Welcome to the European Employment Law Cases (EELC), an online database of judgments of national courts, the European Court of Justice and the European Court of Human Rights in the field of employment law. In addition to case law, we also bring you the occasional articles and news items. For more information, please click here.
ECJ 11 November 2010, case C-232/09 (Dita Danosa – v – LKB Lizings SIA), Gender discrimination
Even if Ms Danosa is not a “pregnant worker” within the meaning of Directive 92/85, if her removal as a Board member was on account of her pregnancy (bearing in mind the reversal of the burden of proof), that removal would be contrary to Directive 76/207. In as much as Latvian law allows such a removal, it is not in line with EU law (§ 74).
2011/16: The (central) works council of French subsidiaries must be informed of a foreign parent company merger project (FR)
The French Cour de cassation1 recently handed down a decision that increases French works council involvement in mergers where the decision-making is carried out at a higher level within the group, such as by the parent company. When a parent company located in The Netherlands and a US company were involved in a merger operation, the (central) works council (“CWC”) of the former’s French subsidiaries should have been informed, in compliance with the combined provisions of EC Regulations 802/2004 and 139/2004 relating to the control of mergers between undertakings and of Articles L.2323-1 and L.2323-20 of the French Labour Code, insofar as all the economic entities are either directly or indirectly affected by the acquisition of sole or joint control. The decision has wide-ranging implications for both French and international groups with subsidiaries in France.
ECJ 21 October 2010, case C-227/09 (Antonino Accardo and others – v – Comune di Torino), Working time
The fact that a profession is not listed in Article 17(2) of the Directive does not mean that it may not be covered by the derogation provided in Article 17(3). In circumstances such as those in the case of Mr Accardo, the optional derogations provided in Article 17 of the Directive cannot be relied on against Accardo at all. They cannot be interpreted as permitting or precluding the application of collective agreements such as the one in question, since whether such collective agreements apply is a matter for domestic law.
2011/15: Damages are not an effective and adequate sanction against the abuse of fixed-term contracts in public employment (IT)
The abuse of fixed-term contracts in the Italian public sector has become so widespread that a court has declared unlawful the distinction between the law in the public sector.
ECJ 14 October 2010, case C-243/09 (Günter Fuss – v – Stadt Halle), Working time
Article 6 of Directive 2003/88 precludes national rules, which allow a public-sector employer to transfer a worker compulsorily to another service on the ground that the worker has requested compliance with that provision, even if he or she suffers no specific detriment other than that resulting from the infringement of that provision.
ECJ 14 October 2010, case C-345/09 (J.A. van Delft et al. – v – College van Zorgverzekeringen), Social insurance
Neither Regulation 1408/71 nor Article 21 TFEU preclude national legislation under which recipients of a pension, who reside in another Member State in which they are entitled to sickness benefits in kind provided by that Member State, must pay, in the form of a deduction from their pension, a contribution in respect of those benefits even if they are not registered with the competent institution of their Member State of residence. However, Article 21 TFEU does preclude national legislation in so far as it induces or provides for an unjustified difference of treatment between residents and non-residents as regards ensuring the continuity of the overall protection against the risk of sickness enjoyed by them under insurance contracts concluded before the entry into force of that legislation.
ECJ 14 October 2010, case C-428/09 (Union Syndicale Solidaires Isère – v – Premier Ministre), Working time
Persons employed under an educational commitment contract fall within the scope of the derogation in Article 17(3)(b) and/or (c) of the Directive, but the French legislation at issue fails to afford them appropriate protection and is, therefore, not compatible with the Directive.
ECtHR 5 October 2010, (Kopke – v – German), Application no. 420/07, Fundamental rights
The European Court of Human Rights (“ECtHR”) has recently considered these cases, which have a direct and indirect impact on employment law. Kopke raises issues of an employer using covert surveillance on an employee to investigate and prevent theft. Lalmahomed was a criminal case, but illuminates the strict requirements of the need for a fair procedure. Cudak is a case in which the right to bring a claim for unfair dismissal was given primacy over the public international law principle of state immunity.
ECJ 1 October 2010, case C-3/10 (Franco Affatato – v – Azienda Sanitaria Provinciale di Cosenza), Fixed-term work
Clause 5 of the Framework Agreement does not preclude national legislation, such as Article 36(5) of Decree 165, prohibiting conversion of fixed-term contracts into permanent contracts, where the legal order of that Member State contains other effective measures to avoid and, as necessary, penalise the abusive use of successive fixed-term contracts. It is for the national courts to assess to what extent such measures are adequate, provided they are not less favourable than those governing similar situations and that they do not make it impossible or excessively difficult to exercise the rights conferred by EU law.
2011/28 No derogation is possible in relation to daily 11 hour rest period (FR)
The daily rest period of 11 consecutive hours set by Directive 93/104, as amended by Directive 2000/34/EC1 is interpreted as prohibiting all derogations.