EELA Updates

Case report

2017-09-01

Belgium

2017/37 Pay can only be modified with transferred workers’ consent (BE)

After the transfer of an undertaking (or part of one) the new employer cannot modify the transferred workers’ wages without their consent. This decision of the Belgian Supreme Court of 14 November 2016 leaves no leeway to the transferee to unilaterally substitute certain contractual elements with new ones, even if the new salary scheme is more advantageous overall.

Cour de cassation (Belgian Supreme Court), 2016-11-14

Summary

2017-09-01

2017/37 Pay can only be modified with transferred workers’ consent (BE)

After the transfer of an undertaking (or part of one) the new employer cannot modify the transferred workers’ wages without their consent. This decision of the Belgian Supreme Court of 14 November 2016 leaves no leeway to the transferee to unilaterally substitute certain contractual elements with new ones, even if the new salary scheme is more advantageous overall.

Cour de cassation (Belgian Supreme Court), 2016-11-14

Court watch

2017-09-01

ECJ 20 July 2017, case C-416/16 (Piscarreta Ricardo), Transfer of undertaking

The Acquired Rights Directive applies in a situation in which a municipal body was wound up and its activities transferred in part to another municipality and in part to a different body, and an employee on long term leave, whose employment contract was suspended and was therefore not working at the time, was still covered by the concept of ‘employee’ within the meaning of the Directive.

European Court of Justice (ECJ), 2017-07-20

Summary

2017-09-01

ECJ 20 July 2017, case C-416/16 (Piscarreta Ricardo), Transfer of undertaking

The Acquired Rights Directive applies in a situation in which a municipal body was wound up and its activities transferred in part to another municipality and in part to a different body, and an employee on long term leave, whose employment contract was suspended and was therefore not working at the time, was still covered by the concept of ‘employee’ within the meaning of the Directive.

European Court of Justice (ECJ), 2017-07-20

Court watch

2017-07-01

ECJ 27 April 2017, case C-680/15 (Asklepios Kliniken), Transfer of undertakings

‘Dynamic’ referral clauses have effect after the transfer of an undertaking, if national law provides for the possibility for the transferee to make changes both consensually and unilaterally.

European Court of Justice (ECJ), 2017-04-27

Summary

2017-07-01

ECJ 27 April 2017, case C-680/15 (Asklepios Kliniken), Transfer of undertakings

‘Dynamic’ referral clauses have effect after the transfer of an undertaking, if national law provides for the possibility for the transferee to make changes both consensually and unilaterally.

European Court of Justice (ECJ), 2017-04-27

Case report

2017-07-01

Bulgaria

2017/23 Suspension of a recovery plan is not a transfer-triggering event (BU)

The Bulgarian Supreme Court ruled to the effect that the Bulgarian Labour Code (‘BLC’) provides for the automatic transfer of employees only in the circumstances set out in the BLC. The employment protection given by the BLC cannot either be broadened or narrowed. The suspension of a recovery plan which leads to the restoration of insolvency proceedings (and therefore the return of the company from the transferee that had been executing the failed recovery plan back into the hands of the transferor) did not lead to the automatic transfer of employment.

Supreme Court of Cassation, 2016-01-26

Summary

2017-07-01

2017/23 Suspension of a recovery plan is not a transfer-triggering event (BU)

The Bulgarian Supreme Court ruled to the effect that the Bulgarian Labour Code (‘BLC’) provides for the automatic transfer of employees only in the circumstances set out in the BLC. The employment protection given by the BLC cannot either be broadened or narrowed. The suspension of a recovery plan which leads to the restoration of insolvency proceedings (and therefore the return of the company from the transferee that had been executing the failed recovery plan back into the hands of the transferor) did not lead to the automatic transfer of employment.

Supreme Court of Cassation, 2016-01-26

Case report

2017-07-01

Croatia

2017/24 Failure of the transferor of a business to fully inform the transferee about employees’ rights (CR)

The transferee dismissed the plaintiff immediately upon the transfer, for business reasons. The plaintiff claimed the dismissal was invalid because the transferee did not consult the union representatives who were transferred. The Supreme Court held that, in the absence of a works council, the union representative has, by law, all rights and obligations with regard to information and consultation. Failure to abide by the information and consultation rules rendered the decision to dismiss invalid.

Vrhovni sud Republike Hrvatske (Supreme Court of the Republic of Croatia), 2016-04-19

Summary

2017-07-01

2017/24 Failure of the transferor of a business to fully inform the transferee about employees’ rights (CR)

The transferee dismissed the plaintiff immediately upon the transfer, for business reasons. The plaintiff claimed the dismissal was invalid because the transferee did not consult the union representatives who were transferred. The Supreme Court held that, in the absence of a works council, the union representative has, by law, all rights and obligations with regard to information and consultation. Failure to abide by the information and consultation rules rendered the decision to dismiss invalid.

Vrhovni sud Republike Hrvatske (Supreme Court of the Republic of Croatia), 2016-04-19