7 May 2024

Attention: another new development in employment law legal protection

By Koen Vermeulen

Many labour law rules come from Europe. Therefore, for their application and enforceability, employers and employees should also look to 'Europe'.

Especially at the EU case-law of the Court in Luxembourg, the highest court in the EU. On February 20, 2024, the CJEU made a very important ruling for employees and employers in a Polish case, which is central here and important for practice in the Netherlands.

Knowledge of EU law is indispensable for the practising lawyer

Labor lawyers realize that much of Dutch (labor) law comes from Europe. Consider, for example, rules regarding the transfer of undertakings, discrimination against employees, whistleblower protection, rules on collective redundancies, vacation days, fixed-term employment contracts. The latter was the subject of the  landmark judgment that was delivered at the end of February, involving a Polish employment case. It becomes easier for employees to bring an employment law claim against an employer by directly invoking EU law. So opportunities for employees and beware for employers. What is at stake here?

Court on termination of a temporary employment contract

The case concerns the end of a temporary employment contract under Polish law. But the aforementioned EU directive and Framework Agreement on – limiting the number of – temporary employment contracts may play a role in this. For the Netherlands, termination of a temporary employment contract always already requires a valid reason: after all, interim termination requires prior permission from UWV or subdistrict court and then a reason for dismissal. When giving notice of the end, non-renewal, of a temporary employment contract and termination during the probationary period, it remains the case that stating a reason is not necessary.

But the ruling goes further! First, some brief background.

Directly invoke EU Directive and EU Charter of Fundamental Rights

In principle, private individuals cannot directly invoke an EU directive among themselves. This is established case-law, but it is starting to get more and more sticky. Especially since the EU Charter of Fundamental Rights can increasingly be invoked between individuals.

This is because the Court considers that if there are proceedings between two private parties, employer and employee, as well as pension provider and participant, a court must disapply national law if EU law is violated by the employer (or pension provider). And that is via a direct appeal by the employee, pension participant, to Article 47 of the EU Charter. That article guarantees an effective remedy for anyone who feels that the national government, or thus a private organisation, is violating their rights – based on EU law. Article 47 EU Charter is almost identical to Article 6 ECHR. But the Charter can thus also be invoked between private individuals, while the ECHR in principle cannot. A very important difference.

Extending the possibility to directly invoke EU-law

The ruling extends the possibility for citizens to bring direct actions against private parties for national laws that violate EU law .

It regularly happens that national laws conflict with EU law and EU directives. Just think of the Dutch rules on the right to pay for holidays or the inability to lapse statutory holidays (under EU law, while the Dutch legislature deviates from it).

The judgment ties the fundamental legal protection from the EU Charter to the direct effect of EU directives for the first time. This may be called startling.

Court ruling leads to uncertainty and opportunities in procedures

This presents opportunities for employees and pension members and retirees. For employers, this in turn means uncertainty. Because, in principle, they follow Dutch law, but – to the extent that Dutch law has a European source (see examples above) – they will therefore have to start thinking about whether that Dutch law complies with EU law.

Whereas workers previously had to rely on the rather cumbersome route of holding the Dutch state liable for incorrectly implementing EU rules in Dutch law, this ruling offers new opportunities for workers/pensioners to sue the private employer/pension administrator.

More information

This article is written by Hans van Meerten and Koen Vermeulen. If you have any questions about employment or pension law? Please feel free to contact us.

Koen Vermeulen

Koen Vermeulen

Lawyer / associate partner

Koen Vermeulen is your sparring partner for all questions on employment law, employee participation and pensions.

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