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Pending Cases

Case C-270/21, Work and Residence Permit

A – v – Opetushallitus, reference lodged by the Korkein hallinto-oikeus (Finland) on 27 April 2021

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Work and Residence Permit
Pending Cases

Case C-199/21, Social Insurance, Pension

DN – v – Finanzamt Österreich, reference lodged by the Bundesfinanzgericht (Austria) on 30 March 2021

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Social Insurance, Pension
Rulings

ECJ 15 April 2021, Case C-511/19 (Olympiako Athlitiko Kentro Athinon), Age Discrimination

AB– v – Olympiako Athlitiko Kentro Athinon – Spyros Louis, Greek case

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Age Discrimination
Samenvatting

    Application of labour reserve system following the Greek financial crisis not found contrary to EU law. The difference in treatment on grounds of age established by that system pursues a legitimate labour-policy objective and the means of achieving that objective are appropriate and necessary.

    In its decision rendered on 28 February 2019, the Luxembourg Court of Appeal (Cour d’appel de Luxembourg) examined under which circumstances on-call duty performed at the workplace qualifies as actual working time.
    The issue raised was whether the time spent at night by an employee (i.e. the presence of an employee at the workplace) performing the work of a live-in carer was to be considered as ‘actual working time’.
    The Court expressly referred to EU case law and decided that the concept of actual working time is defined by two criteria, namely (i) whether the employee during such a period must be at the employer’s disposal, and (ii) the interference with the employee’s freedom to choose their activities.
    In view of the working hours provided for in the employment contract and in the absence of evidence proving that the employee would not have been at the employer’s home during her working hours, the Court found that the employee stayed at the employer’s home at night and at the employer’s request. It was irrelevant in this respect whether it was for convenience or not. It was further established that the employee could not leave during the night and return to her home and go about her personal business, so that the hours she worked at night were to be considered as actual working time.
    Given that the employee’s objections regarding her salary were justified (as the conditions of her remuneration violated statutory provisions), the Court decided that the dismissal was unfair.


Michel Molitor
Michel Molitor is the managing partner of MOLITOR Avocats à la Cour SARL in Luxembourg, www.molitorlegal.lu.
Rulings

ECJ 8 July 2021, case C-71/20 (VAS Shipping), Work and Residence Permit

Criminal proceedings against VAS Shipping ApS, Danish Case

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Work and Residence Permit
Samenvatting

    A Member State may impose legislation which require a work permit for third-country national crew members of a vessel flying the flag of a Member State, owned by a company in another Member State.

    The Supreme Court (SC) has unanimously decided that drivers engaged by Uber are workers rather than independent contractors. It also decided that drivers are working when they are signed in to the Uber app and ready to work.


Colin Leckey
Colin Leckey is a partner at Lewis Silkin LLP.

    On 22 May 2020, fifty-two members of the Hungarian parliament petitioned the Constitutional Court which was requested to establish the unconstitutionality of Section 6(4) of Government Decree no. 47/2020 (III. 18), its conflict with an international treaty and to annul it with retroactive effect to the date of its entry into force. According to Section 6(4) of the Decree “in a separate agreement, the employee and the employer may depart from the provisions of the Labour Code” (i.e. ‘absolute dispositivity’). The petition, among other things, alleged the violation of equal treatment and the right to rest and leisure. The Constitutional Court rejected the motion to establish the unconstitutionality of Section 6(4) and its annulment, since it was repealed on 18 June 2020. The Constitutional Court may, as a general rule, examine the unconstitutionality of the legislation in force, however it was no longer possible to examine the challenged piece of legislation in the framework of a posterior abstract norm control.


Kristof Toth
Kristof Toth is PhD student at the Karoli Gaspar University in Hungary.
Case Reports

Access_open 2021/13 Equal Treatment Authority’s decision does not bind the court (HU)

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Race, Nationality Discrimination, Discrimination General
Auteurs Zsofia Olah
SamenvattingAuteursinformatie

    This case involved an employee who claimed that her two consecutive employers breached the principle of equal treatment during their employment relationships in relation to her belonging to the Roma minority. The employee built her case on the decision of the Equal Treatment Authority, which declared that her employers discriminated against her. The Curia (the highest judicial authority in Hungary) found that the decision of another authority has no binding effect on a court according to Act III of 1952 on Civil Procedure and that in cases concerning equal treatment, the burden of proof lies on the defendant (employer) to prove that there is no link between the disadvantage suffered by the plaintiff (employee) and her protected characteristic. The Curia and regional courts also found that the employer fulfils this obligation if it successfully proves that it assessed the applicant’s qualifications, professional suitability and attitude towards work when it decided on the question of whom to employ.


Zsofia Olah
Zsofia Olah is a partner at OPL Law Firm.
Rulings

ECJ 20 May 2021, Case C-63/20 P (Dickmanns/EUIPO), Miscellaneous

Sigrid Dickmanns – v – EUIPO, EU Case

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Miscellenaeous
Samenvatting

    Appeal against termination of agency contract was dismissed.

Pending Cases

Case C-120/21, Paid Leave

LB – v – TO, reference lodged by the Bundesarbeitsgericht (Germany) on 26 February 2021

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Paid Leave
Rulings

ECJ 15 April 2021, Case C-875/19 P (FV/Council), Miscellaneous

FV – v – Council of the European Union, EU case

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Miscellaneous
Samenvatting

    Appeal to annul the appellant’s 2013 staff (performance) report rejected.

Pending Cases

Case C-133/21, Fixed-term Work

VP, CX, RG, TR and Others – v – Elliniko Dimosio, reference lodged by the Efeteio Athinon (Greece) on 3 March 2021

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Fixed-term Work
Rulings

ECJ 12 May 2021, Case C-202/20 P (Necci / Commission), Miscellaneous

Claudio Necci – v – European Commission, EU case

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Miscellaneous
Samenvatting

    EC’s Rejection of request to join the Joint Sickness Insurance Scheme of the Institutions of the European Communities found illegitimate, case referred back to General Court.

    The German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) has ruled that the user of an online platform (‘crowdworker’) who takes on so-called ‘microjobs’ on the basis of a framework agreement concluded with the platform operator (‘crowdsourcer’) can be an employee of the crowdsourcer. This applies in a case where the framework agreement is aimed at a repeated acceptance of such microjobs. The decisive factor is whether the crowdworker performs work that is subject to instructions and is determined by third parties in the context of the actual performance of the contractual relationship. The name of the contract is irrelevant. One assumes an employment relationship if the crowdsourcer controls the collaboration via an online platform operated by them in such a way that the crowdworker cannot freely shape their activity in terms of place, time and content.


Katharina Gorontzi
Katharina Gorontzi, LLM, is a senior associate at Luther lawfirm in Dusseldorf, Germany.

Jana Voigt
Jana Voigt is a senior associate at Luther lawfirm in Dusseldorf, Germany.
Rulings

ECJ 20 May 2021, Case C-879/19 (Format), Social Insurance

FORMAT Urządzenia i Montaże Przemysłowe – v – Zakład Ubezpieczeń Społecznych I Oddział w Warszawie, Polish case

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Social Insurance
Samenvatting

Rulings

ECJ 3 June 2021, case C-326/19 (Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR e.a. (Chercheurs universitaires)), Fixed-Term Work

EB – v – Presidenza dei Consiglio dei Ministri, Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR and Università degli Studi ‘Roma Tre’, Italian case

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Fixed-Term Work
Samenvatting

    It is allowed to limit both the duration and number of fixed-term contracts without an objective justification being necessary, provided that there is no abuse of the rules.

    On 12 October 2020, the Labour Court of Appeal of Ghent ruled that there was no indirect discrimination in the case of Mrs. Achbita, because a policy of neutrality does not disadvantage Muslim women who want to wear a headscarf more than any other worker. The Labour Court of Appeal was also of the opinion that the employer should not examine alternative job positions.


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant.

    In the context of collective redundancies the term ‘establishment’ (Betrieb) must be interpreted in compliance with the Collective Redundancies Directive 98/59/EC (the ‘Directive’). The early warning mechanism of Section 45a of the Austrian Labour Market Promotion Act (Arbeitsmarktförderungsgesetz, ‘AMFG’) is only triggered if the number of the planned redundancies reaches a relevant threshold in an establishment. In the present case the stores in question were qualified as separate establishments within the meaning of Section 45a AMFG.


Andreas Tinhofer
Andreas Tinhofer is a partner at Zeiler Floyd Zadkovich.

Markus Blatnig
Markus Blatnig is an associate at Zeiler Floyd Zadkovich.
Pending Cases

Case C-101/21, Insolvency

HJ – v – Ministerstvo práce a sociálních věcí, reference lodged by the Nejvyšší správní soud (Czech Republic) on 18 February 2021

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Insolvency
Rulings

ECJ 12 May 2021, Case C-27/20 (CAF), Social Insurance

PF, QG – v – Caisse d’allocations familiales (CAF) d’Ille-et-Vilaine, French case

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Social Insurance
Samenvatting

    Use of reference year for determining family allowances not found contrary to Article 45 TFEU and Article 7 of Regulation 492/2011, even if subsequent income is significantly reduced.

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