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Case Reports

2019/20 How to interpret the Posting of Workers Directive in the cross-border road transport sector? Dutch Supreme Court asks the ECJ for guidance (NL)

Tijdschrift European Employment Law Cases, Aflevering 2 2019
Trefwoorden Private International Law, Posting of Workers and Expatriates, Applicable Law
Auteurs Zef Even en Amber Zwanenburg
SamenvattingAuteursinformatie

    In this transnational road transport case, the Dutch Supreme Court had to elaborate on the ECJ Koelzsch and Schlecker cases and asks for guidance from the ECJ on the applicability and interpretation of the Posting of Workers Directive.


Zef Even
Zef Even is a lawyer with SteensmaEven, www.steensmaeven.com, and professor at the Erasmus University Rotterdam.

Amber Zwanenburg
Amber Zwanenburg is a lecturer and PhD Candidate at the Erasmus University Rotterdam.

    A provision of Dutch law, according to which employees who lose their jobs upon retirement are excluded from the right to statutory severance compensation, is not in breach of the Framework Directive.


Peter C. Vas Nunes
Peter Vas Nunes is Of Counsel at BarentsKrans N.V., The Hague, the Netherlands.

    The transferee in this case attempted to replace the transferred employees’ salaries with lower in accordance with its collective agreement, compensating for the reduction by means of a ‘personal allowance’, which it then proceeded to reduce by a set percentage based on the age of the employees each time there was a wage increase. The court held that this ‘basket comparison’ method of harmonising the wages of old and new staff was at odds with Directive 2001/23, rejecting the transferee’s argument that the ‘ETO’ provision in that directive permits such an amendment of the terms of employment.


Shamy Sripal
Shamy Sripal works for the Department of Labour Law of Erasmus School of Law.
Case Reports

2018/27 Citizen’s rights after Brexit: no preliminary questions to the ECJ (NL)

Tijdschrift European Employment Law Cases, Aflevering 3 2018
Trefwoorden Free movement, Work and residence permit, Other forms of free movement
Auteurs Jan-Pieter Vos
SamenvattingAuteursinformatie

    The Amsterdam Court of First Instance had contemplated asking certain preliminary questions to the ECJ about the EU rights of UK citizens residing outside the UK (see EELC 2018/18), but the Court of Appeal has now refused this, considering the underlying claims to be too vague.


Jan-Pieter Vos
Jan-Pieter Vos is a lecturer in labour law at Erasmus University Rotterdam
Case Reports

2018/18 Preliminary questions to ECJ about Brexit implications for UK citizens? (NL)

Tijdschrift European Employment Law Cases, Aflevering 2 2018
Trefwoorden Free movement, Work and residence permit, Other forms of free movement
Auteurs Jan-Pieter Vos
SamenvattingAuteursinformatie

    Recently, the Court of Amsterdam decided to ask preliminary questions to the ECJ about EU citizens’ rights of British nationals, anticipating Brexit. However, two weeks later, it allowed an appeal against this decision. It is therefore unclear if and when these questions will be asked.


Jan-Pieter Vos
Jan-Pieter Vos is a lecturer of Labour Law at Erasmus University Rotterdam.

    The Labour Court of Brussels ordered an employer to pay a protection indemnity to an employee following termination on the basis of reorganisation during her pregnancy because (i) the employee benefited from a specific protection against dismissal and (ii) the employer failed to prove that the dismissal of the employee was based on reasons unrelated to the pregnancy.


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

2018/7 ‘Ryanair’ after ‘Ryanair’: Crew member still left empty-handed? (NL)

Tijdschrift European Employment Law Cases, Aflevering 1 2018
Trefwoorden Private international law, Competency, Applicable law
Auteurs Amber Zwanenburg
SamenvattingAuteursinformatie

    A Dutch first instance court applies the recent ECJ Ryanair ruling (C-168/16 and C-169/16) in another Ryanair private international law dispute. Even though the Dutch court accepted jurisdiction, it applied Irish law to the employees’ unfair termination claim.


Amber Zwanenburg
Amber Zwanenburg is a lecturer in labour law at the Erasmus University, Rotterdam.

    The highest administrative court in the Netherlands has delivered a razor-sharp ruling on the intra-community service provision set out in Articles 56 and 57 of the Treaty on the Functioning of the European Union). This concerns ‘new’ EU-nationals who are still under transitional measures with regard to access to the labour markets of ‘old’ EU Member States. The judgment was preceded by a request from the Chairman to a State Councillor Advocate General to deliver his opinion on various aspects of punitive administrative law practice in the Netherlands. Both the opinion and the judgment are a welcome clarification and addition (or even correction) on the practice.


Bart J. Maes
Bart J. Maes is a partner at Maes Staudt Advocaten N.V. in Eindhoven, the Netherlands (www.maes-staudt.nl).

    The Dutch Supreme Court decided that proceedings of a company against its managing director should be brought before the court in the country where the managing director is domiciled, in accordance with Article 20(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This only applies if the managing director, in his capacity as director and manager, for a certain period of time, performed services for and under the direction of the company in return for remuneration, since in such a case it is presumed that he has an employment agreement as a worker.


Edith Franssen
Edith Franssen is an attorney at law at Loyens & Loeff and lecturer of Labour Law at the Erasmus University Rotterdam.

    In an international road transport case the Dutch Appellate Court held that working from a given place is not relevant when applying the Posted Workers Directive.


Zef Even
Zef Even is a lawyer with SteensmaEven, www.steensmaeven.com, and professor at the Erasmus University Rotterdam.

Amber Zwanenburg
Amber Zwanenburg is a lecturer at the Erasmus University Rotterdam.
Case Reports

2017/9 The influence of the threat of terrorism on the right to strike (NL)

Tijdschrift European Employment Law Cases, Aflevering 1 2017
Trefwoorden Industrial action, Strike
Auteurs Ruben Houweling en Amber Zwanenburg
SamenvattingAuteursinformatie

    The Dutch Cantonal judge prohibited a strike because the safety of passengers could not be guaranteed. At the hearing, which took place a few days after the Berlin Christmas market attacks, weight was given to the threat of terrorism. Nor is this the first time the threat of terrorism has been explicitly referred to by a Dutch court in a case concerning the right to strike.


Ruben Houweling
Ruben Houweling and Amber Zwanenburg are respectively a professor and a lecturer of Labour Law at the Erasmus University Rotterdam.

Amber Zwanenburg

    This case confirms that if both the transferor and transferee are affiliated to the same mandatory industry-level pension scheme, following the transfer, the transferee is liable for due but unpaid pension contributions dating from before the date of the transfer.


Zef Even
Zef Even is a lawyer at SteensmaEven, www.steensmaeven.com.

    A transferee cannot claim the value of leave accrued but not taken by transferred employees before a transfer from the transferor.


Amber Zwanenburg
Amber Zwanenburg is a lecturer of Labour Law at the Erasmus University of Rotterdam.

    A 60-year old widow with a house but without income other than a small widow’s pension has successfully challenged legislation that moved the qualification age for state pension benefits from 65 to 67. A court has found that, in her particular case, the legislation constitutes an “individual and excessive burden” within the meaning of ECtHR case law on the First Protocol to the ECHR. The government was ordered to start paying the widow state pension from age 65 despite and contrary to the wording of the law.


Peter Vas Nunes
Peter Vas Nunes is an advocaat with BarentsKrans in The Hague, www.barentskrans.nl.

    If both the transferor and transferee are affiliated to one and the same mandatory industry-level pension fund, the transferee is liable vis-à-vis that pension fund for pension contributions (premiums) due but not paid to that fund prior to the date of transfer. A judgment to this effect, which was reported in EELC in 2013/35, was recently confirmed on appeal.


Zef Even
Zef Even is an advocaat with SteensmaEven, www.steensmaeven.com.

    A day care provider, Estro Groep B.V., (‘Estro’) went into pre-arranged (‘pre-pack’) receivership. Immediately afterwards, a large part of its business was taken over by another day care provider, Smallsteps B.V. (‘Smallsteps’). The latter did not offer employment to all of Estro’s employees, taking the position that the takeover did not constitute the transfer of an undertaking. This position was based on the fact that Estro was in receivership at the time of the takeover. According to the Dutch law transposing the Acquired Rights Directive, such takeovers are exempted from the rules on transfers of undertakings. A union and five of the employees whom Smallsteps had not offered jobs, relying on the wording of Article 5(1) of the Directive (“insolvency proceedings which have been instituted with a view to the liquidation of the assets”), claimed that they had become Smallsteps employees. The court referred questions to the ECJ for a preliminary ruling.


Peter Vas Nunes
Peter Vas Nunes is an advocaat with BarentsKrans in The Hague, www.barentskrans.nl.
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