Aligning up to join

The European court of justice is the key guardian of EU legislation, and its
importance within the UK and other EU member states is widely accepted.  Its authority over European employment is
only going to grow over the next 10 years, says Keith Nuttall, who reviews some
of the latest decisions

Eastern Europe

National and EU employment law

The planned accession of eastern European countries to the European Union
means that EU employment directives will soon shape the law of their lands and
their national courts will become subject to ECJ rulings and case law.

Poland, the Czech Republic, Hungary and Estonia are in the lead for the race
to join, and are expected to become members by 2006. In the meantime,
negotiations are continuing with all applicants, who also include Turkey and
Cyprus, over aligning their employment laws with existing EU legislation. For
instance, a series of committees has been set up to speed the harmonising of
Turkish laws and social practices with EU standards.

Rights to work

The extension of rights to work and live in EU countries to millions of
workers from eastern Europe has, unsurprisingly, raised a few concerns among
political leaders in western Europe, especially as the wealth of the new
members is significantly below those of existing member states; a flood of
jobless immigrants is the fear or many western governments.

As a result, the Commission has proposed that for new east European member
states, a transitional arrangement should apply, where for up to five years
following accession, workers in these countries would be denied the right to
live and work in any part of the EU. This period could be reduced or increased,
(by up to two years).


Working time directive

The future power of the ECJ in these countries was underlined by a recent
preliminary ruling by a court Advocate General. This regards English laws that
allow UK employers to refuse leave entitlement to workers who have not been in
13 weeks’ continual service, and to make lieu payments for unclaimed holiday.
In a case that was brought by the broadcasting union Bectu, the Advocate
General ruled that under the EU working time directive, the "British law
was unlawful," because it "is prejudicial to workers who have
contracts of less than 13 weeks."

The aim of the directive, he said, was "the harmonisation and
improvement of the working environment. It provides for minimum requirements;
the Member states may only go beyond those standards in a way that is
favourable to workers. These minimal standards cannot be subordinated to purely
economic considerations."

Judges sitting as a full court usually broadly follow the advice of their
advocate generals, so this preliminary ruling will probably take effect. Having
done so, under EU treaties, the British government will have no choice but to
implement it.


Failure to comply

Any failure to comply with EU rulings can have expensive consequences. For
instance, the ECJ has recently censured Greece for missing a 1999 deadline for
setting up occupational social security schemes that did not discriminate
between men and women. The Greeks have now complied, and will be well aware of
the dangers of failing to comply with ECJ rulings. This year, Athens became the
first EU government to pay fines for ignoring European court rulings; it paid
4.78 million euros for failing to close down an illegal waste dump.


Working time legislation

Other EU countries, which have recently been the subject of ECJ rulings,
include Spain, where judges have pronounced on working time legislation. The
court ruled that doctors should be considered to be working when they were present
and on call at a health centre where they worked, even if they were having a
break. By contrast, under EU working time directives, if they were on call
while at home, they would not be considered working. Spanish doctors in primary
health care teams, who were claiming that they were required to work without
the benefit of any time limit, whether daily, weekly, monthly or annual, had
brought the case. The court ruled that the doctors’ rosters should have been
governed by working time legislation, which protects them from being forced to
work unlimited hours. As with any ECJ ruling, this ruling can be used as a
precedent across the EU.



The court has also ruled that directive 77/187 on the transfer of
undertakings, guaranteeing worker rights during the transfer of ownership of an
organisation, should not only apply during a private sector takeover, but also
when control of an operation is assumed by a public authority. This case
centred on a French public relations officer, whose non-profit PR organisation
was taken over by the city of Metz. He lost his job in the shake-up, but
claimed that his post should have been protected under EU law. In an advisory
ruling to a French labour tribunal, judges backed his position.

Netherlands and Belgium

Occupational pensions

The court has ruled that a member state should not reduce the pension of a
salaried worker, because his or her spouse is receiving a pension from another
EU country, when that payment has not led to an increase in their net income.
Judges said that that the right of workers to move freely within the EU would
be "impeded" if social payments from one country are lost or reduced,
because a benefit of the same kind awarded to a worker’s spouse is taken into
account. A pensioner who had worked in both the Netherlands and Belgium, and
was entitled to payments from both countries, had brought the case.


Obligation on employers

Sometimes the ECJ judges must negotiate their way around legislation that is
a compromise between establishing clear EU-wide rights and the authority of
national governments to frame their own employment legislation.

Lathe operator Wolfgang Lange was dismissed from his job because he refused
to take on some overtime. He claimed that he had not been told that his
employment was conditional on him carrying out overtime as required. The ECJ
was asked to rule on whether directive 91/533/EEC would prevent a worker being
sacked, where he or she had breached a condition of employment about which they
had not been informed.

Although the judges said that the directive insisted that workers should be
given written notice of any essential elements of their contract of employment,
it refused to say that by not doing so, a particular contract was made null and
void. It was ruled that member states have the authority to decide what should
happen if a company failed to tell its employees of what circumstances might
lead them to losing their job.

Part-time workers

The ECJ has refused to strengthen the position of part-time workers under EU
law. It was considering the case of Barbel Kachelmann, a German banker who was
employed for 30 hours a week and lost her job when her employer, Bankhaus
Hermann Lampe decided on a round of redundancies. She went to court, arguing
that the bank had singled her out as a part-timer and should have considered
all the workers together as candidates for redundancy, particularly as she had
offered to switch to a full-time position, if necessary. She claimed sexual
discrimination at the workplace under directive 76/207/EEC, because many more
women are part-time workers than men. However, the ECJ has ruled, again in an
advisory ruling, that it would be unfair according to EU law to force companies
to consider part-time workers along with full-timers, when allocating staff for
redundancy. It said that such a ruling would "have the effect of placing
part-time workers at an advantage."


European Free Trade Area

One often overlooked aspect of the European law circuit, is the court of the
European Free Trade Area, (Efta), whose cases carry the power of precedent in
the ECJ and EU national courts. This is because of treaty commitments linking
three of its member countries – Norway, Iceland and Liechtenstein – in the
so-called European Economic Area. Its cases follow similar lines to those in
the ECJ, looking at freedom of movement of labour and national discrimination.

A recent colourful case is likely to force Norwegian seafarers to undergo
medical examinations at sea by foreign ship doctors. Health officials in the
Scandinavian kingdom have fought a rearguard battle to prevent European
Economic Area (EEA) regulations from coming into force, which would scrap
restrictions on foreign medics practicing on Norwegian ships. Until now, these
doctors have had to be approved by Norway’s health authorities or be licensed
to practice in the country. But these rules are likely to be swept away,
because of a ruling by the Efta court. As a result, any similar restrictions in
the EU, as well as Efta, would have to be re-examined by national governments.

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