The Dobersberger decision of the Court of Justice of the European Union deals with the legal situation of posted workers on an international train. These workers, employed by a Hungarian company and based in Hungary, operate on a train connecting Budapest with Salzburg and Munich. The Court concludes against their inclusion under the Posting of Workers Directive, considering their connection to the Austrian territory as too limited. This decision is based on a selective representation of the facts and sits difficultly with the letter of the law and the intention of the legislator. |
Zoekresultaat: 264 artikelen
Annotatie |
One train! (but different working conditions)CJEU 19 December 2019, C-16/18, ECLI:EU:C:2019:1110 (Michael Dobersberger v Magistrat der Stadt Wien) |
Tijdschrift | Arbeidsrechtelijke Annotaties, Aflevering 3 2020 |
Trefwoorden | Posting of workers, International train, Transport sector, Subcontracting, Short-term posting |
Auteurs | Marco Rocca |
SamenvattingAuteursinformatie |
Article |
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Tijdschrift | Erasmus Law Review, Aflevering 4 2020 |
Trefwoorden | Final criminal conviction, revision procedure, grounds for revision, preparatory investigative measures, Cour de révision et de réexamen |
Auteurs | Katrien Verhesschen en Cyrille Fijnaut |
SamenvattingAuteursinformatie |
The French ‘Code de procédure pénale’ provides the possibility to revise final criminal convictions. The Act of 2014 reformed the procedure for revision and introduced some important novelties. The first is that it reduced the different possible grounds for revision to one ground, which it intended to broaden. The remaining ground for revision is the existence of a new fact or an element unknown to the court at the time of the initial proceedings, of such a nature as to establish the convicted person’s innocence or to give rise to doubt about his guilt. The legislature intended judges to no longer require ‘serious doubt’. However, experts question whether judges will comply with this intention of the legislature. The second is the introduction of the possibility for the applicant to ask the public prosecutor to carry out the investigative measures that seem necessary to bring to light a new fact or an unknown element before filing a request for revision. The third is that the Act of 2014 created the ‘Cour de révision et de réexamen’, which is composed of eighteen judges of the different chambers of the ‘Cour de cassation’. This ‘Cour de révision et de réexamen’ is divided into a ‘commission d’instruction’, which acts as a filter and examines the admissibility of the requests for revision, and a ‘formation de jugement’, which decides on the substance of the requests. Practice will have to show whether these novelties indeed improved the accessibility of the revision procedure. |
Artikel |
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Tijdschrift | Law and Method, oktober 2020 |
Trefwoorden | comparative legal studies, legal education, pragmatism |
Auteurs | Alexandra Mercescu |
Auteursinformatie |
Rulings |
ECJ 4 June 2020, case C-588/18 (Fetico and others), Working Time, Paid LeaveFederación de Trabajadores Independientes de Comercio (Fetico), Federación Estatal de Servicios, Movilidad y Consumo de la Unión General de Trabajadores (FESMC-UGT), Federación de Servicios de Comisiones Obreras (CCOO) – v – Grupo de Empresas DIA SA, Twins Alimentación SA, Spanish case |
Tijdschrift | European Employment Law Cases, Aflevering 2 2020 |
Trefwoorden | Working Time, Paid Leave |
Samenvatting |
Articles 5 and 7 of Directive 2003/88 do not apply to national rules providing for special leave on days when workers are required to work, when these days occur during weekly rest periods or paid annual leave. |
Case Reports |
2020/23 The Supreme Court reiterates the importance of retention of an organizational and functional link between the business factors transferred, a prerequisite in the existence of a transfer of undertaking (GR) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2020 |
Trefwoorden | Transfer of undertakings, Transfer |
Auteurs | Effie Mitsopoulou |
SamenvattingAuteursinformatie |
The Greek Supreme Court, in a case about the transfer of a business and the obligation on the transferee to continue employing the transferred employees, underlined the importance of a thorough and genuine control on all factors to be taken into consideration in order to conclude on the existence of a transfer of undertaking or not: the business transferred must retain an autonomous economic identity, in the sense that the functional link between the different factors transferred is retained, thus allowing the new entity to use them in order to exercise an economic activity identical or similar to the previous one. |
Case Reports |
2020/18 Prohibition of dismissal of pregnant employee (RO) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2020 |
Trefwoorden | Gender discrimination |
Auteurs | Andreea Suciu en Teodora Mănăilă |
SamenvattingAuteursinformatie |
Analysing the national legal framework in relation to the protection of pregnant employees and employees who have recently given birth or are breastfeeding, provisions which transposed the regulations of Directive 92/85/EEC and of the conclusions in case C-103/16, Jessica Porras Guisado – v – Bankia S.A. and Others, the Constitutional Court of Romania ascertained that the dismissal prohibition of a pregnant employee is strictly restricted to reasons that have a direct connection with the employee’s pregnancy status. As for other cases where the termination of the employment contract is the result of disciplinary misconduct, unexcused absence from work, non-observance of labour discipline, or termination of employment for economic reasons or collective redundancies, the employer must submit in writing well-reasoned grounds for dismissal. |
Case Reports |
2020/26 Entitlement to allowance in lieu of untaken paid annual leave had lapsed because of garden leave (NL) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2020 |
Trefwoorden | Paid Leave |
Auteurs | Lisa de Vries en Jan-Pieter Vos |
SamenvattingAuteursinformatie |
Applying the ECJ’s Maschek judgment, the Zutphen subdistrict court has found that an employee was not entitled to an allowance in lieu of untaken paid annual leave at the end of the employment relationship, as she had already received special leave. Moreover, the obligation to inform the employee concerning the right to (exercise) paid annual leave did not rest upon the employer. |
Case Reports |
2020/14 Sickness absence related to employee’s disability (DK) |
Tijdschrift | European Employment Law Cases, Aflevering 2 2020 |
Trefwoorden | Disability Discrimination, Unfair Dismissal |
Auteurs | Christian K. Clasen |
SamenvattingAuteursinformatie |
Recently, the Danish Eastern High Court found that an employee’s sickness absence was a result of the employer’s failure to comply with its obligation to offer reasonable accommodation for the employee’s disability. For that reason the employee, who was dismissed in pursuance of the Danish ‘120-day rule’, was entitled to compensation for unfair dismissal under the Danish Anti-Discrimination Act. |
Pending Cases |
Case C-105/20, Gender Discrimination, Part Time WorkUF – v – Union Nationale des Mutualités Libres (Partenamut) (UNMLibres), reference lodged by the Tribunal du travail de Nivelles (Belgium) on 27 February 2020 |
Tijdschrift | European Employment Law Cases, Aflevering 2 2020 |
Trefwoorden | Gender Discrimination, Part Time Work |
Landmark Rulings |
ECJ 22 April 2020, case C-692/19 (Yodel Delivery Network), Working Time, Employment StatusB – v – Yodel Delivery Network Ltd, UK case |
Tijdschrift | European Employment Law Cases, Aflevering 2 2020 |
Trefwoorden | Working Time, Employment Status |
Samenvatting |
Directive 2003/88/EC precludes a self-employed independent contractor from being classified as a ‘worker’ under the Directive, if they are afforded discretion on the use of subcontractors, acceptance of tasks, providing services to third parties and fixing their own hours of work, provided that the independence does not appear to be fictitious and no relationship of subordination between them and their putative employer can be established. |
Case Reports |
2020/40 Holiday entitlement in the release phase of partial retirement according to the so-called ‘block model’ (GE) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2020 |
Trefwoorden | Paid Leave, Part-time work, Pension |
Auteurs | Othmar K. Traber |
SamenvattingAuteursinformatie |
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. |
Case Reports |
2020/34 Challenge to validity of Workplace Relations Act 2015 unsuccessful (IR) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2020 |
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. |
Pending Cases |
Case C-233/20, Paid LeaveWD – v – job-medium GmbH in liquidation, reference lodged by the Oberster Gerichtshof (Austria) on 4 June 2020 |
Tijdschrift | European Employment Law Cases, Aflevering 3 2020 |
Trefwoorden | Paid Leave |
Pending Cases |
Case C-236/20, Fixed-Term Work, Part Time Work, Paid Leave, Other Forms of DiscriminationPG – 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 |
Tijdschrift | European Employment Law Cases, Aflevering 3 2020 |
Trefwoorden | Fixed-Term Work, Part Time Work, Paid Leave, Other Forms of Discrimination |
Case Reports |
2020/41 Holiday pay during sickness: preliminary questions asked (NL) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2020 |
Trefwoorden | Paid Leave |
Auteurs | Jan-Pieter Vos |
SamenvattingAuteursinformatie |
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. |
Case Reports |
2020/36 Employer must pay compensation to an employee for violation of employee’s privacy due to GPS system in company car (AT) |
Tijdschrift | European Employment Law Cases, Aflevering 3 2020 |
Trefwoorden | Privacy |
Auteurs | Lukas Disarò |
SamenvattingAuteursinformatie |
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. |
Pending Cases |
Case C-217/20, Paid LeaveXXXX – v – Staatssecretaris van Financiën, reference lodged by the Rechtbank Overijssel (Netherlands) on 25 May 2020 |
Tijdschrift | European Employment Law Cases, Aflevering 3 2020 |
Trefwoorden | Paid Leave |
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 WorkUX – v – Governo della Repubblica italiana, Italian case |
Tijdschrift | European Employment Law Cases, Aflevering 3 2020 |
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. |
Article |
2020/30 Self-employment matters – the EU’s response to the lack of social protection for independent workers |
Tijdschrift | European Employment Law Cases, Aflevering 3 2020 |
Trefwoorden | Employment status, Miscellaneous |
Auteurs | Luca Ratti |
SamenvattingAuteursinformatie |
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. |