Dear EELA Members,

Please find attached the EELC Newsletter #4. While the past two weeks have been relatively quiet, especially compared with a hectic November, of course there are still important developments to inform you about.

Recent case law highlight

While technically it is not an employment law case, it is important to mention case C-621/18. On 10 December 2018, the ECJ decided that the United Kingdom still has the possibility to revoke the Brexit. This can be done until the moment that a withdrawal agreement has become effective, or until the two-year period of Article 50(3) TFEU has expired. There was a lot of speculation, but clarity has been given on this topic. At the same time, this decision only increases the uncertainty about the future of the United Kingdom within the EU. This is particularly the case, since the voting on the Withdrawal Agreement of the UK Parliament has been postponed. There are currently several options on the table, including the possibility to revoke the Brexit altogether.

Academic board highlight

CaseC-378/17(Minister for Justice and Equality and Commissioner of the Garda Síochána) demonstrates how EU law can even overrule constitutional provisions. In this case, the ECJ held that the Irish Working Relations Committee must disapply national provisions contrary to EU legislation on equal treatment (in this case: age discrimination), despite the fact that the Irish constitution prohibits this. The fact that Irish citizens can bring an action before the High Court, which does have the constitutional powers to disapply provisions, did not change this decision.

Once again, we see that the power of EU anti-discrimination law – as interpreted by the ECJ – is considerable. It seems that employment law practitioners throughout the EU should not hesitate to bring an action before the courts if EU anti-discrimination law is infringed. They should not feel hindered by national provisions contrary to EU law, as the ECJ once again makes it clear that such provisions should be disapplied.

List of recent case law

• Case C-378/17(Minister for Justice and Equality and Commissioner of the Garda Síochána): A national body established by law in order to ensure enforcement of EU law in a particular area must have jurisdiction to disapply a rule of national law that is contrary to EU law.
• Case C-675/17(Preindl): A Member State, whose legislation creates a requirement to pursue full-time training and a prohibition on being enrolled on two courses at the same time, is obliged to automatically recognise the evidence of formal qualifications issued by another Member State on the completion of partially concurrent training.
• Case C-621/18(Wightman and others – v – Secretary of State for Exiting the European Union): Article 50 TEU allows a Member State – following a constitutionally valid decision of that Member State – to revoke the notification to withdraw from the European Union, as long as a withdrawal agreement has not entered into force or for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that paragraph, has not expired.

EU employment law news

• The voting about the Withdrawal Agreement in the UK Parliament, which was originally planned on 11 December 2018, has been postponed to a yet unknown date. Meanwhile, the ECJ has held that the UK still has the possibility to revoke the Brexit, unless a withdrawal agreement has not entered into force, or if the two-year period following the notification has not yet expired. You can find the full judgment (C‑621/18) here.
• The European Commission has issued an update about its progress on social initiatives of the Juncker Commission. All information can be found here, while a fact sheet can be found here.

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Concluding remarks

We will of course keep you up-to-date on any EU labour law developments. We hope to give you one more update in 2018. If you have any suggestions for this newsletter and/or its contents, please let us know (eelc@law.eur.nl)!

Best regards,

Wednesday 12 December 2018

Zef Even
General Editor EELC

Ruben Houweling
General Editor of the Academic Board