ETUF-ETUC Project Partner Committee“End Precarious Work Now” Project

DRAFT OUTLINECONFIDENTIALLEGAL PROFESSIONAL PRIVILEGEStockholm, 5 OctoberCase: 24652130

DRAFT LEGAL OPINION OUTLINE

PRECARIOUS WORK PRACTICES AND EUROPEAN UNION LAW

INTRODUCTION

I – PRECARIOUS WORK AND EU EMPLOYMENT POLICY

A – The Principle of Equal Treatment between workers: A Foundational Concept in European

Union Law

Equal Treatment and Precarious Work – Introduction

a. General concept of equal treatment

i. General principles of the EU

Mangold, C-144/04, EU:C:2005:709

Gina Livioara Goga, “The General Principle of non Discrimination and

Equal Treatment in the Legislation and Jurisprudence of the Court of Justice

of the European Union”, Acta Universitatis Danubius, (2013), Vol.5(1),

pp.138-145.

b. Protected groups and justficiations

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i. Direct discrimination vs. indirect discrimination

ii. Positive discrimination

iii. Gender

iv. Race

v. Disability

vi. Age

c. Relevance to precarious work

i. Steve Peers, “Equal Treatment of Atypical Workers: A New Frontier for EU

Law?”, Yearbook of European Law, (2013), Vol. 32(1), pp. 30-56.

Early Thinking on Equal Treatment in EU Law

a. Initial Treaty Sources of Equal Treatment: Nationality and Equal Pay for Women and

Men

i. Article 18 TFEU: prohibition of discrimination on the bounds of nationality

ii. Article 45(2) TFEU: right to equal treatment for workers on grounds of

nationality

iii. Article 157 TFEU: equal pay for male and female workers for equal work or

work of equal value

b. Early thinking on equal treatment in labour law : a market-driven approach

i. The Brussels Report on the General Common Market (Spaak Report), June 1956

Non-discrimination between workers would allow efficient market

allocation of labour

Social issues should only be regulated insofar as they constitute a block to

market integration

Ultimately an economic rationale governing non-discrimination

See analysis in Jari Hellsten, On Social and Economic Factors in the

Developing European Labour Law, Reasoning on Collective Redundancies,

Transfer of Undertakings and Converse Pyramids, (Stockholm: Elanders

Gotab, 2005).

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ii. ILO Report on Social Aspects of European Economic Cooperation (Ohlin Report)

(1957)

“widespread agreement that government interference with the freedom of

collective bargaining, if it becomes necessary at all, should be kept to a

minimum”

c. Development of equal treatment and the social function of the European Community

i. Commission v France, C-167/73, EU:C:1974:35

the Court recognized that the principle of non-discrimination not only has

the effect of allowing nationals of other Member States equal access to

employment and to providing services in other Member State, but also of

guaranteeing the State's own nationals that they shall not suffer the

unfavourable consequences which could result from the offer or acceptance

by nationals of other Member States of conditions of employment or

remuneration less advantageous than those obtaining under national law and

collective agreements.

Non-discrimination, therefore, is not only designed to benefit workers

seeking access to employment in other member states, but has a broader

protective function for native workers from being undercut by external

wage competition.

ii. Defrenne v Sabena, C-43/75, EU:C:1976:56

Direct effect of Article 157 TFEU: dual economic and social purpose of the

provision highlighted by the court

iii. European Social Charter (1961)

iv. Article 7, 1989 Community Charter of the Fundamental Rights of Workers

The Treaty of Amsterdam and Beyond: Broader Efforts in Non-Discrimination

a. New primary law developments:

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Article 19: EU may take action to combat discrimination on the basis of

sex, racial or ethnic origin, religion or belief, disability, age, or sexual

orientation

Article 21 Charter Fundamental Rights

b. Legislative efforts

i. Directive 2006/54/EC of the European Parliament and of the Council of 5 July

2006 on the implementation of the principle of equal opportunities and equal

treatment of men and women in matters of employment and occupation (recast)

(OJ L 204, p. 23.)

Meister, C-415/10, EU:C:2012:217

AI v Court of Justice, F-85/10, EU:F:2012:97

Elbal Moreno, C-385/11, EU:C:2012:746

Haupt-Lizer v Commission, F-86/12, EU:F:2013:117

Napoli, C-595/12, EU:C:2014:128

D., C-167/12, EU:C:2014:169

Z., C-363/12, EU:C:2014:159

X., C-318/13, EU:C:2014:2133

Maïstrellis, C-222/14, EU:C:2015:473

ii. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of

equal treatment between persons irrespective of racial or ethnic origin (OJ L 180,

p. 22).

Feryn, C-54/07, EU:C:2008:397

Runevič-Vardyn and Wardyn, C-391/09, EU:C:2011:291

Meister, C-415/10, EU:C:2012:217

Agafiţei and Others, C-310/10, EU:C:2011:467

Kamberaj, C-571/10, EU:C:2012:233

Belov, C-394/11, EU:C:2013:48

CHEZ Razpredelenie Bulgaria, C-83/14, EU:C:2015:480

Commission v Finland, C-538/14, EU:C:2015:401

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iii. Council Directive 2000/78/EC of 27 November 2000 establishing a general

framework for equal treatment in employment and occupation (OJ L 303, p. 16).

Hectors, T-181/01, EU:T:2003:13

Lutz Herrera, T-219/02 and T-337/02, EU:T:2004:318

Mangold, C-144/04, EU:C:2005:709

Chacón Navas, C-13/05, EU:C:2006:456

Palacios de la Villa, C-411/05, EU:C:2007:604

Maruko, C-267/06, EU:C:2008:179

Coleman, C-303/06, EU:C:2008:415

Bartsch, C-427/06, EU:C:2008:517

Q v Commission, F-52/05, EU:F:2008:161

Age Concern England, C-388/07, EU:C:2009:128

Mariano, C-217/08, EU:C:2009:160

Hütter, C-88/08, EU:C:2009:381

Petersen, C-341/08, EU:C:2010:4

Wolf, C-229/08, EU:C:2010:3

Kücükdeveci, C-555/07, EU:C:2010:21

Bulicke, C-246/09, EU:C:2010:418

Ingeniørforeningen i Danmark, C-499/08, EU:C:2010:600

Rosenbladt, C-45/09, EU:C:2010:601

Georgiev, C-250/09 and C-268/09, EU:C:2010:699

Römer, C-147/08, EU:C:2011:286

Agafiţei and Others, C-310/10, EU:C:2011:467

Fuchs and Köhler, C-159/10 and C-160/10, EU:C:2011:508

Hennigs and Mai, C-297/10 and C-298/10, EU:C:2011:560

Prigge and Others, C-447/09, EU:C:2011:573

Meister, C-415/10, EU:C:2012:217

Tyrolean Airways Tiroler Luftfahrt, C-132/11, EU:C:2012:329

Hörnfeldt, C-141/11, EU:C:2012:421

Commission v Hungary, C-286/12, EU:C:2012:687

Dittrich and Others, C-124/11, C-125/11 and C-143/11, EU:C:2012:771

Odar, C-152/11, EU:C:2012:772

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HK Danmark, C-335/11 and C-337/11, EU:C:2013:222

Asociația Accept, C-81/12, EU:C:2013:275

Commission v Italy, C-312/11, EU:C:2013:446

HK Danmark, C-476/11, EU:C:2013:590

Dansk Jurist- og Økonomforbund, C-546/11, EU:C:2013:603

Hay, C-267/12, EU:C:2013:823

Z., C-363/12, EU:C:2014:159

Glatzel, C-356/12, EU:C:2014:350

Specht and Others, C-501/12 to C-506/12, C-540/12 and C-541/12,

EU:C:2014:2005

Schmitzer, C-530/13, EU:C:2014:2359

Vital Pérez, C-416/13, EU:C:2014:2371

FOA, C-354/13, EU:C:2014:2463

Felber, C-529/13, EU:C:2015:20

ÖBB Personenverkehr, C-417/13, EU:C:2015:38

Ingeniørforeningen i Danmark, C-515/13, EU:C:2015:115

SCMD, C-262/14, EU:C:2015:336

iv. Other include:

Council Directive 2004/113/EC implementing the principle of equal

treatment between men and women in the access to and supply of goods and

services. (OJ L 373, p. 37)

Council Directive 96/34/EC of 3 June 1996 on the framework agreement on

parental leave concluded by UNICE, CEEP and the ETUC (OJ L 145, p. 4)

The Importance of Equal Treatment as an Underlying Concept in this Study

a. The importance of equal treatment

Provides an overarching and structural argument as to why protection for

precarious work should go further than it does currently: it is not only a

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political and frankly, ethical decision, the very logic of the system of the

European Union legal framework suggests it should.

Its enduring presence in political discourse: see A New Start for Europe:

My Agenda for Jobs, Growth, Fairness and Democratic Change; Political

Guidelines for the next European Commission Opening Statement in the

European Parliament Plenary Session Jean-Claude Juncker Candidate for

President of the European Commission, Strasbourg, 15 July 2014: “I will

initiate a targeted review of this Directive to ensure that social dumping has

no place in the European Union. In our Union, the same work at the same

place should be remunerated in the same manner.”

Stefano Giubboni, Social Rights and Market Freedom in the European

Constitution: A Labour Law Perspective, (Cambridge, Cambridge

University Press, 2009), p. 45-46.

b. Beyond equal treatment? The limitations of an equality analysis to precarious work

Normalising atypical working arrangements as accepted and simply capable

of being remedies by equal treatment: Leah F. Vosko, “Confronting the

Norm: Gender and the International Regulation of Precarious Work”, Paper

prepared for the Law Commission of Canada, July 2004.

B – The Main Definitions of Precarious Work from An Academic/Theoretical Perspective

a. Early thinking about precarious work

i. P. Sylos Labini, “Precarious Employment in Sicily” (1964) in Nicola Countouris,

Strengthening the Protection of Precarious Workers: The Concept of Precarious

Work, ILO International Training Centre, 2011.

Italian economist Sylos Labini seminal work in the International Labour

Review: precarious work as that which provides no stability of income and

no guarantee of long-term security or improvement.

Precariousness referred both to the nature of the work and to the social

position it generates for the individual. Labini highlighted the correlation

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between precarious work and partial employment; work for very short

periods; hidden unemployment in agriculture; and those with very low and

unstable incomes such as peasants, small artisans, and traders.

ii. Gerry Rodgers, “Precarious Work in Western Europe: The State of the Debate”,

in G. Rodgers and J. Rodgers, Precarious Jobs in Labour Market Regulation:

The Growth of Atypical Employment in Western Europe (Brussels: International

Institute for Labour Studies, 1989), p.1.

In the 1970s and 1980s: growing concern over the rise of non-standard

work practices – eg. short-term work, part-time work, agency contracts

precarious work as a phenomenon that “goes beyond the form of

employment to look at the range of factors that contribute to whether a

particular form of employment exposes the worker to employment

instability, a lack of legal and union protection and economic vulnerability.”

Rodger’s definition, therefore, sought to move past a formalistic definition

based on certain contractual arrangements to discern common dimensions

of precarious work that cut across different employment relationships. He

suggested four key themes that can be summarised as follows:

(i) temporal: ie. the amount of certainty over the timeframe of the

employment

(ii) organisational: workers’ individual and collective control over work

in what concerns working conditions, working time and shifts, work

intensity, pay, health and safety

(iii) economic: adequacy of remuneration and appropriate salary

progression

(iv) social: access to social protections eg. unfair dismissal,

discrimination, etc. as well as access to benefits protecting against illness,

accidents, or unemployment.

iii. See also Diamond Ashiagbor, “Promoting Precariousness? The Response of EU

Employment Policies to Precarious Work”, in J. Fudge and R. Owens (eds.),

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Precarious Work, Women and the New Economy: The Challenge to Legal

Norms, (Oxford, Hart Publishing, 2006), p. 80.

b. Contemporary definition

v. 2004 ESOPE Study for Commission: Miguel Laparra Navarro et. al,

Precarious Employment in Europe, 2004, pp. 8-9

used Rodger’s dimensions to offer what is probably the most suitable

working definition of precarious work for the purposes of this study

“a variety of forms of employment (e.g. temporary employment,

underemployment, quasi self-employment, on-call work) established below

the socially accepted normative standards (typically expressed in terms of

rights, of employment protection legislation, and of collective protection) in

one or more respects (the four dimensions) which results from an

unbalanced distribution towards and amongst workers (towards workers vs.

employers, and amongst workers, which leads to the segmentation of

labour) of the insecurity and risks typically attached to economic life in

general and to the labour market in particular”. (9)

Timothy Bartkiw, “Book Review: The Fissured Workplace: Why Work

Became So Bad For So Many and What Can be Done to Improve It, David

Weil, 2014 (Cambridge, Massachusetts, Havrard University Press, 424PP)”,

Camparative Labor Law and Policy Journal, (Winter 2015), Vol 36, p.323.

c. Range of interpretations of the term

i. Nicola Countouris, Strengthening the Protection of Precarious Workers, pp.6-7.

ii. Virginia Mantouvalou, Human Rights for Precarious Workers: The Legislative

Precariousness of Domestic Labour, UCL Labour Rights Institute On-Line

Working Papers, LRI WP 2/2012, available online at

http://www.ucl.ac.uk/laws/lri/papers/VM%20precarious%20workers.pdf , p.2.

Both two sources above contain important discussions of Vosko (2006),

Evans and Gibb (2009), and Fudge and Owens (2006). These divergent

definitions of precarious work have placed greater emphasis on non-wage

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work; work with distinctively high risks to psychological and physical

health; social dimensions, especially from a gender and race perspective;

and poorly paid jobs incapable of sustaining a household.

iii. Nicola Kountouris, “The Legal Determinants of Precariousness in Personal Work

Relations: A European Perspective”, Comparative Labor Law and Policy Journal,

(Fall 2012), Vol. 34, p.21.

iv. Other points

the multidimensional and contested nature of precarious work as a concept,

as well as the considerable overlap with broader concepts of bad or “low-

quality” work, dead-end jobs, and decent work.

Project partners have also rightfully pointed out that illegal work,

trafficking, certain forms of prostitution, and the atrocities of modern

slavery are arguably the ultimate forms of precarious work, with individuals

trapped in often-inescapable cycles of destitution and exploitation, working

under terrible and even life-threatening conditions. These areas, however,

are deserving of their own in-depth analysis, and while they form part of the

rich background against which this study analyses precarious work

practices, they are not the focus of its enquiry.

Definition Employed for the Purpose of this Study

a. Adopt the working definition provided by the 2004 study: particular emphasis on

autonomy and dignity: the ability of a person to have a sense of autonomy over the

manner in which they work, and the ability to engage in decent work with a living

wage and safe, appropriate conditions.

b. The primary focus of this legal opinion is on particular structural features and trends

within the European Union that underpin precarious work, namely:

attempts to deny individuals conducting work the status and rights of an

employee, especially through bogus self employment arrangements or

agency work

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attempts to shield the “real” employer from accountability and liability

towards those working of their behalf

linkages with social dumping, flags of convenience, and forum shopping

failure to ensure the employee knows the terms of the employment contract

the denial of indefinite, full-time employment, especially via fixed-term

work, part-time work, etc.

unclear or insecure parameters of working time during the employment

period including both overworked employees and underworked employees

(such as in the case of zero-hour contracts)

certain aspects of low wage work

lack of or limited opportunities for enforcing rights at work

lack of access to social protection and benefits associated with full-time

work

limits on the right to engage in trade union activity

arbitrary or unfair dismissal

the treatment of third-country nationals

c. Given the legal focus of this opinion and the project’s general scope, there is

considerable emphasis placed upon analysing atypical or non-standard working

arrangements, which include:

part-time work

fixed-term work or short-term contracts

temporary agency work and posted work

zero-hour contracts and similar arrangements

bogus self-employment and abuse of apprenticeship and traineeship

programs

Related Terms: Precarious Work, Atypical Work, and Non-Standard Forms of Employment

a. Atypical work

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difficulty associated with empirically studying incidences of precarious

work: atypical working arrangements often serves as a useful indicator for

understanding various precarious work practices.

c. But what is “typical work?”

2004 ESOPE Study for Commission: Miguel Laparra Navarro et. al,

Precarious Employment in Europe, 2004: important national differences

throughout the European Union in what is considered to form a typical

working arrangement. Eg. typical work in Germany and France closely

mirrors the “standard employment relationship” (ie. full-time, indefinite,

direct employment) cf. UK tends to consider a much wider ambit of

working arrangements as constituting the norm, with part-time work, for

example, considered much more of an acceptable and typical arrangement,

especially for women.

not an empirical question of, statistically speaking, what working

arrangements are prevalent in each given country, although prevalence

inevitably casts influence over local attitudes.

Rather, “typical work” is a normative reference point, infused within both

regulation and social conception.

“Non-Standard Forms of Employment”, Report for Discussion at the

Meeting of Experts on Non-Standard Forms of Employment, Geneva, 16-19

February 2015, MENSFE/2015, International Labour Organization, p.1.:

atypical work constitutes work that markedly deviates from the traditional

standard employment relationship of full-time, indefinite, direct subordinate

employment.

d. Is all atypical/non-standard work necessarily precarious?

Not all atypical working arrangements, in all circumstances, should be

considered precarious.

The International Labour Organization (ILO) refers to certain forms of

atypical work which are entered into voluntarily as falling outside the scope

of precarious work.

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Others emphasise the extent to which the atypical working arrangement has

the potential to form a genuine transition to full traditional employment as a

key distinguishing factor.

Of course, judging the extent to which a worker is truly “voluntarily”

entering into atypical work is inherently problematic. For many workers,

especially those within tough economic and personal circumstances, the

“choice” as to which form of work to enter into may be entirely theoretical.

Perhaps the most appropriate distinguish factor is that of a general sense of

autonomy: those in atypical working arrangements that have a high degree

of autonomy over the nature of their working arrangements are less likely to

fall into the category of precarious work. This may be derived from the

economic and personal capacity to choose to work part time (for example,

to balance family or study commitments), a substantial degree of control

over the nature of work and working conditions (such as in the case of a

self-employed specialist consultant), or even a high-level of remuneration

and flexibility (for example, in relation to executive positions).

The problem of distinguishing atypical work from precarious work is

diminished when precarious work is not considered as a duality (ie. work is

either precarious or not precarious) but as a feature existing on a

contextually defined continuum (ie. degree of precariousness).1

C – Precarious Work and International Labour Organisation policy discourse

a. Precarious work’s mirror: decent work

Kerry Rittich, “Rights, Risk, and Reward: Governance Norms in the

International Order and the Problem of Precarious Work”, in ”, in J. Fudge

and R. Owens (eds.), Precarious Work, Women and the New Economy: The

Challenge to Legal Norms, (Oxford, Hart Publishing, 2006), p. 40.

The documented rise of precarious work worldwide has placed precarious

work on the ILO’s agenda.

Indeed, it is possible to view the ILO’s core “Decent Work Agenda” as an

attempt to address precarious work by holding up its mirror image via the

1

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four pillars of employment creation, social protection, rights at work, and

social dialogue.2

b. Precarious work in the ILO Bureau for Workers’ Activities

ACTRAV, Outcome Document to the Workers’ Symposium on Policies

and Regulations to Combat Precarious Employment, International Labour

Organization, 2012, p. 27.

the term has increasingly featured in policy publications and documents

from the organisation, especially those involving the trade union sector.

highlighted the multifaceted and context-specific nature of the concept of

precarious work, eg. the function of precarious work as a means to shift

risks responsibilities from employers to workers; and the work being

characterised by a range of “objective (legal status) and subjective (feeling)

characteristics of uncertainty and insecurity

set down a matrix of contractual arrangements (relating to both the duration

and nature of the relationship) and working conditions (low wage, low or no

protection or access to rights enforcement).

Crucially, the findings from the symposium highlighted precariousness not

only as a reference to the work itself, but to the nature of the life that ensues

from being engaged in precarious work: precarious work leads to precarious

lives.

c. The broader use of non-standard forms of employment NSFE – a more neutral though

more limited term (precarious work can happen in even standard forms of

employment)

International Labour Organization, “Non-Standard Forms of Employment”,

http://www.ilo.org/global/topics/employment-security/non-standard-

employment/lang--en/index.htm.

2 Kerry Rittich, “Rights, Risk, and Reward: Governance Norms in the International Order and the Problem of Precarious Work”, in ”, in J. Fudge and R. Owens (eds.), Precarious Work, Women and the New Economy: The Challenge to Legal Norms, (Oxford, Hart Publishing, 2006), p. 40.

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Within the broader organisation, the ILO has recently opted in favour of

non-standard forms of employment to discuss the atypical working

arrangements that often give rise to incidences of precarious work.

undoubtedly a reflection of the institution’s delicate political balance

between the different representatives of its tripartite membership. Across

the gamut of member states, employers, and worker’s unions represented at

the ILO lies a broad range of perspectives as to the proper role of atypical

working conditions in the modern economy.

International Labour Office, Conclusions of the Meeting of Experts on Non-

Standard Forms of Employment, GB.323/POL/3, 12-27 March 2015, p.8.:

tripartite Meeting of Experts in February 2015 on non-standard forms of

employment. The Worker Vice-Chairperson identified the lack of political

neutrality of the terminology used when discussing the issue, observing that

the trade union movement has routinely employed “precarious work” to

encapsulate their concerns, while employers have highlighted “flexibility”.

NSFE therefore a more neutral term for stakeholders to discuss and agree

on common objectives for reform and protection. The meeting’s

recommendations called on the ILO to improve its monitoring and data

collection, consider innovative practices for worker protection, and to

examine and address current barriers to protection.

In particular, the ILO was recommended to assess gaps in current labour

standards and evaluate the need for new ones.

D – Precarious Work and EU Policymaking

Early Thinking: The Social Dimension of the Common Market

a. Ohlin and Spaak Reports: economic justifications for equal treatment

b. Limited social competence and focus, change of direction to give EU a human face –

see Jari Hellsten, On Social and Economic Factors in the Developing European

Labour Law, Reasoning on Collective Redundancies, Transfer of Undertakings and

Converse Pyramids, (Stockholm: Elanders Gotab, 2005).

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The 1980s and 1990s: Atypical Work and Minimum Standard Directives

a. The major developments in EU labour and employment powers

The 1987 Single Economic Act

1992 Maastrict Treaty and the Protocol on Social Policy and Agreement on

Social Policy

1996 European Social Charter

1997 Treaty of Amsterdam and revised social chapter

d. The legislative agenda: push from 1980s Delors Presideny for action on atypical work

Article 7 1989 Community Charter of Fundamental Social Rights of

Workers makes direct reference to atypical work: “The completion of the

internal market must lead to an improvement in the living and working

conditions of workers in the European Community. This process must result

from an approximation of these conditions while the improvement is being

maintained, as regards in particular the duration and organization of

working time and forms of employment other than open-ended contracts,

such as fixed-term contracts, part-time working, temporary work and

seasonal work.”

Proposal for Council Directive supplementing the measure to encourage

improvement in the safety and health at work of temporary workers

COM(90) 228 of 29 June 1990 (largely unsuccessful – not till Temporary

Agency Work Directive 2008/104/EC is there any great action here)

Proposal SEC (1995) 1540, under which a consultation with the social

partners was launched which finally led to the adoption of the two

framework agreements ie. Part-Time Time Work Directive 97/81/EC, and

Fixed-Term Work Directive 1999/70/EC

e. Protections coinciding with push for diversification of the workforce: Since European

Employment Strategy (EES) in 1997, Member States have been encouraged to

“examine the possibility of incorporating . . . more adaptable types of contract, taking

into account the fact that forms of employment are increasingly diverse.”

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See comments on Essen European Council in Mascellani, C-221/13,

EU:C:2014:2286, para 20

Lisbon and Beyond: Quality Jobs and Flexicurity

a. Lisbon Strategy: Lisbon European Council, Presidency Conclusions, 23 and 24 March

2000.

Strategy to make Europe “the most competitive and dynamic knowledge-

based economy in the world” capable of sustainable economic growth with

Emphasis on “more and better jobs and greater social cohesion”.

b. COM (2006) 708 final, “Green Paper - Modernising Labour Law to Meet the

Challenges of the 21st Century”, 22 November 2006.

rigidity of the standard employment relationship contributing to

diversification of non-standard employment relationships: creation of two-

tier labour market of insiders and outsiders

“outsiders” especially those in precarious work who “occupy a grey area

where basic employment or social protection rights may be significantly

reduced, giving rise to a situation of uncertainty about future employment

prospects and also affecting crucial choices in their private lives” (3).

c. COM (2007) 359 final, “Communication from the Commission to the European

Parliament, the Council, the European Economic and Social Committee and the

Committee of the Regions - Towards Common Principles of Flexicurity: More and

better jobs through flexibility and security”, 27 June 2007, pp. 4-5.

Not simply coupling of two objectives: simply takings measures on both

flexibility and security in isolation can cancel one another out. Rather, a

strategy for enhancing the agility of enterprises and workers to respond to

economic demands

Emphasis on employment security rather than job security: emphiasis on

enabling swifter transitions between jobs, social protection, and life-long

skills building. See related discussion in Manfred Weiss, “Job security: A

Challenge for EU Social Policy”, in N. Countouris and M. Freedland (eds.),

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Resocialising Europe in a Time of Crisis, (Cambridge: Cambridge

University Press, 2013), pp. 278-289.

d. Europe 2020 Strategy:

adopted in 2010 to govern smart, sustainable, inclusive growth. To raise the

employment rate of the population aged 20–64 from the current 69% to at

least 75%.

European Semester: an annual cycle of macro-economic, budgetary and

structural policy coordination. Inclusion of social indicators since 2014: eg.

Spanish labour segmentation and precariousness of work noted in review.

See COM (2015) 28 final, “Country Report Spain 2015 - Including an In-

Depth Review on the prevention and correction of macroeconomic

imbalances”, 26 February 2015, p.41.

COM (2013) 83 final, “Towards Social Investment for Growth and

Cohesion – including implementing the European Social Fund 2014-

2020European Social Investment Package”, 20 February 2013: shift from

social expenditure as a cost to an investment.

e. The emphasis on not just on “more jobs” but on “quality jobs” in recent policy papers,

as well as a discussion of “labour force segmentation”

OR 70005/15, Council of the European Union, Joint Employment Report

2015, 9 March 2015: “addressing the challenge of segmented labour

markets, ensuring a proper balance between flexibility and security”

OR 13693/14, Social Protection Committee, Europe 2020 Strategy: Mid-

term review, including the evaluation of the European Semester, 7 October

2014.

Particular recent focus on undeclared work eg. COM (2014) 221 final.

Proposal for a decision of the European Parliament and of the Council on

establishing a European Platform to enhance cooperation in the prevention

and deterrence of undeclared work, 9 April 2014.

Particular recent focus on youth employment eg. Council Recommendation

of 22 April 2013 on establishing a Youth Guarantee (OJ C 120, 26.4. 2013,

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pp. 1-6), point 16; 2013 Youth Guarantee, Council Recommendation of 10

March 2014 on a Quality Framework for Traineeships (OJ C 88, p. 1)

The Groundswell: The Term Precarious Work in Recent European Policy Discourse

a. An increase in Parliamentary questions regarding precarious work, and using

precarious work as a term of reference

Dominique Martin (ENF) , Joëlle Mélin (ENF), Aymeric Chauprade (ENF),

Question for written answer to the Commission, 3 July 2015, E-

010803/2015. (Answer pending).

Thomas Händel (on behalf of Committee on Employment and Social

Affairs), Question for oral answer to the Commission, 16 July 2015, O-

000091/2015.

Vilija Blinkevičiūtė (S&D), Question for written answer to the

Commission, 25 June 2015, E-010251/2015. See corresponding Answer

given by Ms Thyssen on behalf of the Commission to written question E-

010251/2015, 25 August 2015.

Inês Cristina Zuber (GUE/NGL), Question for written answer to the

Commission, 18 June 2015, E-009989/2015. See corresponding Answer

given by Mr Moscovici on behalf of the Commission to written question E-

E-009989/2015, 17 August 2015.

Dominique Martin (ENF), Joëlle Mélin (ENF), Sylvie Goddyn (ENF), Jean-

François Jalkh (ENF), and Mireille D'Ornano (ENF), Question for written

answer to the Commission, 3 June 2015, E-008989-15. (Answer pending).

Paloma López Bermejo (GUE/NGL), Question for written answer to the

Commission, 29 May 2015, E-008596-15. Corresponding Answer given by

Ms Thyssen on behalf of the Commission to written question E-008596-15,

5 August 2015.

Nina Gill (S&D), Question for written answer to the Commission, 13

February 2015, E-002447/2015. See corresponding Answer given by Ms

20(60)

Thyssen on behalf of the Commission to written question E-002447/2015,

17 April 2015.

Kateřina Konečná (GUE/NGL), Question for written answer to the

Commission, 19 January 2015, E-000654/2015. See corresponding Answer

given by Ms Thyssen on behalf of the Commission to written question E- E-

000654/2015, 7 April 2015.

Merja Kyllönen (GUE/NGL), Question for written answer to the

Commission, 5 December 2014, E-010284-14. See corresponding Answer

given by Ms Thyssen on behalf of the Commission to written question E-

010284-14, 26 January 2015.

Siôn Simon (S&D), Question for written answer to the Commission, 2

October 2014, E-007465/2014; Siôn Simon (S&D), Question for written

answer to the Commission, 2 October 2014, E-007466/2014 ; and Siôn

Simon (S&D), Question for written answer to the Commission, 13 October

2014, E-007858/2014. See corresponding Joint Answer given by Ms

Thyssen on behalf of the Commission to written questions E-007858/14, E-

007465/14, and E-007466/14, 1 December 2014.

Emer Costello (S&D), Question for written answer to the Commission, 23

April 2014, E-005270/2014. See corresponding Answer given by Mr Andor

on behalf of the Commission to written question E-005270/2014, 11 June

2014.

Roberta Metsola (PPE), Question for written answer to the Commission, 15

April 2014, E-004721/2014. See corresponding Answer given by Mr Andor

on behalf of the Commission to written question E-004721/2014, 5 June

2014.

Roberta Metsola (PPE), Question for written answer to the Commission, 15

April 2014, E-004718/2014. See corresponding Answer given by Mr Andor

on behalf of the Commission to written question E-004718/2014, 4 June

2014.

Catherine Stihler (S&D), Question for written answer to the Commission,

13 February 2014, E-001601-14. See corresponding Answer given by Mr

21(60)

Andor on behalf of the Commission to written question E-001601-14, 7

April 2014.

Willy Meyer (GUE/NGL), Question for written answer to the Commission,

12 February 2014, E-001481-14. See corresponding Answer given by Mr

Rehn on behalf of the Commission to written question E-001481-14, 24

March 2014.

João Ferreira (GUE/NGL) , Inês Cristina Zuber (GUE/NGL), Question for

written answer to the Commission, 18 October 2013, E-011924-13. See

corresponding Answer given by Mr Andor on behalf of the Commission to

written question E-011924/2013, 10 December 2013.

Catherine Stihler (S&D), Question for written answer to the Commission,

23 September 2013, E-010783-13. See corresponding Answer given by Mr

Andor on behalf of the Commission to written question E-010783-13, 11

November 2013.

Claudette Abela Baldacchino (S&D), Question for written answer to the

Commission, 27 September 2013, E-011027/2013. See corresponding

Answer given by Mr Andor on behalf of the Commission to written

question E-011027/2013, 15 November 2013.

Claudette Abela Baldacchino (S&D), Question for written answer to the

Commission, 27 August 2013, P-009626/2013. See corresponding Answer

given by Mr Andor on behalf of the Commission to written question P-

009626/2013, 19 September 2013.

Nicole Sinclaire (NI), Question for written answer to the Commission, 6

August 2013, E-009517-13. See corresponding Answer given by Mr Andor

on behalf of the Commission to written question E-009517-13, 19

September 2013.

Angelika Werthmann (ALDE), Question for written answer to the

Commission, 8 April 2013, E-003907-13. See corresponding Answer given

by Mr Andor on behalf of the Commission to written question E-003907-

13, 6 June 2013.

Angelika Werthmann (ALDE), Question for written answer to the

Commission, 12 November 2012, E-010294-12. See corresponding Answer

22(60)

given by Mr Andor on behalf of the Commission to written question E-

010294-12, 21 January 2013.

Konstantinos Poupakis (PPE), Question for written answer to the

Commission, 12 April 2012, E-003707/2012. See corresponding Answer

given by Mr Andor on behalf of the Commission to written question E-

003707/2012, 7 June 2012.

Roberta Angelilli (PPE) , Alfredo Antoniozzi (PPE) , Francesco De Angelis

(S&D) , Alfredo Pallone (PPE) , Potito Salatto (PPE) , David-Maria Sassoli

(S&D) and Marco Scurria (PPE), Question for written answer to the

Commission, 7 February 2012, E-001082/2012. See corresponding Answer

given by Mr Andor on behalf of the Commission to written question E-

001082/2012, 20 March 2012.

II – THE PROTECTION OF “TYPICAL” WORKERS UNDER EUROPEAN LAW

E – The notion of “workers” under EU-law

Defining a Worker – Article 45 of the TFEU

a. The EU definition of a worker is defined autonomously at the EU level, and not left to

member states (though sometimes national definitions of workers will apply when

implementing certain elements of EU law – see below). The EU definition must not

be interpreted narrowly, given it holds the gate way to such important rights eg. free

movement

Hoekstra, C-75/63, EU:C:1964:19, [1964] ECR 177, p. 184.

Commission v Netherlands, C-542/09, EU:C:2012:346, para 68

Raccanelli, C-94/07, EU:C:2008:425 (a)

N., C-46/12, EU:C:2013:97 (a)

Haralambidis, C-270/13, EU:C:2014:2185 (a)

Lehtonen and Castors Braine, C-176/96, EU:C:2000:201 (a)

b. Definition: person who “performs services for and under the discretion of another

person in return for which he receives remuneration”

Lawrie-Blum, C-66/85, EU:C:1986:284

23(60)

Petersen, C-544/11, EU:C:2013:124, para 30

Brown, C-197/86, EU:C:1988:323

Sotgiu, C-152/73, EU:C:1974:13, para. 5

Echternach, C-389/87 and 390/87, EU:C:1989:130

Genova, C-179/90, EU:C:1991:464

Meeusen, C-337/97, EU:C:1999:284, para 15

My, C-293/03, EU:C:2004:821

Gardella, C-233/12, EU:C:2013:449

Časta, C-166/12, EU:C:2013:792

Bischoff, F-36/14, EU:F:2015:48 (in French –can’t understand..)

Davis and others, F-54/06, EU:F:2007:103

Alevizos, C-392/05, EU:C:2007:251

Christopher McCrudden, “Two Views of Subordination: The Personal

Scope of Employment Discrimination Law in Jivraj v Haswani”, Industrial

Law Journal (2012), Vol. 41(1), pp.30-55.

c. Limiting principle: “effective and genuine economic activity”

Levin, C-53/81, EU:C:1982:105

Ninni-Orasche, C-413/01, EU:C:2003:600, para 27

Raccanellli, C-94/07, EU:C:2008:425

Bettray, C-344/87, EU:C:1989:226., especially paras 16-17

Trojani, C-456/02, EU:C:2004:488, para 24.

Steymann, C-196/87, EU:C:1988:475, para 12.

d. Limiting principle: de minimis rule

Levin, C-53/81, EU:C:1982:105 para 17.

Raulin, C-357/89, EU:C:1992:87

Bernini, C-3/90, EU:C:1992:89, para 16

Kempf, C-139/85, EU:C:1986:223

Agegate, C-/87, EU:C:1989:650

Ninni-Orasche, C-413/01, para 25.

Vatsouras and Koupatantze, C-22/08 and C-23/08, EU:C:2009:344

24(60)

e. The abuse of voluntary work/low pay – deprivation of worker status?

Trojani, C-456/02, EU:C:2004:488, para 16 and 22

Levin, C-53/81, EU:C:1982:105 para 17.

Kempf, C-139/85, EU:C:1986:223.

Merci convenzionali Porto di Genova, C-179/90, EU:C:1991:464

f. Retaining worker status

Saint Prix, C-507/12, para 37, 38, 41, 42. See analysis in Nicole Busby,

“Crumbs of Comfort: Pregnancy and the Status of ‘Worker’ under EU

Law’s Free Movement of Persons”, Industrial Law Journal, (2015),

Vol.44(1), pp.134-145.

Levin, C-53/81, para 21.

Collins, C-138/02, EU:C:2004:172, paras 28 and 29.

Article 7 and Article 14(4)(b) of Citizen’s Rights Directive 2004/38/EC (OJ

2004 L 158)

Caves Krier Frères, C-379/11, EU:C:2012:798, para 26 and case-law cited

Ferlini, C-411/98, EU:C:2000:530 (f)

Under EU Secondary Legislation

Regulations

a. Règlement du Conseil nº 3, concernant la sécurité sociale des travailleurs migrants

[Council Regulation No. 3 on the Social Security of Migrant Workers] (OJ 42, p. 831)

Unger, 75/63, EU:C:1964:19

Janssen. C-23/71, EU:C:1971:101

b. Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of

movement for workers within the Community (OJ L 257, p. 2)

Brown, C-197/86, EU:C:1988:323

Lair, C-39/86, EU:C:1988:322

Raulin, C-357/89, EU:C:1992:87

25(60)

Bernini, C-3/90, EU:C:1992:89

Martínez Sala, C-85/96, EU:C:1998:217

Meeusen, C-337/97, EU:C:1999:284

Ninni-Orasche, C-413/01, EU:C:2003:600

Collins, C-138/02, EU:C:2004:172

Hartmann, C-212/05, EU:C:2007:437

c. Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of

social security schemes to employed persons and their families moving within the

Community (OJ L 149, p. 2)

Brack, C-17/76, EU:C:1976:130

Pierik, C-182/78, EU:C:1979:142

Van Roosmalen, C-300/84, EU:C:1986:402

Bergemann, C-236/87, EU:C:1988:443

Merino García, C-266/95, EU:C:1997:292

Stöber and Piosa Pereira, C-4/95 and C-5/95, EU:C:1997:44

Kulzer. C-194/96, EU:C:1998:85

Dodl and Oberhollenzer, C-543/03, EU:C:2005:364

Mertens, C-655/13, EU:C:2015:62

Directives and other Acts: Which Definition Applies?

a. Council Directive 77/187/EEC of 14 February 1977 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 (OJ L 61, p. 26)

Mikkelsen, C-105/84, EU:C:1985:331

Danmols Inventar, C-151/02, paras 26-28.

b. Decision No 1/80 of the Association Council of 19 September 1980 on the

development of the Association

Kurz, C-188/00, EU:C:2002:694

26(60)

c. Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to

encourage improvements in the safety and health at work of pregnant workers and

workers who have recently given birth or are breastfeeding (tenth individual Directive

within the meaning of Article 16 (1) of Directive 89/391/EEC) (OJ L 348, p.1)

Kiiski, C-116/06, EU:C:2007:536

Danosa, C-232/09, EU:C:2010:674

Allonby, C-256/01, EU:C:2004:18

d. Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the

Member States relating to collective redundancies (OJ L 225, p.16)

Commission v Italy, C-596/12, EU:C:2014:77

Balkaya, C-229/14, EU:C:2015:455

e. Directive 2002/14/EC of the European Parliament and of the Council of 11 March

2002 establishing a general framework for informing and consulting employees in the

European Community - Joint declaration of the European Parliament, the Council and

the Commission on employee representation (OJ L 80, p. 29)

Confédération générale du travail and Others, C-385/05, EU:C:2007:37

f. Directive 2003/88/EC of the European Parliament and of the Council of 4 November

2003 concerning certain aspects of the organisation of working time (OJ L 299, p 9)

May, C-519/09, EU:C:2011:221

Fenoll, C-316/13, EU:C:2015:200

Union Syndicale Solidaires Isère, C-428/09, EU:C:2010:612, para 28.

The Notion of a Worker under National Law

a. How the court decides when national definition of worker applies or whether the EU

definition applies

Martínez Sala, C-85/96, EU:C:1998:217

Balkaya, C-229/14, EU:C:2015:455

27(60)

cf. Danmols Inventar, C-151/02, paras 26-28.

Kiiski, C-116/06, EU:C:2007:536

Jaeger, C-151/02, EU:C:2003:437, para 59

Dellas and Others, C-14/04, EU:C:2005:728C, para 45

Opinion of AG Kokott in O’Brien, C-393/10, EU:C:2011:746, para 25.

Allonby, C-256/01, EU:C:2004:18

Levin, C-53/81, EU:C:1982:105 para 17.

b. Even when definition of worker for purposes of EU law is deferred to the member

states, there are certain limits on the discretion to define

Judgment and Opinion of AG Kokott in O’Brien, C-393/10,

EU:C:2011:746, para 25.

Recital 16 of Part Time Work Directive 97/81/EC (OJ 1998 L 14), p.9

F – The Right of Establishment, Non-Discrimination of Self-Employed Persons and Equal

Treatment of Workers

The Concept of Self-Employment

a. Content of Article 49 TFEU and the concept of establishment, both for legal and

natural (self-employed) persons. Self-employed persons are defined in contrast to

employed people; ie. no “positive” definition.

European Foundation for the Improvement of Living and Working

Conditions, Self-employed workers: industrial relations and working

conditions, 2010.

Inasti, C-53/95, EU:C:1996:58

Asscher, C-107/94, EU:C:1996:251

Allonby, C-256/01, EU:C:2004:18

Commission v Portugal, C-171/02, EU:C:2004:270

Commission v France, C-255/04, EU:C:2006:401

FNV Kunsten Informatie en Media, C-413/13, EU:C:2014:2411

b. Article 50 and Article 53 TFEU – competence for the EU to legislate

28(60)

c. The obligation for legal and natural persons to follow national law in the country

where they establish themselves.

d. Can workers’ rights constitute obstacles to establishment? Article 52 TFEU: grounds

of justification for obstacles to the right of establishment: public health, public policy

and public security. Justifications in case law. Proportionality.

International Transport Workers’ Federation and Finnish Seamen’s Union,

C-438/05, EU:C:2007:772

Arblade, C-369/96 and C-376/96, EU:C:1999:575

G – Free Movement of Services and Equal Treatment of Workers

Article 56 TFEU

a. The definition of a service and the distinction between establishment and services

(Articles 49 and 56)

Gebhard, C-55/94, EU:C:1995:411,

b. Articles 58 TFEU on transport and Article 59 TFEU on the EU competence to issue

directives on the liberalisation of services

c. Article 52 TFEU: grounds of justification for obstacles to the right of establishment,:

public health, public policy and public security. Justifications in case law.

Proportionality.

Dos Santos Palhota and others (C-515/08, ECR 2010 p. I-9133)

Vicoplus and others, C-307/09, C-308/09 and C-309/09, EU:C:011:64

Martin Meat, C-586/13

De Clercq and others (C-315/13)

Finalarte and others, C-49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to

C-71/98, EU:C:2001:564

29(60)

d. The right to move staff to provide services in other Member States: unfair competition

and impact on the labour market in the State of destination?

Rush Portuguesa, C-113/89, EU:C:1990:142 (reference to Section III.C on

posted workers below)

Cremers, J., Free movement of services and equal treatment of workers: the

case of construction, European Review of Labour and Research, Summer

(2006) , Vol 12(2), pp. 167-181

e. Directive 2006/123/EC of the European Parliament and of the Council of 12

December 2006 on services in the internal market OJ L 376, 27.12.2006

f. Differentiating from Article 45 and 49

Clean Car Autoservice, C-350/96, EU:C:1998:205

Abatay and others, C-317/01 and C-369/01, EU:C:2003:572

H – The protection of workers and the application of competition law

Albany, C-67/96, EU:C:1999:430

Brentjens', C-115/97, C-116/97 and C-117/97, EU:C:1999:434

Drijvende Bokken, C-219/97, EU:C:1999:437

Pavlov and others, C-180/98, C-181/98, C-182/98, C-183/98 and C-184/98,

EU:C:2000:428

van der Woude, C-222/98, EU:C:2000:475

AG2R Prévoyance, C-437/09, EU:C:2011:112

III – THE PROTECTION OF “ATYPICAL” WORKERS UNDER EU SECONDARY LEGISLATION

A – Part Time Work

Description

Employers may use part time employment contracts to circumvent the higher level of protection

for workers with full employment. Examples are involuntary part-time work and workers having

to accept reduced working hours to remain in employment.

30(60)

Steve Peers, “Equal Treatment of Atypical Workers: A New Frontier for

EU Law?”, Yearbook of European Law, (2013), Vol. 32(1), pp. 30-56.

Mark Bell, “Strengthening the protection of precarious workers: part-time

workers, ILO International Training Centre, (no date)

The Legal Landscape

a. Council Directive 97/81/EC of 15 December 1997 concerning the Framework

Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998,

L 14, p. 9)

In accordance with Clause 1(a) of the Framework Agreement annexed to

that directive, the purpose of that agreement is ‘to provide for the removal

of discrimination against part-time workers and to improve the quality of

part-time work’.

Clause 4(1) is thus intended to ensure respect for the principle of non-

discrimination as regards the employment conditions of part-time workers,

the framework of that agreement.3

The purpose of the Directive: A principle of European Union social law, or

a means to promote part time work? See the contrast between Bruno and

Others, C-395/08 and C-396/08, EU:C:2010:329 and the ruling in

Mascellani, C-221/13, EU:C:2014:2286

Wippel, C-313/02, EU:C:2004:607

Michaeler and others, C-55/07 and C-56/07, EU:C:2008:248

Dai Cugini, C-151/10, EU:C:2011:223

Yangwei, C-349/11, EU:C:2011:826

O'Brien, C-393/10, EU:C:2012:110

Heimann and Toltschin, C-229/11 and C-230/11, EU:C:2012:693

Elbal Moreno, C-385/11, EU:C:2012:746

Brandes, C-415/12, EU:C:2013:398

Österreichischer Gewerkschaftsbund, C-476/12, EU:C:2014:2332

Cachaldora Fernández, C-527/13, EU:C:2015:215

3 See the third paragraph in the preamble to the Framework Agreement.

31(60)

In Focus

The relation between part-time work and gender discrimination in the 30 Member States of the EU

Susanne Burri and Helga Aune, “Sex Discrimination in Relation to Part-

Time and Fixed-Term Work – The application of EU and national law in

practice in 33 European countries”, European network of legal experts in

the field of gender equality, Published by the European Commission, 2013.

B – Fixed-Term workers

Description

Employers may use successive fixed-term employment contracts to circumvent the higher level of

protection for workers with permanent employment.

Steve Peers, “Equal Treatment of Atypical Workers: A New Frontier for

EU Law?”, in Yearbook of European Law, Vol. 32, No. 1 (2013), pp. 30-

56.

Pascale Lorber, “Strengthening the protection of precarious workers: fixed

term workers, ILO International Training Centre, (no date)

“Precarious Employment in Europa: A Comparative Study of Labour

Market related Risks in Flexible Economies”, ESOPE Report, Project

HPSE-CT2001-00075, 2004.

The Legal Landscape

a. Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement

on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43)

Mangold, C-144/04, EU:C:2005:709

Adeneler and others, C-212/04, EU:C:2006:443

Marrosu and Sardino, C-53/04, EU:C:2006:517

Vassallo, C-180/04, EU:C:2006:518

Del Cerro Alonso, C-307/05, EU:C:2007:509

Impact, C-268/06, EU:C:2008:223

Vasilakis and others, C-364/07, EU:C:2008:346

Angelidaki and others, C-378/07, C-379/07 and C-380/07, EU:C:2009:250

32(60)

Koukou, C-519/08, EU:C:2009:269

Aayhan and others, F-65/07, EU:F:2009:43

Adjemian and others v Commission, F-134/07 and F-8/08, EU:F:2009:51

O v Commission, F-69/07 and F-60/08, EU:F:2009:128

Lagoudakis, Ladakis and others and Zacharioudakis, C-162/08, C-163/08

and C-164/08, EU:C:2009:727

Sorge, C-98/09, EU:C:2010:369,

Affatato, C-3/10, EU:C:2010:574

Vino, C-20/10, EU:C:2010:677

Gavieiro Gavieiro and Iglesias Torres, C-444/09 and C-456/09,

EU:C:2010:819

Berkizi-Nikolakaki, C-272/10, EU:C:2010:819

Deutsche Lufthansa, C-109/09, EU:C:2011:129

Montoya Medina, C-273/10, EU:C:2011:167

Scheefer v Parliament, F-105/09, EU:F:2011:41

Clarke and others v OHIM, F-82/08, EU:F:2011:45

Rosado Santana, C-177/10, EU:C:2011:557

Adjemian and others v Commission, T-325/09, EU:T:2011:506

Kücük, C-586/10, EU:C:2012:39

Lorenzo Martínez, C-556/11, EU:C:2012:67

Huet, C-251/11, EU:C:2012:133

Sibilio, C-157/11, EU:C:2012:148

AI v Court of Justice, F-85/10, EU:F:2012:97

Valenza and others, C-302/11 to C-305/11, EU:C:2012:646

Avogadri and others v Commission, F-58/08, EU:F:2013:16

Bojc Golob v Commission, F-74/11, EU:F:2013:22

Pepi v ERCEA, F-33/12, EU:F:2013:27

Bertazzi and others, C-393/11, EU:C:2013:143

Christoph and others v Commission, F-63/08, EU:F:2013:36

Della Rocca, C-290/12, EU:C:2013:235

Carratù, C-361/12, EU:C:2013:830

Papalia, C-50/13, EU:C:2013:873

33(60)

Nierodzik, C-38/13, EU:C:2014:152

Márquez Samohano, C-190/13, EU:C:2014:146

D'Aniello and others, C-89/13, EU:C:2014:299

Fiamingo and others, C-362/13, C-363/13 and C-407/13, EU:C:2014:2238

Bertazzi and others, C-152/14, EU:C:2014:2181

Mascolo and others, C-22/13, C-61/13 to C-63/13 and C-418/13,

EU:C:2014:2401

León Medialdea, C-86/14, EU:C:2014:2447

Nisttahuz Poclava, C-117/14, EU:C:2015:60

Commission v Luxembourg, C-238/14, EU:C:2015:128

Todorova Androva v Council, F-78/12, EU:F:2015:37

Regojo Dans, C-177/14, EU:C:2015:450

Blanpain, R., “Regulation of fixed-term employment contracts: a

comparative overview”, Kluwer Law International, 2010.

In Focus

a. Potential case study: Academic Sector in Estonia

The European Commission has referred Estonia to the EU Court of Justice

over its national law which does not provide sufficient protection against

abuse arising from the use of successive fixed-term employment contracts

or relationships in the academic sector. Estonian law limits successive

fixed-term employment to 5 years. If this limit is reached, the fixed-term

employment is converted to a permanent contract. However, the limit only

applies to fixed-term contracts concluded with less than 2 months between

the contracts. In accordance with the case law of the Court of Justice, the

specific context of the sector has to be taken into account in the assessment

of whether a particular definition of ‘successive’ fixed-term employment

provides effective protection as required by the Fixed-Term Work

Directive.

The academic sector is characterised by long closures over the summer

period. In Estonia, the academic year ends in the first half of June and

34(60)

begins in September, meaning that it is possible for universities to employ

teachers indefinitely on fixed-term contracts covering the academic year, by

interrupting the employment contract over the summer closure period. This

does not provide effective protection against abuse arising from successive

fixed-term employment. The Commission sent Estonia a reasoned opinion

in October 2012, giving Estonia 2 months to comply with EU rules but

Estonia has not adapted its national law to guarantee sufficient protection

against abuse arising from the use of successive fixed-term employment

contracts or relationships in the academic sector. The Commission therefore

decided to refer Estonia to the EU Court of Justice.

b. Potential case study: The academic sector in Sweden and the use of successive fixed-

term contracts.

c. Potential case study: The European Commission has supported a complaint made by

Poland’s Independent and Self-governing Trade Union about the regulation of fixed-

term contracts. The Commission has questioned the regulations governing the length

of the notice period for fixed-term contracts, the use of excessive consecutive fixed-

term contracts, the permitted interval between one contract and another, and the

concept of ‘tasks conducted periodically’.

C – Posted workers

Description

The Legal Landscape

a. Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996

concerning the posting of workers in the framework of the provision of services (OJ L 18, p.1).

Wolff & Müller, C-60/03, EU:C:2004:610

Commission v Germany, C-341/02, EU:C:2005:220

Laval un Partneri, C-341/05, EU:C:2007:809

Rüffert, C-346/06, EU:C:2008:189

35(60)

Commission v Luxembourg, C-319/06, EU:C:2008:350

RANI Slovakia, C-298/09, EU:C:2010:343

dos Santos Palhota and others, C-515/08, EU:C:2010:589

Vicoplus and others, C-307/09, C-308/09 and C-309/09, EU:C:2011:64

Isbir, C-522/12, EU:C:2013:711

Bundesdruckerei, C-549/13, EU:C:2014:2235

De Clercq and others, C-315/13, EU:C:2014:2408

Sähköalojen ammattiliitto, C-396/13, EU:C:2015:86

Martin Meat, C-586/13, EU:C:2015:405

In Focus

a. Case Study:

D – Temporary Agency Workers

Description

a. Definitions

b. The question of application of general EU law principles and sector legislation

c. The variety of applicable rules in the Member States

d. Directive 2008/104

e. Particular challenges

f. Revision of Directive 2008/104?

The Legal Landscape

a. Directive 2008/104 / EC of the European Parliament and of the Council of 19

November 2008 on temporary agency work (OJ L 327, p. 9).

Webb, C-279/80, EU:C:1981:314

FTS, C-202/97, EU:C:2000:75

Commission v. Italy, C-279/00, EU:C:2002:89

Briot, C-386/09, EU :EU:C:2010:526

Jouini m.fl., C-458/05, EU:C:2007:512

36(60)

Vicoplus and others, C-307/09, C-308/09 and C-309/09, EU:C:2011:64

ADV Allround, C-18710, EU:C:2012:35

Della Rocca, C-290/12, EU:C:2013:235

Strojírny Prostějov och ACO Industries Tábor, C-53/13, EU:C:2014:2011

AKT, C-533/13, EU:C:2015:173

Martin Meat, C-586/13, EU:C:2015:405

In Focus

a. Case Study:

E – Migrant workers

Description

The Legal Landscape

a. Directive 2011/98 / EU of the European Parliament and of the Council of 13

December 2011 establishing a single application procedure for issuing a single permit

for third-country nationals to reside and work in the territory a Member State and on a

common set of rights for third-country workers legally residing in a Member State,

(OJ L 343, p. 1)

b. Directive 2014/36 / EU of the European Parliament and of the Council of 26 February

2014 establishing the conditions of entry and residence of third-country nationals for

employment as a seasonal worker (D0 L 94, p. 375)

In Focus

a. Case Study:

37(60)

IV – THE PROTECTION AGAINST PRECARIOUS WORKING CONDITIONS UNDER EU LAW

A – Attempts to Deny those Doing the Work the Status and Rights of “Workers” or

“Employees”

a. Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010

on the application of the principle of equal treatment between men and women

engaged in an activity in a self-employed capacity and repealing Council Directive

86/613/EEC, OJ L 180, p. 1

Undeclared Work

Description

The Legal Landscape

a. Proposal for a decision of the European Parliament and of the Council on establishing

a European Platform to enhance cooperation in the prevention and deterrence of

undeclared work (COM(2014) 221 final of 9.4.2014

In Focus

b. Case Study:

Bogus self-employment

Description

a. The general concept of bogus self-employment; the concept in EU law and in

different Member States; persons operating under a service contract but in fact being

wholly dependent on the service recipient; the concept of subordination; self-

employment as a way for the employer to avoid taxes and social charges and impose

poor working conditions.

Albany, C-67/96, EU:C:1999:430.

FNV Kunsten Informatie en Media, C-413/13, EU:C:2014:2411

38(60)

European Foundation for the Improvement of Living and Working

Conditions, Self-employed workers: industrial relations and working

conditions, 2010.

Jorens, Y. Self-employment and bogus self-employment in the European

Construction Industry, Part 1 A comparative study of 11 Member States

European Parliament, Directorate General for Internal Policies, Social

protection rights of economically dependent self-employed workers,

IP/A/E, April 2013.

M. Westerveld, The “new” self-employed: an issue for social policy? The

‘New’ Self-Employed: An Issue for Social Policy? European Journal of

Social Security, (2012), Vol. 14(3)

ILO, A. Bibby, Working Paper No. 295, Employment relationships in the

media industry, 2014.

The Legal Landscape

a. Measures to tackle or sanction bogus self-employment can justify restrictions on the

free movement of persons

Commission v Belgium, C-577/10, EU:C:2012:814

b. Bogus self-employment as such is not regulated in EU law: are there directives and

regulations concerning working conditions applicable to self-employed persons that

reduce the importance of whether a person is legally considered to be a self-employed

or not?

i. Directive 2010/41 EU of the European Parliament and of the Council of 7 July

2010 on the application of the principle of equal treatment between men and

women engaged in an activity in a self-employed capacity and repealing

Council Directive 86/613/EEC OJ L 180, 15.7.2010

ii. Directives and Regulations sometimes refer to “employees” as employees as

defined by national law. National law may contain provisions stating that a

“bogus self-employment” should be considered to be a regular employment,

39(60)

making the self-employed person an employee also for the purposes of applying

certain directives or regulations

c. Many directives on working conditions applicable to workers are also applicable to

self-employed people. Some directives may have “spill-over” effects for self-

employed persons (e.g. workplace safety)

i. Council Directive 79/7/EEC of 19 December 1978 on the progressive

implementation of the principle of equal treatment for men and women in

matters of social security OJ L 6, 10.1.1979, p. 24–25

ii. Council Directive of 12 June 1989 on the introduction of measures to encourage

improvements in the safety and health of workers at work (89/391/EEC) (OJ L

183, 29.6.1989, p. 1): including individual dorectives within the meaning of

Article 16 (1)

iii. Council Directive 92/57/EEC of 24 June 1992 on the implementation of

minimum safety and health requirements at temporary or mobile constructions

sites (eighth individual Directive within the meaning of Article 16 (1) of

Directive 89/391/EEC) OJ L 245, 26.8.1992, p. 6

iv. Council Directive 96/29/EURATOM of 13 May 1996 laying down basic safety

standards for the protection of the health of workers and the general public

against the dangers arising from ionizing radiation (OJ L 159, 29.6.1996, p. 1)

v. Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary

pension rights of employed and self-employed persons moving within the

Community OJ L 209, 25.7.1998, p. 46–49

vi. Council Directive 2000/78/EC of 27 November 2000 establishing a general

framework for equal treatment in employment and occupation OJ L 303,

2.12.2000, p. 16–22

40(60)

vii. Directive 2002/15/EC of the European Parliament and of the Council of 11

March 2002 on the organisation of the working time of persons performing

mobile road transport activities, OJ L 80, 23.3.2002, p. 35–39

viii. Regulation (EC) No 561/2006 of the European Parliament and of the Council of

15 March 2006 on the harmonisation of certain social legislation relating to

road transport and amending Council Regulations (EEC) No 3821/85 and (EC)

No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ L 102,

11.4.2006, p. 1)

ix. Directive 2006/54/EC of the European Parliament and of the Council of 5 July

2006 on the implementation of the principle of equal opportunities and equal

treatment of men and women in matters of employment and occupation (recast),

OJ L 204, 26.7.2006, p. 23–36

d. EU legislation on social benefits also apply to self-employed people, as well as

workers

i. Regulation (EC) No 883/2004 of the European Parliament and of the Council of

29 April 2004 on the coordination of social security systems, OJ L 166,

30.4.2004, p. 1–123

ii. Regulation (EU) No 465/2012 of the European Parliament and of the Council of

22 May 2012 amending Regulation (EC) No 883/2004 on the coordination of

social security systems and Regulation (EC) No 987/2009 laying down the

procedure for implementing Regulation (EC) No 883/2004 OJ L 149, 8.6.2012, p.

4–10

iii. Council Regulation (EC) No 1408/71 of 14 June 1971on the application of social

security schemes to employed persons, to self-employed persons and to members

of their families moving within the Community (8) (9) (10) (11) OJ L 149,

5.7.1971

In Focus

41(60)

• Potential Case Studies

a. Service contracts in German Slaughterhouses

EFFAT, European Meat Conference Denounces Abuse of Workers, Berlin,

21 June 2012: Over 51 000 people in the German slaughterhouse industry

work on service contracts. That represents 90 % of all workers in the four

major German slaughterhouses. This has had a major impact on wages in

the meat industry in Germany.

b. Self-employed pilots in low-fair airlines (LFAs)

Jorens, Y., D. Gillis, L. Valcke & J. De Coninck, Atypical Employment in

Aviation, European Social Dialogue, European Commission, 2015: Self-

employment contracts for pilots, often young pilots, are used extensively by

low-cost airlines. This has lead to self-employed pilots, although working

for only one airline with no influence over their own working conditions or

working time, are deprived of social security rights and job security

Ryanair case study: using information available from ETF sources

c. Different national frameworks and different risks for self-employed workers in the

construction industry in different EU Member States

Jorens, Y. Self-employment and bogus self-employment in the European

Construction Industry, Part 1 A comparative study of 11 Member States

B – Attempts to shield the “real” employer from accountability and liability towards those

working on their behalf

a. Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws

of the Member States relating to the protection of employees in the event of the

insolvency of their employer

Commission v Italy, C-22/87, EU:C:1989:45

Commission v Greece, C-53/88, EU:C:1990:380

Francovich and Others, C-6/90 and C-9/90, EU:C:1991:428

42(60)

Suffritti and Others v INPS, C-140/91, C-141/91, C-278/91 and C-279/91,

EU:C:1992:492

Wagner Miret, C-334/92, EU:C:1993:945

Francovich v Italy, C-479/93, EU:C:1995:372

Bonifaci and Others and Berto and Others v INPS, C-94/95 and C-95/95,

EU:C:1997:348

Palmisani v INPS, C-261/95, EU:C:1997:351

Maso and Others, C-373/95, EU:C:1997:353

Mosbæk v Lønmodtagernes Garantifond, C-117/96, EU:C:1997:415

Regeling, C-125/97, EU:C:1998:358

Dumon and Froment, C-235/95, EU:C:1998:365

Andersson and Wåkerås-Andersson, C-321/97, EU:C:1999:307

Everson and Barrass, C-198/98, EU:C:1999:617

Gharehveran, C-441/99, EU:C:2001:551

Rodríguez Caballero, C-442/00, EU:C:2002:752

Mau, C-160/01, EU:C:2003:280

Walcher, C-201/01, EU:C:2003:450

Pflücke, C-125/01, EU:C:2003:477

Barsotti and Others, C-19/01, C-50/01 and C-84/01, EU:C:2004:119

Olaso Valero, C-520/03, EU:C:2004:826

Guerrero Pecino, C-177/05, EU:C:2005:764

Cordero Alonso, C-81/05, EU:C:2006:529

Robins and Others, C-278/05, EU:C:2007:56

Velasco Navarro, C-246/06, EU:C:2008:19

Robledillo Núñez, C-498/06, EU:C:2008:109

Holmqvist, C-310/07, EU:C:2008:573

Visciano, C-69/08, EU:C:2009:468

Defossez, C-477/09, EU:C:2011:134

van Ardennen, C-435/10, EU:C:2011:751

Gomes Viana Novo and Others, C-309/12, EU:C:2013:774

Macedo Maia and Others, C-511/12, EU:C:2014:268

Tümer, C-311/13, EU:C:2014:2337

43(60)

b. Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws

of the Member States relating to the protection of employees in the event of the

insolvency of their employer (OJ L 283, p. 23)

In Focus

a. Potential Case Study: EPSU, EFFAT, SEIU and War on Want, Unhappy Meal: € 1

Billion In Tax Avoidance on the Menu at McDonald’s, 2014

Centros, C-212/97, EU:C:1999:126

b. Potential Case Study: Letterbox companies

See, for example, campaign materials at “Stop Letterbox Companies”,

http://www.stopletterboxcompanies.eu/downloads

44(60)

C – Failure to ensure the employee knows the terms of the employment contract

Description

• Workers with informal, unclear, or unknown conditions of their employment: uncertainty, lack of

ability to enforce terms

• Particularly problematic in cases of informal or undeclared work that often don’t even involve a

written contract

• Sonia McKay et. al., Study on Precarious Work and Social Rights, carried out for the European

Commission, Working Lives Research Institute, April 2012: absence of a written contract as an

indicator of both informality and precariousness.

The Legal Landscape

• Obligation on employers to inform employees about the conditions of the employment contract

a. Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to

inform employees of the conditions applicable to the contract or employment

relationship (OJ L 288, p. 32)

Helmut Kampelmann and Others, C-253/96, C-254/96, C-255/96, C-

256/96, C-257/96 and C-258/96, EU:C:1997:585

Lange, C-350/99, EU:C:2001:84

Andersen, C-306/07, EU:C:2008:743

Mascolo and Others, C-22/13, C-61/13 to C-63/13 and C-418/13,

EU:C:2014:2401

In Focus

a. The cleaning and care sector: large incidences of precarious and informal work

practices where individuals offer services to homes for cash-in-hand payment, often

with no written contract and no protections

b. EFBWW report on Romanian workers in Vicenza, Italy with no contracts or salary for

over 3 months: http://www.stopsocialdumping.eu/case/257

45(60)

D – Unclear or Insecure Parameters of Working Time during the Employment Period

Description

The nature of the problem: asymmetry of bargaining power between employer and employee can

lead to (a) employee working too much without being granted a break (in the short term) or

accruing leave (in the long term), (b) employees working too little even though required to work

on demand and being paid only for work done (zero hours contracts)

Working Time Under EU Law – General

a. Directive 2003/88 / EC of the European Parliament and of the Council of 4 November

2003 concerning certain aspects of the organization of working time (OJ L 299, p. 9)

i. who is a worker for the purposes of the directive – the EU definition applies

Union syndicale Solidaires Isère, C-428/09, EU:C:2010:612

Expanded scope now includes parts of transport sector (see also sectoral

arrangements below) and doctors-in-training

Commission v Spain, C-158/09, EU:C:2010:292

ii. limits to hours worked

48 hours per seven days in relevant reference period

Article 17 exceptions permitted for “surveillance activity” or activity

requiring continuity: Union syndicale Solidaires Isère, C-428/09,

EU:C:2010:612

iii. what counts as worked hours?

Jaegar, C-151/02, EU:C:2003:437: On-call time if required to stay at work

or a place of the employer’s choosing, thus separated from family/ social

environment

Grigore, C-258/10, EU:C:2011:122

Deidre McCann, “Prompting Formalisation Thorugh Labour Market

Regulation: A ‘Framed Flexibility’ Model for Domestic Work”, Industrial

Law Journal, (September 2014), Vol. 43, p.319.

46(60)

iv. entitlement to paid annual leave

Schultz-Hoff and others, C-350/06 and C-520/06, EU:C:2009:18

Vicente Pereda, C-277/08, EU:C:2009:542

Williams and others, C-155/10, EU:C:2011:588

Dominguez, C-282/10, EU:C:2012:33

Maestre García, C-194/12, EU:C:2013:102

KHS, C-214/10, EU:C:2011:761

Heimann and Toltschin, C-229/11 and C-230/11, EU:C:2012:693

ANGED, C-78/11, EU:C:2012:372

Lock, C-539/12, EU:C:2014:351

Brandes, C-415/12, EU:C:2013:398

Bollacke, C-118/13, EU:C:2014:1755

Strack v Commission, F-120/07, EU:F:2011:22

Bombín Bombín v Commission, F-22/10, EU:F:2011:64

Neidel , C-337/10, EU:C:2012:263

Commission v Strack, T-268/11 P, EU:T:2012:588

Réexamen Commission v Strack, C-579/12 RX-II , EU:C:2013:570

v. entitlements to daily and weekly breasks and rest periods

Vorel, C-437/05, EU:C:2007:23

Accardo and others, C-227/09, EU:C:2010:624

Commission v Ireland, C-87/14, EU:C:2015:449

Commentary in Catherine Barnard, EU Employment Law, 4th ed., (Oxford:

Oxford University Press, 2012), p.538.

vi. waivers, enforcement, and other issues

Fuß, C-243/09, EU:C:2010:609

Fuß, C-429/09, EU:C:2010:717

Begue and others v Commission, F-27/10, EU:F:2011:20

Specific Sectoral Directives

47(60)

a. Road: Directive 2002/15/EC of the European Parliament and of the Council of 11

March 2002 on the organisation of the working time of persons performing mobile

road transport activities (OJ L 80, p.35).

Spain and Finland v Parliament and Council, C-184/02 and C-223/02,

EU:C:2004:497

Commission v Poland, C-169/13, EU:C:2013:847

Antonino Accardo and Others, C-227/09, EU:C:2010:624

Commission v Finland, C-178/13, EU:C:2013:814

Commission v Luxembourg, C-364/06, EU:C:2007:306

Commission v Spain, C-392/06, EU:C:2007:376

Commission v Portugal, C-410/06, EU:C:2007:401

b. Air: Council Directive 2000/79/EC of 27 November 2000 concerning the European

Agreement on the Organisation of Working Time of Mobile Workers in Civil

Aviation concluded by the Association of European Airlines (AEA), the European

Transport Workers' Federation (ETF), the European Cockpit Association (ECA), the

European Regions Airline Association (ERA) and the International Air Carrier

Association (IACA) (Text with EEA relevance) (OJ L 302, p. 57)

Commission v Ireland, C-46/05, EU:C:2006:146

Williams and Others C-155/10, EU:C:2011:588

c. Rail: Council Directive 2005/47/EC of 18 July 2005 on the Agreement between the

Community of European Railways (CER) and the European Transport Workers’

Federation (ETF) on certain aspects of the working conditions of mobile workers

engaged in interoperable cross-border services in the railway sector (OJ L 195, p. 15).

Commission v Luxembourg, C-305/10, EU:C:2011:226

Commission v Portugal, C-286/10, EU:C:2011:6

Commission v Italy, C-291/10, EU:C:2011:4

Commission v Estonia, C-306/10, EU:C:2011:143

d. Sea: Council Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the

organisation of working time of seafarers concluded by the European Community

48(60)

Shipowners' Association (ECSA) and the Federation of Transport Workers' Unions in

the European Union (FST) - Annex: European Agreement on the organisation of

working time of seafarers (OJ L 167, p. 33).

e. Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000

amending Council Directive 93/104/EC concerning certain aspects of the organisation

of working time to cover sectors and activities excluded from that Directive (OJ L

195, p. 41)

Commission v Luxembourg, C-23/05, EU:C:2005:660

Antonino Accardo and Others, C-227/09, EU:C:2010:624

Focus: Overworked Employees

• Workers subject to excessive hours

a. Potential Case study: Junior Doctors in the UK

pressure to opt out of the 48 work week cap in the Working Time Directive

BMA founds extension of routine working hours from 60 to 90 as

“unacceptable”

Asa Bennett, “How much are junior doctors paid, and why are they

threatening to strike?”, The Telegraph, 25 September 2015,

http://www.telegraph.co.uk/news/nhs/11887308/How-much-are-junior-

doctors-paid-and-why-are-they-threatening-to-strike.html

Fiona Keating, “Junior doctors call for strike action over extended working

hours”, International Business Times, 19 September 2015,

http://www.ibtimes.co.uk/uk-junior-doctors-call-strike-action-over-

extended-working-hours-1520389

b. Potential Case study: excessive hours and conditions of road transport industry

ETF Europe, Modern slavery in modern Europe? – An ETF account on the

working and living conditions of professional drivers in Europe, October

2012.

49(60)

• Workers subject to lack of proper breaks, or unreasonable pay arrangements as to what constitutes

“working time”

a. Potential Case studies from UNIEuropa information: parcel industry, shift work in the

care sector etc.

b. Potential case study from rail sector: rests on board cross-border rail services for crew

Focus: Underworked Employees: The Use of Zero Hour Contracts

• Defining the concept of zero hour contracts:

a. Definition and treatment at the EU level

Wippel, C-313/02, EU:C:2004:607: “working according to need, [where the

employee] works under a contract which stipulates neither the weekly hours

of work nor the manner in which working time is to be organised, but it

leaves her the choice of whether to accept or refuse the work offered by [the

employer]” (59) – non-discrimination principle in Part Time Work

Directive couldn’t be used to defeat zero-hour contract arrangement.

b. Lack of clarity and coherence around the legal notion of a zero-hour contract:

Abi Adams et. al, The ‘Zero-Hours Contract’: Regulating Casual Work, Or

Legitimating Precarity?, Labour Law Research, Working Paper Draft,

Summer 2014. : the creation of a “spot market” for labour: different terms –

reservist, on-call, as and when contracts, regular casuals, key time, min-max

contracts, zero-hour contracts etc.

Distinction between on-call zero-hour contracts where employee promises

to be ready and available, and other zero-hour casual work arrangements

where employer and employee mutually guarantee no committed hours, and

employees are free to accept or decline work (though in practice this

distinction is highly blurred)

• Case studies and other

a. General information regarding use: spread across country contexts, public v private

sector, and industries with high concentrations of zero-hour contracts

50(60)

Andrew Walker, “Who Uses Zero Hour Contracts and Why?”, BBC World

Service Economics, 1 April 2005.

International Labour Organization, On-Call Work and “Zero Hour”

Contracts,

b. Potential Case Study: McDonald’s UK – 82,800 (90%) of contracts are zero hour

contracts

Most consensual zero-hour contracts in the UK are lawful under domestic

law unless they violate extreme doctrines of illegality, the commission of a

legal wrong, or violation of public policy.

EPSU, EFFAT, SEIU, and War on Want, Unhappy Meal - €1 billion in Tax

Avoidance on the Menu at McDonald’s, Brussels, 24 February 2015.

John Hall, “They Won’t be Lovin’ It: McDonald’s admits 90% of

Employees are on Zero Hours Contracts without Guaranteed Work or a

Stable Income”, The Independent, 6 August 2013,

http://www.independent.co.uk/news/uk/home-news/they-wont-be-lovin-it-

mcdonalds-admits-90-of-employees-are-on-zero-hours-contracts-without-

8747986.html

Norman Pickavance, Zeroed Out: The place of Zero-hours Contracts in a

Fair and Productive Economy.

c. Potential Issue: Link with receiving unemployment benefits: possible penalties to

jobseeker’s allowance or equivalent scheme in the event of refusal to accept a zero-

hour contract

Abi Adams et. al, The ‘Zero-Hours Contract’: Regulating Casual Work, Or

Legitimating Precarity?, Labour Law Research, Working Paper Draft,

Summer 2014.

d. Potential Case Study: demonstrating that zero-hour contracts can equally be combined

with excessive hours ie. the “worst of both worlds” – case study of private security

sector

51(60)

GMB@Work, “End Abuse of Zero Hours on Security Contracts”,

http://www.gmb.org.uk/newsroom/end-abuse-of-zero-hours-on-security-

contracts

E – Low Wages for Work Done

F – Lack of or Limited Opportunities for Workers to Enforce Their Rights at Work

Description

The Legal Landscape

In Focus

G – Lack of Access to Social Protection and Benefits Usually Associated with Full-Time

Standard Employment

Description

The Legal Landscape

a. Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of

social security schemes to employed persons and their families moving within the

Community (OJ L 149, p. 2).

Mr and Mrs F. v Belgian State, C-7/75, EU:C:1975:80

Inzirillo v Caisse allocations familiales Lyon, C-63/76, EU:C:1976:192

Jansen, C-104/76, EU:C:1977:72

Ministère public v Even, C-207/78, EU:C:1979:144

Toia, C-237/78, EU:C:1979:197

Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn Kalmthout, C-

249/83, EU:C:1985:139

52(60)

Scrivner v Centre public d'aide sociale de Chastre, C-122/84,

EU:C:1985:145

Frascogna v Caisse des dépôts et consignations, C-157/84, EU:C:1985:243

ONEM v Deak, C-94/84, EU:C:1985:264

Pinna v Caisse d'allocations familiales de la Savoie, C-41/84, EU:C:1986:1

Roviello v Landesversicherungsanstalt Schwaben, C-20/85, EU:C:1988:283

Lenoir v Caisse d'allocations familiales des Alpes-Maritimes, C-313/86,

EU:C:1988:452

Pinna v Caisse d'allocations familiales de la Savoie, C-359/87,

EU:C:1989:107

Allué and others v Università degli studi di Venezia, C-33/88,

EU:C:1989:222

Buhari Haji / INASTI, C-105/89, EU:C:1990:402

Masgio v Bundesknappschaft, C-10/90, EU:C:1991:107

Commission v France, C-307/89, EU:C:1991:245

Commission v Luxembourg, C-111/91, EU:C:1993:92

Schmid v Belgian State, C-310/91, EU:C:1993:221

Grana-Novoa v Landesversicherungsanstalt Hessen, C-23/92,

EU:C:1993:339

Lepore and Scamuffa v Office national des pensions, C-45/92 and C-46/92,

EU:C:1993:921

Leguaye-Neelsen v Bundesversicherungsanstalt für Angestellte, C-28/92,

EU:C:1993:942

Yousfi v Belgian State, C-58/93, EU:C:1994:160

Hoorn v Landesversicherungsanstalt Westfalen, C-305/92, EU:C:1994:175

Bestuur van de Nieuwe Algemene Bedrijfsvereniging v Drake, C-12/93,

EU:C:1994:336

Bestuur van de Sociale Verzekeringsbank v Cabanis-Issarte, C-308/93,

EU:C:1996:169

Hallouzi-Choho v Bestuur van de Sociale Verzekeringsbank, C-126/95,

EU:C:1996:368

53(60)

Hoever and Zachow v Land Nordrhein-Westfalen, C-245/94 and C-312/94,

EU:C:1996:379

Martínez Losada and others v Instituto Nacional de Empleo and Instituto

Nacional de la Seguridad Social, C-88/95, C-102/95 and C-103/95,

EU:C:1997:69

Mora Romero, C-131/96, EU:C:1997:317

Office national des pensions v Cirotti, C-144/96, EU:C:1997:459

Meints v Minister van Landbouw, Natuurbeheer en Visserij, C-57/96,

EU:C:1997:564

Commission v France, C-35/97, EU:C:1998:431

Commission v Greece, C-185/96, EU:C:1998:516

Commission v France, C-169/98, EU:C:2000:85

Commission v France, C-34/98, EU:C:2000:84

Commission v Germany, C-68/99, EU:C:2001:137

Offermanns, C-85/99, EU:C:2001:166

Fahmi and Esmoris Cerdeiro-Pinedo Amado, C-33/99, EU:C:2001:176

Leclere and Deaconescu, C-43/99, EU:C:2001:303

Gottardo, C-55/00, EU:C:2002:16

Kaske, C-277/99, EU:C:2002:74

Duchon, C-290/00, EU:C:2002:234

Gaumain-Cerri and Barth, C-502/01 and C-31/02, EU:C:2004:413

Commission v Belgium, C-469/02, EU:C:2004:489, unpublished

Adanez-Vega, C-372/02, EU:C:2004:705

Chateignier, C-346/05, EU:C:2006:711

Celozzi, C-332/05, EU:C:2007:35

Hendrix, C-287/05, EU:C:2007:494

Klöppel, C-507/06, EU:C:2008:110

Petersen, C-228/07, EU:C:2008:494

Leyman, C-3/08, EU:C:2009:595

Commission v Germany, C-206/10, EU:C:2011:283

Landtová, C-399/09, EU:C:2011:415

Commission v Austria, C-75/11, EU:C:2012:605

54(60)

Larcher, C-523/13, EU:C:2014:2458

b. Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29

April 2004 on the coordination of social security systems (OJ L166 p.1).

Reichel-Albert, C-522/10, EU:C:2012:475

Jeltes and Others, C-443/11, EU:C:2013:224

Brey, C-140/12, EU:C:2013:565

United Kingdom v Council, C-431/11, EU:C:2013:589

Guinet v EIB, F-107/12, EU:F:2014:1

Würker, C-32/13, EU:C:2014:107

Wagener, C-250/13, EU:C:2014:278

I, C-255/13, EU:C:2014:1291

B., C-394/13, EU:C:2014:2199

Dano, C-333/13, EU:C:2014:2358

E.S., C-646/13, EU:C:2015:276

In Focus

H – Limits on the Right to Engage in Trade Union Activity

Michelle O’Sullivan et. al., “Is Individual Employment Law Displacing the Role of Trade Unions?”,

Industrial Law Journal, (2015), Vol. 44(2), pp.222-245.

I – Arbitrary or Unfair Dismissal

Description

• In many circumstances of precarious work there is no limit on the employer’s right to terminate

employment and little or no protection against unfair dismissal

a. Manfred Weiss, “Job Security: A Challenge for EU Social Policy”, in N. Countouris

and M. Freedland (eds.), Resocialising Europe in a Time of Crisis (Cambridge:

Cambridge University Press, 2013) pp.278-289

55(60)

Removing fear of arbitrary job loss crucial to motivation, productivity,

work quality, long-term life planning, investing in qualification/training

b. Sonia McKay, “Disturbing Equilibrium and Transferring Risk: Confronting

Precarious Work”, in N. Countouris and M. Freedland (eds.), Resocialising Europe in

a Time of Crisis (Cambridge: Cambridge University Press, 2013) pp.191-212.

Precarious work offering no protection against termination: part of shifting

risk to employees

c. Guy Davidov and Edo Eshet, “Intermediate approaches to unfair dismissal

protection”, Industrial Law Journal, (2015), Vol. 44(2), pp.167-193: three aspects of

dismissal:

(i) substantive: ie. when can a dismissal be made eg. with just cause

(ii) procedural ie. who decides whether just cause exists

(iii) remedial ie. reinstatement, financial compensation, etc.

• Link with certain types of non-standard forms of employment:

a. Fixed term work: ending of fixed term contract means protection useless

b. Temporary agency work: tendency to have fewer protections, shorter terms of service

c. Bogus self-employed: not classified as worker and therefore services simply

terminated

The Legal Landscape

• Article 30, EU Charter of Fundamental Rights: right to protection against unfair dismissal:

a. Application: Article51(1) and (2): applies only when implementing EU law

b. The scope of “implementing EU law”:

Dereci, C-256/11, EU:C:2011:734

cf. Polier, C-361/07, EU:C:2008:16

Seymour Smith, C-167/97, EU:C:1999:60

Corpul Naţional al Poliţiştilor, C-434/11, EU:C:2011:830

56(60)

c. The effect of Article 30

Article 51(1) “in accordance with Community law and national law and

practice”

Limitations to be narrowly construed as per Article 52(1)

Objectives of the EU: Article 3(3) TEU and Article 151 TFEU – see Zaera,

C-126/86, EU:C:1987:395

Catherine Barnard, “The Charter in Time of Crisis – a Case Study of

Dismissal”, in N. Countouris and M. Freedland (eds.), Resocialising Europe

in a Time of Crisis (Cambridge: Cambridge University Press, 2013) pp.250-

277.

• Unfair dismissal is not directly regulated at the EU level, although certain aspects have been covered

by EU Directives:

a. Article 14(1)(c) of Directive 2006/54/EC of the European Parliament and of the

Council of 5 July 2006 on the implementation of the principle of equal opportunities

and equal treatment of men and women in matters of employment and occupation

(recast) (OJ L 204, p. 23).

Zentralbetriebsrat der Landeskrankenhāuser Tirols, C-486/08,

EU:C:2010:215

Schwab, C-547/09, EU:C:2011:329

D., C-167/12, EU:C:2014:169

Z., C-363/12, EU:C:2014:159

Napoli, C-595/12, EU:C:2014:128

C-595/12, EU:C:2014:128

Mascolo and Others, C-22/13, C-61/13 to C-63/13 and C-418/13,

EU:C:2014:2401

D’Aniello and Others, C-89/13, EU:C:2014:299

b. Article 3(1)(c) of Council Directive 2000/43/EC of 29 June 2000 implementing the

principle of equal treatment between persons irrespective of racial or ethnic origin (OJ

L 180, p. 22)

CHEZ Razpredelenie Bulgaria, C-83/14, EU:C:2015:480

57(60)

Commission v Finland, C-538/14, EU:C:2015:401

c. Article 3(1)(c) of Council Directive 2000/78/EC of 27 November 2000 establishing a

general framework for equal treatment in employment and occupation (OJ L 303, p.

16)

Chacón Navas, C-13/05, EU:C:2006:456

Römer, C-147/08, EU:C:2011:286

Dittrich and Others, C-124/11, C-125/11 and C-143/11, EU:C:2012:771

Specht and Others, C-501/12 to C-506/12, C-540/12 and C-541/12,

EU:C:2014:2005

Unland, C-20/13, EU:C:2015:561

Mascolo and Others, C-22/13, C-61/13 to C-63/13 and C-418/13,

EU:C:2014:2401

D’Aniello and Others, C-89/13, EU:C:2014:299

Vital Pérez, C-416/13, EU:C:2014:2371

ÖBB Personenverkehr, C-417/13, EU:C:2015:38

Ingeniørforeningen i Danmark, C-515/13, EU:C:2015:115

Felber, C-529/13, EU:C:2015:20

Schmitzer, C-530/13, EU:C:2014:2359

Sindicatul Cadrelor Militare Disponibilizate, C-262/14, EU:C:2015:336

d. Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the

Member States relating to collective redundancies

Commission v Italy, C-32/02, EU:C:2003:555

Commission v Portugal, C-55/02, EU:C:2004:605

Junk, C-188/03, EU:C:2005:59

Confédération générale du travail and Others, C-385/05, EU:C:2007:37

Athinaïki Chartopoïïa, C-270/05, EU:C:2007:101

Mono Car Styling, C-12/08, EU:C:2009:466

Akavan Erityisalojen Keskusliitto AEK and Others, C-44/08,

EU:C:2009:533

Rodríguez Mayor and Others, C-323/08, EU:C:2009:770

58(60)

Claes and Others, C-235/10 to C-239/10, EU:C:2011:119

Nolan, C-583/10, EU:C:2012:638

USDAW and Wilson, C-80/14, EU:C:2015:291

Lyttle and Others, C-182/13, EU:C:2015:317

Rabal Cañas, C-392/13, EU:C:2015:318

e. 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 undertakings or businesses (OJ L 82,

p. 16).

Sozialhilfeverband Rohrbach, C-297/03, EU:C:2005:315

Güney-Görres and Demir, C-232/04 and C-233/04, EU:C:2005:778

Jouini and Others, C-458/05, EU:C:2007:512

Kirtruna and Vigano, C-313/07, EU:C:2008:574

Juuri, C-396/07, EU:C:2008:656

Klarenberg, C-466/07, EU:C:2009:85

Commission v Italy, C-561/07, EU:C:2009:363

UGT-FSP, C-151/09, EU:C:2010:452

Albron Catering, C-242/09, EU:C:2010:625

CLECE, C-463/09, EU:C:2011:24

Briot, C-386/09, EU:C:2010:526

Scattolon, C-108/10, EU:C:2011:542

Alemo-Herron and Others, C-426/11, EU:C:2013:521

Amatori and Others, C-458/12, EU:C:2014:124

Österreichischer Gewerkschaftsbund, C-328/13EU:C:2014:2197

Gimnasio Deportivo San Andrés, C-688/13, EU:C:2015:46

Ferreira da Silva e Brito and Others, C-160/14, EU:C:2015:565

Aira Pascual and Others, C-509/14

f. Clause 5(2) of Council Directive 97/81/EC of 15 December 1997 concerning the

Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC

59(60)

(OJ L 14, p.9): Refusal by employee to change from full-time to part-time or vice

versa cannot be a reason for dismissal

Mascellani, C-221/13, EU:C:2014:2286

g. Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of

measures to encourage improvements in the safety and health at work of pregnant

workers and workers who have recently given birth or are breastfeeding (tenth

individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC)

(OJ L 348, p. 1): Member states are obliged to develop protection against dismissals

relating to maternity leave

Jiménez Melgar, C-438/99, EU:C:2001:509

Tele Danmark, C-109/00, EU:C:2001:513

Mayr, C-506/06, EU:C:2008:119

Paquay, C-460/06, EU:C:2007:601

Pontin, C-63/08, EU:C:2009:666

Danosa, C-232/09, EU:C:2010:674

h. Clause 5(4) of Annex to Council Directive 2010/18/EU of 8 March 2010

implementing the revised Framework Agreement on parental leave concluded by

BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC

(Text with EEA relevance) (OJ L 68, p.13): Member states are obliged to develop

protection against dismissals relating to parental leave 96/34/EC

i. International and non-binding standards

ILO Termination of Employment Convention, 1982 (No. 158)

ILO Termination of Employment Recommendation, 1982 (No. 166)

Article 24 European Social Charter – right to protection in cases of

termination of employment

60(60)

V – ENFORCEMENT

VI - CONCLUSIONS