Dear EELA Members,

We hope that you are well! Please find your EU Employment Law update. While there is only one ECJ judgment to inform you about, we can present you EELC’s second issue of 2019. Also there is some news.

Recent case law

There only has been one case with very limited relevance to employment law. In case C‑659/17 (Azienda Napoletana Mobilità), the ECJ held that Commission Decision 2000/128/EC of 11 May 1999 concerning aid granted by Italy to promote employment applies to an undertaking, which, on the basis of a direct and exclusive award by a municipality, provided local public transport services and benefited from reductions in social security contributions under national legislation which was declared by that decision to be incompatible, in part, with the prohibition laid down in Article 107(1) TFEU. This implies that companies which have benefitted from illegal state aid must return the aid which they received.

List of recent case law

• Case C-659/17 (Azienda Napoletana Mobilità), 29 July 2019, Miscellaneous: Decision 2000/128 on illegal Italian state aid also applies to companies who benefitted from that aid.

EELC 2019 #2

EELC’s second issue of 2019 hast just been released. If you have a subscription to the printed magazine, you should find it in your mailbox soon. For now, please find the case reports online!

• Editorial – About the democratic legitimacy of the EU and the role of EELC – Zef Even (Editor-in-chief)
• 2019/12 – Dismissal on grounds of sickness – Discrimination on grounds of disability? (AT) – Peter Schöffmann, Vienna University of Economics and Business. Austrian courts have to draw a conclusive distinction between the concepts of disability and sickness.
• 2019/13 – A long-term functional impairment? (DK) – Christian K. Clasen, Norrbom Vinding. An employee’s functional impairment, which at the time of dismissal lasted already 11 months and with an uncertain prognosis, was not deemed a long-term one, so that the employee was not disabled.
• 2019/14 – Termination indemnity based on reduced remuneration for worker dismissed during part-time career break compatible with EU law (BE) – Gautier Busschaert, Van Olmen & Wynant.The termination indemnity of a worker based on the reduced remuneration paid during a career break called ‘time-credit’ is compatible with EU law, despite the Meertsjudgment.
• 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. A minimum body height of 163 cm for applicants to the police service, irrespective of gender, is lawful.

• 2019/16 – Pay discrimination based on gender in third level college (IE) – Orla O’Leary, Mason Hayes & Curran. A third level college lecturer had not been discriminated against on the grounds of gender in relation to her pay.
• 2019/17 – Non-discrimination based on gender in the employment relationship (RO) – Andreea Suciu and Gabriela Ion, Suciu | The Employment Law Firm.A decision taken by an employer based on gender which respects the national legislation was considered discriminatory based on EU legislation.
• 2019/18 – Consideration of pre-employment as a freelancer in terms of checking fixed-term contracts by courts (GE), Othmar K. Traber and Daniel Hilmer, Ahlers & Vogel Rechtsanwälte PartG mbB– Pre-employment as a freelancer must be taken into account when assessing the legality of a fixed-term contract due to the character of the specific deployment.
• 2019/19 – Employer liable for wrongful disclosure of data by ‘rogue’ employee (UK) – Sean Iling, Lewis Silkin LLP – While an internal auditor who disclosed payroll data on the internet was sentenced to eight years in prison, his employer was found to be vicariously liable for the data breach.
• 2019/20 – How to interpret the Posting of Workers Directive in the cross-border road transport sector? Dutch Supreme Court asks the ECJ for guidance (NL) – Zef Even (SteensmaEven) and Amber Zwanenburg (Erasmus University Rotterdam). In this transnational road transport case, the Dutch Supreme Court has to elaborate on the ECJ Koelzsch and Schlecker cases and asks for guidance from the ECJ on the applicability and interpretation of the Posting of Workers Directive.
• 2019/21 – Supreme Court rules on liability distribution between transferor and transferee (FI) – Janne Nurminen, Roschier, Attorneys Ltd. An insourcing following an earlier outsourcing is a transfer of undertaking.
• 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.
• 2019/23 – A reintegrated employee is entitled to compensation for untaken leave following prior unjustified dismissal (SI) – Petra Smolnikar, PETRA SMOLNIKAR LAW. Reintegration of a formerly dismissed employee does not mean that the employment relationship had not been terminated earlier. Consequently, the employee is entitled to an allowance in lieu of the untaken leave at the time of the dismissal.
• 2019/24 – Court of Appeal rejects Uber’s worker status appeal (UK) – Jemma Thomas, Lewis Silkin. Following an appeal by Uber against the Employment Appeal Tribunal’s (EAT) finding last year, in which was ruled that drivers engaged by Uber are ‘workers’ rather than independent contractors, the Court of Appeal (CA) has now upheld that EAT’s decision.

EU News

• On 18 July 2019, the European Social Policy Network (ESPN) released five Flash Reports on recent social policy developments in Belgium, Bulgaria, Germany, Italy and Romania. You can find them here. On 26 July 2019, four more Flash Reports were published, this time on developments in Latvia and Austria. You can find them here.

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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,

7 August 2019,

Zef Even
Editor-in-chief EELC

Ruben Houweling
General editor Academic Board EELC

Jan-Pieter Vos
EELC Editor