Prof. Gerrard C. Boot Presentation on European Labour Law

1. Palestrante: Judge Dr. Gerrard Boot Association of Labour Court Judges Netherlands

2. 25 years European Association of Labour Court Judges (EALCJ)ENAMAT 21/23 August 2019 Prof. Gerrard C. Boot

3. presentation • Prof. Gerrard C. Boot • Judge Court of Appeal Amsterdam (Netherlands) • Secretary general EALCJ • Professor Labour Law, University Leiden

4. EALCJ • European Association of Labour Court Judges: private organisation • First conference Bath, UK, 1996 • Aim: Forum for the exchange of information in the fields of labour law • Members: judges (2 or 3 per country) of the (27) different EU-countries and EFTA-countries (like Norway and Iceland)

5. Practice • Organisation of a 3 day-conference every year, everytime in a different country, about a subject which is interesting for all participating members • Questionnaire prepared in advance; answers by all participants given in advance. Summary of the answers sent to all participants in advance. Discussions (main lecture and 4 technical sessions) about this. • Partner of EU Judicial Training Network.

6. Subjects • Which subjects are interesting to discuss? Subjects which have to do with the laws in every country. Sometimes subjects directly influenced by EU-law (f.e provisions about discrimination or the transfer of undertakings), sometimes subjects which are different in every country, but useful to compare.

7. EU-law • EU-treaties and the EU Charter on fundamental Rights. Directly applicable • Directives. Must be implemented by members states, but if this is done insufficiently, judges of members states are obliged to apply national rules ‘according to the EU directive’. • Regulations. Directly applicable. Mainly on the field of social security law (and not labour law). So national judges can apply EU-treaty, Charter and directives more or less directly if there are EU rules in this field.

8. Application of EU law • The European Court of Justice (ECJ), Luxembourg, clarifies the meaning of the EU Treaty, Charter, Directives or Regulations • So normally a national judge will follow the clarification or explanation the ECJ once has given • Apart from the EU, there is the European Convention on Human Rights, applicable to European Council (40+-countries) with the Strassbourg-Court. Not directly applicable.

9. Example 1 • Untill 1987, according to Dutch law, maried women were not entitled to an extended unemployment allowance. The ECJ decided that this was a forbidden form of men/women discrimination. Dutch law was adapted.

10. Example 2 • According to a German law (dating from the 1920’s), for the calculation of the term of notice, the years of ancienity of the employee before his/her 25 years, were not taken into account. The ECJ decided that this was a forbiden form of age discrimination, because there was no objective justification for the different treatment of younger people. Different EU countries, which had simular law provisions, changed there laws.

11. Example 3 • Which adaptations must be made to a handicapped employee? When is such an adaptation ‘reasonable’? What is a handicapped employee (in this sense)? ECJ gave quite a broad definition (also because the EU signed the UN-treaty on this subject).

12. Example 4 • In case of an transfer of undertakings (TUPE) all employees working are automatically transferred to the acquirer. When is an undertaking sufficiently independent to be considered as ‘ undertaking’? The ECJ developed rules of thump, to answer these questions. A quite broad definition is used.

13. Subjects of conferences • 2019: international road transport. Huge difference of costs between founding EU-countries (like Germany or Austria) en newer countries (like former East European). Which law is applicable on a truckdriver who drives from Hungary via Austria to Germany? Rome I convention leaves some questions unanswered. Tension between employee protection (‘old EU’) and economic interests (‘new EU’).

14. 2018: Access to Justice • Which financial, legal and psycholigical barriers employees are faced with in your country to start a legal procedure? • F.e in Norway an employee is almost forced to use the trade union. If you start a procedure on your own and loose, you risk to have to pay the very high legal costs of the employer. • Some countries are very effective in Alt. Disp. Resolution. F.e in Ireland public autorities claim minimum wages for unpaid employees.

15. 2017: Working abroad • The EU is based on the free movement of employees within the 27 countries. But which practical problems you are faced with if you work abroad? If an employee works abroad, does he/she in reality starts legal procedures? Which judge is entitled to handle the case? This has to do with the EU Brussels I Bis convention. Is it applied in all countries in the same way?

16. 2016: Too young or to old? • Young employees are often lower paid for there work. For older employees it is often difficult to get a job. • Which forms of age discrimination you, as a judge, are faced with? F.e.: is there something as ‘demotion’ for older employees, if they can’t work as fast or as strong as before?

17. 2015: Workers rights vs business • The EU has different aims: open borders between 27 countries for trade (economic dimension) but also a minimum level of protection. Is it allowed to work as a ‘cheap’ worker in a more ‘expensive’ country? The ECJ decided in 2007 (Laval and Viking case) that the protection of the national minimum wage is allowed. But also for ‘independant’ workers (like Uber drivers)?

18. 2014: Jurisprudence of ECJ • Which decisions of the ECJ really helped you (and your country) and which verdicts were a ‘hindrance’? • F.e.: Directive Transfer of Undertakings gives employees protection (man/woman follows work) but in difficult economic situations can prevent ‘enterpreneurs’ to continue work (because they get all employees with the existing salaries automatically). Sometimes anti-age discrimination is considered to be to severe.

19. 2013: Independant workers • Freedom or enslavement? • When is somebody considered to be a (real) employee, and when a (real) independant worker? There is no general EU-definition of an employee. National countries have there own rules, also on taxe regime and social security. On the other hand: the ‘uberisation’ of work is international.

20. Before these years… • Conferences about equal treatment, marginal workers. Harassment and violance at work and collective agreements

21. What have I learned at EALCJ? • Different judges, supreme court (f.e Italy, Finland), senior (most countries) but also junior (Former East European, like Hungary) • Exchange of practice is very useful: you think that your way of dealing with cases is ‘the natural’ way, but other ways can work very well too! • Discussions among judges are special! We are neutral, have no political objectives (or represent the employee or the employers side)

22. Practical things • EALCJ is a private organisation. We have no structural financial support. Sometimes EU has funded a conference, but most are paid by the particpants (with some help of there home country) and with the help of the host/receiving country (f.e. free use of a court building during the conference, sometimes some meals).

23. Future • As the position of the UK is uncertain, and because of the (near pension)age of the founding UK-members, the administration of the EALCJ will be transfered to the Netherlands (possibly with some support of Leiden University). • For the University the naswers on the questionnaires are interesting from a comparative law-point of view