Dear EELA members,

We hope that you are well! Please find your bi-weekly update on European employment law.

In the past two weeks, there have been three relevant judgments. Also, there have been developments on social security and the Brexit.

Case law highlight

Case C-437/17 (Gemeinsamer Betriebsrat EurothermenResort Bad Schallerbach) discussed the Austrian legislation on annual leave against the background of the freedom of movement of workers (Article 45 TFEU and Article 7(1) of Regulation 492/2011). The applicable legislation grants an additional week of annual leave to employees with more than 25 years of service with an employer. Alternatively, five of these years can be replaced by periods of service in another employment relationship, if these are spent on the national territory. The works council asserted that this was indirectly discriminatory as this exception puts foreign workers at a disadvantage: the majority of people who can use this exception are Austrian as, typically, foreign workers will start their career abroad.

The ECJ, however, stressed that Austrian workers can only use this exception if they have at least 25 years of work experience, at least 20 of which with their current employer. There are no indications that Austrian workers typically remain in the service of their employer for 25 years. It therefore has not been established that Austrian workers are better situated than workers who are nationals of other Member States. Consequently, it cannot be concluded that those nationals of other Member States are subject to indirect discrimination.

List of recent case law

• CaseC-437/17 (Gemeinsamer Betriebsrat EurothermenResort Bad Schallerbach): the freedom of movement of workers does not preclude legislation, which advantages periods of service at a Member State’s own territory with the purpose of calculating annual leave rights.
• CaseC-134/18 (Vester): a migrant worker who has been granted invalidity status by the Member State of his residence while he is not entitled to receive invalidity benefits, cannot be required by the Member State in which he completed his insurance periods to complete an additional one-year period of incapacity to work in order to be granted invalidity status there, and receive invalidity benefits, without receiving any benefits for incapacity to work during that period.
• CaseC-372/18 (Dreyer): The personal independence allowance and the disability compensation allowance, must, for the purposes of their classification as ‘social security contributions’ within the meaning of Article 3 of Regulation No 883/2004, be regarded as granted without any individual assessment of a recipient’s personal needs, as the recipient’s resources are taken into account for the sole purpose of calculating the actual amount of those benefits on the basis of legally defined, objective criteria.

Other employment law related news

• On 19 March 2019, the European Commission, the European Parliament and the Council reached a provisional agreement Commission’s proposal revise the rules on social security coordination (Regulations No 883/2004 and 987/2009). The press release can be found here, the Fact Sheet can be accessed through this link. The original proposal can be found here.
• This month the Brexit will take place. In particular the last weeks, there has been debate about the possibilities to extend the Brexit deadline. On 12, 13 and 14 March 2019, there were key votes in the UK House of Commons on the amended Withdrawal Agreement, on leaving without a deal and on seeking an extension. The results of the votes were that:
  • the Withdrawal Agreement was rejected;
  • a ‘No Deal’ scenario was rejected;
  • the Prime Minister had to ask the EU for an extension of the deadline.

On 20 March 2019, the Prime Minister requested the EU for an extension of the deadline until 30 June 2018. The EU’s reaction is still unknown, but undoubtedly more developments will follow as the EU Summit will take place at the time that this newsletter has been released.

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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,

20 March 2019,

Zef Even
Editor-in-chief EELC

Ruben Houweling
General editor Academic Board EELC