Previous Article Next Article Aligning up to joinOn 1 Jun 2001 in Personnel Today The European court of justice is the key guardian of EU legislation, and itsimportance within the UK and other EU member states is widely accepted. Its authority over European employment isonly going to grow over the next 10 years, says Keith Nuttall, who reviews someof the latest decisionsEastern EuropeNational and EU employment law The planned accession of eastern European countries to the European Unionmeans that EU employment directives will soon shape the law of their lands andtheir national courts will become subject to ECJ rulings and case law. Poland, the Czech Republic, Hungary and Estonia are in the lead for the raceto join, and are expected to become members by 2006. In the meantime,negotiations are continuing with all applicants, who also include Turkey andCyprus, over aligning their employment laws with existing EU legislation. Forinstance, a series of committees has been set up to speed the harmonising ofTurkish laws and social practices with EU standards. Rights to work The extension of rights to work and live in EU countries to millions ofworkers from eastern Europe has, unsurprisingly, raised a few concerns amongpolitical leaders in western Europe, especially as the wealth of the newmembers is significantly below those of existing member states; a flood ofjobless immigrants is the fear or many western governments. As a result, the Commission has proposed that for new east European memberstates, a transitional arrangement should apply, where for up to five yearsfollowing accession, workers in these countries would be denied the right tolive and work in any part of the EU. This period could be reduced or increased,(by up to two years). UK Working time directive The future power of the ECJ in these countries was underlined by a recentpreliminary ruling by a court Advocate General. This regards English laws thatallow UK employers to refuse leave entitlement to workers who have not been in13 weeks’ continual service, and to make lieu payments for unclaimed holiday.In a case that was brought by the broadcasting union Bectu, the AdvocateGeneral ruled that under the EU working time directive, the “British lawwas unlawful,” because it “is prejudicial to workers who havecontracts of less than 13 weeks.” The aim of the directive, he said, was “the harmonisation andimprovement of the working environment. It provides for minimum requirements;the Member states may only go beyond those standards in a way that isfavourable to workers. These minimal standards cannot be subordinated to purelyeconomic considerations.” Judges sitting as a full court usually broadly follow the advice of theiradvocate generals, so this preliminary ruling will probably take effect. Havingdone so, under EU treaties, the British government will have no choice but toimplement it. Greece Failure to comply Any failure to comply with EU rulings can have expensive consequences. Forinstance, the ECJ has recently censured Greece for missing a 1999 deadline forsetting up occupational social security schemes that did not discriminatebetween men and women. The Greeks have now complied, and will be well aware ofthe dangers of failing to comply with ECJ rulings. This year, Athens became thefirst EU government to pay fines for ignoring European court rulings; it paid4.78 million euros for failing to close down an illegal waste dump. Spain 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. Thecourt ruled that doctors should be considered to be working when they were presentand on call at a health centre where they worked, even if they were having abreak. By contrast, under EU working time directives, if they were on callwhile at home, they would not be considered working. Spanish doctors in primaryhealth care teams, who were claiming that they were required to work withoutthe benefit of any time limit, whether daily, weekly, monthly or annual, hadbrought the case. The court ruled that the doctors’ rosters should have beengoverned by working time legislation, which protects them from being forced towork unlimited hours. As with any ECJ ruling, this ruling can be used as aprecedent across the EU. France Tupe The court has also ruled that directive 77/187 on the transfer ofundertakings, guaranteeing worker rights during the transfer of ownership of anorganisation, should not only apply during a private sector takeover, but alsowhen control of an operation is assumed by a public authority. This casecentred on a French public relations officer, whose non-profit PR organisationwas taken over by the city of Metz. He lost his job in the shake-up, butclaimed that his post should have been protected under EU law. In an advisoryruling 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 asalaried worker, because his or her spouse is receiving a pension from anotherEU 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 wouldbe “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 intoaccount. A pensioner who had worked in both the Netherlands and Belgium, andwas entitled to payments from both countries, had brought the case. Germany Obligation on employers Sometimes the ECJ judges must negotiate their way around legislation that isa compromise between establishing clear EU-wide rights and the authority ofnational governments to frame their own employment legislation. Lathe operator Wolfgang Lange was dismissed from his job because he refusedto take on some overtime. He claimed that he had not been told that hisemployment was conditional on him carrying out overtime as required. The ECJwas asked to rule on whether directive 91/533/EEC would prevent a worker beingsacked, where he or she had breached a condition of employment about which theyhad not been informed. Although the judges said that the directive insisted that workers should begiven 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 andvoid. It was ruled that member states have the authority to decide what shouldhappen if a company failed to tell its employees of what circumstances mightlead them to losing their job. Part-time workers The ECJ has refused to strengthen the position of part-time workers under EUlaw. It was considering the case of Barbel Kachelmann, a German banker who wasemployed for 30 hours a week and lost her job when her employer, BankhausHermann Lampe decided on a round of redundancies. She went to court, arguingthat the bank had singled her out as a part-timer and should have consideredall the workers together as candidates for redundancy, particularly as she hadoffered to switch to a full-time position, if necessary. She claimed sexualdiscrimination at the workplace under directive 76/207/EEC, because many morewomen are part-time workers than men. However, the ECJ has ruled, again in anadvisory ruling, that it would be unfair according to EU law to force companiesto consider part-time workers along with full-timers, when allocating staff forredundancy. It said that such a ruling would “have the effect of placingpart-time workers at an advantage.” Norway European Free Trade Area One often overlooked aspect of the European law circuit, is the court of theEuropean Free Trade Area, (Efta), whose cases carry the power of precedent inthe ECJ and EU national courts. This is because of treaty commitments linkingthree of its member countries – Norway, Iceland and Liechtenstein – in theso-called European Economic Area. Its cases follow similar lines to those inthe ECJ, looking at freedom of movement of labour and national discrimination. A recent colourful case is likely to force Norwegian seafarers to undergomedical examinations at sea by foreign ship doctors. Health officials in theScandinavian kingdom have fought a rearguard battle to prevent EuropeanEconomic Area (EEA) regulations from coming into force, which would scraprestrictions on foreign medics practicing on Norwegian ships. Until now, thesedoctors have had to be approved by Norway’s health authorities or be licensedto 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 inthe EU, as well as Efta, would have to be re-examined by national governments. Comments are closed. Related posts:No related photos.