Dear EELA Members,

We hope that you are well! Please find your EU Employment Law update. In the past few weeks, there have been various interesting judgments. Please find them below!

Recent case law highlights

Case C-664/17 (Ellinika Nafpigeia) is a very interesting Greek case on transfer of undertakings, dealing with two topics. Firstly, the ECJ held that transfer of a part of an undertaking to a new undertaking which ultimately files for bankruptcy, in principle falls within the scope of Directive 2001/23. However, if the transferor and transferee have initiated such transfer with the plan to discontinue the activities, this could be abuse of EU law. If that is the case, parties cannot benefit from the advantages of the Directive.

Also, the ECJ clarified the concept of ‘autonomy’ of an economic entity. Such autonomy can still exist if the transferee is largely dependent on a third party, provided that there are safeguards in place, such as contracts and guarantees, which prevents the transferee from being dependent from economic choices unilaterally made by the third party.

In case C-404/18 (Hakelbracht and Others), the ECJ protected an employee who supported a discrimination claim by a woman whose job application was refused due to her being pregnant. The employee had been unable to invoke the protection against retaliatory measures, as her witness statement was not dated and signed. However, according to the ECJ, the employee should also be protected against retaliatory measures, regardless the question whether s/he formally has the status of witness.

List of recent case law

• Case C-664/17 (Ellinika Nafpigeia), 13 June 2019, transfer of undertakings: It is not contrary to Directive 2001/23/EC to initiate a transfer with a view to liquidation of the company, unless this must be deemed abuse. A transferee can still have the required autonomy, even if it is largely dependent on third parties, provided that safeguards are in place.
• Case C-317/18 (Correia Moreira), 13 June 2019, transfer of undertakings: An employee who enjoys a different kind of legal protection, can still be an employee within the meaning of the Directive. It is not allowed to initiate recruitment procedures and to require that employees agree to a new employment contract (with worse conditions).
• Case C-72/18 (Ustariz Aróstegui), 20 June 2019, fixed-term work. Clause 4 point 1 of the Framework Agreement on fixed-term employment contract (annexed to Directive 1999/70/EC) precludes national legislation which only grants a salary allowance to teachers with a contract for indefinite term and not to fixed-term contract-based teachers, if the only condition for the grant is the performance of a specific period of service. The case will be published on our website as soon as the English translation of the case becomes available.
• Case C-404/18 (Hakelbracht and others), 20 June 2019, gender discrimination. An employee who supports a job applicant who lodged a discrimination complaint, must also be protected against retaliatory measures.
• Case C-729/17 (EC – v – Greece), 26 June 2019, free movement.Limiting the legal form of training institutions to non-profit companies composed of at least one Greek Bar Association and one Greek professional association found contrary to Directive 2006/123/EC on services in the internal market. Procedure for the recognition of academic qualifications found contrary to Directive 2005/36/EC on the recognition of professional qualifications. The case will be published on our website as soon as the English translation of the case becomes available.

EELC 2019 #3

A month and a half ago, we released EELC’s first issue of 2019. While we are in the final stage of editing the second edition, we also have started preparations for the third edition. We are always open to contributions of our readers, so we highly welcome any proposals on case reports.

Case reports are reports about judgments in EU Member States which are based on EU law or domestic law implementing EU law, particularly where the interpretation of EU law plays a role, so that they are of interest to employment law practitioners throughout the EU. To this end, they contain a summary of the case and a short commentary. Employment law practitioners from other EU jurisdictions are then invited to provide comments from their jurisdiction. Please click here for a recent example.

If you are interested in preparing a case report on an interesting case in your country, please let us know and send us an email at eelc@law.eur.nl and we are happy to provide you with instructions!

EU News

• Effective 17 June 2019, ECJ judge Mr Egils Levits resigned from his position, as he has been elected as President of the Republic of Latvia. The press release can be found here.
• The EU has decided that Bratislava, Slovakia will host the seat of the European Labour Authority. The Labour Authority is expected to start working in October. Please see this link for more information.

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Concluding remarks

We hope that you appreciate this newsletter to keep you up to date on EU employment law developments. Once again, if you have suggestions or requests regarding this newsletter, please send an email to eelc@law.eur.nl!

Best regards,

27 June 2019,

Zef Even
Editor-in-chief EELC

Ruben Houweling
General editor Academic Board EELC

Jan-Pieter Vos
EELC Editor