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Flash Reports on Labour October 2017 Summary and country reports

Written by The European Centre of Expertise (ECE), based on reports submitted by the Network of Experts

October 2017

EUROPEAN COMMISSION Directorate DG Employment, Social Affairs and Inclusion Unit B.2 – Working Conditions Contact: Lucile Castex-Chauve E-mail: lucile.castex-chauve@ec..eu B-1049 Brussels

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LEGAL NOTICE The contents of this publication are the sole responsibility of the author(s). The contents of this publication do not necessarily reflect the position or opinion of the European Commission. Neither the European Commission nor any /organisation acting on behalf of the Commission is responsible for the use that might be made of any information contained in this publication. This publication has received financial support from the European Union Programme for Employment and Social Innovation "EaSI" (2014-2020). For further information please consult: http://ec.europa.eu/social/easi. More information on the European Union is available on the Internet (http://www.europa.eu). : Publications Office of the European Union, 2017 ISBN ABC 12345678 DOI 987654321 © European Union, 2017 Reproduction is authorised provided the source is acknowledged.

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Country Labour Law Experts Martin Risak Wilfried Rauws Krassimira Sredkova Ivana Grgurev Nicos Trimikliniotis Nataša Randlová Natalie Videbaek Munkholm Gaabriel Tavits Matleena Engblom Francis Kessler Bernd Waas Costas Papadimitriou Gyorgy Kiss Inga Björg Hjaltadóttir Ireland Anthony Kerr Edoardo Ales Kristine Dupate Wolfgang Portmann Tomas Davulis Luxemburg Jean-Luc Putz Lorna Mifsud Cachia Barend Barentsen Helga Aune Lill Egeland Leszek Mitrus José João Abrantes Rita Canas da Silva Raluca Dimitriu Robert Schronk Polonca Končar Joaquín García-Murcia Iván Antonio Rodríguez Cardo Andreas Inghammar Catherine Barnard

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Table of Contents Summary ...... 1

Austria ...... 1 1 National ...... 1 2 Rulings ...... 3 3 Implications of CJEU Rulings and ECHR ...... 3 4 Other relevant information ...... 4

Belgium ...... 5 1 National Legislation ...... 5 2 Court Rulings ...... 7 3 Implications of CJEU Rulings and ECHR ...... 7 4 Other relevant information ...... 8

Bulgaria ...... 10 1 National Legislation ...... 10 2 Court Rulings ...... 10 3 Implications of CJEU Rulings and ECHR ...... 10 4 Other relevant information ...... 10

Croatia ...... 11 1 National Legislation ...... 11 2 Court Rulings ...... 11 3 Implications of CJEU Rulings and ECHR ...... 11 4 Other relevant information ...... 11

Czech Republic ...... 13 1 National Legislation ...... 13 2 Court Rulings ...... 15 3 Implications of CJEU Rulings and ECHR ...... 15 4 Other relevant information ...... 15

Denmark ...... 16 1 National Legislation ...... 16 2 Court Rulings ...... 16 3 Implications of CJEU Rulings and ECHR ...... 17 4 Other relevant information ...... 17

Estonia ...... 18 1 National Legislation ...... 18 2 Court Rulings ...... 18 3 Implications of CJEU Rulings and ECHR ...... 18 4 Other relevant information ...... 18

France ...... 19 1 National Legislation ...... 19 2 Court Rulings ...... 20 3 Implications of CJEU rulings and ECHR ...... 23 4 Other relevant information ...... 23

Germany ...... 24 1 National Legislation ...... 24 2 Court Rulings ...... 24 3 Implications of CJEU Rulings and ECHR ...... 25 4 Other relevant information ...... 25

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Greece ...... 26 1 National Legislation ...... 26 2 Court Rulings ...... 26 3 Implications of CJEU rulings and ECHR ...... 26 4 Other relevant information ...... 26

Hungary ...... 27 1 National Legislation ...... 27 2 Court Rulings ...... 27 3 Implications of CJEU Rulings and ECHR ...... 28 4 Other relevant information ...... 28

Iceland ...... 29 1 National Legislation ...... 29 2 Court Rulings ...... 29 3 Implications of CJEU Rulings and ECHR ...... 29 4 Other relevant information ...... 29

Ireland ...... 30 1 National Legislation ...... 30 2 Court Rulings ...... 30 3 Implications of CJEU Rulings and ECHR ...... 30 4 Other relevant information ...... 30

Latvia ...... 31 1 National Legislation ...... 31 2 Court Rulings ...... 31 3 Implications of CJEU rulings and ECHR ...... 31 4 Other relevant information ...... 32

Liechtenstein ...... 33 1 National Legislation ...... 33 2 Court Rulings ...... 33 3 Implications of CJEU rulings and ECHR ...... 33 4 Other relevant information ...... 33

Luxembourg ...... 34 1 National Legislation ...... 34 2 Court Rulings ...... 35 3 Implications of CJEU rulings and ECHR ...... 35 4 Other relevant information ...... 35

Netherlands ...... 36 1 National Legislation ...... 36 2 Court Rulings ...... 36 3 Implications of CJEU rulings and ECHR ...... 36 4 Other relevant information ...... 36

Norway ...... 40 1 National Legislation ...... 40 2 Court Rulings ...... 40 3 Implications of CJEU rulings and ECHR ...... 40 4 Other relevant information ...... 40

Poland ...... 41 1 National Legislation ...... 41 2 Court Rulings ...... 42

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3 Implications of CJEU rulings and ECHR ...... 42 4 Other relevant information ...... 43

Portugal ...... 44 1 National Legislation ...... 44 2 Court Rulings ...... 44 3 Implications of CJEU rulings and ECHR ...... 45 4 Other relevant information ...... 45

Romania ...... 46 1 National Legislation ...... 46 2 Court Rulings ...... 46 3 Implications of CJEU rulings and ECHR ...... 46 4 Other relevant information ...... 47

Slovakia ...... 48 1 National Legislation ...... 48 2 Court Rulings ...... 48 3 Implications of CJEU Rulings and ECHR ...... 48 4 Other relevant information ...... 48

Slovenia ...... 49 1 National Legislation ...... 49 2 Court Rulings ...... 49 3 Implications of CJEU Rulings and ECHR ...... 50 4 Other relevant information ...... 50

Spain ...... 51 1 National Legislation ...... 51 2 Court Rulings ...... 52 3 Implications of CJEU Rulings and ECHR ...... 53 4 Other relevant information ...... 54

Sweden ...... 55 1 National Legislation ...... 55 2 Court Rulings ...... 55 3 Implications of CJEU rulings and ECHR ...... 56 4 Other relevant information ...... 56

United Kingdom ...... 57 1 National Legislation ...... 57 2 Court Rulings ...... 57 3 Implications of CJEU rulings and ECHR ...... 57 4 Other relevant information ...... 57

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concept of a transfer of undertaking. Executive Summary Although the applicable legal framework states that only already existing In October 2017, important developments employment at the time of the in labour law took place in many Member transfer shall in fact be transferred, the States and (EEA) employee will be entitled to reinstatement countries (see Table 1). Legislative and the transferee will have to comply with initiatives and focused specifically this ruling, if a dismissal formerly carried on the following issues: out by the transferor is deemed illegal and • Working time unfair by the (i.e. null and void • Transfer of undertakings according to Portuguese law). In Spain , • the Supreme Court has ruled that • Posting of workers on the transfer of an • Anti-discrimination law. undertaking do not apply when only a succession of subcontractors occurs and there is no transfer of material resources, Transfer of undertakings except in the case of ‘succession of staff’ (according to the doctrine of the CJEU). In Belgium , CJEU ruling C-200/16 Securitas is likely to have an impact in relation to clauses in collective agreements establishing that certain Working time measures are automatically excluded from the application of the Directive on transfer In Denmark , an industrial ruled of undertakings, since all circumstances that when an employee does not organise surrounding a case must be taken into his/her own work, a part-time employee account to determine whether a transfer of who works overtime in an amount of hours undertaking has occurred. In Denmark , equalling full-time work is in a comparable the same CJEU ruling is considered to be situation of a full-time employee, and in line with Danish case law. Recent case must therefore be treated equally. In law in Denmark on the issue placed France , the ruled that emphasis on the transfer of tangible assets according to Directive 2003/88/EC, the in an assessment regarding the duty to employer must take measures to allow the transfer employees. In Latvia , the CJEU employee from exercising his/her right to in case C-200/16 will have leave and beyond that prove that he/she implications on the Latvian Labour Law as has fulfilled this obligation. This rule is far as it provides an interpretation of the applicable to all legal and conventional concepts of ‘undertaking’ and ‘legal leave in addition to the four weeks transfer’. In the Netherlands , following guaranteed by . In CJEU ruling C-126/16 Smallsteps limiting Greece , the Supreme Court ruled that the the exception to the applicability of time during which an employee, who Directive 2001/23/EC in cases of pre- works as a truck driver, is ready to packs, a national has ruled that this perform the work tasks (‘on-call’) must be case law was not applicable to a Dutch considered working time in all regards, case because the scope of the Smallsteps since the employee’s free time is restricted ruling is strictly limited to cases which are as he/she is physically and mentally very similar to that particular case. This prepared to perform work. The same means that the sale and continuation of applies to waiting periods (‘stand by’). In the undertaking must be, like in the Poland , a parliamentary commission has Smallsteps case, prepared in minute detail suggested some amendments to the prior to the initiation of original draft of the law to limit commercial proceedings to qualify as a continuation as activities on Sundays and public holidays a pre-pack. In Portugal , the Supreme as well as other days, in line with the Court has ruled that the succession in the government’s proposal to ban the concession of operations of a cafeteria in activities of commercial establishments an educational centre fits the broad every second Sunday, with some exceptions. In Spain , the full calendar of

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public holidays for 2018 was published in because they together transpose Directive October. This being a directly 2014/67/EU into Croatian legislation. In related to working time that must be Estonia , the Employers’ Association respected by employers. voiced that it does not support the proposed amendments to the Posted Workers Directive. The employers argue Annual Leave that the proposed amendments will favour the old Member States to the detriment of In Austria , the Supreme Court has the new Member States. In Sweden , the interpreted the of ongoing debate on the future amendments blue collar workers in the chemical to the Posting of Workers Directive industry in a teleological aim to 96/71/EC continued. The debate at compensate the effects of working time national level is focused on the impact on being compressed in less working days. As the Swedish model of industrial relations. a result, a reduction in annual leave, as The debate focuses on the possibilities argued by the employer, does not follow that will open for trade unions to engage this aim, being the worker entitled to the in industrial action to negotiate a collective full 26 working days of leave per year, agreement for the posted business, if despite working only 4 times per week and certain actions (strike, blockade) would not the full five-day week. In Denmark , ensure conditions of the domestic there is a proposal for a new regulation of collective agreement (home State annual leave following the report of the collective agreement) ‘in accordance with’ committee on revising the Holiday Act. The the corresponding Swedish collective proposal has been released for agreement in the sector. consultation from 1-15 November 2017. The next step is to submit a proposal to based on the consultation Anti-discrimination law papers. The aim is for the new Act to enter into force on 1 January 2020, with bridging In Belgium , the Court of cassation rules in force from 1 January to 31 returned to the Achbita case, overturning December 2019. In Latvia , the Supreme the previous judgment of a Belgian Labour Court decided a case in which a prisoner Court because it had not sufficiently claimed financial compensation for moral analysed whether Mrs Achbita's dismissal damage on account of the fact that while was discriminatory. Following the answer working full time during his imprisonment, to its preliminary question to the CJEU, the he was not entitled to paid annual leave. Court of Cassation ruled that Directive The Supreme Court rejected the claim, but 2000/78/EC provides for restrictions on a more in-depth analysis on the the rights and it contemplates as applicability of Directive 2003/88/EC is well as for exceptions to the principle of necessary and it remains to be answered equal treatment, but also implies that the whether, if applicable, simple moral liability in case of discrimination is not satisfaction could be considered as an dependent on the existence of guilt or effective remedy for the breach of the right absence of any justification by the to paid annual leave under the Directive. employer. In the Czech Republic , the Draft Act amending the 2009 Anti- discrimination Act and other related acts Posting of workers has passed the Senate and was signed by the President on 24 October 2017 and will In Croatia , two regulations on the posting enter into force on 1 January 2018. In of workers have been issued by the Spain , the Constitutional Court has ruled, Minister of Labour and the Pension in a case concerning differentiated System. Both regulations should be read treatment on grounds of seniority in a together with the Act on Cross-border collective agreement, that the justification Enforcement of Financial Administrative for the differentiated treatment was no Penalties in the Area of Posting of Workers longer valid, violating the principle of and the Amendment to the Aliens Act equal remuneration recognised in Article

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14 of the Spanish . This principle does not require equal treatment in all cases, but it does require unequal treatment to be objectively and reasonably justified and prevents artificial or unjustified inequality. The ruling clarifies some aspects on the scope of the right to equality and non-discrimination in relation to wages, especially when a collective agreement is involved. The Constitutional Court admits wage differences between workers of the same company, partly due to the regulatory possibilities inherent to collective agreements, and partly due to circumstances that could justify temporary continuation of different rules. Therefore differences may be justified at first, but not on a permanent basis.

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Table 1. Main developments

Topic Countries Transfer of undertakings BE, DK, LV, NL, PT, ES Working time DK, FR, EL, PL, ES Annual leave AT, DK, LV Posting of workers HR, EE, SE Anti-discrimination law BE, CZ, ES Collective redundancy DK, LI, PL Temporary agency work BE, DE Information and consultation rights AT, FR Equal treatment FR, ES Dismissal law FR, DE Third-country nationals HR, LU Obligations towards employees with CZ, SE disabilities Fixed-term work SI Part-time work DE Seasonal work CZ Active Labour Market Policies (ALMP) BG Privacy rights AT Data protection CZ Employer insolvency HR Work permits BE Occupation Health and Safety ES Vocational re-training ES Paternity leave LU Right to disconnect PT Social security protection of self-employed ES Tribunal fees UK UK

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Austria

Summary (I) The legislation on further aligning the legal position of blue and white collar workers passed Parliament just before the elections, backed by the Social Democratic Party (SPÖ) and the Party (FPÖ). (II) The Austrian Supreme Court decided a case on the entitlement to annual leave for employees working irregular shifts. (III) The decision of the CJEU in case C-566/15 on employee representation in supervisory boards under German law is similar to Austrian legislation. (IV) The effects of the decision of the Grand Chamber of the ECHR in Ba ̆rbulescu vs. Romania are unclear as far as the effect of the use of illegally acquired in court is concerned. ______1 National Legislation 1.1 Harmonisation of legislation on blue collar and white collar workers Austria held federal elections on 15 October 2017, with the People’s Party (ÖVP) being the clear winner. Its chairman has been charged by the Federal President to form a new government. He is now negotiating a coalition agreement with the Freedom Party (FPÖ), and the agreement is expected to be finalised before the end of this year. Until then, no new in the field of labour law are expected. Surprisingly, however, legislation on the further alignment of the legal position of blue and white collar workers passed Parliament right before the elections, supported by the Social Democratic Party (SPÖ) and the FPÖ.

1.1.1 Sickness benefits In Austria, the employer has to continue paying remuneration for a certain period when a worker falls sick before Social Security steps in. Under the legislation in force until now, blue collar workers were entitled to six weeks of continued full remuneration per year and four weeks of half of their remuneration. The period of continued full remuneration increased depending on how long the employee had worked for the same employer. For white collar workers, entitlement depended on whether the sickness was an “initial” sickness or a “relapse”, and on the duration of the employment relationship. White collar workers were entitled to six weeks (or more, depending on the duration of their employment) of continued full remuneration and four weeks of half their remuneration. If a white collar-worker were to get sick again within six months of her/his last sickness, it was considered a relapse. They were thus only entitled to the continued remuneration not yet taken during their “initial” sickness and a second entitlement of six weeks of half their remuneration and four weeks of a quarter of their remuneration. If six months elapsed following their return to work, white collar workers accumulated another full entitlement (six weeks plus four weeks) of continued remuneration. This complicated system was advantageous for white collar workers but also resulted in higher administrative costs for employers. The amended legislation now extends the system of blue collar workers to white collar workers: both groups are now entitled to six weeks of continued full remuneration and to eight weeks of half their remuneration. The entitlement is renewed annually. It moreover extends the period of continuation from six weeks to eight weeks after one

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year of service (formerly, it was only after five years), compensating white collar workers for switching to the system applied to blue collar workers. Additionally, the amendment extends the entitlement to continued remuneration in case the employment relationship is terminated during sick leave. The entitlement now continues not only if the employment relationship is terminated with notice by the employer, by unfair dismissal or justified resignation with immediate effect, but also if the termination was based on a termination agreement. The amendments passed the National Assembly on 12 October 2017 and the Federal Assembly on 25 October 2017. They are scheduled to enter into force on 01 July 2018.

1.1.2 Periods of notice For white collar workers, minimum periods of notice are laid out in the Act on White Collar Workers ( Angestelltengesetz , AngG). They depend on the length of the employment relationship, e.g. initially six weeks, two months after the second year, three months after the fifth year, etc. These periods are mandatory and deviation is only possible in favour of the white collar worker. For blue collar workers, the Trade Regulation of 1859 ( Gewerbeordnung 1859 , GewO 1859) and therefore a notice period of two weeks applied until now. Collective agreements as well as employment contracts could deviate to the detriment of the blue collar worker, and many did. The amendment now adapts the blue collar workers’ legislation to that of white collar workers: the same minimum periods apply and deviations are only possible in favour – and not to the detriment – of the blue collar worker. Only in seasonal sectors, such as in the construction and in the hospitality industry, may collective agreements still contain notice periods that deviate to the detriment of the workers. The amendments passed the National Assembly on 12 October 2017 and the Federal Assembly on 25 October 2017. They are scheduled to enter into force on 01 January 2021 to give the social partners the opportunity to adapt the collective agreements.

1.1.3 Pay during inability to work for good reason Both the Act on White Collar Workers ( Angestelltengesetz , AngG) and the Civil Code (Allgemeines bürgerliches Gesetzbuch , ABGB) state that workers continue to be entitled to pay if they are absent from work for personal reasons through no fault of their own for a relatively short period. However, the Civil Code also contained a provision allowing for Collective Agreements to limit those entitlements to the detriment of blue collar workers. The amendment now eliminates that provision, thus harmonising the legislation of white collar and blue collar workers on that matter. The amendment passed the National Assembly on 12 October 2017 and the Federal Assembly on 25 October 2017. It is scheduled to enter into force on 01 July 2018.

Sources: The Amendment Act is available here . Information provided by the Austrian Parliament is available here . A newspaper article on the harmonisation of the legislation of 13 October 2017, published by Die Presse , is available here .

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A newspaper article of 12 October 2017, published by News ORF.at , is available here . A newspaper article of 30 October 2017, published by Der Standard , is available here .

2 Court Rulings 2.1 Annual leave Supreme Court 27 September 2017 – 9 Ob A 78/17m The Annual Leave Act (Urlaubsgesetz ) states in Section 2 (1): “The employee is entitled to continuous paid annual leave for each working year. The annual entitlement amounts to 30 business days for those employees employed for less than 25 years and to 36 business days thereafter .” (authors’ translation) (Note: a business day is any calendar day that is not a Sunday or a public holiday, regardless whether the employee concerned has to work on that day or not). The collective agreement for blue collar-workers in the chemical industry includes special provisions for workers working continuous shifts and provides that entitlement to annual leave is to be calculated in working days, i.e. the days the worker has to actually work according to the shift schedule. The amount of annual leave is therefore 26 or 32 working days, depending on service time. The present case concerned a worker who worked full time on only four days a week. The worker claimed 26 working days of annual leave based on the collective agreement. The employer argued that this only covered the standard case of a five-day working week and that the entitlement to annual leave had to be reduced to 20.8/25.6 working days in accordance with the four-day working week. The Court of Appeal agreed with the employer’s argument, while the Supreme Court interpreted the collective agreement differently. According to the Supreme Court, the collective agreement regulates atypical working weeks connected to continuous shift work and it is likely that it seeks to compensate the effects of the working time being compressed into less than five days. A reduction, as argued by the employer, does not follow this aim and the parties to the agreement should have used another wording if they intended the regulation to be different. The worker was thus held to be entitled to the full 26 working days per year. Source: The Supreme Court decision 9 Ob A 78/17m is available here .

3 Implications of CJEU Rulings and ECHR 3.1 Employee representation CJEU case C-566/15, 18 July 2017, Konrad Erzberger vs. TUI AG In case C-566/15 - Konrad Erzberger vs. TUI AG , the CJEU ruled that Article 45 TFEU must be interpreted as not precluding legislation of a Member State (in this case Germany) under which the workers employed in the establishment of a group located in the territory of that Member State are deprived of the right to vote and to stand as candidates in elections of worker representatives to the of the parent company of that group, which is established in that Member State, and as the case may be, of the right to act or to continue to act as a representative on that board, where those workers leave their employment in such an establishment and are employed by a subsidiary belonging to the same group established in another Member State.

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The Austrian legal situation – Section 110 of the Labour Constitution Act (Arbeitsverfassungsgesetz , ArbVG) – is similar to the German one as regards the effect described in the decision. Only members of Austrian works can be (employee) members of a supervisory board and in case of a change of employer, the membership to the works is terminated as is the employee membership to the supervisory board. The decision therefore is of importance, as it also confirms that the Austrian legal situation on this matter is in line with EU law and Article 45 TFEU in particular. Source: A short commentary on the CJEU ruling by Walter Gagawczuk in the labour law journal ‘Das Recht der Arbeit’ is available here .

3.2 Privacy rights of employees ECHR 05 September 2017, Ba ̆rbulescu vs. Romania The ECHR held that the Romanian courts, in reviewing the decision of Mr Ba ̆rbulescu’s employer to dismiss him after having monitored his electronic communications, failed to strike a fair balance between the interests at stake – namely: Mr Ba ̆rbulescu’s right to respect for his private life and correspondence on the one hand, and the employer’s right to take measures to ensure smooth operations of the company, on the other. In the present case, in particular the fact that the employee had not been notified of the possibility that the employer might take measures to monitor hit correspondence and other communications was considered crucial. For the monitoring measures to be deemed compatible with the requirements of Article 8 of the ECHR, the notification should be clear about the nature of the monitoring and be given in advance. In this judgment, the Court specified the criteria to be applied by national authorities when assessing whether a measure to monitor an employee’s communications is proportionate for the aim pursued and whether the employee concerned is protected against arbitrariness. This is very much in line with the criteria Austrian courts would apply and we do not see too many discrepancies. The open issue, however, is what effect the evidence which was gathered in breach of the employee’s right to privacy shall have in a court procedure. Austrian rules do not include any provisions on the exclusion of evidence illegally obtained and up to now has not construed such rules.

4 Other relevant information Nothing to report.

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Belgium

Summary (I) Temporary work agencies that hire temporary agency workers with an employment for an indefinite period must also make an immediate electronic declaration of employment (‘ Dimona’ ). The temporary employment agency must thus make a double declaration. (II) A new Belgian regulation of October 2017 creates an exemption from work permits for long-term residents. Family members of long-term residents in another EU Member State should not be required to have a work permit if the foreign national is exempt from this obligation. (III) The Court of Cassation, following a preliminary reference procedure, rejected the second plea in its final judgment. It, however, partly annulated the ruling of the Antwerp Labour Court in Appeal on the basis of the first plea, as the Court rejected the claim by the dismissed employee for compensation due to abuse of the right of dismissal without determining whether indirect discrimination had taken place, whereas it follows from European case law that the exercise of the right to compensation cannot be made conditional on evidence of error. (IV) Directive 2001/23/EC of 12 March 2001 on transfers of undertakings is to be interpreted as meaning that the concept of ‘transfers of undertakings’ covers a situation in which a client has terminated the contract concluded with an undertaking for the provision of monitoring services relating to its installations and has subsequently entered into a new contract for the performance of those activities with another undertaking, which refuses to take over the employees of the former if the necessary equipment to carry out that work was taken over by the latter. The Court’s finding that Directive 2001/23/EC must be interpreted as precluding a national provision such as that at issue in the Portuguese agreement, which states that the loss of a customer suffered by an economic operator as a result of the awarding of a service contract to another economic operator does not fall within the concept of ‘transfer of undertaking' within the meaning of Article 1 (1) of that Directive is of particular relevance for Belgium. ______1 National Legislation 1.1 Temporary agency work The law of 30 September 2017 has introduced a double ‘ Dimona’ for temporary agency employment contracts. Temporary work agencies that hire temporary agency workers with an employment contract of indefinite duration must also make an immediate (electronic) declaration of employment ( ‘Dimona’ ). The temporary employment agency must thus make a double declaration. Thereby, it is possible to clearly distinguish periods without assignments. Temporary agency workers recruited under a contract of indefinite duration may face periods without an assignment between two periods of temporary work, which are treated as periods of activity. First, a 'classic declaration' has to be issued in Dimona , as is the case when the employer hires a regular employee; secondly there is a 'specific declaration' in Dimona for each separate assignment.

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The aim is to have access to data on the users of temporary agency work and the periods of assignment. This will enable companies and employers to fulfil their obligations under labour law and social security law and to enhance their control over this. One example are the obligations relating to the so-called ‘social balance’. These obligations require identification of the user and the assignment period. The same applies, for example, to registration of attendance. To this end, the Royal Dimona of 05 November 2002 will be supplemented: • An employer who falls under the Joint Temporary Agency Work Committee and hires an employee under an employment contract for an indefinite period must submit a declaration at the latest when the employee commences work. • For temporary work assignments entrusted to an employee with a contract of indefinite duration, the employer shall communicate the identification number of the employee (crossroads data base) or—if this number does not exist—the name, first names, place and date of birth and the employee's principal place of residence, in addition to other details. This part of the law containing various provisions on social affairs entered into force on 16 October 2017.

1.2 Family Reunification and work permits The Royal Decree of 08 October 2017 amending Royal Decree of 09 June 1999, which implemented Act of 30 April 1999 on the employment of foreign workers, concerning the members of the family of long-term residents, creates an exemption from work permits for long-term residents. Family members of long-term residents in another EU Member State should not be required to have a work permit if the foreign national is exempt from this obligation. The amendment enters into force on 02 November 2017. The implementation of the Sixth State Reform has made the Regions responsible for employing foreign nationals. The Regions are competent for the employment of foreign workers, with the exception of the standards relating to work permits issued in connection with the specific residence status of the concerned and the exemptions from professional cards linked to the specific residence status of the persons concerned (Article 6, §1, IX, 3 of the Special Law of 08 August 1980 regarding the State Reform and its Institutions). The so-called work permit C has remained a federal matter. The federal government remained competent for specific residence situations. For example, the law on the employment of foreign employees stipulates that exemptions from work permits can be granted by Royal Decree for certain categories of foreign employees. A new exemption is now included in the accompanying implementing decree. This concerns the partial transposition of Directive 2003/86/EC of 22 September 2003 on the right to family reunification. From now on, the following persons will be exempted from the obligation to obtain a work permit: the spouse and children of a foreign national who has acquired long-term resident status in another Member State of the European Union, in accordance with legislation or regulations transposing Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, insofar as this foreign national is exempt from the obligation to obtain a work permit. Therefore, if there is an exemption for the foreign national with long-term resident status whose family is reunited, the family members must also be exempt. This is now the case.

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2 Court Rulings 2.1 Indirect discrimination Court of cassation 09 October 2017, No. S. 12.0062. N, 1. S. Achbita, 2. Centrum voor gelijkheid van kansen en voor racismebestrijding v. NV G4S On 09 October 2017, the Court of cassation returned to the Achbita case (see March 2017 Flash Report). On 23 December 2011, the Antwerp Labour Court of Appeal ruled that the dismissal of a receptionist who wanted to wear a headscarf with her uniform at a security firm was not unreasonable and there was no abuse of rights. The Court of cassation has now overturned this judgment of the Labour Court because the court had not sufficiently analysed whether Mrs Achbita's dismissal was discriminatory. Prior to this judgment, the Court of cassation had already referred a preliminary question to the CJEU on how Directive 2000/78/EC should be interpreted. The CJEU stated that the company’s (G4S) policy of neutrality could not be considered direct discrimination on the basis of religion, but it might be considered indirectly discriminatory. According to the CJEU, such an indirect discrimination could be justified if there is a legitimate aim, such as in the case of freedom of enterprise, when an employer wants to project a political, philosophical and religiously neutral image to its customers. However, this neutrality policy must be coherent and systematic, The Belgian Court of cassation ruled that Directive 2000/78/EC provides for restrictions on the rights and freedoms it contemplates, as well as for exceptions to the principle of equal treatment, but also implies that the liability in cases of discrimination is not dependent on the existence of guilt or absence of any justification. In the view of the Belgian Court of cassation, it follows from the case law of the CJEU (CJEU case C-177/88, 08 November 1990, Dekker v VJV-Centrum , European Court Reports 1990, I-3941) that the right to compensation of the employee who is dismissed for failure to comply with an order or prohibition on the part of the employer that infringes the provisions of Directive 2000/78/EC and may be discriminatory, cannot depend on evidence that the fault of the employer is proven and that there is no justification recognised by the applicable national law. The Labour Court on Appeal rejected the employee's claim (which was based on abuse of the right to dismissal), on the ground that, inter alia , because of the divergences in legal doctrine and case law concerning discrimination, it could not be proven that the employer knew or should have known that its order was not compatible with non- discrimination rules on the ground of religion. Therefore, according to this labour court, it could not be considered that the employer had manifestly abused its dismissal right or had unreasonable conduct. This argument does not justify the decision of the labour court according to the law.

3 Implications of CJEU Rulings and ECHR 3.1 Transfer of undertakings CJEU case C-200/16, 19 October 2017, Securitas Seventeen employees worked as security guards at ICTS in the port of Ponta Delgada until mid-July 2013. Following a call for tenders in January 2013, the security contract was awarded to the applicant Securitas from 15 July 2013 onwards. The employees concerned should have been placed on the list of employees approved by Securitas . However, Securitas did not recognise them as its employees. Therefore, the employees brought a judicial claim before the labour court to be recognised as employees, claiming the payment of salaries from 15 July 2013 onwards. They won the case. The court held that a transfer of undertaking had taken place, resulting in the transfere of the employment contracts to Securitas , the transferee. This decision was confirmed in

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appeal proceedings. The case then went before the Supreme Court. The Tribunal Supremo de Justiça (Supreme Court) referred questions to the CJEU for a . The CJEU recalls that there is no need for any direct contractual relationship between the transferor and the transferee to apply Directive 2001/23/EC: the transfer may take place through the intermediary of a third party (point 23, referring to: CJEU cases C-171/94 and C-172/94, Merckx and Neuhuys , 07 March 1996, and CJEU case C-340/01 Abler , 20 November 2003). The CJEU ruled that the concept of ‘transfer of undertaking’ in Directive 2001/23 must be interpreted as covering a situation in which a client, who has terminated the contract concluded with an undertaking for the provision of security guard services at its facilities and subsequently concludes a new contract for the supply of those services with another undertaking, refuses to take on the employees of the first undertaking when the equipment essential for the performance of those services has been taken over by the second undertaking. The third preliminary question was: “ Is Clause 13(2) of the Collective Agreement concluded by the Association of private security undertakings, the National association of security undertakings and the Trade Union for security guard services, monitoring services, cleaning services, domestic services and various activities contrary to EU law on the meaning of transfer of an undertaking arising from Directive 2001/23/EC when it stipulates that the loss of a customer by an operator following the award of a service contract to another operator shall not fall within the concept of a transfer of an undertaking or business? ”. In that regard, the Court has already held that the mere loss of a service contract to a competitor cannot by itself indicate the existence of a transfer within the meaning of Directive 2001/23/EC”. “ However, a provision of national law that generally excludes the loss of a customer by an operator following the award of a service contract to another operator from the scope of that concept does not allow all the facts characterising the transaction in question to be taken into consideration ”. The answer by the CJEU was: “ Article 1(1) of Directive 2001/23/EC must be interpreted as precluding a provision of national law, such as that at issue in the main proceedings, which provides that the loss of a customer by an operator following the award of a service contract to another operator does not fall within the scope of the concept of a ‘transfer of an undertaking’ within the meaning of Article 1(1). ” The importance of the judgment for the Belgian legal order lies mainly in the answer to the third question.

4 Other relevant information 4.1 Personal data Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation (GDPR)) shall be applied from 25 May 2018. The GDPR obliges certain data protection managers and processors to appoint a data protection officer (DPO), namely: • Public authorities; • Processing managers and processors who regularly observe the parties concerned on a large-scale basis; • Processing controllers and processors who process special data categories on a large scale (see Article 9 GDPR); and

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• Processing controllers and processors who process personal data relating to criminal convictions and offences (see Article 10 GDPR). In addition to this obligation, a company can also voluntarily appoint a DPO. The undertaking is then bound by Articles 37 to 39 of the GDPR. The DPO will help companies comply with the rules of the GDPR and will act as a contact person for the different stakeholders involved (involved persons, supervisory authorities, etc.). The DPO shall be involved in all cases concerning the protection of personal data in the undertaking. More concretely, her/his task consists of collecting information to identify processing activities, analysing and checking compliance with the GDPR of these processing activities and advising and informing the controller or processor. The DPO will not be personally liable in the event of a breach of GDPR. Responsibility for this lies with the processing manager or processor. The DPO shall be autonomous and may not receive instructions from the controller or processor, even if it is an employee. A DPO will therefore enjoy special protection against dismissal (Article 38). He/she may carry out other duties within the company, but these may not give rise to conflicts of interest. A DPO is appointed on the basis of her/his professional qualities, expertise and ability to perform the tasks prescribed by the GDPR (Art 39). The controller or processor shall ensure that the DPO has the necessary resources to carry out its tasks expeditiously and competently. A company can appoint an external individual or organisation as a DPO via a service contract. A group of companies may jointly appoint one DPO if it is easily accessible to any company.

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Bulgaria

Summary A number of amendments and supplements to the rules on the implementation of the Employment Promotion Act have been introduced addressing issues such as employment promotion measures, information on the labour market and old age pension. ______1 National Legislation Only some minor developments took place in Bulgarian labour legislation in October 2017. These include amendments and supplements to the Rules on the Implementation of the Employment Promotion Act, issued by the Council of Ministers (State Gazette, No. 84 of 20 October 2017), and concern some employment promotion measures, information on the labour market and requirements to receive old age pension.

1.1 Employment promotion measures The new Article 36a of the Rules on the Implementation of the Employment Promotion Act establishes requirements for unemployed persons to receive financial support. They have to be referred by the employment agency to employers in another place of work and residence, may not have a home in this place and ownership of a home may not have been transferred in the previous year.

1.2 Labour force The new Article 7a of the Rules on the Implementation of the Employment Promotion Act establishes rules for the collection of information on the required labour force in the territorial units. Such information needs to be collected from employers by special working groups and sent to the employment agency every six months.

1.3 Old age pension The new paragraph 4 of Article 14 of the Rules on the implementation of the Employment Promotion Act requires unemployed persons to inform the employment agency within 7 days of receiving an old age pension under the legislation of Bulgaria or another EU Member State.

2 Court Rulings Nothing to report.

3 Implications of CJEU Rulings and ECHR Noting to report.

4 Other relevant information Nothing to report.

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Croatia

Summary (I) The Act on Cross-border Enforcement of Financial Administrative Penalties in the Area of Posting of Workers has been adopted. (II) The Insolvency Act has been amended. (III) The Regulations on the Status and Work of Foreigners in the Republic of Croatia have been amended. (IV) Two regulations on the posting of workers have been issued by the Minister of Labour and the Pension System. ______1 National Legislation 1.1 Posting of Workers The Act on Cross-border Enforcement of Financial Administrative Penalties in the Area of Posting of Workers has been adopted (Official Gazette No. 101/2017). Its objective is to transpose Directive 2014/67/EU into Croatian law. It regulates, among others, the competent authorities, data protection, obligations of the requesting authority and of the requested authority, contents of the request for the recovery of an administrative penalty/fine or the notification of a decision concerning such a penalty/fine, grounds for refusal to execute a request, etc.

1.2 Employer insolvency The Amendment to the Insolvency Act has been adopted (Official Gazette No. 104/2017). Article 138 on the rights of employees and former employees of the insolvent employer regarding their priority in the settlement of established claims (unpaid salaries, social security contributions, taxes, due to work injury and professional diseases as well as severance payments) has been rephrased in a more precise manner. It does not add anything substantially new and refers to the separate Acts on Payment of Salaries, Social Security Contributions and Taxes.

2 Court Rulings Nothing to report.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information 4.1 Status and work of foreigners Amendments to the Regulations on the Status and Work of Foreigners in the Republic of Croatia have been adopted (Official Gazette No. 100/2017). The notion of foreigner has been replaced with the notion of third country national. The provision of proof of health insurance of third country nationals has been amended (Article 5). One of the means of proof for supporting third country nationals has been changed to six payrolls

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instead of the individual’s three last salaries (Article 6(3) of the Regulations on the Status and Work of Foreigners in the Republic of Croatia). A provision on the temporary stay of migrant workers has been added (Article 16a), as well as a provision on persons transferred within a company (Article 28a) as well as one on seasonal workers (Articles 28b-28g). A seasonal worker may work up to six months within one year in Croatia based on a permit to stay and work.

4.2 Posting of workers Based on the Aliens Act (Official Gazette No. 130/11, 74/13, 69/17), two regulations on the posting of workers have been issued by the Minister of Labour and the Pension System. Namely: • the Regulations on the Form and Content of the Statement concerning the Posting of Workers (Official Gazette No. 105/2017), which regulate the Posting Declaration (Form 1) and the Notification of Change of the submitted Posting Declaration (Form 2) - the Regulations contain Form 1 and Form 2; and • the Regulations on the Procedure of Overall Assessment of Temporality of Work of Posted Workers and Temporality of Economic Activities of Employers in the Republic of Croatia (Official Gazette No. 105/2017), which, in Article 2, contain a reference to Directive 2014/67/EU and regulate the contents of the overall assessment of the facts characteristic for the posting of workers (Article 3), data and information that the inspector is authorised to collect (Article 4), the assessment of the existence of an employment relationship between the posted worker and the employer (Article 4(3), elements the inspector needs to take into account when assessing the temporality of the carrying out of economic activities by the employer in the Republic of Croatia (Article 5), mutual assistance and cooperation with the Member State of establishment (Article 6). Both Regulations should be read together with the Act on Cross-border Enforcement of Financial Administrative Penalties in the Area of Posting of Workers and the Amendment to the Aliens Act (Official Gazette No. 69/2017; published in July 2017) because they together transpose Directive 2014/67/EU into Croatian legislation.

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Czech Republic

Summary (I) The Amendment Act which introduces changes on the employment of disabled persons has been published. (II) The Ministerial Decree on seasonal activities has been published. (III) Regulations on the pay of public service employees and state service employees have been published. (IV) The Draft amending the Anti-discrimination Act was signed by the President. (V) The Draft of the Act on Personal Data Processing is in the legislative procedure. (VI) Elections to the Chamber of Deputies of the Parliament of the Czech Republic took place between 20 and 21 October 2017. As a result, most of the proposals for new legislation currently on the agenda of the Chamber of Deputies and of the Government will no longer be relevant. The newly elected Chamber of Deputies is set to convene on 20 November 2017. Until then, very few pieces of legislation are expected to pass (some by the current government and some by the Senate). ______1 National Legislation 1.1 Employment of persons with disabilities Act No. 327/2017 Coll. amending Act No. 435/2004 Coll., on Employment, as amended, and Act No. 372/2011 Coll., on Health Services, as amended, was published on 06 October 2017 (for more information on the content of the Act, see also the September 2017 Flash Report). Act No. 327/2017 Coll. will enter into effect on 01 January 2018.

1.2 Seasonal work Decree No. 322/2017 Coll. on Setting a List of Employment Sectors that Include Activities Dependent on the Season was published on 04 October 2017 (for more information on the content of the Act, see also the September 2017 Flash Report). Decree No. 322/2017 Coll. came into effect on the same day.

1.3 Pay of public service employees Government Regulation No. 341/2017 Coll. , on pay of employees in public services and administration, as well as Government Regulation No. 340/2017 Coll. amending Government Regulation No. 564/2006 Coll., on pay of employees in public services and administration, as amended, were published on 19 October 2017 (for more information on the content of the Act, see also the September 2017 Flash Report). Government Regulation No. 341/2017 Coll. will enter into force on 01 January 2018. Government Regulation No. 340/2017 Coll. will enter into force on 01 November 2017.

1.4 Pay of state service employees Government Regulation No. 342/2017 Coll. amending Government Regulation No. 304/2014 Coll., on pay of state service employees, as amended, was published on 19 October 2017 (for more information on the content of the Act, see also the September 2017 Flash Report). The Regulation becomes partly effective as of 01 November 2017

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and partly as of 01 January 2018 (the latter only applies to doctors of the social security authority and the public health authority).

1.5 Anti-discrimination law The Draft Act amending Act No. 198/2009 Coll., the Anti-discrimination Act, as amended, and other related acts has passed the Senate and was signed by the President on 24 October. It will be published soon (at the very beginning of November) (for more information on the content of the Act, see also the September 2017 Flash Report). The Act will enter into force on 01 January 2018. Source: Legislative material related to the draft amending Act No. 198/2009 Coll. and other related acts provided by the Senate is available here .

1.6 Personal data processing The Draft of the Act on Personal Data Processing is in the legislative procedure (with the government – the comment procedure having been completed). The purpose of the Draft Act is to transpose Directive 2016/680/EU of the and of the Council on the protection of natural persons with regard to the processing of personal data by competent authorities (in the following: the Directive). It also follows the recent adoption of Regulation 2016/679/EU of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (in the following: GDPR) – the Draft Act aims to adjust the national legislation to the changes introduced by GDPR. Among other things, the Draft Act introduces a duty of confidentiality of the data protection officer (DPO) and of the DPO’s subordinate staff as regards personal data and relevant safeguards, security measures and mechanisms. This duty, however, is limited – the obligation does not apply with respect to the controller or the processor who designated the DPO, the courts and other public authorities, and, of course, the data subjects. As regards the obligation of the controller to notify the data subject of personal data breaches, such notification may be postponed or provided only in a limited extent when necessary to prevent any threat in the areas of defence and security of the Czech Republic, public order, detection and prosecution of criminal offences, important interests of the EU and its Member States, and the protection of the independence of the . Some obligations set forth in the Draft Act (e.g. pertaining to the right to access personal data, right to be forgotten, etc.) may be restricted or their fulfilment may be postponed and the applicability of Article 5 GDPR may be limited when necessary to prevent any threat in the areas mentioned in the paragraph above. The Draft Act also aims to restructure the competent national supervisory authority (Office for Personal Data Protection) for it to fully comply with the standards of the GDPR and the Directive – especially to ensure effective cooperation with other national supervisory bodies. Pursuant to Article 83(7) GDPR, the Draft Act limits the administrative fine imposed on administrative bodies to a maximum amount of CZK 10 000 000. However, the maximum amount of an administrative fine (as determined by the GDPR – “up to EUR 20 000 000, or in the case of an undertaking, up to 4 percent of the total worldwide

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annual turnover of the preceding financial year, whichever is higher”) which might be imposed on the private data controller has remained unaffected by the Draft Act. The content of the Draft Act is not final and may change, as the comments from the comment procedure have not yet been incorporated. The Draft Act is being discussed by the government. It will then to the Chamber of Deputies. The preliminary effective date is set for 25 May 2018. Source: Information on the Draft of the Act on Personal Data Processing and related material is available here .

2 Court Rulings Nothing to report.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Denmark

Summary An industrial tribunal ruled that when an employee does not organise his/her own work, a part-time employee who works overtime in an amount of hours equalling full- time work is in a comparable situation of a full-time employee, and must therefore be treated equally. ______1 National Legislation 1.1 Proposal for new Act on Annual Holiday Leave The proposal is the first major amendment to the holiday leave scheme since 1938. The amendment introduces the regulation on the right to annual leave in line with EU law. The proposal builds on the Report on a New Holiday Leave Act released in August 2017 (see also the August 2017 Flash Report) The proposal has been issued for consultation from 1 to 15 November 2017. The next step is submission of a proposal to Parliament based on the consultations. The aim is for the new Act to enter into force on 01 January 2020, bridging the rules in force from 01 January to 31 December 2019.

2 Court Rulings 2.1 Part-time work Industrial tribunal ruling of 20 October 2017, FV 2017.0009 The case concerns the remuneration for services on a day off for pilots employed part time. The question was whether a pro-rata remuneration for services on the day off of part-time employed pilots is a breach of the collective agreement between Dansk Pilotforening (Trade Union of Danish Pilots) and Dansk Industri for SAS Denmark- Norway-Sweden, or whether it is a breach of the principle of equality of the Part-time Act, implementing the Part-time Directive. As of March 2016 SAS, the employer, applied a provision in the collective agreement of 2015, stating that pilots employed part-time would receive remuneration for services on days-off calculated on their current monthly payment. This meant that the remuneration of part-time pilots would be calculated based on reference to their part- time monthly remuneration while full-time pilots’ remuneration was based on full-time monthly payments, which are higher. Prior to the introduction of this provision, SAS had calculated remuneration for full-time and part-time employed pilots called to service on a day off by reference to full-time monthly remuneration, irrespective of whether the pilot was employed full time or part time. The pilots claimed that as the work performed on the day off is the same, a full-time employed pilot and a part-time employed person are in a comparable situation. When the full-time employed pilot receives a higher remuneration, this is a breach of the principle of equality set out in the Framework Agreement for Part-time Work. The court ruled that the provision as such was not a breach of the principle of equality. Extra working days for part-time pilots do not constitute a comparable situation with pilots who are employed full time. It is not a breach of the principle of equality if a part- time pilot is paid part-time remuneration for any overtime worked. For part-time pilots who work extra days within one month equalling full-time work, any working days beyond full-time work are comparable to pilots who are employed full time. For overtime

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work performed beyond full-time working hours, part-time pilots are entitled to full-time remuneration per working day. The court added an obiter dictum to the fact that payments for overtime are calculated on the basis of certain percentages of the actual monthly payments according to the scheduled working hours. This progression in the calculated remuneration based on scheduled working hours could in some instances infer a difference in the calculated percentage of monthly payments for part-time and full-time pilots. The court stated that there is no difference in the work performed by a full-time and a part-time pilot, except for the fact that the part-time pilot is not required to perform work up to full-time working hours. The court stated that a full-time and a part-time pilot performing work within the range of full-time employment must be considered as being in a comparable situation, cf. CJEU rulings. This situation is not as specific as mentioned in the Supreme Court Ruling of 2012. A system to calculate the remuneration would result in a breach of the principle of equality when the percentage of remuneration for a full-time pilot (who does not work overtime) were higher than the percentage of remuneration for a part-time pilot (working overtime, and thus totalling full-time working hours), as there is no difference in terms of hours in the work being performed, and there seem to be no objective reasons for such a difference in the calculation of remuneration.

3 Implications of CJEU Rulings and ECHR 3.1 Transfer of undertakings CJEU case C-200/16, 19 October 2017, Securitas The legal issue concerned the duty to transfer employees in case of a disputed transfer of undertakings. The employees were security guards. The questions were whether a situation in which no direct contractual relationship existed between the transferor and the transferee could constitute a transfer of undertaking under Article 1(1) of Directive 2001/23/EC and whether Directive 2001/23/EC precluded a national law’s provision providing that a loss of a customer by an operator following the award of service to another operator does not fall within the concept of a ‘transfer of undertaking or business’ within the meaning of Article 1(1). The CJEU considers that the lack of a contractual link between two undertakings does not exclude the applicability of Directive 2003/21/EC. The CJEU further stated that where a contracting entity has terminated the contract concluded with one undertaking and then concluded a new contract for the supply of the same service with another undertaking, which refuses to take on the employees of the first undertaking, that situation falls within the concept of a ‘transfer of an undertaking [or] business’ within the meaning of that provision, when the equipment essential to the performance of those services has been taken over by the second undertaking. Finally, the CJEU stated that a national provision stating the contrary would be precluded by Directive 2003/21/EC.

4 Other relevant information 4.1 Collective redundancy The Ministry of Employment has updated the Executive Order on Collective Redundancies No. 1152 of 27 October 2017 (Bekendtgørelse om varsling m.v. i forbindelse med afskedigelser af større omfang ) and has issued Guidelines to the Executive Order on Collective Redundancies No. 10033 of 27 October 2017 (Vejledning til bekendtgørelse om varsling m.v. i forbindelse med afskedigelser af større omfang ).

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Estonia

Summary (I) The Estonian Employers´ Association does not agree with the proposed amendments to the Posted Workers´ Directive because it does not support the free movement of services. (II) As of 01 January 2018, a new will be introduced. It will amount to EUR 500 per month. ______1 National Legislation Nothing to report.

2 Court Rulings Nothing to report.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information 4.1 Posting of workers The Estonian Employers´ Association does not support the proposed amendments to the Posted Workers Directive . Estonian employers claim that the proposed amendments will favour the old Member States to the detriment of the new Member States, especially eastern European states. The proposed amendments would make it more difficult for Estonian employers to post their workers to other Member States, because the employer has to clarify all details regarding wages and additional payments. Estonian employers defend the current system and rules.

4.2 Monthly minimum wage The Estonian Tarde Unions´ and the Estonian Employers´ Association have signed an agreement on a new monthly minimum wage in Estonia. Starting on 01 January 2018, the new monthly minimum wage will be EUR 500 per month and EUR 2.97 /hour. Currently, the monthly minimum wage is EUR 470 per month. In the future, the increase in monthly minimum wage will be connected to productivity growth. The agreement signed between the trade unions and employers is a national wide agreement and will be applied to every employee and employer in Estonia.

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France

Summary (I) Decree No. 2017-1398 relating to the revalorisation of severance pay was issued and published in the Official Journal. (II) In a recent decision, the Court of Cassation extended the presumption of justification to unequal treatment between workers of different establishments stemming from a collective bargaining agreement concluded at the level of the company. (III) The Court of Cassation had asked the Constitutional Council whether Article L. 4614-13 of the Labour Code, which sets a time limit of 15 days following the Health, Safety and Working Conditions Committee's deliberation for the employer to contest the expertise's cost estimate violates the Constitution, to which the Constitutional Council responded that this is not the case. (IV) The Court of Cassation, in a case dealing with legal and conventional paid leave, reconsidered its jurisprudence and held that the employer must establish that he/she took measures to allow the worker to place her/his paid leave, whatever the legal or conventional nature. ______1 National Legislation 1.1 Severance pay Decree No. 2017-1398 of 25 September 2017, relating to the revalorisation of severance pay, was issued and published on 26 September 2017 in the Official Journal (JORF n°0225; text n° 24).

1.1.1 Revaluation of severance pay provided by law The “Macron Ordinances” came into effect on 23 September 2017. Decree No. 2017- 1398 now revaluates the severance pay provided by law when the employee has at least eight years of seniority. This revaluation is applicable to redundancies notified after 27 September 2017. Before the Decree: According to the law in force prior to the Decree, the employee had to have one year of seniority to benefit from the severance pay provided by law (previous Article L. 1234-9 of the Labour Code). The amount was calculated according to the following principles (previous Article R. 1234-2 of the Labour Code): • 1/10 of one month’s salary per year of seniority, and • an additional 2/15 of one month’s salary per year starting from 10 years of seniority. After the Decree: Ordinance No. 2017-1387 of 22 September 2017 states that the employee must now have eight months of seniority to benefit from the severance pay provided by law (Article L. 1234-9 of the Labour Code). This principle has been elaborated in the (new) Article R. 1234-2 of the Labour Code, the amount of severance pay may not be lower than:

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• In case of less than ten years of seniority - 1/4 of one month’s salary per year of seniority, and • in case of over ten years of seniority - 1/3 of one month’s salary per year of seniority.

1.1.2 Modification of the reference salary Ordinance No. 2017-1387 modifies the reference salary that represents the basis for calculating severance pay (Article R. 1234-4 of the Labour Code). The reference salary to be taken into account is: • the monthly average of the last twelve months prior to the redundancy, the monthly average of the salary prior to the redundancy; • or 1/3 of the last three months. The reference salary that is the most profitable for the worker is considered.

1.1.3 A specific calculation in case of an incomplete year Severance pay is calculated in proportion to the number of full months i n case of an incomplete year (Article R. 1234-1 of the Labour Code) .

2 Court Rulings 2.1 Equitable wage Labour Division (Chambre sociale) of the Court of Cassation, 04 October 2017, No. 16- 17.517 After a merger, a collective bargaining agreement concluded in the merged company set out that the workers of the absorbed establishment had the right to their previously acquired compensation for hours of work at night, on Sundays and on public holidays. The workers of the other establishment requested the same compensation. They claimed that these provisions create an unequal treatment which is not based on objective and relevant reasons. In the present case, the employer had to maintain the transferred workers’ individual advantages according to previous Articles L. 1224-1 and L. 2261-14 of the Labour Code. This excluded the principle of "equal pay for equal work". The employer also chose to give these advantages to workers of the establishment hired later. The other workers of the company did not benefit from these advantages. The Court of Appeal held that the workers of the other establishment of the company had to benefit from these advantages as well. In fact, a collective bargaining agreement can create unequal treatment between workers of different establishments if this inequality is based on objective reasons. The judge controls their reality and their relevance. The Court of Cassation overturned this decision by holding that unequal treatment between workers of different establishments within the same company is presumed justified when it is set by a collective bargaining agreement in the company. The one who contests it has to demonstrate that it is not related to professional matters. In other words, the employer does not have to prove that the unequal treatment is based on objective reasons. The workers who claim the advantages must demonstrate that this inequality is not related to any professional consideration.

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The present court decision is consistent with recent jurisprudence of the Court of Cassation. Indeed, it had ruled that unequal treatment set by a collective bargaining agreement between occupational categories is presumed to be justified (Labour Division (Chambre sociale) of the Court of Cassation, 27 January 2015, n°13-22.179, n°13- 25.437 and n°13-14.773). Subsequently, it ruled accordingly on unequal treatment concerning workers in the same occupational category but with distinct duties (Labour Division (Chambre sociale) of the Court of Cassation, 8 June 2016, n° 15-11.324). More recently, it recognised that the advantageous treatment of the workers of a distinct establishment set by a collective bargaining agreement concluded in this establishment was presumed justified (Labour Division (Chambre sociale) of the Court of Cassation, 03 November 2016, n°15-18.444). The present decision logically extends this presumption of justification to unequal treatment between workers of different establishments stemming from a collective bargaining agreement concluded at the level of the company. " Attendu que les différences de traitement entre des salariés appartenant à la même entreprise mais à des établissements distincts, opérées par voie d’accords d’entreprise négociés et signés par les organisations syndicales représentatives au sein de l’entreprise, investies de la défense des droits et intérêts des salariés de l’ensemble de cette entreprise et à l’habilitation desquelles ces derniers participent directement par leur vote, sont présumées justifiées de sorte qu’il appartient à celui qui les conteste de démontrer qu’elles sont étrangères à toute considération de nature professionnelle " (Labour Division (Chambre sociale) of the Court of cassation, 4 October 2017, n° 16-17.517 ) However, the European anti-discrimination law does not establish such a presumption of justification concerning unequal treatment set by a collective bargaining agreement.

2.2 Information and consultation of employees Constitutional Council, 13 October 2017, n° 2017-662 Pursuant to Article L. 4614-13 of the Labour Code, the employer has 15 days following the deliberation of the Health, Safety and Working Conditions Committee to request a judge to contest the expertise decided by it, and possibly its cost estimate. " […] L'employeur qui entend contester la nécessité de l'expertise, la désignation de l'expert, le coût prévisionnel de l'expertise tel qu'il ressort, le cas échéant, du devis, l'étendue ou le délai de l'expertise saisit le juge judiciaire dans un délai de quinze jours à compter de la délibération du comité d'hygiène, de sécurité et des conditions de travail ou de l'instance de coordination mentionnée à l'article L. 4616-1" (Article L. 4614-13 (2) of the Labour Code). In the present case, the plaintiff claimed that he was unable to be aware of the expertise's cost estimate within the time limit of 15 days. He argued that the said legal provision would violate the right to an effective remedy. On 13 July 2017, the Labour Division of the Court of Cassation forwarded the following question to the Constitutional Council: Does Article L. 4614-13 of the Labour Code, which sets a time limit of 15 days following the Health, Safety and Working Conditions Committee's deliberation to contest the expertise's cost estimate, violate the Constitution? The Constitutional Council held that the said legal provision is consistent with the Constitution.

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On the one hand, according to Article L. 4614-13-1 of the Labour Code, the employer can contest the expertise's final cost within a time limit of 15 days from the day when he/she is aware of this final cost. The right to an effective remedy is thus not violated. Additionally and on the other hand, pursuant to Article L. 4614-13 of the Labour Code, the Health, Safety and Working Conditions Committee has to determine the expert's mission (scope and time) and name; and the time limit of 15 days to contest it does not violate the right to an effective remedy. "6. D'une part, en vertu de l'article L. 4614-13-1 du code du travail, l'employeur peut contester le coût final de l'expertise décidée par le comité d'hygiène, de sécurité et des conditions de travail devant le juge judiciaire, dans un délai de quinze jours à compter de la date à laquelle il a été informé de ce coût. Dès lors, à la supposer établie, l'impossibilité pour l'employeur de contester le coût prévisionnel de cette expertise ne constitue pas une méconnaissance du droit à un recours juridictionnel effectif. 7. D'autre part, il résulte de l'article L. 4614-13 du code du travail qu'il appartient au comité d'hygiène, de sécurité et des conditions de travail ou à l'instance de coordination, lorsque l'un ou l'autre décide de faire appel à un expert agréé, de déterminer par délibération l'étendue et le délai de cette expertise ainsi que le nom de l'expert. Dès lors, en prévoyant que l'employeur dispose d'un délai de quinze jours à compter de la délibération pour contester la nécessité de l'expertise, son étendue, son délai ou l'expert désigné, le législateur n'a pas méconnu le droit à un recours juridictionnel effectif. 8. Les dispositions contestées, qui ne méconnaissent aucun autre droit ou liberté que la Constitution garantit, doivent donc être déclarées conformes à la Constitution.

LE CONSEIL CONSTITUTIONNEL DÉCIDE : Article 1er. - Les mots « dans un délai de quinze jours à compter de la délibération du comité d'hygiène, de sécurité et des conditions de travail ou de l'instance de coordination mentionnée à l'article L. 4616-1 » figurant à la première phrase du deuxième alinéa de l'article L. 4614-13 du code du travail, dans sa rédaction résultant de la loi n° 2016-1088 du 8 août 2016 relative au travail, à la modernisation du dialogue social et à la sécurisation des parcours professionnels, sont conformes à la Constitution". (Constitutional Council, 13 October 2017, n° 2017-662 ) Ordinance No. 2017-1386 of 22 September 2017 now removes the Health, Safety and Working Conditions Committee, which will from now on be part of the Social and Economic Council (SEC). If the employer contests the cost estimate of the expertise decided by the SEC, he/she will have a time limit of 15 days following the day he/she is informed of this cost to request a ruling by a judge (and not 15 days following the deliberation of the SEC (Article L. 2315-86 4° of the Labour Code)).

2.3 Working time Labour Division (Chambre sociale) of the Court of Cassation, 21 September 2017, n° 16-18.898 and n° 16-18.109 An employee was declared unable to work in the company by the occupational doctor, and his employer was placed under legal redress. The employee claimed that he did not benefit from his conventional paid leave acquired in 2012 and 2013 because of his sick leave since 27 January 2014.

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The Court of Cassation has now specified the applicable provisions to annual paid leave provided by a collective bargaining agreement (Labour Division (Chambre sociale) of the Court of Cassation, 21 September 2017, n° 16-18.898). Prior to the court's decision, the employer had to prove that his employee benefited from his legal paid leave (see also Labour Division (Chambre sociale) of the Court of Cassation, 12 February 2014, n° 12-89.542). And, the employee had to prove that the employer prevented him from placing his conventional paid leave to obtain compensation (see also Labour Division (Chambre sociale) of the Court of Cassation, 12 May 2015, n° 13-20.349). The Court of Cassation reconsidered its jurisprudence and held that the employer must establish that he took measures to allow the worker to place his paid leave, whatever the legal or conventional nature. More precisely, the court held that according to Directive 2003/88/EC of 04 November 2003 concerning certain aspects of the organisation of working time, the employer has to take measures allowing the employee to exercise his right to leave. She/he also has to prove that he fulfilled this obligation. This rule is applicable to legal and conventional leave, in addition to the four weeks guaranteed by European Union law. Thus, the worker does not have to prove that she/he was unable to place his conventional leave to obtain compensation. "Mais attendu qu'eu égard à la finalité qu'assigne aux congés payés annuels la directive 2003/88/CE du Parlement européen et du Conseil du 04 novembre 2003, concernant certains aspects de l'aménagement du temps de travail, il appartient à l'employeur de prendre les mesures propres à assurer au salarié la possibilité d'exercer effectivement son droit à congé, et, en cas de contestation, de justifier qu'il a accompli à cette fin les diligences qui lui incombent légalement ; que, sauf dispositions contraires, la même règle de preuve s'applique aux congés d'origine légale ou conventionnelle, s'ajoutant aux quatre semaines garanties par le droit de l'Union ". (Labour Division (Chambre sociale) of the Court of cassation, 21 September 2017, n° 16-18.898 ) In another case, the Court of Cassation recalled that the legal provisions concerning paid leave compensation are the same for conventional paid leave (Labour Division (Chambre sociale) of the Court of Cassation, 21 September 2017, n°16-18.109). "Mais attendu que les dispositions de l'article L. 3141-22 du code du travail, dans leur rédaction alors applicable, qui déterminent le mode de calcul de l'indemnité de congés payés, qui sont d'ordre public, s'appliquent également aux congés supplémentaires d'origine conventionnelle ". (Labour Division (Chambre sociale) of the Court of Cassation, 21 September 2017, n° 16-18.109 )

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Germany

Summary (I) The Federal Labour Court ruled that if a vacant post is filled by the employer without considering the request of a part-time employee to work more hours, that employee can only claim damages. (II) If a statutory notice period that applies to the employee is extended by means of a standard business term, such term may be unfair, even if the same notice period applies to the employer as well. (III) Temporary agency workers shall be included in the number of members to be released if they belong to the company’s regular workforce. Determining the number of employees requires a retrospective view as well as a projection. ______1 National Legislation Nothing to report.

2 Court Rulings 2.1 Part-time employment Federal Labour Court 9 AZR 259/16 of 18 July 2017 According to section 9 of the Part-Time and Fixed-Term Contracts Act ( Teilzeit- und Befristungsgesetz ), in case of a vacancy, the employer shall give preferential consideration to a part-time worker who has indicated her/his desire to extend her/his contracted working time if the part-time employee has the relevant qualifications. Such a claim may only be excluded if there are urgent business reasons or concurring wishes of other part-time employees. The Federal Labour Court ruled that if a vacant post is filled by the employer in breach of section 9, the claim of the part time employee based on that provision expires. In that case, the part-time employee can only claim damages and does not have the right to extend her/his working time. The Court based its ruling on a legal parallel to section 15(6) of the General Equal Treatment Act ( Allgemeines Gleichbehandlungsgesetz ). According to section 15(1) and (2), an employee who was discriminated against can claim damages and/or compensation, whereas section 15(6) explicitly states that a right to establish an employment relationship is not among the remedies in case of discrimination.

2.2 Notice period Federal Labour Court of 26 October 2017 – 6 AZR 158/16 If a statutory notice period applying to the employee is extended by means of a standard business term, such term may be unfair, even if the same notice period applies to the employer as well. The outcome, however, depends on all aspects of the individual case and by taking the employee’s freedom of occupation (which is protected by Article 12(1) of the Constitution) into account. According to section 622(5) of the Civil Code, “ for notice of termination of employment by the employee, no longer notice period may be agreed than the notice of termination by the employer ”. Even so, the extension of a notice period may be unfair. The Federal Labour Court based its ruling on section 307(1)

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sentence of the Civil Code, which reads as follows: “ Provisions in standard business terms are ineffective if, contrary to the requirement of good faith, they unreasonably disadvantage the other party to the contract with the user ”. Source: A press release of the Federal Labour Court on the judgment is available here.

2.3 Temporary agency workers and works council constitution Federal Labour Court of 02 August 2017 – 7 ABR 51/15 Under the Works Council Constitution Act ( Betriebsverfassungsgesetz ), a certain number of works council members must be fully released from their work duties. According to section 38(1) of the Act, the minimum number of works council members who must be fully released from their work duties “shall depend on the number of employees normally employed in the establishment, as set out below: 200 to 500 employees: 1 member of the works council, 501 to 900 employees 2 members of the works council, 901 to 1500 employees 3 members of the works council, 1501 to 2000 employees 4 members of the works council, 2001 to 3000 employees 5 members of the works council, 3001 to 4000 employees 6 members of the works council (…) ”. According to the Federal Labour Court, temporary agency workers must be included in the number of employees to be released if they belong to the company’s regular workforce. Determining the number of employees requires a retrospective view as well as a projection. With regard to the latter, entrepreneurial decisions must also, in principle, be taken into account. In the present case, they did not, however, play a role as the employer had only in the court’s view, presented ideas and plans without having reached the point where a conclusive business decision to reduce staff members had been made. The decision of the Court is in line with earlier decisions (see, in particular, Federal Labour Court of 18 January 2017 – 7 ABR 60/15) and further substantiates the applicable requirements.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Greece

Summary The Greek Supreme Court ruled on a case concerning the working time of international truck drivers, asserting that not only the driving hours, but also the waiting times must be considered working time, since the worker is physically and mentally prepared to perform work. ______1 National Legislation Nothing to report.

2 Court Rulings 2.1 Working time Greek Supreme Court - Decision No. 613/2017 The dispute involved employees employed as international transport truck drivers. The first issue was whether Greek labour law was applicable to the case. The Greek Supreme Court (613/2017) took into account that Greece was the main country in which the work was being performed: even when the work was being performed in the territory of several countries, the employees habitually performed the essential part of their duties in Greece. The Court also observed that the place from which employees habitually carried out their work was Greece. Therefore, Greek labour law was applicable to the abovementioned employment relationship. The second issue concerned the working time of the abovementioned driver, particularly the issue of ‘on-call’ and ‘stand by’ duties. According to the Greek Supreme Court, if the employee agrees to restrict her/his freedom in terms of time during which she/he is physically and mentally prepared to perform work (on-call duty), all the provisions of labour law and particularly those on working time and minimum pay levels are applied. By contrast, the above rules are not applied if the employee is not required during the period of employment to be physically and mentally available to work. The Court stated that not only the hours of driving a truck are included in her/his working time, but also the waiting periods. These periods constitute working time as the employee.

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Hungary

Summary The Kúria confirmed a decision of the Labour Court holding that the conclusion of new employment contracts by the liquidator during the liquidation proceeding are not covered by Act XLIX of 1991 on Proceedings and Liquidation Proceedings. ______1 National Legislation Nothing to report.

2 Court Rulings 2.1 Conclusion of new employment contracts during a liquidation proceeding Decision of Kúria (Supreme Court) Mfv. I.10.625/2016 [EBH2017. M.13 An undertaking was in a liquidation proceeding. The liquidator (plaintiff) was a Trustee and Liquidator lb. Company. As hazardous waste was stored on the undertaking's , the Environmental and Nature Conservation authority ordered custody of the site. The liquidator decided to employ three persons to do so. The liquidator concluded contracts of employment with these three persons during the liquidation procedure. The liquidator, at the same time, submitted a wage guarantee support request. The claim was rejected by the Employment Department of the Government Office in the first instance. The liquidator’s appeal was also rejected by the Ministry of Economic Affairs. The reasons for the decision were that the liquidator had exercised the employer's rights but had not had the right to conclude a new contract of employment during the liquidation procedure. The above-mentioned authorities referred to Act XLIX of 1991 on Bankruptcy Proceedings and Liquidation Proceedings (hereinafter: BA) and to Act LXVI of 1994 on the Wage Guarantee Fund (hereinafter: WA). The plaintiff’s request for review was submitted to the Labour Court. The plaintiff confirmed the fact that contracts of employment had been concluded. He referred to Section 27/A Sub 13 and Section 47 Sub 5 BA. Section 27/a Sub 13 states: “The liquidator shall carry out his duties based in principle on the debtor’s or his own work organisation, including the statutory employment of persons, who hold the qualifications required by law, in civil relationships. The liquidator may also enter into civil relationships to the extent necessary to carry out his duties: a) for services that are not covered by the scope of expertise prescribed under specific other legislation for liquidation activities; b) for activities that are not commonly required in connection with liquidation proceedings, or which are in excess of what is commonly required; c) in cases prescribed as mandatory by the relevant legislation; d) if authorised by the court in advance at the liquidator’s request in cases not mentioned under Paragraphs a)-c). ” Section 47 Sub 5 sets out:

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“From the moment of the opening of liquidation proceedings, the employer’s rights shall be exercised and his obligations shall be fulfilled by the liquidator within the framework of the relevant legislation, the collective agreement, and internal regulations and contracts of employment. ” The plaintiff arrived at the conclusion that none of these prohibit the conclusion of a contract of employment during the liquidation procedure. In fact, the latter provision expressly entitles the employer to exercise his employer’s rights, including the conclusion of a contract of employment. He indicated that the function of the Wage Guarantee Fund’s support is the pre-financing of wages of workers in the enterprises for the event of lack of resources. The plaintiff’s request was rejected by the Court. The Court emphasised that the BA does not allow for the employment of new employees. Section 47 Sub 5 only applies to employees already employed. Section 27/a Sub 13 regulates the conclusion of a service contract. The liquidator could have instead concluded a service contract with the guards. The Court finally stated that the provisions of the WA can only be applied in the context of the BA. The Kúria confirmed the decision of the Labour Court.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Iceland

Summary The Supreme Court of Iceland issued a ruling on the scope of of the Labour Court. ______1 National Legislation Parliamentary elections were held on 28 October, meaning no new legislation was passed by the Parliament ( Alþingi ) in October.

2 Court Rulings 2.1 Labour Court jurisdiction Supreme Court Case No. 633/2017 of 24/10/2017 On 24 October 2017, the Supreme Court of Iceland issued a judgment in the on-going dispute between Primera Air and the Icelandic Cabin Crew Association. The issue concerned the claim of the Icelandic Confederation of Labour on behalf of the aforementioned union that the Labour Court recognises that the union was permitted to initiate a strike in its dispute with Primera Air. The case had been appealed to the Supreme Court in accordance with Act no. 80/1938, on labour unions and labour disputes. In case No. 633/2017, the Supreme Court ruled that the Icelandic Confederation of Labour’s counterclaim to an independent judgment for this recognition did not fall within the scope of the Labour Court, cf. Article 44 of Act No. 80/1938. The claim was therefore dismissed by the Court on those grounds.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information 4.1 Average working time and unemployment rate In the third quarter of 2017, the average working time per week for those in full-time employment was 44.3 hours a week; it was 25.3 hours for those working part-time. In that same period, unemployment was 2.2 percent and long-term unemployment was 0.2 percent. In September, the wage index rose by 0.8 percent from the previous month and by 7.4 percent over the last 12 months.

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Ireland

Summary (I) With effect from 01 January 2018, the national minimum hourly rate of pay will increase from EUR 9.25 to EUR 9.55. (II) With effect from 19 October 2017, a sectoral employment order came into force fixing statutory minimum pay and pension and sick pay entitlements for workers in the construction sector. ______1 National Legislation 1.1 Minimum wage The Minister of State at the Department of Employment Affairs and Social Protection has implemented the recommendations of the Low Pay Commission in its July 2017 Report to increase the national minimum hourly rate of pay from EUR 9.25 to EUR 9.55: National Minimum Wage Order 2017 (S.I. No. 440 of 2017). The increase will take effect from 01 January 2018. The Minister has also given effect to the recommendation of the Labour Court that a Sectoral Employment Order be made for the construction sector pursuant to his powers under section 17 of the Industrial Relations (Amendment) Act 2015 : Sectoral Employment Order (Construction Sector) 2017 (S.I. No. 455 of 2017). This Order , which came into operation on 19 October 2017, fixes the statutory minimum pay and pension and sick pay entitlements for craftsmen, construction operatives and apprentices employed in the construction sector. The Order provides for hourly rates of pay of between EUR 13.77 (for new entrants) to EUR 18.93. The Order also provides for unsocial hours payments, the adoption of a pension and sick pay scheme, and a procedure. Section 19(1) of the 2015 Act provides that the Order applies to every worker of the specified class, type or group in the construction sector, and to her or his employer, notwithstanding that such worker or employer was not party to the request to the Labour Court, pursuant to section 14 of the Act, to examine the terms and conditions in the sector.

2 Court Rulings Nothing to report.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Latvia

Summary (I) The Senate of the Supreme Court ruled that an employed prisoner is not entitled to financial compensation for moral damage due to lack of pay during annual leave. (II) The CJEU judgment in case C-200/16 will have implications on the interpretation of the Latvian Labour Law concerning the concepts of ‘undertaking’ and ‘legal transfer’. ______1 National Legislation Nothing to report.

2 Court Rulings 2.1 Annual leave On 05 October 2017, the Senate of the Supreme Court decided case SKC—293/2017, in which a prisoner claimed financial compensation for moral damage on account of the fact that while working as a full-time employee (a cook) during his imprisonment in the period between 29 April 2004 and 11 February 2009, he was not entitled to paid annual leave. The history of this case started on 11 November 2004, when amendments (Grozījumi Latvijas Sodu izpildes kodeksā , Official Gazette No.187, 25 November 2004) to the Latvian Sentence Execution Code (Latvijas Sodu izpildes kodekss , Official Gazette No.1, 01 January 1971) entered into force. The amendments eliminated the right to pay during annual leave. This regulation was challenged before the Constitutional Court. On 21 October 2008, the Constitutional Court delivered its decision in case No. 2008-02-01 declaring the Latvian Sentence Execution Code’s dispositions on the 48-hour working week and the lack of the right to annual leave with pay for employed prisoners unconstitutional, since the Constitutional Court did not recognise any legitimate ground for the restriction of the right to limited working time and paid annual leave as provided by Article 107 of the Constitution (Latvijas Republikas Satversme , Official Gazette No. 141, 30 June 1922). Taking into account the fact that the Constitutional Court declared the restriction of the right to pay during annual leave for employed prisoners as unconstitutional, the claimant claimed compensation for moral damage suffered, i.e. for being employed for 48 hours and 6 days a week without the right to pay during annual leave for almost 5 years. The Senate of the Supreme Court dismissed the claim by finding that the decision of the Constitutional Court itself presents sufficient moral satisfaction. The Senate based its finding on the case law of the European Court of Rights on the right to compensation for moral damage.

3 Implications of CJEU rulings and ECHR 3.1 Transfer of undertaking CJEU case C-200/16, 19 October 2017, Securitas The concepts of ‘undertaking’ and ‘legal transfer’ are implemented by Article 117(1) of the Labour Law (Darba likums , Official Gazette No.105, 06 July 2001). The

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corresponding provision defines such concepts in a very general manner. The Labour Law, in general, does not provide an extended and more detailed explanation or indicators on what must be considered an ‘undertaking’ and ‘legal transfer’. Therefore, the CJEU judgment in case C-200/16 will have implications on the Latvian Labour Law as far as it provides an interpretation of these concepts.

4 Other relevant information Nothing to report.

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Liechtenstein

Summary According to the majority of legal literature, notices of amendment of pay within the framework of collective redundancies are to be considered regular notices. It can be assumed that the courts of Liechtenstein will this view if they have to rule on such a case. In doing so, the ruling would comply with the CJEU judgment in case C-429/16. ______1 National Legislation Nothing to report.

2 Court Rulings Nothing to report.

3 Implications of CJEU rulings and ECHR 3.1 Collective redundancy CJEU case C-429/16, 21 September 2017, Ciupa and others In case C-429/16, the CJEU (Tenth Chamber) ruled as follows: Article 1(1) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies must be interpreted as meaning that a unilateral amendment of conditions of pay by the employer, to the detriment of the employees, which, in the event of an employee’s refusal, entails the termination of the contract of employment, can be regarded as a ‘redundancy’ within the meaning of that provision, and Article 2 of that directive must be interpreted as meaning that an employer is required to carry out the consultations provided for in Article 2, in which he contemplates effecting such a unilateral amendment of the conditions of pay, in so far as the conditions laid down in Article 1 of the Directive are satisfied, which is for the referring court to ascertain.

4 Other relevant information Nothing to report.

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Luxembourg

Summary An amendment to a bill implements the EU law entitlement of ten days of paternity leave. ______1 National Legislation 1.1 Working time and part-time work Concerning the two bills No. 7171 (working time accounts) and No. 7182 (part-time work) affecting the public sector (see also the August 2017 Flash Report), the body representing the civil servants’ and public employees’ interests ( Chambre des fonctionnaires et employés publics) has issued its opinions, which are generally favourable and only suggest minor changes.

1.2 Paternity leave Concerning the pending bill No. 7060 on changes to parental leave and special leave for personal reasons (see also the September 2017 Flash Report), a government amendment ( Amendements gouvernementaux au projet de loi n° 7060, 26 October 2017 ) has been deposited to adapt paternity leave. Currently, fathers are entitled to 2 days of paternity leave and the bill intended to grant 5 days of leave. Given the proposal for a Directive on work-life balance for parents [Article 4 of the proposal for a Directive of the European Parliament and the Council on work-life balance for parents and careers and repealing Council Directive 2010/18/EU], the government has decided to implement the right for 10 working days of paternity leave. This parental leave can be taken by any father from the time of the child’s birth, as well as in case of adoption of a child aged 16 or less. Currently, the first two days are paid by the employer, while the additional days will be reimbursed by public funds, with a limit of five times the social minimum wage. Furthermore, the amendment adds some procedural rules to paternity leave: • If the employer agrees, the parental leave can be interrupted but must be taken in full within 2 months. If there is no agreement, parental leave must be taken as uninterrupted leave of 10 days immediately after the child’s birth or adoption. • The employee must notify the employer regarding the likely day she/he will take leave at least 2 months in advance, providing a medical certificate or document justifying the probable adoption date. If the employee does not respect this deadline, the employer is not required to grant him more than two days of leave.

1.3 Third-country nationals A new bill ( Projet de loi n° 7188 portant modification de la loi modifiée du 29 août 2008 sur la libre circulation des personnes et l’immigration et de la loi du 18 février 2013 sur l’accueil de jeunes au pair ) implements Directive 2016/801/EU on the conditions of entry and residence of third-country nationals. This legislation mainly deals with research, studies, training, voluntary service, pupil exchange schemes, etc. The general approach

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is a more or less textual implementation of the Directive. Two aspects more directly concern employees as such: • Economic activities by students (Article 24 of the Directive, point 10 of the bill): the bill chooses not to go beyond the new minimum of 15 hours per week. • Stay for the purpose of job-searching or entrepreneurship (Article 25 of the Directive, point 29 of the bill): the Directive seems to be implemented correctly. Luxembourg chose the Master as the minimum level of degree to obtain.

2 Court Rulings Nothing to report.

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Netherlands

Summary (I) The new Government of the Netherlands published its government agreement on 10 October 2017, which includes some changes to employment law. (II) In a recent judgment, a cantonal judge dealt with the implications of CJEU judgment (C-126/16) on insolvency and the transfer of undertaking. ______1 National Legislation Nothing to report.

2 Court Rulings 2.1 Transfer of undertakings In the CJEU’s Smallsteps judgment (C-126/16) of 22 June 2017, the Court held that a pre-pack, whereby the sale and continuation of the undertaking are arranged and agreed upon before the insolvency proceedings are initiated, does not qualify for an exemption of Directive 2001/23/EC (see also the June 2017 Flash Report). In a case before the Cantonal Judge Alkmaar of 12 October 2017 (ECLI:NL:RBNHO:2017:8423), the question was whether the sale of an insolvent company (coffin makers) constituted a pre-pack or a regular relaunch after a liquidation. In the latter case, the protection of workers under the Directive would not be applicable. The judge held that the scope of the Smallsteps ruling was strictly limited to cases which are very similar to the present case. This means that the sale and continuation of the undertaking have to be prepared in detail before the insolvency proceedings start to qualify the continuation of the undertaking as a pre-pack. Furthermore, the sale of the undertaking has to take place immediately after the insolvency has been declared. Another significant difference was that several potential buyers of the undertaking were approached instead of just choosing one before bankruptcy was declared. In the present case, the judge held that there was no proof that a thorough preparation of the sale and continuation of the undertaking prior to the insolvency had taken place. According to the judge, repeated talks about the possibility of a or partial takeover do not qualify as such. Moreover, the actual sale of the undertaking took place three weeks after insolvency was declared, which means there was no ‘direct’ sale and continuation of the undertaking. Therefore, the sale and continuation of the undertaking was not considered a pre-pack.

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information 4.1 Coalition agreement The new Government of the Netherlands published its Government Agreement on 10 October 2017. In this agreement, the new government announces its plans for the period 2017/2021. The government states that one of its objectives is to promote work

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on the basis of permanent employment contracts. To achieve this, the government has developed plans to narrow the gap between permanent employment relationships and flexible employment contracts. It should be highlighted that at this stage, the government has only issued its general intentions. The details will become clearer if and when actual changes to the current legislation are introduced by Parliament. The relevant bills still need to be drafted and submitted for consultation (social partners, Council of State) before that stage is reached. The following measures/proposals were announced: ó ‘Cumulation ground’ for dismissal Since the entry into force of the Work and Security Act (‘Wet werk en zekerheid’) on 01 July 2015, an exhaustive list of reasonable grounds for dismissal has been applied in the Netherlands. An employer who wishes to terminate a contract needs to prove such ground. The grounds cannot be combined under the current legislation. Hence, an employer who decides to terminate an employment contract must select one (and only one) of eight possible grounds for termination. The new government aims to introduce a ‘cumulation ground’, which could be used as a catch-all for cases falling outside the scope of the current list, and for cases in which the separate grounds do not justify termination but jointly they do. However, the judge dissolving the employment contract on the basis of the ‘cumulation ground’ can award additional severance compensation, if the employer fails to show a ‘fully’ reasonable ground. The extra compensation will amount to 50 percent of the transition allowance, which has to be paid by the employer in all cases of termination or non-continuation of the contract. ó Changes transition allowance Employees will be entitled to the transition allowance from the beginning of their employment contract. Under the current legislation, employees receive the allowance if their contract ceases after two years of employment. The transition allowance will be equal to one-third of a monthly salary for every year worked. Under the current legislation, the transition award amounts to 50 percent of the salary per year in employment above 10 years. ó Provisions on succession of fixed-term employment contracts It will again be possible to conclude fixed-term employment contracts for a period of three years. After three years, a fixed-term contract automatically converts into a permanent one. This rule was introduced in 1997, but the Work and Security Act (‘ Wet werk en zekerheid’ ) changed the term to two years. The government plans to change the term back to three years. The maximum number of three fixed-term contracts that can be concluded during this period will remain. ó Probation period It will be possible for employers to include a probation period of five months in a permanent employment contract. In fixed-term contracts of more than two years, it will be possible to include a probation period of three months. In both cases, the maximum probation period is currently two months. For fixed-term contracts of less than two years, the maximum probation period will continue to be one month. Furthermore, it is still impossible to include a probation period in a fixed-term contract of up to six months. ó On-call contract The coalition parties want to prevent on-call workers from having to make themselves unnecessarily available for any call. This would possibly be at the expense of the ability of on-call workers to accept other (part-time) jobs. Exclusivity clauses as such will still be possible, but their effect will be alleviated.

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On-call workers will not be required to respond to a call under certain conditions and will be entitled to a salary when they are forced to cancel a call. ó Continued payment of wages during illness In order to encourage SMEs to conclude permanent contracts with employees, the obligation of an SME (up to 25 employees) to continue to pay an employee’s salary in case of illness will be reduced from two years to one year. The employees in question will receive sickness benefits instead of wages from the public social insurance system for their second year of illness. The costs of these benefits will be financed through a uniform burden-sharing social insurance contribution for small employers. The prohibition of termination of employment during the first two years of an employee’s illness will continue to apply, as will the employer’s obligation to help the employee resume work or find work suitable for their disability. ó Differentiation of the unemployment insurance contribution The government wants to differentiate between unemployment insurance contributions according to type of contract. However, the government will conduct a feasibility study first. The intention is to assign lower rates for permanent employment contracts than for fixed-term contracts. ó Paternity leave Paternity leave (i.e. leave for the parent that did not give birth) is to be extended from 2 days to 5 days. During this leave, employers must pay the employee full wages. In addition, supplementary paternity leave of 5 weeks will be introduced on 01 July 2020. ó Employed or self-employed? The Assessment of Employment Relationships (Deregulation) Act (‘Wet DBA’) will be replaced by a new legislation on the distinction of employees and self- employed persons for the purpose of tax and social insurance. Enforcement of the Wet DBA had already been suspended. A new system to distinguish employees from self-employed persons will be introduced in 2020. The government aims to provide assurance for ‘real’ self- employed workers that no employment contract exists and, on the other hand, counter bogus self-employment. Persons working for a longer period of time for wages close to the statutory minimum wage will be presumed to be employed, whereas persons earning a very high income will be assumed to be self- employed. Whether the worker performs her/his tasks in the core business of the (alleged) employer will also be a factor to be taken into consideration. The number of hours worked per week, the duration of the contract and the remuneration will be used as much stronger evidence than previously when dealing with the question whether an employment contract exists. The ‘low end’ of the self-employed segment will be assumed to have an employment contract, whereas the high end (earning more than EUR 75 per hour and hired for less than a year) will, on the other hand, be considered to be self-employed. This leaves a large intermediate category: earning more than the minimum wage (and abundantly so) and/or hired for a relatively short period of time. For the contractor hiring such workers, a web module, similar to the one used in the United Kingdom, will be developed. On the basis of the information entered into the system, contractors will receive a ‘contactor’s statement’. If this ‘prospective ruling’ by the (website of) the tax authorities states that the hired worker is an independent (self-employed) worker, the contractor will enjoy immunity for retroactive tax and social insurance obligations. If and when the fiscal authorities

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decide that the worker in question was an employee after all, tax and contributions connected to the status of employee will have to be paid.

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Norway

Summary The Supreme Court ruled on the calculation of length of service. ______1 National Legislation Nothing to report.

2 Court Rulings 2.1 Calculation of length of service On 11 October 2017, the Supreme Court ruled in a case concerning the calculation of length of service in a transnational group. Two foreign employees were dismissed on organisational grounds in application of a "last in, last out" principle. In calculating the length of service, the employer had applied the principle agreed in a collective agreement; length of service from the date of employment in the Norwegian branch of the group. The employees argued that in the calculation of their length of service, the time they worked for a foreign company of the same group should be included. Failure to include the time worked for the foreign company of the group would constitute a discrimination based on nationality, according to Article 28 of the EEA Agreement. The Supreme Court found that the calculation of length of service did not constitute discrimination based on nationality according to Article 28 of the EEA Agreement.

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Poland

Summary (I) The parliamentary discussion on the ban on working on Sundays in commercial establishments continues. (II) The CJEU has delivered a ruling that clarifies the Polish procedure on collective dismissals, where the employer’s intention is to modify employment conditions. ______1 National Legislation 1.1 Working time The ban on working on Sundays in commercial establishments (supermarkets, shops, etc.) continues. It should be recalled that in Poland, there is no prohibition on commercial activities on Sundays and—as a general practice—shops are open. Article 151 9a of the Labour Code only introduces the prohibition to work for such entities on public holidays. First, the citizens’ draft on a complete ban on working on Sundays in commercial establishments, supported by the “” trade union, was subject to further parliamentary proceedings. On 12 October 2017, the parliamentary commission suggested some amendments to the original draft of the law on limiting commercial activities on Sundays and public holidays and some other days (see also the September 2016 and September 2017 Flash Reports). According to the government’s proposal, the major change proposed is to ban activities of commercial establishments every second Sunday. There would be some exceptions to this rule (e.g. gas stations, railway stations, souvenir shops, some other entities). In shops that are not covered by the exceptions (i.e. the overwhelming majority), the ban would not apply on two consecutive Sundays before Christmas, the Sunday before Easter, as well as every second Sunday. On Christmas Eve, work in commercial establishments would be permitted until 2.pm. The Solidarity trade union announced that it does not treat the amended draft as its own; this is the proposal of the “Law and ” governing party. Second, another draft of the law on limiting the work in commercial establishments was submitted on 17 October 2017 by “Nowoczesna” (“The Modern One” ). The draft provides that each employee of a commercial establishment should be granted a day off at least every second Sunday (currently, Article 151 12 LC provides that an employee who works on Sundays should be granted a free Sunday at least once every four weeks). Thus, the idea is to strengthen the employee’s right to rest, while not prohibiting commercial activities on Sundays. The draft expressly provides for a possibility to employ contractors in commercial establishments on Sundays, who carry out work on the basis of “regular” civil law contracts with the commercial establishment, and to civil law contractors seconded by temporary work agencies. Such persons should also be granted a day off every second Sunday. It is intended for both drafts to take effect starting from 01 January 2018. Source: A press release of 12 October 2017 on this issue is available here .

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2 Court Rulings Nothing to report.

3 Implications of CJEU rulings and ECHR 3.1 Collective redundancy CJEU case C – 429/16, 21 September 2017, Ciupa and others In Poland, collective redundancies are regulated by the Law of 13 March 2003 on specific rules for terminating employment relationships with employees for reasons not related to the individual employees concerned (consolidated text Journal of Laws 2016, item 1474). In principle, the Law reflects the provisions of Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies. According to the Law, an employer who contemplates a collective dismissal should consult trade union(s) on this issue, and try to reach an agreement. Should this not be possible, the employer should issue regulations that are in line with the regulations for redundancies (Articles 2 – 4 of the Law). Article 42 of the Labour Code introduces a “change of notice”. The provisions of “regular” terminations of employment contracts with notice apply accordingly to a notice of termination of work and remuneration conditions. An employee should be offered new (in practice: worse) employment conditions. Where the employee does not accept these new conditions, the employment contract terminates at the end of the notice period. The case Ciupa et al. of 21 September 2017 concerned a hospital that suffered financial losses. Instead of liquidation, the decision was taken to restructure the hospital. Such a step implied reductions in remuneration by 15 percent for a determined period of time. The “change of notice” procedure provided by Article 42 LC was applied. About 20% of the workforce accepted the cut. However, some employees brought an action before the court claiming that the amendment of their working and pay conditions should be declared inapplicable. The major problem was whether it was correct to apply the procedure of unilateral change of notice, or whether the “collective” procedure on the agreement with trade unions should have taken place. The CJEU decided that a termination of the contract of employment following the employee’s refusal to accept a change such as that proposed in the notice of amendment must be regarded as constituting a termination of the employment contract which occurred on the employer’s initiative for one or more reasons not related to the individual workers concerned, within the meaning of the second subparagraph of Article 1(1) of Directive 98/59/EC, so that it must be taken into account for calculating the total number of redundancies (para. 31). The case concerned a situation where in order to avoid the liquidation of the hospital and the loss of jobs, a number of changes were made. When those changes proved inadequate to ensure the survival of the hospital, the hospital found it necessary to proceed to the amendments proposed, so as to avoid having to take decisions directly concerned with terminating specific employment relationships. In such a situation, the employer could reasonably expect that a number of employees would not accept the amendment of their working conditions, and that their contracts would be terminated as a result (para 35). Consequently, where a decision entailing an amendment of working conditions may prevent collective redundancies, the consultation procedure provided for in Article 2 of the Directive must be initiated when the employer contemplates making such amendments (see to that effect para. 37).

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In other words: in a situation where a unilateral amendment of conditions of pay is suggested by the employer to the detriment of the employees, which, in the event of an employee’s refusal, entails the termination of the contract of employment, is covered by the concept of redundancy, and the collective procedure on collective dismissals should be applied.

4 Other relevant information Nothing to report.

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Portugal

Summary (I) Amendments to the Labour Code on the transfer of undertakings’ legal regime and on the provision of employees’ right to disconnect from work outside working time have been presented to Parliament. (II) The Supreme Court as well as the CJEU have ruled on the broad concept of ‘transfer’ of undertaking. ______1 National Legislation 1.1 The right to disconnect from work Following the French introduction of employees’ right to disconnect from work outside working hours, several law projects and recommendations were presented to Parliament this month to introduce a similar right under Portuguese law. The law projects and recommendations are now under assessment and will be discussed by Parliament in general (‘na generalidade’). Source: The texts of Law Projects No. 644/XIII, 552/XIII, 640/XIII and 643/XIII and Recommendations No. 1085/XIII and 1086/XIII are available here .

1.2 Transfer of Undertakings Several law projects have been presented to Parliament this month to amend the Portuguese Labour Code and improve employees’ rights in case of transfers of undertakings. The law projects are now under assessment and the details will be discussed by Parliament (‘na especialidade’). Source: The text of Law Projects No. 606/XIII, 587/XIII, 600/XIII and 603/XIII are available here .

2 Court Rulings 2.1 Transfer of undertakings Supreme Court ruling of 28 September 2017 Pursuant to Articles 285 to 287 of the Labour Code, which transposed the Transfer of Undertakings Directive 2001/23/EC of 12 March 2001, in the event of an assignment, by any means or form, of ownership of an undertaking or establishment or even of a part of the undertaking or establishment, which represents an economic unit, the acquirer assumes: (i) the legal position of the employer in the existent employment contracts (automatic transfer); and (ii) the responsibility for the payment of fines in case of labour misdemeanours. Moreover, the transferor is jointly liable for all obligations due up to the transfer, for the period of one year after the production of effects of the transfer and lack of compliance with the transfer of obligation’s rules constitutes a very serious misdemeanour (‘ contraordenação muito grave’ ). The legal provisions on transfers of undertakings are applicable in the event of an assignment, by any means or form, of ownership of an undertaking or establishment or

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even of part of the undertaking or establishment (an ‘economic unit’). The most common forms of transfer include the sale of the undertaking, establishment or business (‘trespasse’) , mergers or demergers: nevertheless, the labour concept of ‘transfer’ encompasses broad forms of “assignments”. Additionally, for this purpose, an economic unit is also described very broadly as a group of organised means, pursuing a central or ancillary economic activity. In its ruling of 28 September 2017 in case No. 1335/13.8TTCBR.C1.S1 , the Supreme Court emphasised the understanding that the succession in the concession of operation (‘concessão’) of a cafeteria in an educational centre fits the broad concept of a transfer of undertaking. Although the applicable legal framework states that the transferred employment contracts are only those which existed at the time of the transfer, if a dismissal formerly carried out by the transferor is deemed illegal and unfair by the courts (i.e. null and void according to Portuguese law), the employee will be entitled to reinstatement and the transferee will have to comply with this ruling.

3 Implications of CJEU rulings and ECHR 3.1 Transfer of Undertakings CJEU case C-200/16, 19 October 2017, Securitas In CJEU case C-200/16 , several employees of ICTS Portugal claimed to have been unfairly dismissed by Securitas, when the company replaced ICTS in the provision of services of security to Portos dos Açores SA, within its facilities (marina, port, dock), located in Ponta Delgada (Portugal). Specifically, the employees claimed that the dismissal did not comply with the legal protection recognised by the Portuguese Labour Code in case of a transfer of undertaking (Articles 285 and ff.), and that the collective bargaining agreement clause which states that “the loss of a customer by an operator following the awarding of a service contract to another operator shall not fall within the concept of a transfer of an undertaking or business ” was not in accordance with the protection granted by Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses. In its ruling, the CJEU held that: • Article 1(1)(a) of Council Directive 2001/23/EC must be interpreted as meaning that where a contracting entity has terminated the contract concluded with one undertaking for the provision of security guard services at its facilities, then concluded a new contract for the supply of those services with another undertaking, which refuses to take on the employees of the first undertaking, that situation falls within the concept of a ‘transfer of an undertaking [or] business’ within the meaning of that provision, when the equipment essential to the performance of those services has been taken over by the second undertaking. • Article 1(1) of Directive 2001/23/EC must be interpreted as precluding a provision of national law, such as that at issue in the main proceedings, which provides that the loss of a customer by an operator following the awarding of a service contract to another operator does not fall within the concept of a ‘transfer of an undertaking [or] business’ within the meaning of Article 1(1).

4 Other relevant information Nothing to report.

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Romania

Summary The ruled on the competent court in actions challenging the nullity of employment contracts concluded under non-compliance with the rules of integrity. ______1 National Legislation Nothing to report.

2 Court Rulings 2.1 Labour Court jurisdiction Decision of the High Court of Cassation and Justice No. 10/2017 On 24 October 2017, the Decision of the High Court of Cassation and Justice No. 10/2017 was published in the Official Gazette. It concerned an appeal regarding the law to determine the competent court to hear disputes concerning appeals on the decisions of the National Agency of Integrity, when such decisions seek annulment of contracts concluded by the dignitaries. Law No. 176/2010 on integrity in the exercise of public functions and (Official Gazette of Romania No. 621 of 2 September 2010) contains a number of sanctions that the National Agency of Integrity may impose. According to Article 23 (1), the National Agency of Integrity may invalidate contracts concluded by dignitaries in breach of the legal provisions on conflicts of interest. Such contracts may be employment contracts concluded in breach of the rules of integrity – for example, hiring a relative in their own parliamentary bureaus. At the same time, such contracts may be civil law contracts subject to the Civil Code provisions. As a result, the question was brought before the High Court of Cassation and Justice: which one is the competent court to resolve actions challenging the nullity of these legal acts? It could be the administrative litigation court, since a decision taken by the National Agency of Integrity—an administrative body—is challenged, but it could also be a labour law court, since it is possible to challenge the nullity of a labour contract, or even a civil law court, if a civil contract is challenged. The High Court of Cassation and Justice decided that the court having jurisdiction to hear claims on the absolute nullity of a labour contract or civil contract, lodged by the National Agency of Integrity following review of the assessment report which finds a , is determined in relation to the legal nature of the contract. In other words, if an appeal is made to challenge the nullity of a civil contract, the competent court will be the civil court, and if the nullity of an employment contract is challenged, the competent court will be the labour law court. The court may, in addition to the finding of absolute nullity, order the restoration of the parties to the previous situation.

3 Implications of CJEU rulings and ECHR Nothing to report.

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4 Other relevant information Nothing to report.

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Slovakia

Summary The Slovak government has adopted a decree on the minimum wage for the year 2018. ______1 National Legislation 1.1 Minimum wage The discussion on the minimum wage for 2018 started on the basis of Act No. 663/2007 Coll. on minimum wage, with negotiations between the social partners at the national level without an agreement being reached. On 11 October 2017, in accordance with Act No. 663/2007 Coll. on minimum wage, the Slovak government adopted a decree on the minimum wage for the year 2018 (not yet published in the Collection of Laws). The minimum wage for 2018 has been set as follows: • the gross monthly minimum wage is EUR 480; • the gross hourly minimum wage is EUR 2.75 [increase of minimum wage: 10.34 percent] The minimum wage in 2017: • the gross monthly minimum wage is EUR 435; • the gross hourly minimum wage is EUR 2.5 [increase of minimum wage: 7.4 percent].

2 Court Rulings Nothing to report.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Slovenia

Summary The Labour Court of second instance has ruled on a case concerning project-based work, clarifying when and under which conditions such work can be performed on a fixed-term contract. ______1 National Legislation The information provided in the September 2017 Flash Report regarding the amendments to the Labour Inspection Act (ZID-1A) and to the Labour Market Regulation Act (ZUTD-D) are supplemented with this report. These have been published in the Official Gazette of the RS, No. 55/2017.

2 Court Rulings 2.1 Project-based work Judgment of the Higher Labour and Social Court VDSS Pdp 101/2017 (ECLI:SI:VDSS:2017:PDP.101.2017) The present judgment of the Higher Labour and Social Court concerns project-based work. The plaintiff, a civil servant, concluded several consecutive fixed-term employment contracts on the basis of which she performed project-based work; her work was related to technical assistance. The Labour Court of first instance found that the employment contract, concluded for the period 01 July 2015 and 30 November 2015, was contrary to the law. For this reason, the Court held that the contract was an employment contract of indefinite duration (transformation of the contract) from 01 December 2015 until the Court’s rescission (termination) of the employment contract on 30 September 2016. The reasoning was based on the legal provisions according to which concluding a fixed- term employment contract is only permitted in exceptional cases specified by law or collective agreement. The preparation or implementation of project-based work is one of such cases (indent 11 of the first para. of Article 54 of the ERA-1). A fixed-term employment contract may be concluded for a period of more than two years—which is the general maximum legal time limit for fixed-term employment contracts — if the project lasts more than two years and if the employment contract is concluded for the entire duration of the project (Para. 4 of Article 55 of the ERA-1). The Court’s decision on the illegality of the fixed-term employment contract was based on the fact that it was not concluded for the entire duration of the project (31 December 2015) but for one month less (30 November 2015). The Court also held that from the perspective of content, the work could not be deemed as project-based but as regular work. To put it shortly, as the employment contract was not concluded for the entire duration of the project and as the reason for the conclusion of the fixed-term contract did not exist, there is legal foundation for the transformation of the fixed-term employment contract into an open-ended contract (Article 56 of the ERA-1). The Labour Court terminated the employment contract as the plaintiff had concluded a permanent employment contract with a new employer on 01 October 2016. Both parties to the fixed-term contract lodged a claim to the Higher Labour and Social Court (second instance). The plaintiff opposed the termination of the employment contract on the basis of a court judgment and maintained that the court had only taken into consideration that since February 2016, her working place was not provided for in

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the structure of the work. The defendant appealed against the judgment asserting that the court of first instance had not followed the relevant procedural provisions. He also insisted that the tasks of technical assistance were not of a permanent nature. The Higher Labour and Social Court upheld the judgment of the court of first instance and rejected the claims of both contractual parties as unfounded.

3 Implications of CJEU Rulings and ECHR Nothing to report.

4 Other relevant information Nothing to report.

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Spain

Summary (I) Promotion of self-employment continues to be a major concern, but the main measures in this field are in the area social security (reductions of the contributions). (II) The government continues to sign cooperation agreements with the regions to fight undeclared economy. (III) The Supreme Courts has ruled on equal pay between men and women and on transfers of undertakings. ______1 National Legislation 1.1 Vocational retraining for unemployed The government has decided, on an extraordinary basis, to extend a vocational retraining programme which started in 2011, until 30 April 2018, given that the number of unemployed is still very high. The programme will maintain the key elements of the former one, since it is aimed at unemployed persons who have been registered as job seekers for at least twelve months, who have family responsibilities and incomes of less than 75 percent of the national minimum wage. These individuals have the right to an ‘individualised and personalised insertion itinerary’ along with a diagnosis of ‘employability’, participation in re-qualification actions and professional insertion with the purpose of obtaining a new job. In addition, they will be entitled to a public assistance of approximately EUR 400 for a maximum period of six months. Source: The text of the Royal Decree extending the programme is available here.

1.2 Social security protection of self-employed For several years now, support measures for self-employed workers have been approved in Spain; these usually consist in a reduction of the contributions to social security. These measures are aimed at certain individuals, such as young persons under the age of 30 or disabled persons, who decide to work as self-employed workers. These reductions in social security contributions are applied when the self-employed worker hires persons who substitute him/her during periods of interruption of the activity for reasons of family life reconciliation (maternity, paternity, nursing, etc.), or to ease the return to work following such periods. Another habitual trend of this legislative action in favour of self-employed workers is the reduction of social security contributions for people who collaborate in the family business (spouse, children, close relatives). Law No. 6/2017 includes a reduction in social security contributions (around 50 percent for a period of up to two years) in the following cases: start or restart of self-employment activity; start or restart of an activity by persons with disabilities or who have been victims of gender violence or terrorism; interruption of activity for reasons of family care; interruption of activity due to maternity or other reasons linked to the birth or adoption of a child, and the return to self-employment. As a general rule, Spanish law assumes that when a self-employed worker hires his/her own son or daughter, labour law does not apply, but that that son or daughter is also a self-employed worker. Since 2010, a special rule applies, which allows self-employed workers to hire their children as employees, who are under the age of 30 years or have

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a certain degree of disability, but without entitlement to unemployment benefits. Law No. 6/2017 maintains this possibility and expands it to more cases of disabled children. Law No. 6/2017 aims to support professional associations of self-employed workers to facilitate their participation in the programming of training activities within the general plans of public administrations or in the planning of safety and security measures. These associations will participate in the Economic and Social Council (advisory body on labour and socioeconomic matters). An Autonomous Self-Employment Council will be created as a consultative body of the public authorities. Law No. 6/2017 also improves the protection of self-employed workers in social security, since it considers the accident in itinere as an accident at work, and allows them to make retirement benefits compatible with the income obtained from self-employment.

1.3 Fight against the shadow economy and undeclared work Many cooperation agreements have been concluded between the State and the regions in recent years to fight the shadow economy and undeclared work, following recommendations of the European Union and provisions of the Spanish legislation – mainly the law regulating the labour inspectorate. The collaboration of the regions is essential, since they have enforcement powers relating to labour law and it is therefore necessary to coordinate these powers with the monitoring and control functions that the State continues to exercise through the labour inspectorate. The main purpose of this type of agreement is the creation of a working group composed of representatives of the State Administration and the regional administrations, and the increase of the material and personal resources of the labour inspectorate in the regions.

1.4 Public holiday Spanish labour law establishes that workers are entitled to fourteen days of public holiday per year (paid), some religious and other holidays of a secular or institutional nature. Some of these public holidays are common throughout the Spanish territory, and others vary depending on the or municipality. The Ministry of Employment has the legal mandate (Article 37.2 of the Labour Code) to develop the full public holiday calendar in advance. The regions can add a fifteenth unpaid day of public holiday. Collective agreements may raise the number of public holidays. This regulation relates directly to working time and must be respected by the employers. The full calendar of public holiday days for 2018 was published on 11 October 2017.

2 Court Rulings 2.1 Equality and non-discrimination Ruling of the Constitutional Court 112/2017 Collective agreements play a decisive role in Spanish labour law, because they are genuine legal standards and have general effectiveness. Collective agreements regulate the salary of workers and it has been very common in recent decades for collective bargaining to establish a double salary scale based on several reasons. For example, different wages for permanent workers and temporary workers, or different wages based on the hiring date. This is the case of the ruling of the Constitutional Court 112/2017 in relation to a seniority supplement that was only paid to workers who had been hired before 1995. The Constitutional Court deems this difference in treatment was justified in its origin, but that that justification no longer applies at present, and therefore stated that the

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principle of equal remuneration recognised in Article 14 of the Spanish Constitution was violated. This principle of equal pay does not require equal treatment in all cases, regardless of the concurrent circumstances, but it does require that unequal treatment has objective and reasonable justification and prevents artificial or unjustified inequality. In this case, the Constitutional Court considers that the difference in wages could have been justified in its origin by the structural changes made by the company in the 1990s, but 20 years after those changes, the differences are no longer objective or reasonable. Therefore, the ruling declared that this was a violation of the right to equality and non- discrimination.

2.2 Transfer of undertakings Supreme Court ruling STS 3518/2017 In its ruling STS 3518/2017, the Supreme Court stated that the rules on the transfer of an undertaking (Article 44 of the Labour Code) do not apply when only a succession of subcontractors occurs and there is no transfer of material resources, except in case of ‘succession of staff’ (according to the doctrine of the CJEU). In cases of outsourcing, the collective agreement may force the subrogation of the new contractor on the employment contracts of the previous contractor. However, the Supreme Court stated that no transfer of undertaking takes place when the main company carries out the activity on its own and with its own staff at the end of the relationship with the contractor. There is no transfer of undertaking because there is no transfer of assets from one company to another, nor did the workers of the contractor star working for the main company.

3 Implications of CJEU Rulings and ECHR 3.1 Health and safety at work CJEU case C-531/15, 19 October 2017, Otero Ramos CJEU case C-531/15 states that the evaluation of occupational risks must take into account the risks that the work may entail for a worker who has just had a child and is nursing. Otherwise, this would be discrimination on grounds of sex. In addition, a reversal of the burden of proof occurs in such cases. Although the case comes from Spain, this ruling should not have considerable impact on the Spanish legal system, which provides the necessary tools to reach the same conclusion as the CJEU. Of course, the evaluation of occupational risks must take into consideration that the worker has a baby, and discrimination based on sex comes into play, as it derives from Article 14 of the Spanish Constitution. The reversal of the burden of proof is mandatory when a violation of a fundamental right is at stake.

3.2 Non-discrimination on grounds of sex: height CJEU case C ‑409/16, 18 October 2017, Esoterikon CJEU case C ‑409/16 states that the Framework Equality Directive 76/207/EEC must be interpreted as precluding a law of a Member State which makes candidates’ admission to the competition for entry to the school of that Member State subject, regardless of their sex, to a requirement that they are of a physical height of at least 1.70m, since that law works to the disadvantage of a far greater number of women compared to men, and that the law does not appear to be either appropriate or necessary to achieve the legitimate objective it pursues. The ruling will have no impact on the Spanish legal system, since the recruiting requirements in the police and army differentiate between

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the height of women and men precisely to avoid indirect discrimination. In any case, Article 35 paragraph 2 of the Law on Employment considers that a job offer is discriminatory if it refers to only one of the sexes, unless that is an essential and determinant requirement for the job in question; according to the same Article, a job offer which refers to only one of the sexes on the basis of job demands related to physical effort is always discriminatory.

4 Other relevant information 4.1 Unemployment rate Unemployment rose in October (56.844 people). This is a usual situation in Spain due to the end of the tourist season.

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Flash Report 10/2017

Sweden

Summary (I) The Swedish Labour Court ruled on the meaning of the employer’s duty to facilitate accessibility to the workplace under the Swedish Discrimination Act, which corresponds to reasonable accommodation under the Framework Equality Directive 2000/78/EC in relation to job applicants with disabilities. (II) The recent Swedish legislative changes are in line with the amendments of the Posting of Workers Directive. However, the recently introduced wording in the Swedish Posting of Workers Act suggests that trade unions might undertake industrial action, also challenging existing collective agreements, insofar as they are not ‘in accordance with’ the corresponding Swedish sectoral agreement. ______1 National Legislation Nothing to report.

2 Court Rulings 2.1 Disability Discrimination Labour Court judgment AD 2017 No. 51 The Swedish Labour Court delivered a case on disability discrimination under the Framework Directive 2000/78/EC related to Article 5 on reasonable accommodation. Since discrimination law is the primary focus of another Commission-sponsored Flash Report series, this report will only very briefly monitor the content of the case. In AD 2017 No. 51, a senior lecturer (with a doctoral degree in law), applied for a position as a senior lecturer at a Swedish public university college ( högskola ). The applicant, who has a hearing impairment, uses sign language to communicate. During the application and in the Labour Court, he argued that the university college should provide for sign language assistance (interpreters) during his lecturing and interaction with students and colleagues at the workplace. The Swedish Discrimination Act states that the employer is required to facilitate employees’ accessibility, ( Chapter 1, § 4 of the Swedish Discrimination Act 3; see also preparatory works Prop. 2013/14:198, 73, to facilitate accessibility has replaced the previous, and EU-conform, reasonable accommodation provision in the Act). The Labour Court found that the financial burden on the employer, which was calculated as an annual estimate of roughly EUR 55 000 (SEK 520 000) to cover the direct costs of the interpreters, would be excessive also for a large, public employer such as the university college, and ruled against the applicant. Sources: S. Fransson & E. Stüber, Diskrimineringslagen: en kommentar , 2nd edition (Norstedts Juridik, 2015 ). T. Eidsvaag, A. Inghammar, ”The Definition of ’disability’ under EU law and its impact on the protection of persons with disabilities in Denmark, Norway and Sweden”, European Journal of Social Law, No. 4, 2014.

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3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information 4.1 Posting of workers The European development with the future amendments to the Posting of Workers Directive 96/71/EC continued with a meeting of the ministers of labour on 23 October 2017. Early releases from the meeting confirm the ministers’ acceptance of amendments to the Directive. Parallel movements have already been under some discussion and subject to some legal developments during the last year in Sweden. The previously announced changes of legislation on the posting of workers came into force 01 July 2017 (see also the February 2017 Flash Report). The background is the legislative situation which came out of the famous Laval case (C-341/05 Laval un Partneri Ltd , REG 2007-I-11767), a case in which the Swedish provisions on secondary or sympathy measures were scrutinised and seriously questioned. The recent changes focus on the content of the domestic collective agreement (host country, here Sweden), even more than previous wordings, and allows Swedish trade unions to engage in industrial action and reach a collective agreement for the posted business, if such actions (strike, blockade) ensure conditions ‘in accordance with’ ( ‘överensstämmer med’ ) the corresponding Swedish collective agreement in the sector. The effect might be that any foreign collective agreement covering the posted workers can be replaced or subject to industrial action, since it is highly unlikely that any agreement would be ‘in accordance with’ the exact content of the Swedish sectoral agreement. The new legislation appears to shift the focus to the more detailed content of the Swedish collective agreement, which might, eventually, be difficult to obtain or reach in all foreign agreements covering workers posted from another EU Member State, but appears to be in line with the proposal from the EPSCO. The Swedish government supports the EPSCO proposal. Sources: Proposal 2016/17:107 is available here . Proposal 2009/10:48 is available here . Nyström, Birgitta. Eu och arbetsrätten, 5 th ed. Wolters Kluwer, 2017, primarily chapter 10.6. Malmberg, Jonas, Sjödin, Erik, ”Lex Laval”, in, Nyström, Birgitta, Edström, Örjan, Malmberg, Jonas (Eds) Nedslag in den nya arbetsrätten , 2012, pp. 47-60, Liber, Stockholm 2012.

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United Kingdom

Summary (I) The Supreme Court set aside state immunity provisions as a result of EU law and ECHR law. (II) There has been progress on addressing the issues arising from the annulment of the tribunal fees order. (III) Theresa May wrote a letter to EU citizens on their right to stay. ______1 National Legislation Nothing to report.

2 Court Rulings 2.1 State immunity Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62 Ms Benkharbouche and Ms Janah brought employment law claims under UK law for unfair dismissal and for failure to pay the minimum wage as well as EU law derived claims under the Working Time Regulations 1998 as well as for harassment and race discrimination against the Sudanese and Libyan embassies. The embassies relied upon state immunity under the State Immunity Act 1978. The Supreme Court held that the provisions of the SIA 1978 breached Articles 6 and 14 ECHR. The remedy was a declaration of incompatibility of UK law with the ECHR. This does not entitle the individuals to proceed. It is merely an indication to the government to remedy the situation. However, the EU law-based claims were much more successful. The Court found that the State Immunity Act provisions denied the right of access to a court guaranteed by Article 47 of the on Fundamental Rights. The remedy was much stronger: to disapply the provisions of UK law. These claims were therefore remitted back to the Employment Tribunal to consider. Source: The judgment is available here .

3 Implications of CJEU rulings and ECHR Nothing to report.

4 Other relevant information 4.1 Fees R (on the application of Unison) v Lord Chancellor [2017] UKSC 51 This case has been reported on in the July 2017 Flash Report. It will be recalled that in proceedings brought by Unison, the Supreme Court unanimously declared that employment tribunal fees were unlawful, under both domestic and EU law, on the grounds that they prevented access to justice and EU law, thus denying an effective remedy, since the amount was disproportionate. The Supreme Court quashed

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the Employment and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893), on the basis that it prevents access to justice. The judgment was implemented immediately and Employment Tribunals are no longer accepting fees; the government must now also reimburse all fees paid since 29 July 2013. The logistics of this has already proved complex. The government has announced that : “The first people eligible for employment tribunal fee refunds will be able to apply from today. The first stage of the phased implementation scheme comes after Ministers committed to refunding those who had paid employment tribunal fees following a Supreme Court judgment. The court recognised the important role fees can play, but ruled that the government had not struck the right balance in this case. Up to around 1,000 people will now be contacted individually and given the chance to complete applications from today before the full scheme is opened up in the coming weeks. We are also working with trade unions who have supported large multiple claims potentially involving hundreds of claimants. As well as being refunded their original fee, successful applicants to the scheme will also be paid interest of 0.5%, calculated from the date of the original payment up until the refund date. The opening phase of the refund scheme will last for around 4 weeks. Further details of the scheme, including details of how it can be accessed, will be made available when the scheme is rolled out fully. ”

4.2 Parental Bereavement Pay and Leave The Parental Bereavement (Pay and Leave) Bill 2017-9 has been published. It is a private members bill but with government backing and it is therefore likely to become law. It makes provision for paid bereavement leave for two weeks, irrespective of length of service in the event of loss of a child under 18 years, including still birth after 24 weeks.

4.3 Brexit Ahead of the October meeting, Theresa May wrote to all EU citizens living in the UK in the hope of reassuring them that it will be easier to stay in the UK.

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