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Recent European Court of Justice Rulings

17-02-2015: European Court of Justice Judgment in ECJ Case C-396/13
(Shkalojen
ammattiliitto)
The present case arises from a dispute between a Finnish trade union,
Shkalojen ammattiliitto ry (the trade union), and a Polish undertaking,
Elektrobudowa
Spka
Akcyjna
(ESA).
186 Polish workers concluded employment contracts with ESA in Poland and
were posted to and ESA branch in Finland, a construction site of a nuclear power
plant.
There
are
two
issues
in
this
ECJ
Case
C-396/13:
Firstly, the Polish company ESA did not pay minimum wage rates of pay to the
employees in accordance with the applicable collective agreements which have

been declared universally applicable and thus fall within the scope of Directive
96/71/EC. The collective agreements provide for a calculation of employees
minimum pay which is based on criteria that are more favourable to employees
than those applied by ESA (i.a. the way of categorising employees by pay
groups, of classifying pay on the basis of time or piecework, of granting
employees a holiday allowance, a daily allowance and compensation for
travelling
time
and
of
covering
their
accommodation
costs).
Secondly, when the workers went to court, they each individually assigned their
pay claims to the trade union, of which they are member. The trade union
therefore took over the recovery of the pay claims before the referring court.
This practice is allowed in Finnish law, but not under the Polish Labour Code. ESA
claims that the law applicable to individual employment contracts are governed
by Polish law, and thus the claims cannot validly be transferred to the trade
union.
The referred Court asked 11 questions to the European Court of Justice.
As to the second issue, the European Court of Justice held that on the basis of
Directive 96/71/EC read in the light of Article 47 of the Charter of Fundamental
Rights of the European Union, the Member State of the seat of the undertaking
that has posted workers to the territory of another Member State (in this case
Poland) under which the assignment of claims arising from employment
relationships is prohibited, may not prohibit a trade union, such as the one from
Finland in this case, to bring an action before a court of the second Member
State, in which the work is performed (i.c. Finland), in order to recover for the
posted workers, pay claims which have been assigned to it in conformity with
the law in force in the second Member State.
As to the first issue, the European Court of Justice held that Article 3(1) and (7)
of Directive 96/71/EC, read in the light of Articles 56 TFEU and 57 TFEU:
- does not preclude a calculation of the minimum wage for hourly work and/or
for piecework which is based on the categorisation of employees into pay
groups, as provided for by the relevant collective agreements of the host
Member State, provided that that calculation and categorisation are carried out
in accordance with rules that are binding and transparent, a matter which it is
for the national court to verify;
- a daily allowance such as that at issue in the main proceedings must be
regarded as part of the minimum wage on the same conditions as those
governing the inclusion of the allowance in the minimum wage paid to local

workers when they are posted within the Member State concerned;
- compensation for daily travelling time, which is paid to the workers on
condition that their daily journey to and from their place of work is of more than
one hours duration, must be regarded as part of the minimum wage of posted
workers, provided that that condition is fulfilled, a matter which it is for the
national court to verify;
- coverage of the cost of those workers accommodation is not to be regarded as
an element of their minimum wage;
- an allowance taking the form of meal vouchers provided to the posted workers
is not to be regarded as part of the latters minimum salary; and
- the pay which the posted workers must receive for the minimum paid annual
holidays corresponds to the minimum wage to which those workers are entitled
during the reference period. (C-396/13)
10-02-2015: European Court of Justice Judgement on probationary
periods in employment contracts (ECJ Case C-117/14 (Nisttahuz
Poclava)
This request was lodged by the Juzgado de lo Social No 23 de Madrid (Spain) on
11
March
2014.
Ms Nisttahuz Poclava, of Bolivian nationality, worked as a cook for a hotel
company. Her contract for full-time employment fell within the category of
employment contracts of indefinite duration to support entrepreneurs, and was
ended abruptly by the employer after 4,5 months, terminating the employment
relationship with effect from the date of notice. The contract stated that the
employee Ms Nisttahuz Poclava would have a probationary period of one year.
This was based on Article 4(3) of Law 3/2012, which was intended to facilitate
employment and was an example of the legislative reform in the field of
employment prompted by the decisions and recommendations of the European
Union
on
employment
policy.
This law provided for a different probationary period than that was normally
provided for under Spanish law and that was unrelated to the professional skills
of the person recruited. According to the referring court, that provision
established an atypical contract with a fixed term of one year, which may be
converted into a contract of indefinite duration once that period has elapsed.
Furthermore, during the probationary period, the employee has no legal
protection against dismissal, notably as regards the form that dismissal may
take, the reasons for which a dismissal decision may be taken and the extent to
which
a
dismissal
is
subject
to
review
by
the
courts.

Ms Nisttahuz Poclava brought an action against her employer, seeking a

declaration that her dismissal was unfair and an order directing her employer
either to reinstate her on the same terms as those applicable before the
employment contract was terminated or to pay her compensation equivalent to
33
days
salary
per
year
of
service.
The
questions
referred
are:
Is national legislation under which employment contracts of indefinite duration
to support entrepreneurs are made subject to a probationary period of one year,
during which the employee may freely be dismissed, contrary to EU law, and is it
compatible with the fundamental right guaranteed by Article 30 1 of the
[Charter
of
Fundamental
Rights
of
the
European
Union]?
Is the probationary period of one year to which employment contracts of
indefinite duration to support entrepreneurs are made subject prejudicial to the
objectives of, and to the rules laid down in, Directive 1999/70/EC 2 concerning
the framework agreement on fixed-term work concluded by ETUC, UNICE and
CEEP

clauses
1
and
3?
The ECJ held that it does not have jurisdiction to answer the questions referred
for a preliminary ruling. Firstly, the Charter of Fundamental Rights of the
European Union is not applicable, because Law 3/2012 is not implementing EU
law. Secondly, the employment contract at issue here, is characterized
specifically as a the contract [] to be concluded for an indefinite duration
(Article 4(2) of Law 3/2012), and therefore it cannot be categorised as a fixedterm contract under Article 3 of the Clause 3 of the Framework Agreement on
Fixed-Term Work. (C-117/14)
19-12-2014: European Court of Justice on Case C- 354/ 13 (FOA)
In this case C-354/13, a Danish court referred for a preliminary ruling some
questions to the European Court of Justice. The plaintiff, Mr Karsten Kaltoft,
represented by his union (FOA), had been employed since 1996 as a
childminder in the Municipality of Billund, which is part of the public
administration of Denmark, to take care of other peoples children in their own
homes.
Mr Kaltoft was dismissed (according to the written notice of dismissal) following
a specific assessment on the basis of a decline in the number of children.
Obesity was not mentioned in the notice of dismissal, and nor were any reasons
given as to why precisely Mr Kaltoft, of the several childminders employed by
the Municipality of Billund, was selected for dismissal. Mr Kaltoft submits that he
was unlawfully discriminated against because of his obesity, but the parties

disagree, however, as to whether it was stated that his obesity formed part of
the
basis
for
the
dismissal
decision.
The following questions were referred to the European Court of Justice for a
preliminary
ruling:
(1) Is it contrary to EU law, as expressed, for example, in Article 6 TEU
concerning fundamental rights, generally or particularly for a public-sector
employer to discriminate on grounds of obesity in the labour market?
(2) If there is an EU prohibition of discrimination on grounds of obesity, is it
directly applicable as between a Danish citizen and his employer, a public
authority?
(3) Should the Court find that there is a prohibition under EU law of
discrimination on grounds of obesity in the labour market generally or in
particular for public-sector employers, is the assessment as to whether action
has been taken contrary to a potential prohibition of discrimination on grounds
of obesity in that case to be conducted with a shared burden of proof, with the
result that the actual implementation of the prohibition in cases where proof of
such discrimination has been made out requires that the burden of proof be
placed on the respondent/defendant employer (see recital 18 in the preamble to
Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases
of
discrimination
based
on
sex)?
(4) Can obesity be deemed to be a disability covered by the protection provided
for in Council Directive 2000/78/EC and, if so, which criteria will be decisive
for the assessment as to whether a persons obesity means specifically that that
person is protected by the prohibition of discrimination [on] grounds of disability
as laid down in that directive?
The European Court of Justice now ruled: 1. EU law must be interpreted as not
laying down a general principle of non-discrimination on grounds of obesity as
such as regards employment and occupation. 2. Council Directive 2000/78/EC of
27 November 2000 establishing a general framework for equal treatment in
employment and occupation must be interpreted as meaning that the obesity of
a worker constitutes a disability within the meaning of that directive where it
entails a limitation resulting in particular from long-term physical, mental or
psychological impairments which in interaction with various barriers may hinder
the full and effective participation of the person concerned in professional life on
an equal basis with other workers. It is for the national court to determine
whether, in the main proceedings, those conditions are met. (C-354/13)

18-12-2014: European Court of Justice Case C-413/13 (FNV Kunsten

Informatie
en
Media)
The European Court of Justice firstly held that Article 101 TFEU was not
applicable in this case, since this case concerns a purely internal situation
without impact on intra-Community trade. However, since Article 6 Mw faithfully
reproduces Article 101(1) TFEU, the European Court of Justice decided that it has
jurisdiction to give preliminary rulings on questions concerning EU law in
situations in which the facts in the main proceedings fall outside the direct
scope of that law, provided always that those provisions have been rendered
applicable by the national law, which adopted, for solutions applied to purely
internal situations, the same approach as that for solutions provided for under
EU
law.
The ECJ then went on to answer the questions. In principle, a collective labour
agreement concluded between associations of employers and associations of
employees, which intends to improve employment and working conditions must,
by virtue of their nature and purpose, be regarded as not falling within the scope
of Article 101(1) TFEU (see f.e. the Albany judgment). However, in this case, the
self-employed substitutes are to be seen as undertakings within the meaning of
Article 101(1) TFEU, because they offer their services for remuneration on a
given market and perform their activities as independent economic operators in
relation to their principal. Therefore, the organisation representing these service
providers and carrying out negotiations acting in their name, acts as an
association of undertakings. Therefore this agreement was not a proper
collective labour agreement, but an agreement falling within the scope of
Article
101(1)
TFEU.
However, the ECJ went on to warn that oftentimes, self-employed service
providers are false self-employed, that is to say, service providers in a situation
comparable to that of employees. According to settled case-law, this happens
when the person does not determine independently his own conduct on the
market, but is entirely dependent on his principal, because he does not bear any
of the financial or commercial risks arising out of the latters activity and
operates
as
an
auxiliary
within
the
principals
undertaking.
The fact that a person according to national law can be qualified as selfemployed, does not exclude the possibility that the person is to be regarded as
an employee according to the EU definition, which is defined according to
objective criteria that characterise the employment relationship. If the persons
independence is merely notional it disguises an employment relationship. The
ECJ held that the national court must decide whether the persons in this case

are genuinely self-employed or falsely self-employed. Therefore it must look

whether their relationship with the orchestra concerned is not one of
subordination during the contractual relationship, so that they enjoy more
independence and flexibility than employees who perform the same activity, as
regards the determination of the working hours, the place and manner of
performing the tasks assigned, in other words, the rehearsals and concerts.
The ECJ concluded that, if the substitutes would be classified by the national
courts as genuinely self-employed, the agreements that their representative
organisations would conclude, would fall within the scope of Article 101 TFEU. If
the national courts would conclude that the persons are actually to be regarded
as employees according to the EU definition, then the collective agreement
would not fall within the scope of Article 101 TFEU, if the agreement would
directly contribute to the improvement of the employment and working
conditions of those substitutes (as according to case law). The ECJ held that this
last condition would be satisfied, so the outcome of the case depends on the
classification by the national courts of the substitutes. (C-413/13)
05-12-2014: ECJ Case C-22/13 on Fixed-term Contracts (Mascolo and
others)
On 26 November 2014 the ECJ issued a judgment on preliminary questions
dealing with the interpretation of Clauses 4 and 5(1) of the Fixed-term Work
Agreement, of Article 2(1) and (2) of Council Directive 91/533, of the principle of
sincere cooperation (Article 4(3) TEU), and of the general principles of EU law
relating to legal certainty, the protection of legitimate expectations, equality of
arms in proceedings, effective judicial protection, the right to an independent
court or tribunal and a fair hearing (Article 6(2) TEU, read in conjunction with
Article 6 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms, and with Articles 46, 47 and 52(3) of the Charter of
Fundamental
Rights
of
the
European
Union).
Ms Mascolo and the other claimants were all staff members of publiclymaintained schools. They were recruited under successive fixed-term
employment contracts, for as much as up to 71 months over a period of nine
years, while they were never granted contracts of indefinite duration, a practice
according to Italian law. They claimed that those successive fixed-term
employment contracts were unlawful, and went to court, seeking the conversion
of the contracts into employment relationships of indefinite duration and,
consequently, their establishment as tenured staff, together with payment of
the salaries corresponding to the periods during which their employment was

interrupted between the end of one fixed-term contract and the commencement
of the next and, in the alternative, compensation for the damage suffered.
The ECJ held that Clause 5(1) of the framework agreement on fixed-term work
precludes national legislation that authorises the renewal of fixed-term
employment contracts for non-tenured staff to fill posts of teachers and
administrative, technical and auxiliary staff that are vacant and unfilled, without
stating a definite period for the completion of those procedures and while
excluding any possibility, for those teachers and staff, of obtaining
compensation for any damage suffered on account of such a renewal. This is so,
because it appears that such legislation, first, does not permit objective and
transparent criteria to be identified in order to verify whether the renewal of
those contracts actually responds to a genuine need, is capable of achieving the
objective pursued and is necessary for that purpose, and second, does not
contain any other measure intended to prevent and punish the misuse of
successive fixed-term employment contracts. The final decision in this case
should be made by the referring courts, who have to judge the circumstances of
every case. (C-22/13)
05-12-2014: ECJ Case C-315/13 on posted workers (De Clercq and
Others)
Thermotec NV is a Belgian company which produces industrial cooling systems.
Its sister company, Thermotec sp. z o.o., was established in Poland (carrying out
the
same
activity
as
Thermotec
NV).
During an inspection carried out on 5 May 2008 at the headquarters of
Thermotec NV, the social inspection services noted the presence of four Polish
workers, three of whom were employed by Thermotec sp. z o.o. Thermotec sp. z
o.o. had not requested E 101 forms for these employees. Furthermore, with
respect to the period prior to 1 April 2007, the defendants had not forwarded the
names of those workers or the names and addresses of their employers to the
social inspection service on their first working day. With respect to the period
after that date, the data for identifying the persons who had been unable to
submit the acknowledgement of receipt had not been forwarded.
On 21 November 2008, E 101 forms with retroactive validity were delivered by
the
Polish
social
inspection
service.
A report was drawn up of the infringements committed by Thermotec sp. z o.o.
Furthermore, by decision of 17 February 2012, Thermotec NV and its four
directors had to appear before the referring court to answer two charges. This
was not because they failed to make the pre-posting declaration which is

required of employers of posted workers, but because, as end-users or

contractors, they failed to forward the data for identifying persons who were
unable
to
submit
the
acknowledgement
of
receipt.
The Court decided to stay the proceedings and to refer the following question to
the
Court
of
Justice
for
a
preliminary
ruling:
Must the provisions of Articles 56 TFEU and 57 TFEU and Article 3(1) and (10) of
[Directive 96/71], whether or not read in conjunction with Article 19 of [Directive
2006/123], be interpreted as precluding Article 141 of the [Programme Law]
under which a person for whom work is performed, either directly or through
subcontracting, by posted employees or posted trainees is placed under an
obligation to make a declaration to the National Office for Social Security by
electronic means (or failing that, by fax or by letter), prior to the
commencement of the employment or training of those persons, of the data for
identifying those persons who are unable to submit the [acknowledgement of
receipt], in conjunction with Article 157 of the [Programme Law] and Article
183(1)(1) of the Social Criminal Code, which penalises non-compliance with that
obligation
by
criminal
penalties?
The ECJ then held that Articles 56 TFEU and 57 TFEU allow a Member State to
lay down legislation under which the recipient of services performed by workers
posted by a service provider established in another Member State is required to
declare to the competent authorities, before those workers begin to work, the
data identifying those workers who are unable to submit proof of the declaration
which their employer should have made to the competent authorities of that
host Member State prior to the commencement of that provision of services.
After all, such legislation is capable of being justified as safeguarding an
overriding ground of public interest, such as the protection of workers or the
combating of social security fraud, when that legislation is appropriate for
ensuring the attainment of the legitimate objective or objectives pursued and
that it does not go beyond what is necessary to achieve them. These facts are
matters for the referring court to determine. (C-315/12)
13-11-2014: ECJ Case C-476/12 sterreichischer Gewerkschaftsbund v
Verband
sterreichischer
Banken
In this case, the Austrian trade union in the banking sector started court
proceedings against the employers representatives in the banking sector,
before the Supreme Court. The subject of the issue was that part-time workers
falling within the scope of the applicable collective agreement in that sector,
were entitled to only an amount of dependent child allowance which was

calculated pro rata on the number of hours worked. The dependent child
allowance is paid by the employer to meet part of the employees expenses for
the maintenance of his or her child. The trade union held that the use of the
principle of pro rata temporis principle as is laid down in the Directive on Parttime Work (Clause 4.2.) was not appropriate with regard to this allowance.
The Supreme Court referred questions to the ECJ, asking whether the principle of
pro rata temporis should be applied to this allowance. If this is the case, could
the disadvantage suffered by the part-time workers that results from making a
proportionate reduction in the dependent child allowance paid (to reflect their
shorter working hours) be objectively justified under Clause 4.1 of the
Framework Agreement? The third ensuing question was that if the pro rata
temporis should not be applied and no objective justification could be given for
its use, does Article 28 of the Charter of Fundamental Rights of the European
Union render invalid all the provisions of the collective agreement relating to
that area (in this case, child allowance) if the national practice is to render
invalid certain parts of the collective agreement when only a point of detail in
the
collective
agreement
breaches
an
EU
law
rule?
The ECJ observed that the dependent child allowance concerned is not a benefit
provided for by law and paid by the State, but is paid by the employer pursuant
to a collective agreement, and as such it could not be seen as a social security
benefit, within the meaning of EC Regulation 883/2004; however, it does
constitute pay to the worker, which is determined by the terms of the
employment relationship agreed between the worker and the employer. For
part-time workers, the pro rata temporis calculation of the dependent child
allowance therefore was objectively justified within the meaning of Clause 4.1 of
the Framework agreement on part-time work, as the ECJ has already decided in
other cases as well. It was also deemed to be appropriate within the meaning of
Clause 4.2, since the dependent child allowance was an advantage that was
paid
in
cash
to
workers
and
was
thus
a
divisible
benefit.
The ECJ thus concluded that the principle pro rata temporis as laid down in
Clause 4.2 of Directive 97/81/EC applies to the calculation of the amount of a
dependent child allowance paid by an employer to a part-time worker pursuant
to a collective agreement such as that applicable to the employees of Austrian
banks and bankers. Therefore, it did not move on to answer preliminary
questions 1 and 2. (C-476/12)
05-11-2014: ECHR Case 38162/07 on the barring of a former Securitate
collaborator from public-service employment (Naidin v. Romania)

In this case, Mr. Naidin was elected to Parliament in 2000 when when the
National Council for the study of the former political police archives (the
CNSAS) carried out checks ex officio (in accordance with the Law no. 188/1999
on the status of civil servants) into the applicants past. The CNSAS concluded
that Mr Naidin had collaborated with the Securitate, the political police under
the
former
communist
regime,
between
1971
and
1974.
In 2003, a new Article 50 was introduced into the Law no. 188/1999, barring
individuals found to have worked with the political police from employment in
the public service. On the basis of this legislation, in 2004, Mr. Naidin was
refused
a
place
on
the
reserve
list
of
deputy
prefects.
The Court ECHR noted that Article 50 had introduced a difference in treatment
between persons wishing to take up or resume employment in the public
service,
based
on
their
past
conduct.
However, the Constitutional Court held that the barring of former collaborators
of the political police from public-service employment was justified by the
loyalty expected from all civil servants towards the democratic regime, and the
recognised that States had a legitimate interest in regulating employment
conditions in the public service. The ECHR found the difference in treatment
applied to Mr Naidin to have a legitimate aim (protecting national security,
public safety and the rights and freedoms of others and to be proportional (the
applicant could still obtain employment in the private sector, in companies with
potential implications for the States economic, political and security-related
interests, and in other areas of the public sector which did not involve the
exercise
of
public
authority).
The Court thus concluded that there had been no violation of Article 8 taken in
conjunction with Article 14 of the Convention. (38162/07)
28-10-2014: ECHR Case 73571/10 on Freedom of Expression and Labour
Obligations(Matz
v.
Hungary)
The applicant is a television journalist who was employed by the State television
company. At the material time, he also was chairman of the Trade Union of
Public Service Broadcasters. Following the appointment of a new cultural
director, the applicant had contacted the television companys president, since
he had perceived the new directors conduct in modifying and cutting certain
contents of his TV show as censorship. He had received no response to his
complaint. Later, the applicant published a book, which contained an full
versions of from different censured interviews and in-house letter exchanges
between the cultural director and the editor-in-chief concerning the suggested

changes in the programme. The day after the publication, the television
company dismissed from employment the applicant with immediate effect. The
reason for the applicants summary dismissal was that, by publishing the book
in question, he had breached the confidentiality clause contained in his labour
contract.
The Court considered that the disciplinary measure dismissing the applicant for
publishing a book containing confidential information about his employer, as
endorsed by the Hungarian courts, constituted an interference with the exercise
of the right protected by Article 10 of the Convention. An interference with the
applicants rights under Article 10 1 will infringe the Convention if it does not
meet the requirements of paragraph 2 of Article 10. It should therefore be
determined whether it was prescribed by law, whether it pursued one or more
of the legitimate aims set out in that paragraph and whether it was necessary
in a democratic society in order to achieve those aims. The Court held that
there had been a violation of Article 10 of the Convention, which was not
justifed. Therefore, the State had to pay compensation to the applicant.
(73571/10)
28-10-2014: ECJ Case C-252/13 on maternity leave (Commission v the
Netherlands)
The Commission started proceedings against the Netherlands, stating that the
Netherlands allegedly did not establish sufficiently clearly that, if female workers
returning after the end of the period of maternity leave are confronted with less
favourable employment conditions, this is contrary to the prohibition on
discrimination on the grounds of pregnancy, childbirth and motherhood.
However, the ECJ had to dismiss the action, because not all of the formalities of
Article 258 EU Treaty (ex 226 EC) were complied with. More specifically, the
Commission does not identify any rule of Netherlands law whose content or
application is contrary to the wording or to the objective of the relevant
provisions of Directive 2006/54. Therefore, the Court held that it was not able, in
full knowledge of the relevant facts, to rule on the form of order sought in the
application. (C-252/13)
22-10-2014:
ECHR
Case
48408/12
(Tymoshenko
v
Ukraine)
The case concerned the ban on a strike by AeroSvit Airlines cabin crew. In
September 2011 Aerosvit cabin crew decided to embark on industrial action
seeking resolution of a labour dispute with the management of Aerosvit over a
number of issues, including salaries, allowances and safety. The relevant

authorities were notified of the decision to hold a strike. Following a claim

lodged by Aerosvit in October 2011, the domestic courts banned the strike on
the ground that it would be unlawful. The courts relied on the Transport Act,
which prohibits strikes at transport enterprises if they affect the transportation
of passengers and on the Resolution of Labour Disputes Act, which prohibits
strikes if they are likely to endanger human life or health. Relying on Article 11
(freedom of assembly and association) of the Convention, the applicants
complained
about
that.
The Court considers, and this was the common ground between the parties, that
the ban on the proposed strike action constituted an interference with the
applicants right to freedom of association under Article 11 of the Convention.
Having regard to its case-law illustrating that strike action is clearly protected by
Article 11 the Court sees no reasons for holding otherwise. The Court further
notes that such interference will constitute a breach of Article 11 of the
Convention unless it was prescribed by law, pursued one or more legitimate
aims and was necessary in a democratic society for the achievement of those
aims. Moreover, the court stated that the respondent State is to pay to the
applicants jointly in accordance with Article 44 2 of the Convention, EUR
20,000 in respect of non-pecuniary damage. (48408/12)
21-10-2014:
ECJ
Case
C-221/13
(Mascellanie)
This request for a preliminary ruling concerns the interpretation of the
Framework Agreement on part-time work concluded on 6 June 1997 (the
Framework Agreement) which is annexed to Council Directive 97/81/EC of 15
December 1997 concerning the Framework Agreement on part-time work
concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9).The request has
been made in proceedings between Ms Mascellani and the Ministero della
Giustizia (Ministry of Justice) concerning a decision ordering the conversion of
her part-time employment relationship into a full-time employment relationship.
The Court (Third Chamber) ruled that the Framework Agreement on part-time
work concluded on 6 June 1997 which is annexed to Council Directive
1997/81/EC of 15 December 1997, concerning the Framework Agreement on
part-time work concluded by UNICE, CEEP and the ETUC, in particular Clause 5.2
thereof, must be interpreted as meaning that, in circumstances such as those in
the main proceedings, it does not preclude national legislation pursuant to which
the employer may order the conversion of a part-time employment relationship

into a full-time employment relationship without the consent of the worker

concerned. (C-221/13)
10-10-2014: ECJ Case C-515/13 on the application of Directive
2000/78/EC
(Ingenirforeningen
i
Danmark)
In this case, the Danish stre Landsret referred a preliminary question to the ECJ
concerning the interpretation of the prohibition of direct discrimination on
grounds of age contained in Articles 2 and 6 of Directive 2000/78/EC. The
question is whether the prohibition of direct discrimination on grounds of age
contained in Articles 2 and 6 of Directive 2000/78/EC precludes a Member State
from maintaining a legal situation whereby an employer, upon dismissal of a
salaried employee who has been continuously employed in the same
undertaking for 12, 15 or 18 years, must, upon termination of the salaried
employees employment, pay an amount equivalent to one, two or three
months salary respectively, while this allowance is not to be paid where the
salaried employee, upon termination of employment, is entitled to receive a
State retirement pension? (C-515/13)
26-09-2014: ECJ case C-549-/13 on free movement of services and
posting
(Bundesdruckerei)
In this case, a German court issued a preliminary question concerning the
interpretation of Article 56 TFEU and Article 3(1) of Directive 96/71/EC. Stadt
Dortmund had laid down in their tendering specifications relating to a public
service contract the obligation to guarantee payment of a minimum wage to the
employees of subcontractors of tenderers, provided for by legislation of the Land
to which the public contracting authority belongs, even in the case where the
subcontractor concerned is established in another Member State and all of the
services relating to the performance of the contract concerned are to be carried
out
in
that
other
Member
State.
The court ruled that in a situation such as that at issue in the main
proceedings, in which a tenderer intends to carry out a public contract by having
recourse exclusively to workers employed by a subcontractor established in a
Member State other than that to which the contracting authority belongs, Article
56 TFEU precludes the application of legislation of the Member State to which
that contracting authority belongs which requires that subcontractor to pay
those workers a minimum wage fixed by that legislation. (C-549/13)
26-09-2014:

ECJ

Case

C-396/13

(Shkalojen

ammattiliitto

ry

Elektrobudowa
Spka
Akcyjna),
pending
In this case, a Finnish court requested a preliminary ruling. The facts of the case
were summarized in the opinion of Advocate-General Wahl: An undertaking
established in Poland posts workers to Finland in order to carry out work at the
construction site of a nuclear power plant. Under collective agreements of
universal applicability in the relevant sector in Finland, the workers are entitled
to certain rights, including a minimum wage that consists of several different
elements. The workers subsequently assign the pay claims arising from those
collective agreements to a Finnish trade union. The trade union then brings
proceedings against the employer seeking to enforce those rights. Two issues
arise. Firstly, the referring court asks for guidance in relation to the choice of law
to be applicable as to the assignment of pay claims. Whereas assignment to a
third party (here: a trade union) is allowed under Finnish law and even
constitutes a common practice in this particular context such assignment
appears to be prohibited under Polish law. Secondly, the referring court enquires
as to how the concept of minimum rates of pay ought to be construed for the
purposes of Directive 96/71. That directive requires the host Member State to
ensure a minimum level of protection (concerning, inter alia, pay) for workers
posted within its territory. In that respect, the Court has now the opportunity to
revisit its extensive body of case-law in this field and to provide, to the extent
possible, a positive definition of the concept of minimum rates of pay within the
context of posting of workers. (C-396/13)
17-09-2014: ECJ Judgment in case C-328/13 (sterreichischer
Gewerkschaftsbund)
Case initiated by the Austrian Trade Union (sterreichischer
Gewerkschaftsbund), against the Austrian employers association for bus,
aviation and marine companies.
In this case, the Austrian Supreme Court decided to refer the following questions
to the Court of Justice for a preliminary ruling:
1. Is the wording of Article 3(3) of Directive [2001/23], according to which the
terms and conditions agreed in any collective agreement and applicable to the
transferor must continue to be observed on the same terms until the date of
termination or expiry of the collective agreement, to be interpreted as also
covering terms and conditions laid down by a collective agreement which have
continuing effect indefinitely under national law, despite the termination of the
collective agreement, until another collective agreement takes effect or the
employees concerned have concluded new individual agreements?

2. Is Article 3(3) of Directive [2001/23] to be interpreted to the effect that

application of another collective agreement of the transferee is to be
understood as including the continuing effect of the likewise terminated
collective agreement of the transferee in the abovementioned sense?
The ECJ ruled that Article 3(3) means that the terms and conditions laid down in
a collective agreement, which, pursuant to the law of a Member State, despite
the rescission of that agreement, continue to produce their effects as regards
the employment relationship which was governed by them before the
agreement was terminated, constitute terms and conditions agreed in any
collective agreement so long as that employment relationship is not subject to
a new collective agreement or a new individual agreement is not concluded with
the employees concerned. (C-328/13)
17-09-2014: Preliminary question to the ECJ in case C-533/13 (Auto- ja
Kuljetusalan Tyntekijliitto AKT ry v ljytuote ry, Shell Aviation
Finland Oy)
In this case, the Finnish Court Tytuomioistuin referred the following questions to
the ECJ:
(a) Must Article 4(1) of the Temporary Agency Work Directive 2008/104 be
interpreted as laying down a permanent obligation on national authorities,
including the courts, to ensure by the means available to them that national
provisions or clauses in collective agreements contrary to that provision of the
directive are not in force or are not applied?
(b) Must Article 4(1) of the directive be interpreted as precluding a national
provision under which the use of temporary agency labour is permitted only in
the cases specially listed, such as to cope with peak periods of work or for work
which cannot be given to an undertakings own employees to do? May the use
of agency workers for a lengthy period in the ordinary work of an undertaking
alongside the undertakings own employees be defined as a prohibited use of
agency labour?
(c) If the national provision is found to be contrary to the directive, what
methods does a court have for achieving the objectives of the directive where a
collective agreement to be observed by individuals is concerned?
The judgment is to be expected on 4 October 2014. (C-533/13)
15-07-2014: Preliminary question to the ECJ in case C-418/13
(Napolitano)
In this case, the Italian Corte Costituzionale referred the following questions to

the
ECJ:
1. Must clause 5(1) of the Framework Agreement on Fixed-Term Work annexed to
Council Directive No 1999/70/EC be interpreted as precluding the application of
Article 4(1) in fine and (11) of Act No 124 of 3 May 1999 adopting urgent
provisions concerning school employees (Legge No 124, disposizioni urgenti in
material di personale scolastico) which, after laying down rules on the allocation
of annual replacements for posts that are in fact vacant and free by 31
December, goes on to provide that this is to be done by allocating annual
replacements pending the completion of competition procedures for the
recruitment of permanent members of the teaching staff a provision that
permits fixed-term contracts to be used without a definite period being fixed for
completing the competition, and in a clause that provides no right to
compensation
for
damage?
2. Do the requirements of the organisation of the Italian school system set out
above constitute objective reasons within the meaning of Clause 5(1) of
Directive 1999/70/EC of such a kind as to render compatible with the law of the
European Union legislation, such as the Italian legislation, that does not provide
a right to compensation for damage in respect of the appointment of school staff
on fixed-term contracts? (C-418/13)
15-07-2014: Preliminary question to the ECJ in case C-61/13 (Forni), C62/13 (Racca)
In this case, the Tribunale di Napoli referred the following questions to the ECJ:
1. Does the regulatory framework for the schools sector [which allows for a
succession of fixed-term contracts, without interruption of continuity, with the
same teacher for an indeterminate number of times, including in order to
address permanent staffing needs] constitute an equivalent measure within the
meaning of Clause 5 of [the framework agreement set out in the annex to]
Directive 1999/70/EC?
2. When is an employment relationship to be regarded as being for the public
service of the "State", for the purposes of Clause 5 of [the framework agreement
set out in the annex to] Directive 1999/70/EC and, in particular, within the
meaning of the expression "specific sectors and/or categories of workers", and
thus capable of justifying results that are different from those which ensue from
employment relationships in the private sector?
3. Having regard to the explanations contained in Article 3(1)(c) of Directive
2000/78/EC and in Article 14(1)(c) of Directive 2006/54/EC, does the notion of
employment conditions contained in Clause 4 of [the framework agreement set

out in the annex to] Directive 1999/70/EC also include the consequences of the
unlawful interruption of an employment relationship? If the answer to the
preceding question is in the affirmative, is the difference between the
consequences normally provided for in national law for the unlawful interruption
of fixed-term employment relationships and for the unlawful interruption of
employment relationships of indefinite duration justifiable under Clause 4?
4. By virtue of the principle of sincere cooperation, is a State precluded from
presenting to the Court of Justice of the European Union in a request for a
preliminary ruling a deliberately untrue description of a national legislative
framework and are the national courts obliged, in the absence of any alternative
interpretation of national law that also satisfies the obligations deriving from
membership of the European Union to the same degree, to interpret, where
possible, national law in accordance with the interpretation given by the State?
5. Is a statement of the circumstances in which a fixed-term employment
contract may be converted into a permanent contract one of the conditions
applicable to the contract or employment relationship contemplated by Directive
91/533/EEC, in particular by Article 2(1) and (2)(e) thereof?
6. If the answer to the preceding question is in the affirmative, is a retroactive
amendment to the legislative framework which does not guarantee that
employees can claim the rights conferred on them by the directive, that is to
say, that the conditions of employment specified in the document under which
they were recruited will be observed, contrary to Article 8(1) of Directive
91/533/EEC and to the objectives of that directive, in particular those mentioned
in the second recital of the preamble thereto?
7. Must the general principles of [European Union] law presently in force
concerning legal certainty, the protection of legitimate expectations, procedural
equality, effective judicial protection, the right to an independent court or
tribunal and, more generally, the right to due process, guaranteed by Article
6(2) of the Treaty on European Union (as amended by Article 1.8 of the Treaty of
Lisbon and as referred to by Article 46 TEU), read in conjunction with Article 6 of
the European Convention for the Protection of Human Rights and Fundamental
Freedoms, signed in Rome on 4 November 1950, and with Articles 46, 47 and
52(3) of the Charter of Fundamental Rights of the European Union, proclaimed in
Nice on 7 December 2000, as incorporated in the Treaty of Lisbon, be
interpreted as precluding, within the scope of Directive 1999/70/EC, the
adoption by the Italian State, after a significant period of time (three and a half
years), of a legislative provision such as Article 9 of Decree-Law No 70 of 13 May
2011, converted by way of Act No 106 of 12 July 2011, [which] added to Article

10 of Legislative Decree No 368/01 a paragraph 4a which is liable to alter the

consequences of on-going proceedings by directly placing at a disadvantage the
worker and benefiting the State in its capacity as employer, and by eliminating
the possibility conferred by the national legal system of penalising the abusive
repeated renewal of fixed-term contracts? (C-61/13) (C-62/13)
15-07-2014: Preliminary question to the ECJ in case C-63/13 (Russo)
In this case, the Tribunale di Napoli referred the following questions to the ECJ:
1. When is an employment relationship to be regarded as being for the public
service of the 'State', for the purposes of Clause 5 of [the framework agreement
set out in the annex to] Directive 1999/70/EC and, in particular, within the
meaning of the expression 'specific sectors and/or categories of workers', and
thus capable of justifying results that are different from those which ensue from
employment relationships in the private sector?
2. Having regard to the explanations contained in Article 3(1)(c) of Directive
2000/78/EC and in Article 14(1)(c) of Directive 2006/54/EC, does the notion of
employment conditions contained in Clause 4 of [the framework agreement set
out in the annex to] Directive 1999/70/EC also include the consequences of the
unlawful interruption of an employment relationship? If the answer to the
preceding question is affirmative, is the difference between the consequences
normally provided for in national law for the unlawful interruption of fixed-term
employment relationships and for the unlawful interruption of employment
relationships of indefinite duration justifiable under Clause 4?
3. By virtue of the principle of sincere cooperation, is a State precluded from
presenting to the Court of Justice of the European Union in a request for a
preliminary ruling a deliberately untrue description of a national legislative
framework and are the national courts obliged, in the absence of any alternative
interpretation of national law that also satisfies the obligations deriving from
membership of the European Union to the same degree, to interpret, where
possible, national law in accordance with the interpretation given by the State?
(C-63/13)
10-07-2014: ECJ Judgment in case C-362/13, C-363/13, and C-407/13
(Fiamingo)
In Italy, the employment contracts of seafarers are governed by the Navigation
Code. Considering that their fixed-term employment contracts had been
unlawfully terminated, the seafarers concerned brought an action before an
Italian court seeking a declaration that those contracts were void and their

conversion
into
contracts
of
indefinite
duration.
The ECJ remarked first that to implement the Framework Directive effectively,
the national authorities are required to adopt measures that are proportionate,
effective and dissuasive in order to ensure that the measures taken pursuant to
the Framework Agreement are fully effective. According to the ECJ, the Italian
legislation complied with those requirements since it provided for both a
preventive measure (maximum duration of one year for successive fixed-term
contracts) and a penalty in the event of abuse (conversion of successive fixedterm contracts into an employment relationship of indefinite duration, where a
worker has been employed continuously by the same employer for longer than
one
year).
Therefore, the Italian law setting a maximum period of one year for successive
fixed-term contracts for seafarers and by laying down a penalty in the event of
misuse of such contracts, complies with the principles of EU law. National courts
must carry out an assessment in each case to satisfy themselves that such
contracts are not misused by employers. (C-362/13, C-363/13, C-407/13)
26-06-2014: ECJ Case C-413/13 (Kunsten Informatie en Media), Pending
Case
and
lodged
on
22
July
2013
(26-06-2014)
On 22 July 2013, the Gerechtshof Den Haag (Netherlands) lodged a request for a
preliminary
ruling
to
the
European
Court
of
Justice.
The Dutch court raised the questions if the competition rules of European Union
law must be interpreted as meaning that a provision in a collective labour
agreement concluded between associations of employers and associations of
employees, which provides that self-employed persons who, on the basis of a
contract for professional services, perform the same work for an employer as
the workers who come within the scope of that collective labour agreement
must receive a specific minimum fee, falls outside the scope of Article 101 TFEU,
specifically on the ground that that provision occurs in a collective labour
agreement?
If the answer to the first question is in the negative, does that provision then fall
outside the scope of Article 101 TFEU in the case where that provision is (also)
intended to improve the working conditions of the employees who come within
the scope of the collective labour agreement, and is it also relevant in that
regard whether those working conditions are thereby improved directly or only
indirectly?
On 18 July 2014, first oral proceedings took place. (C-413/13)

26-06-2014:
ECJ
Case
C-507/12
(Saint
Prix)
(26-06-2014)
This request for a preliminary ruling concerns the interpretation of worker for
the purposes of Article 45 TFEU and Article 7 of Directive 2004/38/EC of the
European Parliament and of the Council of 29 April 2004 on the right of citizens
of the Union and their family members to move and reside freely within the
territory of the Member States amending Regulation (EEC) No 1612/68 and
repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC,
75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158,
p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34). The
request has been made in the context of proceedings between Ms Saint Prix and
the Secretary of State for Work and Pensions (the Secretary of State)
concerning the latters refusal to grant income support to Ms Saint Prix.
The Court ruled that Article 45 TFEU must be interpreted as meaning that a
woman who gives up work, or seeking work, because of the physical constraints
of the late stages of pregnancy and the aftermath of childbirth retains the status
of worker, within the meaning of that article, provided she returns to work or
finds another job within a reasonable period after the birth of her child. (C507/12)
25-06-2014:
ECJ
Case
C-118/13
(Bollacke)
The ECJ stated in one of its latest ruling on paid annual leave that national
legislation and practice which, in the event of a worker`s death, precludes
payment of the allowance in lieu of paid annual leave not taken is contrary to EU
law. Moreover, the Court ruled that allowance does not depend on a prior
application
by
the
interested
party.
Therefore, Article 7 of Directive 2003/88/EC of the European Parliament and of
the Council of 4 November 2003 concerning certain aspects of the organisation
of working time must be interpreted as precluding national legislation or
practice, such as those at issue in the main proceedings, which provide that the
entitlement to paid annual leave is lost without conferring entitlement to an
allowance in lieu of leave outstanding, where the employment relationship is
terminated by the death of the worker. Receipt of such an allowance is not to be
dependent on a prior application by the interested party. (C-118/13)
03-06-2014: ECJ Case C-328/13 - sterreichischer Gewerkschaftsbund
The German Oberster Gerichtshof has requested a preliminary Ruling with the
ECJ with regard to the interpretation of Article 3 (3) of Council Directive
2001/23/EC
(Transfer
of
Undertakings).

The
questions
referred
are:
a. Is the wording of Article 3(3) of Directive 2001/23/EC, 1 according to which
the terms and conditions agreed in any collective agreement and applicable to
the transferor must continue to be observed on the same terms until the date
of termination or expiry of the collective agreement, to be interpreted as also
covering terms and conditions laid down by a collective agreement which have
continuing effect indefinitely under national law, despite the termination of the
collective agreement, until another collective agreement takes effect or the
employees concerned have concluded new individual agreements?
b. Is Article 3(3) of Directive 2001/23/EC to be interpreted to the effect that
application of another collective agreement of the transferee is to be
understood as including the continuing effect of the likewise terminated
collective agreement of the transferee in the abovementioned sense? (C-328/13)
27-05-2014: ECJ Judgment in case C-539/12 Lock vs British Gas Trading
Ltd
and
Others
An Employment Tribunal in the UK referred a case to the ECJ about the
interpretation of Article 7 of Directive 2003/88 on the right to paid annual leave.
Mr Lock was a sales consultant, whose remuneration consisted of two
components: a basic salary and a commission on the basis of the outcome of his
work (the number of contracts he concluded with customers). According to UK
legislation and the employers system, Mr. Lock received pay during his annual
leave, which consisted of basic salary of that month and commission that was
due to him from previous months. However, during his annual leave, he did not
make any sales and thus the months after his annual leave, his monthly total
remuneration was considerably lower. The ECJ held that the right to annual leave
is an important social right, which means that workers must receive their normal
remuneration for that period of rest. Because Mr. Lock, in the period following
that of his annual leave, was paid only reduced remuneration comprising his
basic salary, this might deter him from actually exercising his right to take that
leave. Therefore, Article 7(1) of Directive 2003/88/EC precludes national
legislation and practice under which a worker whose remuneration consists of a
basic salary and commission, the amount of which is fixed by reference to the
contracts entered into by the employer as a result of sales achieved by that
worker, is entitled, in respect of his paid annual leave, to remuneration
composed exclusively of his basic salary. (C-539/12)

27-05-2014: Preliminary question to ECJ, Case C-221/13 Mascellani

The Italian Tribunale di Trento referred a question to the ECJ about the
interpretation of Clause 5.2 of the Agreement implemented by the Part-time
Work Directive 97/81/EC. This Clause reads: A workers refusal to transfer from
full-time to part-time work or vice-versa should not in itself constitute a valid
reason for termination of employment, without prejudice to termination in
accordance with national law, collective agreements and practice, for other
reasons such as may arise from the operational requirements of the establis
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