


ECJ 9 November 2023, case C-271/22-275/22 (Keolis Agen), Paid leave

XT, KD, BX, FH and NW – v – Keolis Agen SARL, French case

Trefwoorden Paid leave

    The fact that an employer is a private undertaking, holding a public service delegation, is irrelevant with regard to the right of a worker to paid annual leave. National legislation or national practice which allows requests for paid annual leave made less than 15 months after the end of the reference period and limited to entitlement accrued and not exercised, due to a long-term absence from work due to illness, during two consecutive reference periods to be granted, is not precluded.


ECJ 16 November 2023, case C-415/22 (Acerta and Others), Social Insurance

JD – v – Acerta, Inasti, Belgian State, Belgian case

Trefwoorden Social Insurance

    National legislation of a Member State which subjects the income of an EU official who has remained in the service of an institution until pensionable age and who pursues a self-employed professional activity in that Member State to the social security scheme of that State infringes the exclusive competence of the EU to determine the rules applicable to EU officials as regards their social security obligations.


ECJ 23 November 2023, case C-209/21 P (Ryanair v Commission), Miscellaneous

Ryanair DAC – v – European Commission, French Republic, Kingdom of Sweden, EU case

Trefwoorden Miscellaneous

    The Court definitively dismisses the appeals brought by Ryanair concerning the support measures put in place by France and Sweden during the Covid-19 pandemic.


ECJ 28 November 2023, case C-148/22 (Commune d’Ans), Religious Discrimination

OP – v – Commune d’ Ans, Belgian case

Trefwoorden Religious Discrimination

    Wearing of religious symbols in the workplace: a public administration may decide to prohibit all of its employees from wearing such signs.


ECJ 16 November 2023, case C-583/21-586/21 (NC (Transfer of a Spanish notary’s office), Transfer of Undertakings

NC, JD, TA, FZ – v – BA, DA, DV, CG, Spanish case

Trefwoorden Transfer of Undertakings

ECJ 30 November 2023, case C-270/22 (Ministero dell’Instruzione en INPS), Fixed-Term Work

G.D., A.R., C.M. – v – Ministero dell’Instruzione, Instituto nazionale della previdenza sociale (INPS), Italian case

Trefwoorden Fixed-term Work

    National legislation which, for the purposes of recognizing the length of service of a worker upon his or her establishment in employment, excludes periods of service completed under fixed-term employment contracts that do not amount to 180 per academic year, exceeds what is necessary and is thereby precluded by clause 4 of the framework agreement on fixed-term work.


ECJ 7 December 2023, case C-518/22 (AP Assistenzprofis), Age discrimination

J.M.P. – v – AP Assistenzprofis GmbH, German case

Trefwoorden Age Discrimination

    The hiring of a personal assistant to help a disabled person in everyday life may be limited to persons within the same age range.


ECJ 14 December 2023, case C-206/22 (Sparkasse Südpfalz), Paid Leave

TF – v – Sparkasse Südpfalz, German case

Trefwoorden Paid Leave

    An employee who ‘enjoys’ his annual leave while he is quarantined, is not entitled to take that leave at a later moment.

    Disciplinary sanctions on teachers with civil-servant status for striking during working hours: no violation of the Convention.


ECJ 21 December 2023, case C-680/21 (Royal Antwerp Football Club), Free Movement

UL, SA Royal Antwerp Football Club – v – Union royale belge des sociétés de football association ASBL (URBSFA), Union des associations européennes de football (UEFA), EU case

Trefwoorden Free Movement

    Rules on ‘home grown’ football players could infringe the free movement of workers as these could be indirectly discriminatory on grounds of nationality.


ECJ 21 December 2023, case C-488/21 (Chief Appeals Officer), Free Movement, Social Insurance

GV – v – Chief Appeals Officer, Social Welfare Appeals Office, Minister for Employment Affairs and Social Protection, Ireland, Attorney General, Irish case

Trefwoorden Free Movement, Social Insurance

    An EU migrant worker’s mother who is dependent on that worker, may apply for social assistance without that application questioning her right of residence.


ECJ 21 December 2023, case C-667/21 (Krankenversicherung Nordrhein), Privacy

ZQ – v – Medizinischer Dienst der Krankenversicherung Nordrhein, Körperschaft des öffentlichen Rechts, German case

Trefwoorden Privacy

Pending Cases

Case C-623/23, Gender Discrimination, Social Insurance

UV – v – INSS, reference lodged by the Juzgado de lo Social n.º 3 de Pamplona (Spain) on 6 October 2023

Trefwoorden Gender Discrimination, Social Insurance
Pending Cases

Case C-584/23, Gender Discrimination, Social Insurance

Asepeyo Mutua Colaboradora de la Seguridad Social n.º 151, KT. – v – INSS, TGSS, Alcampo S. A., successor to Supermercados Sabeco, S. A., reference lodged by theJuzgado de lo Social n.º 3 de Barcelona (Spain) on 21 September 2023

Trefwoorden Gender Discrimination, Social Insurance
Pending Cases

Case C-626/23, Gender Discrimination, Social Insurance

XXX – v – INSS, reference lodged by the Tribunal Superior de Justicia de Madrid (Spain) on 12 October 2023

Trefwoorden Gender Discrimination, Social Insurance