Dear EELA members,

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

In the last two weeks, there have been many developments, including ECJ rulings, legislative developments and of course Brexit.

Case law highlights

In case C-254/18(SCSI), the ECJ delivered a judgment about the use of fixed reference periods in implementation legislation of the Working Time Directive (2003/88) for the purpose of calculating the average weekly working time. In this case, French legislation used a fixed period of six months. This may be problematic, as it is possible that the average working weeks would not be exceeded in two reference periods (e.g. January until June and July until December), but in fact may result in exceeding the maximum in a period straddling two consecutive reference periods (e.g. in a peak period from April until October). The ECJ held that the use of fixed reference periods is allowed, provided that the legislation contains mechanisms which avoid the maximum being exceeded in such an ‘in-between period’. It therefore appears that the ECJ de facto requires using variable reference periods, if necessary.

Joined cases C-29/18, C-30-18 and C-44/18(Cobra Servicios Auxiliares, S.A.) remind one of the Diego Porras case (C-619/17). The ECJ found that there was an objective justification for granting employees on an indefinite term contract a higher severance payment than those on a fixed-term contract; employees on an indefinite term contract are compensated for an unforeseen dismissal, whereas fixed-term employees know from the start that their contract will end at a given point in time. The case is not yet available in English, but on our website we already have an English summary available.

List of recent case law

• CaseC-699/17(Allianz Vorsorgekasse AG): A works council’s or union’s right of codecision does not preclude the applicability of EU procurement law.
• CaseC-483/17(Tarola): An EU citizen can qualify as employee even if he obtained that status by working for two weeks only before getting involuntary unemployed.
• Joined cases C-29/18, C-30/18 and C-44/18(Cobra Servicios Auxiliares, S.A.): It is objectively justified to grant fixed-term workers a lower severance payment than indefinite term workers, provided that the payment has other aims and is paid in a different context.
• CaseC-254/18(SCSI): Directive 2003/88 allows the use of fixed reference periods in calculating the maximum weekly working hours, provided that there are mechanisms to prevent employees from exceeding this maximum in a period straddling two consecutive reference periods.

Other employment law related news

• Brexit developments have dominated this section for quite some time. On 11 April 2019, the EU granted the United Kingdom another extension. If no agreement will be reached, Brexit will take place ultimately on 31 October 2019. The extension means that the United Kingdom will participate in the elections for the European Parliament. The progress will be evaluated at the end of June.
• On 16 April 2019, the European Parliament adopted the Proposal (COM/2017/0797) for a Directive on transparent and predictable working conditions. Compared to the original proposal, there have been quite some changes. For example, the scope of the directive has been changed. Originally, it defined a worker as a “natural person who for a certain period of time performs services for and under the direction of another person in return for remuneration”, now it applies to a worker “who has an employment contract or employment relationship as defined by the law, collective agreements or practice in force in each Member State with consideration to the case-law of the Court of Justice”. The EU Member States have three years to implement the Directive. The press release can be found here, the adopted text of the directive can be access through this link(with changes in bold).
• On the same day, the European Parliament also adopted a whistle blowers directive. The rules aim to ensure safe reporting channels, by ensuring safety of potential whistle-blowers, as well as confidentiality of the disclosed information. The directive also prohibits retaliation and supports whistle-blowers during the process. Please click herefor the press release. The adopted textis also available. EU Member States have two years to comply with these new rules.

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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,

17 April 2019,

Zef Even
Editor-in-chief EELC

Ruben Houweling
General editor Academic Board EELC