GDPR and LABOUR LAW PDF

**DATA PROTECTION and GDPR** - **Data protection as a fundamental right in EU Law** - **Art. 16 TFEU.** - **Art. 8 of the EU Charter of Fundamental Rights.** Aspect **Right to privacy** **Right to data protection**...

**DATA PROTECTION and GDPR** - **Data protection as a fundamental right in EU Law** - **Art. 16 TFEU.** - **Art. 8 of the EU Charter of Fundamental Rights.** Aspect **Right to privacy** **Right to data protection** -------------- ------------------------------------------------------------------------------ -------------------------------------------------------------------------- Legal basis Art. 7 EU Charter Art. 8 EU Charter Scope Protects private and family life, home, and communications from interference Specifically addresses the protection of personal data Focus Broad protection of various aspects of privacy Ensures fair and lawful processing of personal data Key elements Personal relationships, home life, correspondence Fair processing, specified purposes, consent, and other legitimate bases Attempt 1: **The Data Protection Directive of 1995** - first EU legislation to regulate data protection. - Established a framework for data protection across EU member states. - **Aimed to harmonize data protection laws and ensure the free flow of personal data within the EU.** - **Issues:** - [Inconsistent Implementation (flexibility) ] - [Rapid Technological Advancements] - [Enforcement and Compliance (]under-resourced data protection authorities) Attempt 2: **The General Data Protection Regulation (GDPR)** - Adopted by the EU in response to rapid technological developments - The GDPR became applicable in May 2018, replacing the Data Protection Directive of 1995. - Introduced **stronger data protection rules, including enhanced individual rights and stricter obligations for organizations.** **GDPR** **Art. 2 -- MATERIAL SCOPE** 1. **Applicability**: - The GDPR applies to the processing of personal data using automated means or non-automated means if the data is part of or intended to be part of a filing system. 2. **Exemptions**:\ The GDPR does **not** apply in the following cases: - a\) Activities outside the scope of EU law. - b\) Activities by Member States under Chapter 2 of Title V of the TEU (related to common foreign and security policy). - c\) Personal or household activities by natural persons. - d\) Processing by competent authorities for criminal law purposes, including public security and crime prevention. **Art. 3 -- TERRITORIAL SCOPE** **GDPR applies to** 1. **Establishment** - Establishment = a company based in Europe that has European customers. This could be a subsidiary, an office. - This means that the GDPR generally applies if: Example: If an EU-based company or office, stores customer data on a server in California, the GDPR still applies to that data. 2. **a) Offering of goods or services** - if your company is based outside of Europe but has or wants European customers, you\'ll need to comply with the GDPR when processing their personal data. - **It doesn\'t matter if you have any office, employees, or other physical presence in Europe.** - This rule applies regardless of whether you charge for your products or services. For example, if you offer a subscription or free app to people in Europe, the GDPR applies. - Even if your company has no European presence and does not want any European customers, you might still have to comply with the GDPR if you are \"monitoring the behavior\" of people in Europe. - Monitoring (recital 24) = profiling a natural person, analyzing or predicting her or his personal preferences, behaviours and attitudes.. 3. Public international law - The Regulation should also apply to a controller not established in the Union, such as in a Member State\'s diplomatic mission or consular post (where Member State law applies by virtue of public international law). **Art. 4 - DEFINITIONS** 1. **Personal data =** any **information relating to an identified or identifiable natural person ('data subject');**\ an **identifiable natural person =** is one who can be identified, **directly or indirectly**, in particular by reference to an **identifier** (name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person) 2. **'processing'** = any operation or set of operations which is performed on personal data or on sets of personal data, **whether or not by *automated means***, such as *collection, recording, organisation, structuring, storage (...) or otherwise making available, alignment or combination, restriction, erasure or destruction.* - - CJEU, C-212/13, František Ryneš v. Úřad pro ochranu osobních údajů, 11 December 2014, para. 25. - - **Why (purpose)** and **how (means) data shall be processed.** - CJEU, C-131/12, Google Spain **Controller** **Processor** ------------ -------------------------------------------------------------------------------------------- --------------------------------------------------------------------- Definition Determines the purposes and means of processing data Processes data on behalf of the controller Role Exercises control over data processing and holds responsibility, including legal liability Executes data processing activities as instructed by the controller - **Written Contract is Legally Required** - **Legal Obligations** - **Processor: Record-Keeping** - **Cooperation with Authorities** - **Adherence to Codes of Conduct** - **right to withdraw consent at any time.** - **Requests for consent** must be in **clear and plain language** and in an **intelligible and easily accessible form** **Art. 5 -- DATA PROCESSING PRINCIPLES** a. **LAWFUL** (art. 6(1) GDPR) - **consent of the data subject** or another **legitimate ground** provided in the data protection legislation. - a\) consent, b) performance of a contract, c) legal obligation, d) vital interest, **FAIR** (art. 5(1)(a) GDPR) **TRANSPARENT (**5(1)(a) GDPR) - **purpose** of processing, **identity** and **address of the controller**. b. **PURPOSE LIMITATION** - any processing of personal data must be done **for a specific well-defined purpose**. - for additional, specified, purposes **compatible** with the original one. - initially specified purpose and any new purpose of processing will require a **separate new legal basis.** - For every **NEW purpose of processing data that is NOT compatible with the original purpose, needs a new legal basis**. c. **DATA MINIMIZATION (=proportionality)** - Data processing must be limited to what is **necessary** to fulfill a legitimate purpose. - The categories of data chosen for processing must be necessary to achieve the declared overall aim of the processing operations - A controller should **strictly** limit collection of data to such information as is ***directly relevant for the specific purpose pursued by the processing*** - CJEU, Joined cases C-293/12 and C-594/12, ***Digital Rights Ireland*** - Data processing **may not disproportionately interfere with the interests, rights and freedoms at stake**. - **Pseudonymisation** -- Article 4(5) GDPR d. **THE DATA ACCURACY** - A controller holding personal information shall not use that information without taking steps to ensure with reasonable certainty that the data **are accurate and up to date**, **in all processing operations.** - **Case 1: Legally prohibited to update data (medical records, historical snap-shot)** - **Case 2: Absolutely necessary to update and check data accuracy regularly (bank loan information) -** potential damage that might be caused to the data subject if data were to remain inaccurate. e. **THE STORAGE LIMITATION** - **Time limits** for data storage - The data must therefore be **erased** or **anonymised** when those **purposes have been served (**if a controller wanted to store them after they were no longer needed and no longer served their initial purpose). - ECtHR, **S. and Marper** - The ECtHR ruled that **indefinite** retention of the fingerprints, cell samples and DNA profiles of the two applicants was **disproportionate and unnecessary in a democratic society**, considering that the criminal proceedings against both applicants had been terminated by an acquittal and a discontinuance, respectively. - **Anonymization = all identifying elements are eliminated from a set of personal data so that the data subject is no longer identifiable.** f. **THE DATA SECURITY** - appropriate technical or organizational measures are implemented when processing personal data to protect the data against accidental, unauthorized or unlawful access, use, modification, disclosure, loss, destruction or damage. - **pseudonymising data**. = **replacing** the attributes in personal data -- which make it possible to identify the data subject -- with a **pseudonym**, and keeping those attributes separate. **RIGHTS OF DATA SUBJECTS** 1. **[Right to be informed (]art. 12 GDPR)** - the controller is obliged to provide the following information: controller's **identity, purpose** and **legal basis** for the processing, controller's **legitimate interest, retention period, subject's rights, right to lodge a complaint, right to withdraw a consent**... 2. **[The right to lodge a complaint ]** 3. **[The right of access to an individual's own data (]art. 15 GDPR, art. 8(2) EU Charter)** 4. **[Right to rectification] [(]art. 16 GDPR)** 5. **[Right to erasure/right to be forgotten] (art. 17 GDPR)** - no longer necessary for the purposes of processing, withdrawal of the consent, objection to the processing and there are no overriding legitimate grounds for the processing, unlawfully processed personal data 6. **[Right to restriction of processing] (art. 18 GDPR)** 7. **[Right to object ]** **INTERNATIONAL TRANSFER OF DATA** A. **[Free flow of data in the EU and EEA]** - prohibited to restrict/prohibit the free movement of personal data between EU Member States. - The area of free data flow has been extended by the '**Agreement on the European Economic Area (EEA)'** which also allows such free movement of data to Iceland, Liechtenstein, and Norway. - Example: If an affiliate of an international group of companies is established in several Member States, including the Netherlands and France.\ Personal data can be sent from the Netherlands to France and Dutch national law must not prohibit/restrict such flow of data.\ However, this is not the case when a Dutch affiliate wants to transfer data to Australia (third country/non-EU). B. **[Transfer of personal data to third countries or international organizations]** 1. ***Adequacy decision (by EU COMM) --* art. 45 GDPR** - the third country, a territory or one or more specified sectors within that third country, or the international organization in question ensures an **adequate level of protection** = **"essentially equivalent"** to the guarantees ensured by law in the EU. - At the same time, **the means to which a third country has recourse for the purposes of ensuring such a level of protection may differ** from those employed within the EU - The adequacy decision includes a mechanism for a **period review**, at least **every four years**, which shall consider all relevant developments in the third country or international organization and asses the revision of the adequacy decision. - CJEU, C-362/14, ***Maximillian Schrems*** 2. ***Appropriate safeguards* -- art. 36 GDPR** - In the absence of an adequacy decision, a controller or processor may transfer personal data to a third country or an international organization **only if the controller or processor has provided appropriate safeguards, and on condition that enforceable data subject rights and effective legal remedies for data subjects are available.** - Appropriate safeguards: 1. **[Right to lodge a complaint with a supervisory authority]** (art. 77 GDPR) - Individuals have the right to lodge requests and complaints with the competent supervisory authority **if they consider that the processing of their data is not being carried out per the law.** - **electronic complaint submission form**. (Art 57(2) GDPR). - The data subject can complain to the supervisory authority in the Member State of his or her **habitual residence, place of work,** or **place of the alleged infringement**. 2. **[Right to an effective judicial remedy]** (art. 78 GDPR) - They may choose to do so either: a. in the Member State in which the **controller or processor has an establishment,** or b. **in the Member State in which the data subjects concerned have their habitual residence** (familiar jurisdiction) 3. **[Liability and the right to compensation]** (art. 82 GDPR) - Controllers and processors are **liable for unlawful processing under the GDPR**. - Compensation must be '**full and effective'** in relation to the damage suffered 4. **[Sanctions]** (art. 83 GDPR) - The supervisory authorities have the power to impose administrative fines for infringements of the regulation of **up to € 20,000,000** or **4 % of its total worldwide annual turnover** -- whichever is higher. **EU LABOUR LAW** **I. The development of the social element of EU integration & Current themes in the EU Labour law** **Labour law = The law of the employment relationship** (employer -- employee) - Key areas of labour law: - Contract and conditions of employment - Labour rights and standards - Labour Relations - Social Security - Rationale of labour law - Market-making vs market-correcting law National vs. EU Labour Law: Sources - **National labour law**: National constitutions, domestic legislation, national courts, and collective agreements. - Variety of welfare states & systems of labour law in the member states - **EU labour law:** EU Treaties, regulations, directives, CJEU, soft law - Mostly directives -- Minimum harmonisation (153 TFEU) - EU is regulating its MS rather than the employment relationship directly Scope - **National law:** All employment-related matters - **EU law:** Fragmented - **[Complementary Relationship:]** - EU law sets minimum standards, which may be exceeded - Explicit exclusion of EU competence in sensitive areas - EU level policy coordination without harmonisation **The Development of EU Labour Law** - **Early Foundations: Treaty of Rome** **Preamble:** - Essential purpose of constantly improving the living and working conditions of their \[member states'\] peoples' - No (perceived) need for social harmonisation - Two visions: **Economic** vs **social** - Focus on economic integration and free movement of workers **Treaty of Rome: Art. 117** **Treaty of Rome: Social Policy** - Promotion of cooperation (Art. 118) - Equal pay (Art. 119) - Paid holiday schemes (Art. 120) - **Social Security for Migrant Workers (Art. 121)** - Social developments in Commission reports (Art. 122) - European Social Fund (Chapter 2, Arts. 123-128) The social sphere is 'decoupled' from supranational economic integration **Member States retain their powers** **Market-making (economic) rationale** - **Expanding the Social Dimension** - 1961 European Social Charter - Increased activity in the social sphere - Adoption of directives on Internal Market basis (ex 100 EEC, now 115 TFEU) - On equal pay (75/117/EEC) and equal treatment (76/207/EEC) - On collective redundancies (75/129/EEC) and transfers of undertakings (77/187/EEC) - On health and safety (78/610/ EEC and 77/576/ EEC) **Single European Act** **[Additional EU competences:]** Qualified Majority Voting (QMV) for health and safety (118a EEC) Introduced Social dialogue (Article 118b EEC (now Articles 154-- 155 TFEU as amended) BUT: **Unanimity** for matters 'relating to the **rights and interests of employed persons**' (Article 100a(2) EEC (now Article 114(2) TFEU) - **Expanding the Social Dimension** Community Charter of Fundamental Social Rights (1989) and Social Charter Action Programme **[Additional Directives on:]** Health and safety (89/654/EEC, 89/655/EEC, 90/270/EEC, 90/269/EEC) Employment information (91/533/EEC) Pregnant workers (92/85/EEC) - **Treaty of Maastricht** Provisions on cooperation in education, support in vocational training **[Protocol on Social Policy:]** QMV for work conditions, information and consultation of workers, equality between men and women, and the integration of those excluded from the labour market New power for Social Partners: **Negotiation of collective agreements which can be made into 'normal' legislation by the Council** Directives on Parental Leave (96/34/EC), part-time work (97/81/EC) and fixed-term work (99/70/EC ) - **Treaty of Amsterdam** **[Article 13 EC (now 19 TFEU):]** Legal basis for adopting non-discrimination law Directives 2000/43/EC (race and ethnic origin) and 2000/78/EC (framework equality directive) **[Employment Title (now Title IX, Arts 145-150 TFEU)]** Launch of the European Employment Strategy (EES) Recognition of the interdependencies arising from Economic and Monetary Union (EMU) Focus on employment policy coordination over individual labour rights - **Consolidating the Social Dimension?** **Nice, Lisbon, and beyond** Lisbon Strategy (2000) ** Nice:** Institutional reforms and adoption of the Charter of Fundamental Rights A Social deficit? ** Lisbon:** Charter becomes primary law EU objectives to develop a 'social market economy', and to 'promote social justice' (Art. 3(3) TFEU) European Pillar of Social Rights (2017) **EU Harmonisation Powers: Art. 153 TFEU** 1\. With a view to achieving the objectives of Article 151, the Union shall support and complement the activities of the Member States in the following fields: (see next slide ) 2\. To this end, the European Parliament and the Council: \(b) may adopt, in the fields referred to in paragraph 1(a) to (i), **by means of directives, minimum requirements for gradual implementation** (...) In the fields referred to in paragraph 1(c), (d), (f) and (g), the Council shall act **unanimously** **c) social security and social protection of workers;** **(d) protection of workers where their employment contract is terminated;** **(f) representation and collective defence of the interests of workers and employers, including co-determination, subject to paragraph 5;** **(g) conditions of employment for third-country nationals legally residing in Union territory;** - **Development of EU Labour Law** **Areas of EU Labour Law** 1. **Free Movement of Workers and Posted Workers** - Individual right to work across EU Member States without nationality discrimination, Art. 45 TFEU - Interpreted widely: - Personal scope - Material scope - Regulation 492/2011 on freedom of movement for workers within the Union - Posted Workers Directive 2018/957/EU 2. **Equal Treatment and Non- Discrimination:** **Inert characteristics** - (...) **the Council, acting unanimously** in accordance with a special legislative procedure and **after obtaining the consent of the European Parliament,** may take **appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation** (Art. 19 TFEU) - Equal treatment in employment, including access to employment - Racial or ethnic origin (2000/43/EC), - Religion or belief, disability, age or sexual orientation (2000/78/EC) - Equal treatment between men and women, including equal pay (2006/54/EC), - Atypical work = non-standard work - Standard employment relationship: full-time, open-ended, directly employed - Directives on Part-time work (97/81/EC), Fixed-term work (99/70/EC), and - Non-discrimination compared to standard workers - Balance: facilitation of new forms of flexible work and worker protection ('flexicurity') 3. **Workers' Rights & Working Conditions** - Health and safety at work (Framework Directive 89/391/EEC) - Working Time (2003/88/EC, 2019/1158/EU) - Rights in restructuring processes: Collective redundancies (98/59/EC), Transfer of undertakings (2001/23/EC) - Leave entitlements (92/85/EEC, 2019/1158/EU) - Fundamental rights (CFR) - **BUT: Pay, unionisation, striking, industrial action still excluded (153(5) TFEU)** 4. **Social Security** - **Coordination not harmonisation** - Regulation 883/2004/EC: **Coordination of social security systems to ensure** - **mobile workers retain benefits across the EU**. - Benefits can be aggregated and become 'exportable' - E.g. Pensions, sickness/invalidity benefits, unemployment benefits **Current Developments in EU Labour Law** **Platform Work, AI, Digitalisation** - Rise of the gig economy, platform work - Problems: Employment status, AI and automation - Directive (EU) 2024/2831 of the European Parliament and of the Council of 23 October 2024 on improving working conditions in platform work - Ensuring a just digital transition **European Pillar of Social Rights** - Interinstitutional Proclamation on the European Pillar of Social Rights (2017/C - 428/09) - Legal status? Non-binding (soft law) - Chapter I: Equal opportunities and access to the labour market - Chapter II: Fair working conditions - Chapter III: Social protection and inclusion - European Pillar of Social Rights Action Plan (2021) **New Instruments** - Directive (EU) 2022/2041 of the European Parliament and of the Council of 19 October 2022 on **adequate minimum wages in the European Union** - Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on **transparent and predictable working conditions in the European Union** - Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on **work-life balance for parents and carers** **Workshop** ***What were the main two visions/schools of thought for the EU social sphere?*** ** Economic vs social school of thought** ** Market-making vs market-correcting law** ** Economic/market making:** ** Social/market correcting:** In EU law today, there are provisions with economic/market making and social/market-correcting purposes ***What were the factors contributing to the expansion of the EU Social sphere between 1970-*** ***2000?*** 1970-1980s: 1990s-2000: ***What is the European Employment Strategy?*** Arose out of the Employment Title (now Title IX, Arts. 145-150 TFEU), introduced in the Treaty of Amsterdam (1997) ** Coordinated strategy for MS employment policy** ** Policy coordination mechanism** (148 TFEU): Now integrated into the European Semester ***What is the relationship between EU Labour Law and National Labour Law?*** ***What are the main instruments/methods of regulation in EU Labour Law?*** ***What is Social Dialogue? Who are the Social Partners?*** (Arts. 152, 154, 155 TFEU) **II. EU EQUALITY LAW** Development of EU Equality Law - Originated in Art. 119 EEC (equal pay) - **now 157 TFEU** - **Developed into EU sex discrimination law:** - equal pay - equal treatment in employment and access to employment - equal treatment in social security - Now covered in **Recast Directive** 2006/54/EC - **Additional directives on:** - State social security (Directive 79/7) - Access to and supply of goods and services (Directive 2004/113) - Equal treatment as between self-employed men and women (Directive 2010/41) - Pregnancy and leave entitlements (Directives 92/85 and 2019/1158 respectively). **Amsterdam Treaty introduces what is now Art. 19 TFEU:** "1. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation." - **Race Directive Directive** 2000/43 - **Framework Employment/Equality Directive** 2000/78 **CFR Art. 21: Non-discrimination** 1. Any discrimination based on **any ground** such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited." - "Any ground such as" = non-exhaustive list - **BUT no new** EU Legislative competence - consider Art. 51 CFR **Sources of EU Equality Law** - Treaty - **Art. 157 TFEU** - Legal bases e.g. **Art. 19 TFEU** - Values and objectives: Arts. 2 and 3(3) TEU - Mainstreaming clauses: Arts. 8 and 10 TFEU - Charter of Fundamental Rights: Arts. 21, 23 - Legislative instruments: Directives - Case law - Soft Law and Policy - International Law **Equal Treatment Between Men and Women** Origins Art. 119 EEC (now **art. 157 TFEU**): "1. Each Member State shall ensure that the principle of **equal pay** for male and female workers for equal work or work of equal value is applied" Originally introduced to 'ensure level playing field' Economic or social rationale (aim)? Case 43/75 ***Defrenne II***: **art. 157 TFEU double aim** **a) economic (elimination of distortion of competition)** **b) social** BUT: Case C-50/96 ***Schröder*** - **Social aim (now) dominates** CJEU It ruled early on that 157 TFEU (ex 119 EEC) has **direct effect** **Gender Equality: Pay or Social Security?** - 157 TFEU is **directly effective** - Social Security Directive 79/7 allows for exceptions - Case 80/70 *Defrenne I*: Social security it **not** pay - Occupational pension scheme entirely financed by the employer = pay (Case 170/84 *Bilka-Kaufhaus*) - Contracted out pension schemes = pay (C--262/88 *Barber*) **Equality between Men and Women: The Directives** - Most secondary legislation on equality between men and women now contained in the **Recast Directive 2006/54** - Equal treatment/non-discrimination in the areas of: - Equal pay (Chapter 1) - Equal treatment in occupational social security (Chapter 2) - Equal treatment in (access to) employment (Chapter 3) - Amsterdam Treaty introduces **Art. 19 TFEU** - **Not** directly effective - 19(1) requires unanimity, 19(2) QMV for non-hamonising measures - **Race Directive 2000/43** - Prohibits discrimination on the basis of **racial or ethnic origin** (Art. 1) but **not** nationality (Art. 3(2)) - Wide material scope (Art. 3): - (Access to) employment/vocational training and working conditions - Social protection, health care, housing, and education. - **Framework Equality Directive 2000/78** - Encompasses more discrimination grounds (**religion** or **belief, disability, age, sexual orientation**) - [**Only** applies to **labour market discrimination**], Art. 3: - \(a) conditions for access to employment including selection criteria, recruitment, and promotion; - \(b) access to vocational guidance, training, and retraining - \(c) employment and working conditions, including dismissals and pay; - \(d) membership of, and involvement in, workers' or employers' organizations. - Special provisions for age, disability, and religion, Arts. 6, 5, 4(2) - **Proposed Horizontal Equality Directive** (COM/2008/0426 final) **EU Equality Law -- Common Concepts** A. **Direct Discrimination** = where one person is **treated less favourably** than another is, has been or would be treated in a comparable situation, **on any of the \[protected\] grounds**" - Established on the basis of a **comparator** - E.g. An employer publicly states that it will not hire persons of a certain racial/ethnic origin (Case C-54/07 *Feryn*) B. **Indirect Discrimination** **=** where **an apparently neutral provision**, **criterion or practice** would **put persons \[with one of the protected characteristics\] at a particular disadvantage** compared with other persons - Persons with a protected characteristic are disadvantaged - E.g. lower hourly wages for part-time work, where most part-time workers are women (Case 96/80 *Jenkins*) C. **Harassment and Instruction to discriminate** **="Unwanted conduct** related to any of the \[protected\] grounds \[that\] takes place with the purpose or effect of **violating the dignity of a person** and of **creating an intimidating, hostile, degrading, humiliating or offensive environment"** - Harassment by association possible (C-303/06 *Coleman)* - 'Instruction to discriminate': not further defined D. **Justification** - **Direct Discrimination**: - **[Public security, public order, health, rights and freedoms of others]** (Art. 2(5) Directive 2000/78) - **[Occupational Requirement]** (Art. 4 Directives 2000/78, 2000/43; Art. 14(2) Directive 2006/54) **[=] by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out**, - Age discrimination, Art. 6(1) Directive 2000/78 - **Indirect Discrimination**: - **[Legitimate aim, appropriate, necessary (]**Art. 2(2)(b) Directive 2000/78, Art. 2(2)(b) Directive 2000/43, Art. 2(1)(b) Directive 2006/54) - E.g. employer wanting to appear religiously neutral (C-157/15 *Achbita*) E. **Burden of proof** - **respondent to prove** that **there has been no breach of the principle of equal treatment"** - Art. 10 Directive 2000/78; Art. 8 Directive 2000/43; Art. 19(1) Directive 2006/54 **3 Step Test to establish discrimination:** **III. Working time and Workers' rights in restructuring processes** **1. WORKING TIME** Regulation of Working Time → **Working Time Directive 2003/88/EC** - **Purpose**: To establish minimum safety and health requirements for working time organization. (Art. 1(1)) )) → Overly long hours, too few rest periods, or irregular work patterns are proven to increase adverse health outcomes, and can increase the likelihood of accidents at work - **Maximum working time, minimum rest periods, leave periods, rules on night/irregular work** - **Scope**: Applies to all public and private sectors, with exceptions for specific activities (e.g., armed forces, police, and civil protection services). - **Key Provisions**: - Daily rest period: 11 consecutive hours (Art. 3). -  rest break: 6 hours (art. 4) - Weekly rest period: 35 hours (Art. 5). - Maximum average weekly working time: 48 hours over four months (Art. 6). - Paid annual leave: Minimum of four weeks (Art. 7). - Night work limit: 8 hours per 24 hours (Art. 8). **[Working Time and Rest Periods]** - **Definitions** (Art. 2): - **Working Time**: Time during which the worker is at the employer's disposal and performing duties. - **Rest Period**: Any period not classified as working time. - **Criteria include** (e.g. C-303/98 *Simap,* C-151/02 *Jaeger*): **◦ 1. mandatory physical presence at a place determined by employer** **◦ 2. mandatory actual availability to the employer** - What matters is whether the worker can ***freely manage their time, and pursue their interests*** - **CJEU Cases**: - **Travel time** (C-266/14 Tyco) and **mandatory training** (C-909/19 Unitatea Administrativ Teritoriala) count as working time. - **Borderline cases:** 'on call' shifts, stand-by times, travel times, training - Classification as working time **does not** imply remuneration! **[Annual Leave]** - Workers are entitled to a minimum of four weeks\' paid annual leave (Art. 7(1)), which cannot be replaced with compensation unless the employment ends. - Only the **minimum period** -- additional leave days can be replaced by an allowance **[Exceptions and Derogations]** - General derogations apply where working time is not measured **and/or predetermined or can be determined by the workers themselves**" (Art. 17(1)). - Only where "the workers concerned are **afforded equivalent periods of compensatory rest** or that, in exceptional cases in which [it is not possible], **the workers concerned are afforded appropriate protection**" (art. 17(2)) - Sector-specific derogations exist for security, hospitals, and tourism, among others. **2. WORKERS' RIGHTS IN RESTRUCTURING PROCESSES** The EU protects workers during restructuring to balance business freedom and worker protection (social cost). **Collective Redundancies Directive (98/59/EC)** - **Quantitative Thresholds**: How many workers are dismissed ? - Minimum number of redundancies within a 30/90-day period. - **Qualitative Criteria**: Why are the workers dismissed ? - Dismissals unrelated to individual workers. - **Worker Definition**: Determined autonomously at the EU level (C-229/14 Balkaya). - **For a certain period of time, a person provides services** - **for and under the direction of another person** - **in return for which the person receives remuneration** - **Establishment**: The unit to which workers are assigned **to carry out their duties** (Case C-449/93 *Rockfon*) - **Types of dismissals**: **[Redundancies] = dismissals for economic reasons, without the worker's consent,** ◦ E.g. Early retirement, end of contract - ** Information and Consulation** : Employers must consult workers\' representatives to explore ways to mitigate redundancies (Art. 2). -  **Notifying Public Administration:** Authorities must be notified at least 30 days before redundancies take effect (Art. 4). → to assist in finding and implementing social measures **Transfer of Undertakings Directive (2001/23/EC)** - Covers private and public entities engaged in economic activities. - Excludes public administration and seagoing vessels. - **Identity**: "**Organised grouping of resources which has the objective of pursuing an economic activity** - **Retain its identity**: if the economic entity continues its activities post-transfer. - CJEU: Distinction between activities based essentially on **manpower (a major portion of staff assigned to the relevant taskts)** , and activities based essentially on **assets (taking over essential assets)** (C-392/92 *Schmidt*) - **Employee Definition**: Determined by national law but cannot exclude part-time, fixed-term, or temporary workers. - Continuation of the employment relationship: The transfer of the undertaking, business or part of the undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee" **(Art. 4(1))** - **BUT Art.4(1):** "dismissals \[...\] for **economic, technical or organisational reasons**" [allowed] - Employment terms are preserved under the new employer (Art. 3) - Employee is free to **not continue** the employment relationship, but **not entitled to maintain the original one with the transferor** (Case C-132/91 *Katsikas*) - Employees can terminate their relationship if the transfer results in substantial detriment to their conditions (Art. 4). [employer is considered responsible] - **Information and Consulation** : Both transferor and transferee are obliged to inform affected workers' representatives (art. 7) - Workers' representatives' status and function shall be preserved, on the same terms and conditions (art. 6) **Insolvency Directive (2008/94/EC)** - **When is an employer insolvent**: where a request has been made for the opening of collective proceedings based on insolvency of the employer - Guarantee institutions must pay outstanding wages, including severance pay (Art. 3). - Social security payments are addressed (Arts. 6-8). - Cross-border insolvencies are handled by the Member State where the employee works (Art. 9). **Recap** 1. EU working time rules safeguard health and safety by limiting working hours and ensuring adequate rest. 2. Collective redundancies require consultation and notification to mitigate social impacts. 3. Transfers of undertakings aim to preserve employment rights during business transitions. 4. Insolvency provisions ensure that workers receive outstanding payments despite employer bankruptcy.