2018/41 Spanish Supreme Court now aligned with ECJ’s case law: Limitation to pre-transfer liabilities for new contractor under CBA-led transfers that triggers a non-asset based transfer are not valid (SP)

Following the ECJ’s decision in Somoza Hermo – v – Ilunion Seguridad, C-60/17 (Somoza Hermo) of 11 July 2018, all eyes were on the Spanish Supreme Court. Since 2016, the Court has ruled a number of times that limitations to the liability of the new contractor established in a collective bargaining agreement (‘CBA’) in the context of a CBA-led transfer were valid (see e.g. EELC 2018/21). Somoza Hermo established that a CBA-led transfer that entails a non-asset-based transfer is a transfer within the meaning of the Acquired Rights Directive. Now the Supreme Court (in a decision dated 27 September 2018 taken with one dissenting opinion) is clear that its doctrine must be reviewed and has therefore held that limitations on pre-transfer liability for a new contractor under a CBA-led transfer that trigger a non-asset-based transfer, are not valid.

ECJ 10 December 2018, C-621/18 (Wightman and Others), Miscellaneous

Andy Wightman, Ross Greer, Alyn Smith, David Martin, Catherine Stihler, Jolyon Maugham, Joanna Cherry – v – Secretary of State for Exiting the European Union, UK case

ECJ 10 December 2018, C-621/18 (Wightman and Others), Miscellaneous

Andy Wightman, Ross Greer, Alyn Smith, David Martin, Catherine Stihler, Jolyon Maugham, Joanna Cherry – v – Secretary of State for Exiting the European Union, UK case

ECJ 20 November 2018, C-147/17 (Sindicatul Familia Constanţa and Others), health and safety, working time and leave, miscellaneous

Sindicatul Familia Constanţa, Ustinia Cvas and Others – v – Direcția Generală de Asistență Socială și Protecția Copilului Constanța, Romanian case

ECJ 20 November 2018, C-147/17 (Sindicatul Familia Constanţa and Others), health and safety, working time and leave, miscellaneous

Sindicatul Familia Constanţa, Ustinia Cvas and Others – v – Direcția Generală de Asistență Socială și Protecția Copilului Constanța, Romanian case

ECJ 19 April 2018, case C-645/16 (CMR), Miscellaneous

Conseils et mise en relations (CMR) SARL – v – Demeures terre et tradition SARL, French case

ECJ 19 April 2018, case C-645/16 (CMR), Miscellaneous

Conseils et mise en relations (CMR) SARL – v – Demeures terre et tradition SARL, French case

2018/10 Liability for not reacting in time to ECJ decision regarding holiday pay (DK)

The Danish Supreme Court has ruled that the Danish authorities may have incurred liability by failing to act sufficiently quickly to amend the Danish Holiday Act to align it with EU law.

2018/10 Liability for not reacting in time to ECJ decision regarding holiday pay (DK)

The Danish Supreme Court has ruled that the Danish authorities may have incurred liability by failing to act sufficiently quickly to amend the Danish Holiday Act to align it with EU law.

ECJ 25 October 2017, case C-106/16 (Polbud), Miscellaneous

Member States may not impose mandatory liquidation on companies that wish to transfer their registered office to another Member State. A restriction on freedom of establishment may be justified by overriding reasons in the public interest, such as the protection of the interests of creditors, minority shareholders and employees, but a general mandatory liquidation goes beyond what is necessary to achieve the objective of protecting these interests.