Dear EELA Members,

We hope that you are well! Please find your EU Employment Law update. After a few relatively quiet weeks, on 8 May the ECJ delivered not less than seven judgments on EU Employment Law. Furthermore, we can present you with EELC’s first issue of 2019!

Recent case law highlight

This week’s case law covers a lot of different subjects, so there should be something in here for everyone. There are a few cases on discrimination, some of which are quite technical. There were also cases in which featured the concept of indirect discrimination. In cases C-161/18 (Villar Láiz) and C-486/18 (Praxair MRC), specific provisions on pension calculations and severance payment for part-timers were found indirectly discriminatory against women. These cases demonstrate that EU Member States should still carefully assess their legislation on part-time work.

List of recent case law

• C-24/17 (Österreichischer Gewerkschaftsbund): new remuneration system found discriminatory on grounds of age.
• C-396/17 (Leitner): new remuneration system found discriminatory on grounds of age.
• C-494/17 (Rossato and Conservatorio di Musica F.A. Bonporti): under certain circumstances, the framework agreement on fixed-term work may not preclude legislation which denies compensation for the misuse of successive fixed-term employment contracts which have been converted into one for indefinite term.
• C-631/17 (Inspecteur van de Belastingdienst): a seaman is subject to the national social security legislation of the Member State of his residence if he works for an employer who is established in a Member State, but on board of a vessel of a third state.
• C-161/18 (Villar Láiz): calculation method for the amount of retirement pension for part-time workers found to be indirectly discriminatory to women.
• C-194/18 (Dodič): a transfer of undertaking can occur if the transferor is obliged to transfer its financial instruments to another party, even if the clients are free not to entrust the management of their securities to that party. In that context, the number of clients actually transferred, even if very high, is not, in itself, decisive as regards classification as a ‘transfer’ and the fact that the first undertaking cooperates with the second undertaking as a dependent stock-exchange intermediary, is, in principle, irrelevant.
• C-486/18 (Praxair MRC): the framework agreement on parental leave (directive 96/34) precludes that an otherwise full-time worker’s severance payment is based on the part-time salary which s/he enjoys during part-time parental leave. Moreover, this provision can be discriminatory if it puts more women at a disadvantage.

EELC 2019 #1

We are proud to announce that EELC’s first issue of 2019 has just been released. Those of you with a hardcopy subscription will receive the issue shortly. It contains some interesting case reports, including comments from correspondents from other jurisdictions. Hopefully, they inspire you to tackle employment law problems in your own practice. Also, our Academic Board has prepared a review of last year’s most important cases.

Please find the contents below:

• Editorial – Order! (Zef Even)
• 2019/1 – EELC’s review of the year 2018 (EELC Academic Board Members and various guest authors) (Part 1) (Part 2)
• 2019/2 – Test of ‘good faith’ in victimisation claims is employee’s honesty not motivation (UK – Soyoung Lee, Lewis Silkin LLP)
• 2019/3 –It was not sexual orientation discrimination for a baker to refuse to provide a cake with a slogan supporting gay marriage (UK – Soren Kristophersen, Lewis Silkin LLP)
• 2019/4 – The Italian Jobs Act (Legislative Decree no. 23 of 2015) reforming the protection against unfair dismissal contrasts with the European Social Charter 1996 (IT – Andrea Pilati, University of Verona)
• 2019/5 –For how long may data of a job applicant be stored? (AT – Sophie Mantler and Andreas Tinhofer, MOSATI Rechtsanwälte)
• 2019/6 –Choice of Belgian law in an employment contract extends to all provisions that regulate the mutual rights and obligations of the parties to the contract (BE – Gautier Busschaert, Van Olmen & Wynant)
• 2019/7 – Municipalities’ repatriation of home care services did not constitute a transfer of undertaking (DK – Christian K. Clasen, Norrbom Vinding)
• 2019/8 – Supreme Court rules on transfer of undertaking (FI – Janne Nurminen, Roschier, Attorneys Ltd)
• 2019/9 – The right to object against a transfer in case of incorrect information is not unlimited (GE – Nina Stephan, Luther Rechtsanwaltgeselschafft mbH)
• 2019/10 – Employee’s right of choice between transferor and transferee in the event of a business transfer (NO – Bernard Johann Mulder, University of Oslo)
• 2019/11 – Resignation or constructive dismissal? (RO – Andreea Suciu, The Employment Law Firm)

At this moment, we are busy preparing the coming issues. If you would like to contribute with a case report, please contact us (through eelc@law.eur.nl) or your national correspondent! Of course, we are also always open to any suggestions.

EU News

• The Court of Justice recently published its annual report of 2018, which can be accessed through this link. It consists of two parts, ‘The Year in Review’ and ‘Judicial Activity’, the latter of which provides an overview of judgments in every branch of law.
• As of 1 May 2019, the Court of Justice has adopted new rules on whether or not to allow appeals to proceed in cases which have already been considered twice. From now on, such appeals must be accompanied by a request of seven pages at most, which explains the issue. Please click here for the press release.
• The EP elections will take place from 23-26 May 2019. More information is available 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,

9 May 2019,

Zef Even
Editor-in-chief EELC

Ruben Houweling
General editor Academic Board EELC