Dear EELA Members,

We hope that you are well! Please find your EU Employment Law update. It is a relatively short one, as the ECJ’s summer break has started. Nevertheless, we would like to draw your attention to one recent case and an interesting opinion of Advocate-General Sharpston regarding transfer of undertakings, which has the potential to change the way we look at capital and labour intensive businesses.

Recent case law highlights

In the employment law related case, C‑377/17 (Commission – v – Germany), the ECJ held that the German rules on minimum and maximum rates for architects and engineers are contrary to EU law. While it is a legitimate interest to set minimum rates to guarantee the quality of work, the German system was inconsistent (and therefore not suitable), as actual quality requirements were absent. Consequently, the system infringed the freedom to provide services.

Opinion of A-G Sharpston

Case C-298/18 (Grafe and Pohle) has the potential to become a landmark case on transfer of undertakings. The question is whether the employees of a public bus service transfer to the new operator of that service if there is no significant transfer of tangible assets, such as buses. In ECJ 25 January 2001, C-172/99 (Oy Liikenne), the ECJ had held that the tangible assets were crucial for a transfer of undertaking to take place. However, this ruling could be softened. According to the Advocate-General, “in circumstances in which legal, technical and environmental constraints mean that it is not commercially viable for the new operator to take on the tangible assets of the old operator, […] the proper course is for the national court to disregardwhat has happened to the tangible assets and to concentrate on the other elements of the transaction when assessing whether or not there has been a transfer of an undertaking falling within the scope of Directive 2001/23.” (point 57). Otherwise, as the Advocate-General stated, it could be too easy to avoid the Directive by simply not taking over any assets.

The A-G emphasized that, if the ECJ will follow the opinion, this does not contradict Oy Liikenne. Nevertheless, the classification of a business as asset-intensive or labour-intensive will become less prominent in judging whether a transfer of undertaking has occurred. Given the potential impact of the case, employment lawyers are recommended to consider the A-G’s opinion when assessing whether a situation qualifies as transfer of undertaking.

List of recent case law

• Case C-377/17 (Commission – v – Germany), 4 July 2019, miscellaneous: German rules on minimum and maximum rates for architects and engineers found contrary to EU law.

EELC 2019 #2

Within a few weeks, EELC’s second issue of 2019 will be released. Those of you with a printed subscription should find the magazine in their mailbox within a few weeks. In the coming weeks, however, we will release some of the case reports.

This week, we release the following case reports:

• 2019/15 – Uniform minimum body height standards in the police service do not constitute indirect gender discrimination on grounds of sex (DE) – Paul Schreiner and Nina Stephan, Luther Rechtsanwaltsgesellschaft mbH. The Higher Administrative Court of Münster has held that a minimum body height of 163 cm for applicants to the police service, irrespective of gender, is lawful.
• 2019/22 – Supreme Court applies Max Planck and Kreuziger judgments (LV) – Andis Burkevics, Sorainen. The Latvian Supreme Court recently used the ECJ Max Planck and Kreuzigerjudgments to explain how an employer can escape its obligation to compensate an employee for unused leave at the end of the employment relationship.

EU News

• Brexit news: Mr Boris Johnsen has won the elections of the Conservative Party and has become Prime Minister of the United Kingdom. He has announced that a Brexit will be arranged before 31 October 2019.

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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,

25 July 2019,

Zef Even
Editor-in-chief EELC

Ruben Houweling
General editor Academic Board EELC

Jan-Pieter Vos
EELC Editor