Welcome to the EELA EELC Updates, 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.
2011/34 Bulgarian law lists transfer-triggering events exhaustively (BU)
The Bulgarian Labour Code ('BLC') provides for the automatic transfer of employees to the transferee, not only upon legal transfer or merger of (a part of) an undertaking, but also upon temporary changes in the ownership of (a part of) an undertaking by virtue of a rental or lease agreement or a concession. Rental agreements, lease agreements and concessions are various legal forms of transfer of the right to use a property and these are regulated by different statutory provisions than those regulating transfers of undertakings the Bulgarian Supreme Court recently provided an interpretative decision to the effect that the Labour Code enumerates exhaustively which events lead to the automatic transfer of employees.
2011/19 Austrian Supreme Court more friendly to employee claims following transferor’s insolvency (AT)
Following a transfer of undertaking, the plaintiff’s new employer became insolvent. At that time, the plaintiff had a claim for unpaid wages against his former employer, the transferor. Under previous case law he could not have been compensated for this claim by the national guarantee institution. The Supreme Court reversed this heavily criticised doctrine.
ECJ 18 March 2011, case C-273/10 (David Montoya Medina – v – Fondo de Garantía Salarial and Universidad de Alicante), Fixed-term work
Clause 4(1) of the Framework Agreement must be interpreted as precluding national legislation which, absent objective justification, reserves the right to trienios to professors with a permanent contract.
ECJ 15 March 2011 (Grand Chamber), case C-29/10 (Heiko Koelzsch – v – Luxembourg), Applicable law
Article 6(2)(a) of the Rome Convention means that, in a situation in which an employee works in more than one EU country, the country in which he or she habitually carries out work is that in which or from which he or she performs the greater part of his or her duties towards the employer. Note: Case C-230/10 (Saenz Morales) was withdrawn on 3 February 2001.
2011/59: Employer must consider employee’s personal circumstances (SP)
An employer’s refusal to grant an employee’s request for a change in his working hours in order to achieve a better work-life balance must take into account the decision’s impact on the employee’s family. Failure to do so may amount to discrimination.
ECJ 10 March 2011, case C-477/09 (Charles Defossez - v – Christian Wart, in his capacity as liquidator of Sotimon Sarl and others), Insolvency
Article 3 of Directive 80/987 in the pre-Directive 2002/74 version is to be interpreted as meaning that, for the payment of the outstanding claims of workers having been habitually employed in a Member State other than that where their employer was established, where the employer was declared insolvent before 8 October 2005 and that employer is not established in that other Member State and fulfils its obligation to contribute to the financing of the guarantee institution in the Member State where it is established, that institution will be liable. However, Member States may allow employees to claim under a more favourable regime.
ECJ 10 March 2011, case C-379/09 (Maurits Casteels – v – British Airways plc), Collective agreements, Others forms of free movement
Article 48 TFEU has no horizontal direct effect.
Article 45 TFEU precludes, in the context of the mandatory application of a collective labour agreement and for the determination of entitlement to pension benefits (i) non-inclusion of service years in different Member States and (ii) treating transfer to another Member State as leaving the employer.
ECJ 10 March 2011, case C-109/09 (Deutsche Lufthansa AG – v – Gertraud Kumpan), Fixed-term work
Clause 5(1) of the Framework Agreement must be interpreted as meaning that the concept of “a close objective connection with a previous employment contract of indefinite duration concluded with the same employer” in Paragraph 14(3) TzBfG must also be applied to situations in which a fixed-term contract has not been preceded less than six months previously by an indefinite contract, where the initial employment relationship continued for the same activity by means of an uninterrupted succession of fixedterm contracts.
ECJ 4 March 2011, case C-258/10 (Nicusor Grigore – v – Regia Nationala a Padurilor Romsilva), Working time
Article 2(1) of the Directive is to be interpreted as meaning that a period during which a forest warden with a contractual eight-hour working day is responsible for supervising a certain area of forest qualifies as “working time” within the meaning of that provision, if the nature and extent of that supervision, combined with his responsibility, require his physical presence at work and if he is at his employer’s disposal during such presence. It is up to the referring court to determine whether this is the case.
The qualification of a period as “working time” does not depend on the availability of lodgings on site if such availability does not imply a requirement to be physically present at the work location. It is up to the referring court to determine whether this is the case.
Article 6 of the Directive precludes, in principle, a situation in which a forest warden, even though his contract stipulates an 8-hour work day and a 40-hour week, is actually forced to work in excess of those limits. It is for the referring court to examine whether this is the case and, if so, whether Romania has exercised its options to derogate from Article 6.
The employer’s obligation to pay salary for periods during which a forest warden is responsible for supervising an area of forest depends solely on domestic law.