Summary Week 13-17 EU Business Law PDF

**Week 13: Overview of the GDPR** **Subjects Covered:** - Rights of data subjects - Obligations of data processors **Questions for Class Discussion:** - What are the principles that govern the protection of personal data? - What are the challenges of data protection in a cross-border context? PowerPoint **Overview of the General Data Protection Regulation (GDPR)** The General Data Protection Regulation (GDPR) is a comprehensive data protection law that came into effect on May 25, 2018, across the European Union (EU) and the European Economic Area (EEA). The regulation was designed to strengthen individuals\' rights to privacy and data protection, addressing the increasing concerns over personal data handling by organizations. **Key Principles of GDPR** - **Lawfulness, Fairness, and Transparency**: Organizations must process personal data lawfully, fairly, and in a transparent manner in relation to the data subject. - **Purpose Limitation**: Personal data must be collected for specified, legitimate purposes and not further processed in a manner incompatible with those purposes. - **Data Minimization**: The collection of personal data should be limited to what is necessary for the intended purpose. - **Accuracy**: Organizations are required to take reasonable steps to ensure that personal data is accurate and up to date. - **Storage Limitation**: Personal data should be kept in a form that permits identification of data subjects for no longer than necessary. - **Integrity and Confidentiality**: Organizations must ensure appropriate security of personal data, including protection against unauthorized or unlawful processing and against accidental loss, destruction, or damage. - **Accountability**: Data controllers are responsible for demonstrating compliance with these principles. **Rights of Data Subjects** Under GDPR, individuals have several enhanced rights, including: - **The Right to Access**: Individuals can request access to their personal data held by an organization. - **The Right to Rectification**: Individuals can request correction of inaccurate personal data. - **The Right to Erasure**: Also known as the \'right to be forgotten,\' individuals can request deletion of their personal data under certain circumstances. - **The Right to Restrict Processing**: Individuals can request that the processing of their data is restricted rather than erased. - **The Right to Data Portability**: Allows individuals to obtain and reuse their personal data across different services. - **The Right to Object**: Individuals can object to the processing of their personal data in specific circumstances, particularly for direct marketing purposes. **Implications for Data Management in Member States** The GDPR significantly impacts how organizations manage and protect data: - **Increased Accountability**: Organizations must implement data protection measures and be able to demonstrate compliance with GDPR. - **Data Protection Officers (DPOs)**: Certain organizations are required to appoint a DPO responsible for overseeing data protection strategy and implementation. - **Data Breach Notifications**: Organizations must notify relevant authorities and affected individuals within 72 hours of a data breach if it poses a risk to rights and freedoms. - **Fines for Non-Compliance**: Non-compliance with GDPR can result in significant fines, up to €20 million or 4% of an organization's global annual revenue, whichever is greater. Overall, GDPR aims to provide individuals with greater control over their personal data, foster a culture of privacy across the EU, and harmonize data protection regulations across member states. **Required Reading:** 1. **FRA, Handbook of European Data Protection Law (2018)** The **Handbook of European Data Protection Law (2018)** is a comprehensive guide published by the **European Union Agency for Fundamental Rights (FRA)**. It provides a detailed overview of the legal framework governing data protection in the European Union (EU) and how these laws are applied across EU member states. **Key Points:** 1. Every data subject has the right to information about any data controller\'s processing of their personal data, subject to limited exemptions. 2. Data subjects have the right to: - Access their own data and obtain certain information about the processing. - Have their data rectified by the controller processing their data, if the data are inaccurate. - Have the controller erase their data, as appropriate, if the controller is processing their data illegally. - Have the right to temporarily restrict processing. - Have their data ported to another controller under certain conditions. 3. Data subjects have the right to object to processing on grounds relating to their particular situation or the use of their data for direct marketing purposes. 4. Data subjects have the right not to be subject to decisions based solely on automated processing, including profiling, that have legal effects or significantly affect them. 5. Data subjects have the right to obtain human intervention on the part of the controller and express their point of view and contest a decision based on automated processing. **Right to be Informed:** 1. Controllers are obliged to inform data subjects at the time when personal data are collected about their intended processing. 2. The information must be concise, transparent, intelligible, and easily accessible, using clear and plain language. 3. The information must be provided in writing, including electronically, or orally at the data subject\'s request. 4. The information must be provided without excessive delay or expense. **Content of the Information:** 1. The controller\'s identity and habitual residence or establishment. 2. The legal basis and purpose of the intended processing. 3. The categories of personal data processed. 4. The recipients or categories of recipients of the personal data, if any. 5. The ways in which data subjects can exercise their rights. 6. The data subject\'s rights regarding processing, such as access, rectification, erasure, and restriction of processing. 7. Whether the provision of personal data is required by law or a contract, and the consequences of failure to provide the personal data. **Time of Providing Information:** 1. When personal data are obtained directly from the data subject, the controller must notify the data subject about all related information and rights at the time the data are obtained. 2. If the controller intends to further process the personal data for a different purpose, the controller must provide all relevant information prior to the processing taking place. 3. If personal data have not been obtained from the data subject directly, the controller is obliged to provide the information within a reasonable period after obtaining the personal data, but at the latest within one month. **Different Ways of Providing Information:** 1. The information must be concise, transparent, intelligible, and easily accessible. 2. The information must be in writing, or by other means, including electronic means, using clear, plain, and easily understandable language. 3. Standardized icons can be used to provide the information in an easily visible and intelligible manner. 4. Data subjects can request to have the information provided by oral means. 5. Information must be free of charge, unless the data subject\'s requests are manifestly unfounded or excessive. **Summary of Rights and Obligations Related to Data Protection** **1. Obligation to Notify:**\ Controllers are required to inform each recipient to whom personal data has been disclosed if there is any rectification or erasure of personal data or if there is a restriction on processing. This obligation applies unless it is impossible or disproportionate. If requested, the controller must provide information about those recipients. **2. Right to Data Portability:**\ Under the GDPR, data subjects have the right to data portability when personal data has been provided to a controller through automated means based on consent or necessary for a contract. Data subjects can request their data to be directly transferred from one controller to another if technically feasible. Controllers should develop interoperable formats for data transfer, which must be structured, commonly used, and machine-readable. **3. Right to Object:**\ Data subjects may object to personal data processing based on their specific situations or for direct marketing purposes. The right to object applies to profiling activities as well. While there is no general right to object, data subjects can raise objections where the legal basis for processing relates to public interest tasks or legitimate interests of the controller. Controllers must demonstrate compelling grounds to continue processing if a data subject objects. - **Right to Object to Direct Marketing:**\ Data subjects can object at any time to the processing of their data for direct marketing, leading to unconditional erasure of their data in those situations. - **Right to Object via Automated Means:**\ Data subjects can exercise their right to object to automated processing through suitable technical measures, ensuring effective exercise of this right. - **Right to Object for Research Purposes:**\ The right to object exists concerning processing for scientific, historical, or statistical research, and exceptions apply when the processing is essential for public interest tasks. **4. Automated Individual Decision-Making including Profiling:**\ Data subjects must not face decisions taken solely via automated processes without human intervention that produce legal effects or significantly affect them. This includes profiling, which evaluates personal aspects to predict behavior. The GDPR stipulates that automated decision-making may be permissible under specific conditions, such as consent or contractual necessity, and the rights of data subjects must be safeguarded. Controllers must inform data subjects about the existence of automated decision-making and provide meaningful information about the reasoning and logic involved. Data subjects have the right to contest decisions made based on automated processing. **5. Remedies, Liability, Penalties, and Compensation:** - The Modernised Convention 108 requires Contracting Parties to establish appropriate remedies and sanctions for data protection rights violations. - GDPR provides specific remedies for violations, allowing data subjects to lodge complaints with supervisory authorities, seek judicial remedies, and claim compensation for damages. - Non-profit organizations may represent individuals in exercising their rights. - Controllers or processors are responsible for material and non-material damages due to infringements. - Supervisory authorities can impose significant administrative fines for GDPR violations, up to €20 million or 4% of annual global turnover. - Individuals may ultimately take cases to the European Court of Human Rights (ECtHR) under certain conditions and can challenge decisions made by the European Data Protection Board in the Court of Justice of the European Union (CJEU). **Conclusion:**\ The effectiveness of European data protection laws relies not only on legal frameworks but also on the proactive enforcement of rights and obligations associated with personal data protection, ensuring that data subjects can exercise their rights and receive adequate redress for violations. Key aspects of the handbook include: 1. **General Data Protection Regulation (GDPR)**: One of the most significant components of EU data protection law, which came into effect in May 2018, the GDPR sets out strict guidelines for how personal data must be processed, stored, and secured. 2. **Data Protection Directive (95/46/EC)**: While superseded by the GDPR, the directive continues to be relevant for understanding the historical development of EU data protection law. 3. **The Role of National Authorities**: The handbook explores how various national authorities in the EU member states implement data protection laws and oversee compliance. 4. **Fundamental Rights**: A core element of EU data protection law is its emphasis on privacy and other fundamental rights guaranteed by the EU Charter of Fundamental Rights. 5. **Case Law and Legal Precedents**: The handbook offers insights into key rulings by the Court of Justice of the European Union (CJEU) that have shaped data protection principles. 6. **International Cooperation**: It also touches on the relationship between EU data protection laws and international agreements, such as the EU-U.S. Privacy Shield and the General Data Protection Regulation\'s extraterritorial reach. 7. **Challenges and Future Developments**: The book examines ongoing challenges in data protection, including emerging technologies (such as artificial intelligence, big data, and the Internet of Things) and how the law is evolving to keep pace with these changes 2. **Case C-362/14 Maximillian Schrems v Data Protection Commissioner ('Schrems I')** The **Schrems I** case (C-362/14) was a 2015 ruling by the Court of Justice of the European Union (CJEU) in which Maximillian Schrems challenged the transfer of his personal data from Facebook (in the EU) to the U.S. under the Safe Harbor Agreement. Schrems argued that the U.S. did not offer adequate data protection, especially because of its surveillance laws. The CJEU ruled that the **Safe Harbor Agreement** was invalid, as it failed to provide sufficient protection for EU citizens\' privacy rights, particularly in light of U.S. mass surveillance programs. The Court emphasized that EU citizens should have the right to challenge such practices, and that data transfers to countries outside the EU must ensure an equivalent level of protection. This landmark decision led to the invalidation of Safe Harbor and the eventual creation of the **EU-U.S. Privacy Shield**, which was also later challenged in the **Schrems II** case. 3. **Case C-311/18 Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems (Schrems II)** The *Schrems II* case (Case C-311/18, *Data Protection Commissioner v Facebook Ireland Ltd and Maximilian Schrems*) is a landmark decision by the Court of Justice of the European Union (CJEU), delivered on July 16, 2020. This ruling dealt with the transfer of personal data from the European Union (EU) to the United States, and its implications for privacy protections under EU law. The key points of the case include: 1. **Invalidation of the Privacy Shield**: The court ruled that the EU-U.S. Privacy Shield, which had been a mechanism for transferring personal data between the EU and the U.S., was invalid. The Court found that U.S. surveillance laws (such as the Foreign Intelligence Surveillance Act) did not provide adequate protection against the risks of data being accessed by U.S. intelligence agencies, thereby not meeting the level of protection required by EU law, particularly the General Data Protection Regulation (GDPR). 2. **Standard Contractual Clauses (SCCs)**: The court upheld the validity of Standard Contractual Clauses (SCCs) as a mechanism for data transfers between the EU and third countries, but with important qualifications. It stated that organizations transferring data must ensure that the destination country provides sufficient protection for personal data. If there is no adequate protection, data exporters must assess the risks and, if necessary, put in place additional safeguards to protect the data. 3. **Impact on Businesses**: The ruling had significant implications for businesses involved in transatlantic data transfers. It required companies to reassess their data transfer mechanisms and potentially seek additional safeguards or rely on alternative legal bases for data transfers. 4. **Surveillance and Privacy Concerns**: The decision reinforced the EU\'s emphasis on data protection and privacy, particularly in the context of growing concerns over government surveillance and access to personal data. **Week 14: Enforcement and Impact of the GDPR** **Subjects Covered:** - Enforcement and supervision mechanisms of the GDPR - Issues with enforcement - Proposals for reform - Overall impact of the GDPR **Questions for Class Discussion:** - How is the GDPR currently enforced at an EU level? - How can the enforcement of data protection regulations be improved? - What is the overall impact of the GDPR? Powerpoint **International Data Transfer and GDPR Mechanisms** **Data Transfer Within the EU and Beyond** - **EU Member States**: Data can be transferred freely between EU member states and the EU itself. - **EEA Agreement**: The free flow of data extends to Iceland, Liechtenstein, and Norway. - **EU to Non-EU Transfers**: Transfers from EU member states (e.g., the Netherlands to France) are allowed, but transfers to non-EU countries (e.g., Australia) require additional safeguards. **Transferring Personal Data to Third Countries or International Organizations** There are two primary methods for transferring personal data outside the EU: 1. **Adequacy Decision**: The European Commission determines whether a third country provides an \"essentially equivalent\" level of protection to that of the EU. 2. **Safeguards**: If no adequacy decision exists, the data controller/processor must implement safeguards to ensure enforceable rights and legal remedies. **Adequacy Decisions (Article 45 GDPR)** - **No Authorization Needed**: Transfers to countries or organizations with an adequacy decision do not require specific authorization. - **Responsibility of the Third Country**: The third country must ensure data protection aligns with EU standards, considering factors such as rule of law, human rights, and the availability of redress mechanisms. **Review of Adequacy Decisions (Article 45(3) GDPR)** - **Regular Reviews**: Adequacy decisions are binding but subject to reviews every four years to ensure continued compliance with EU data protection standards. - **CJEU Authority**: The Court of Justice of the European Union (CJEU) can review and invalidate adequacy decisions. **Transfers to the USA -- Schrems I & II** - **Schrems I (2014)**: The CJEU invalidated the Safe Harbour framework due to concerns about US surveillance and the lack of effective redress for EU citizens. - **Schrems II (2015)**: The Privacy Shield framework was later invalidated by the CJEU due to similar concerns regarding data protection in the US. **Transfers Subject to Safeguards (Article 46 GDPR)** - If no adequacy decision is in place, personal data transfers can occur with appropriate safeguards, ensuring the data is protected to EU standards. - **Safeguard Methods**: These may include: - Standard contractual clauses - Binding corporate rules - Codes of conduct or certification mechanisms - Authorization from supervisory authorities **Contractual Clauses (Article 46(3)(a) GDPR)** - Custom-made contracts between the data controller and recipient, which include specific provisions for safeguarding personal data. These require supervision and authorization by relevant authorities. **Protecting Rights and Compensation for Damages** **Data Subjects\' Rights:** - **Right to Lodge a Complaint (Article 77 GDPR)**: Data subjects can complain to supervisory authorities if they believe their rights under GDPR are violated. - **Right to Judicial Remedy (Article 78 GDPR)**: Data subjects can seek legal action against unlawful data processing. - **Right to Compensation (Article 82 GDPR)**: Data subjects can claim compensation for damages resulting from GDPR infringements. **Sanctions (Article 83 GDPR)** - Fines for violations can range from €20 million to 4% of global annual turnover, whichever is higher. **Supervisory Authority and Enforcement** - **Supervisory Authorities**: These public authorities are responsible for enforcing data protection laws within their jurisdictions. - **Enforcement Tracker**: A record of major GDPR fines, including for companies like Meta, Amazon, and TikTok, showcasing penalties for non-compliance. **Required Reading:** **Overview of Regulations:** - **EU Regulations:** - **The General Data Protection Regulation (GDPR) emphasizes the free flow of personal data within the European Union while imposing specific requirements for transferring personal data to third countries and international organizations.** - **GDPR Articles relevant to international transfers include:** - **Article 46 (3): Contracts and administrative arrangements between public authorities.** - **Article 46 (5): Existing authorizations based on Directive 95/46.** - **Article 47: Binding corporate rules.** - **Article 49: Derogations for specific situations, such as the EU--US PNR and SWIFT agreements.** - **CoE Regulations:** - **The Modernised Convention 108 acknowledges the importance of regulating transborder data flows while facilitating free data movement between Contracting Parties and ensuring adequate protection for data transferred outside of these jurisdictions.** **2. Nature of Personal Data Transfers:** - **Both EU and CoE laws govern personal data transfers to recipients in third countries or international organizations, ensuring that data subjects\' rights are protected outside the EU. The aim is for the protection of personal data to adhere to the same standards as within the EU.** - **CoE law outlines transborder data flows as transfers to recipients under foreign jurisdictions, which require an appropriate level of protection.** **3. Free Movement of Personal Data:** - **Free movement of personal data is mandated within the EU and between Contracting Parties to the Modernised Convention 108. However, transfers from an EU Member State to a third country that is a Convention 108 Party must comply with GDPR requirements.** - **Under EU law, data flow among Member States for data protection reasons is prohibited, while the EEA Agreement extends these data flow provisions to Iceland, Liechtenstein, and Norway.** **4. Personal Data Transfers Beyond the EU:** - **Data transfers to third countries or international organizations are allowable under both EU and CoE laws if certain conditions for data protection are met.** - **Under EU law:** - **Transfers can occur if the third country ensures an adequate level of protection or if appropriate safeguards, such as standard data protection clauses, are provided.** - **Under CoE law:** - **Adequate protection can be established by national laws or international agreements from the transferring entity, while exemptions may still be applicable.** **5. Adequacy Decisions:** - **In accordance with GDPR Article 45, data can flow freely to third countries with an adequate level of protection deemed \"essentially equivalent\" to EU standards.** - **The European Commission evaluates adequacy based on national laws and international commitments, and decisions are binding regarding the protection level.** - **The CJEU retains the right for national supervisory authorities to examine claims related to data protection in countries considered adequate.** **6. CJEU Rulings:** - **The CJEU has ruled that protection standards must be equivalent to the fundamental rights guaranteed in the EU. Notable cases include:** - **Maximilian Schrems v. Data Protection Commissioner: The CJEU invalidated the Safe Harbour agreement due to U.S. surveillance practices violating EU rights, stating that protection under U.S. law was inadequate.** **7. The EU-US Privacy Shield:** - **Following the invalidation of Safe Harbour, the EU and the U.S. established the Privacy Shield framework in 2016, designed to provide adequate data protection for personal data transmitted from the EU to U.S. organizations.** - **Companies can self-certify compliance with the Privacy Shield principles to signal adherence to the required data protection standards.** **Conclusion:** **Both EU and CoE frameworks aim to balance the free movement of personal data while safeguarding individual rights during transfers outside of their respective jurisdictions. Adequacy decisions play a critical role in ensuring that personal data transferred to third countries enjoys a level of protection comparable to that provided within the EU. Adjustments to frameworks, such as the transition from Safe Harbour to the EU-US Privacy Shield, reflommon Ground between EU and CoE Law** - **Both EU and CoE law allow for personal data transfers to third countries or international organizations, provided that certain conditions are met for the protection of personal data.** - **Both sets of laws recognize the importance of protection of fundamental rights and freedoms, including the right to protection of personal data.** **EU Law** - **EU law allows for personal data transfers to third countries or international organizations if:** - **The third country ensures an adequate level of protection.** - **The data controller or processor provides appropriate safeguards, including enforceable data subject rights and legal remedies, through means such as standard data protection clauses or binding corporate rules.** - **EU law provides for derogation clauses allowing for the transfer of personal data in specific circumstances even where neither an adequate level of protection nor appropriate safeguards are in place.** - **There are two main ways of allowing personal data transfers under EU law: (1) an adequacy decision by the European Commission, or (2) appropriate safeguards provided by the controller or processor.** **CoE Law** - **Under CoE law, free data transfers to non-parties to the Convention are only allowed on the basis of:** - **The law of that state or international organization, including applicable international treaties or agreements guaranteeing appropriate safeguards.** - **Ad-hoc or approved standardized safeguards provided by legally binding and enforceable instruments adopted and implemented by the persons involved in the transfer and further processing.** - **CoE law also provides for derogation clauses allowing for the transfer of personal data in specific circumstances even where neither an adequate level of protection nor appropriate safeguards are in place.** **Adequacy Decisions** - **The European Commission can issue an adequacy decision if the third country ensures an adequate level of protection.** - **Adequacy decisions are subject to ongoing monitoring and review by the European Commission.** - **To date, the European Commission has recognized several countries, including Andorra, Argentina, Canada, and New Zealand, as providing adequate protection.** **Schrems v. Data Protection Commissioner** - **In the Schrems case, the CJEU invalidated the Commission\'s decision on the adequacy of the Safe Harbour framework, citing concerns about the US government\'s access to personal data and the lack of effective legal remedies available to data subjects.** - **The CJEU held that the US level of protection was not \"essentially equivalent\" to the fundamental rights and freedoms guaranteed by the EU.** **EU-US Privacy Shield** - **The EU-US Privacy Shield was adopted as a replacement for the Safe Harbour framework.** - **The Privacy Shield aims to protect personal data transferred from the EU to the US for commercial purposes.** - **The framework provides for data protection obligations on companies receiving personal data from the EU, protection and redress for individuals, and an annual joint review to monitor the framework\'s implementation.** **ect ongoing efforts to maintain stringent data protection in a globalized context.** **Legally Binding Instruments:** - **Standard data protection clauses adopted by the European Commission or a supervisory authority** - **Binding corporate rules** - **Codes of conduct** - **Certification mechanisms** **These instruments provide a high level of protection for personal data and can be relied upon as a tool for international data transfers.** **Customized Contractual Clauses:** - **These are contractual clauses between the controller or processor in the EU and the data recipient in a third country** - **They need to be authorized by the competent supervisory authority before they can be relied upon as a tool for international data transfers** - **Public authorities can also use data protection provisions in their administrative arrangements, provided that the supervisory authority has authorized these** **Under CoE Law:** - **Data flows to a state or international organization that is not a party to the Modernized Convention 108 are allowed, provided that an appropriate level of protection is secured** - **This can be achieved by the law of the state or an international organization, or by ad hoc or standardized safeguards embedded in a legally binding document** **Standard Contractual Clauses:** - **These are sets of contractual clauses developed by the European Commission to ensure a sufficient level of data protection for international data transfers** - **There are two sets of standard clauses available for controller-to-controller transfers and one set for controller-to-processor transfers** - **The most important features of a standard contractual clause include:** - **A third-party beneficiary clause** - **The data recipient agreeing to be subject to the authority of the data-exporting controller\'s national supervisory authority and/or courts in the case of a dispute** **Binding Corporate Rules:** - **These are binding rules that apply to all members of a group of enterprises or undertakings that are part of a joint economic activity** - **They must be approved by the competent supervisory authority and provide a high level of protection for personal data** - **Binding corporate rules must be legally binding, cover all essential data protection principles, and apply to and be enforced by every member of the group** **Derogations:** - **These are exceptions to the rules on international data transfers and can be used in specific situations, such as:** - **Where the data subject gives explicit consent for the data transfer** - **Where the data subject enters or is preparing to enter into a contractual relationship where the transfer of data abroad is necessary** - **For important reasons of public interest** - **To establish, exercise or defend legal claims** - **To protect the vital interests of the data subject** - **For the transfer of data from public registers** - **Derogations are exceptional and cannot be used for massive or repetitive transfers**  **CCL's 2023 Report on EEA Data Protection Authorities -- \"5 Years: GDPR\'s Crisis Point\"**\ This report highlights the ongoing challenges in GDPR enforcement, particularly focusing on the capacity of national data protection authorities (DPAs), such as Ireland's DPC, to monitor and enforce the regulation effectively. The report points out the need for better resources and organizational improvements to ensure consistent and robust compliance.  **European Commission's Decision in Case 97/2022/PB**\ The European Commission's ruling in Case 97/2022/PB examined whether Ireland's DPC was gathering sufficient information to monitor the implementation of the GDPR. The decision acknowledged that while the DPC collects necessary information, concerns remain about its capacity to handle cross-border issues and the growing caseload of cases due to the large number of multinational companies in Ireland.  **CEPR Article: GDPR Effect -- How Data Privacy Regulation Shaped Firm Performance Globally**\ This article explores how the GDPR has affected global business performance, highlighting the significant compliance costs incurred by firms, while also noting the potential competitive advantages for companies that prioritize data protection. The study emphasizes how the regulation has influenced firms' strategies and operations worldwide.  **Pinsent Masons Article: International Impact of the GDPR Felt Five Years On**\ The article discusses the global impact of the GDPR five years after its implementation. It highlights how the regulation's extraterritorial reach has led to its widespread adoption beyond the EU, with companies around the world adapting to GDPR standards, thereby influencing global data privacy practices and establishing the GDPR as a key benchmark for international data protection. **Week 15: The Social Element of European Integration** **Subjects Covered:** - 1970s development into 1980s stagnation - Post-Maastricht developments - Post-Lisbon structures - Co-legislation - Constitutionalisation of EU Labour and Equality Law **Questions for Class Discussion:** - To what extent is the EU a social body as opposed to purely a market one? - How does the co-legislation process impact the substance of EU labour law? - Does the Platform Workers Directive represent a modernization of EU labour law? 1. **What is Labour Law?** 2. **National vs. EU Labour Law** 3. **The Development of EU Labour Law** 4. **Main Areas of EU Labour Law** 5. **Current Issues in EU Labour Law** **1. What is Labour Law?** Labour Law governs the relationship between employers and employees, outlining their rights and obligations. It focuses on ensuring fair treatment and protecting workers. The key components of Labour Law include: - **Employment Contracts & Conditions** - **Labour Rights & Standards** - **Labour Relations** - **Social Security and Benefits** **The Purpose of Labour Law:**\ Labour Law serves a dual function: - **Market-making**: Facilitating the efficient functioning of the labor market. - **Market-correcting**: Addressing inequalities and injustices within the labor market. **2. National vs. EU Labour Law** **Sources of Labour Law** - **National Labour Law** is derived from: - National constitutions - Domestic legislation - National courts and case law - Collective agreements - **EU Labour Law** is shaped by: - EU Treaties - Regulations and Directives - Case law from the Court of Justice of the European Union (CJEU) - Soft law (non-binding guidelines) EU legislation often takes the form of directives, which allow for **minimum harmonization** (as per Article 153 TFEU). This means the EU sets baseline standards, and Member States are free to adopt stronger protections. **Scope of National vs. EU Labour Law** - **National Labour Law**: Covers all aspects of employment within the country. - **EU Labour Law**: Focuses on setting minimum standards, which Member States can exceed, with some sensitive areas explicitly excluded from EU competence. EU law generally works alongside national law rather than replacing it. **3. The Development of EU Labour Law** **Early Foundations: The Treaty of Rome** The Treaty of Rome (1957) laid the groundwork for EU Labour Law. Its social objectives aimed at improving living and working conditions across Member States, despite significant differences in national labour systems. Key Articles in the Treaty of Rome: - **Article 117**: Emphasized the need for improved working conditions. - Early initiatives focused on equal pay, paid holidays, and social security for migrant workers. **Expansion of Social Rights** Over time, the EU expanded its social dimension: - The **European Social Charter** and subsequent directives addressed issues such as equality and health standards. - Further advancements were made through the **Single European Act**, **Treaty of Maastricht**, and **Treaty of Amsterdam**, integrating social rights with the free movement of people and economic integration. **4. Main Areas of EU Labour Law** **Free Movement of Workers & Posted Workers** - **Article 45 TFEU** grants the right for individuals to work in any EU Member State without discrimination based on nationality. - Regulations like **492/2011** and the **Posted Workers Directive (2018/957/EU)** establish rights for mobile workers, ensuring fair treatment across borders. **Equal Treatment and Non-Discrimination** EU directives focus on eliminating discrimination in employment based on sex, race, ethnic origin, and other factors. They also address atypical work arrangements, such as part-time and fixed-term contracts. **Workers\' Rights & Working Conditions** - **Framework Directive 89/391/EEC** ensures health and safety protections. - Other laws cover working time, leave entitlements, and protections during restructuring processes. **Social Security Coordination** Instead of full harmonization, the EU coordinates social security systems to ensure that workers moving between Member States retain their benefits. **5. Current Issues in EU Labour Law** **Platform Work, AI, and Digitalisation** - The rise of the gig economy and digital platforms challenges traditional definitions of employment and raises concerns about worker protections. - New initiatives aim to address these issues and improve working conditions for platform workers. **The European Pillar of Social Rights** Introduced in 2017, the **European Pillar of Social Rights** outlines principles for equal opportunities, fair working conditions, and social protection. It aims to ensure workers\' rights are respected, especially in light of changing employment patterns. **New Legislative Instruments** Recent directives focus on enhancing: - **Adequate minimum wages** for all workers, - **Transparent working conditions**, and - **Work-life balance** for parents and carers. **Summary** - **National vs. EU Labour Laws**: EU Labour Law complements, rather than replaces, national law, with a focus on setting minimum standards. - **Historical Development**: EU Labour Law has evolved from early social policy initiatives to a more comprehensive framework addressing a wide range of worker rights. - **Key Areas**: Free movement, non-discrimination, working conditions, and social security remain core focuses. - **Emerging Challenges**: Platform work, job precarity, and the impact of digitalization are shaping the future of EU Labour Law. **Required Reading:**  **European Union Law, Catherine Barnard & Steve Peers, OUP (4th edition), pp. 630--661**\ This section of the textbook offers a comprehensive analysis of the EU's legal framework, focusing on key aspects such as the internal market, the freedoms of movement, competition law, and the EU\'s judicial system. It covers the complexities of EU governance, its institutions, and how EU law interacts with national legal systems, providing a detailed exploration of the legal mechanisms that shape policy across member states.  **Platform Work in the EU**\ This topic explores the legal, economic, and social implications of platform work within the EU, highlighting the rise of gig economy jobs facilitated by online platforms. The discussion delves into the challenges of regulating platform work, especially regarding worker classification, labor rights, and social protections. It also examines the EU's efforts to address the legal status of platform workers, including proposals for new regulatory frameworks to ensure fair working conditions and social protection for this growing segment of the workforce. **Week 16: Equality Law in the European Union** **Subjects Covered:** - Gender equality - Discrimination based on racial or ethnic origin - Work-life balance - Religious discrimination in the workplace **Questions for Class Discussion:** - What are the main substantive protections afforded by equality law within the EU? - What does it mean for [equality] law to be based on the 'human rights model'? - To what extent does equality law extend beyond the workplace? Powerpoint; **OUTLINE** - Development and Sources of EU Equality Law - Article 157 TFEU and the CJEU - Equal Treatment between Men and Women - Equality beyond Gender - Common Concepts - 3-Step Test for Discrimination **Development of EU Equality Law** - Originated in **Article 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 - Additional directives on: - State social security (**Directive 79/7**) - Access to and supply of goods and services (**Directive 2004/113**) - Equal treatment for self-employed men and women (**Directive 2010/41**) - Pregnancy and leave entitlements (**Directives 92/85** and **2019/1158**, respectively) **Recast Directive 2006/54/EC** The main legislation on equality between men and women is now covered in the **Recast Directive 2006/54/EC**. **Development of EU Equality Law: Amsterdam Treaty and Article 19 TFEU** - The **Amsterdam Treaty** introduced what is now **Article 19 TFEU**: - *"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 2000/43** - **Framework Employment/Equality Directive 2000/78** **Charter of Fundamental Rights (CFR)** - **Article 21 CFR**: Non-discrimination - *"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."* - This is a **non-exhaustive list** of grounds for discrimination. - **Article 51 CFR**: Limits the scope of EU legislative competence. **Sources of EU Equality Law** - **Treaty**: - Article 157 TFEU - Legal bases such as Article 19 TFEU - Values and objectives: Articles 2 and 3(3) TEU - Mainstreaming clauses: Articles 8 and 10 TFEU - Charter of Fundamental Rights: Articles 21, 23 - **Legislative instruments**: Directives - **Case law** - **Soft Law and Policy** - **International Law** **Equal Treatment Between Men and Women: Origins** - **Article 119 EEC**: - *"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 a level playing field. - Was it driven by an **economic** or **social rationale**? **Case Law: Equal Treatment Between Men and Women** - **Case 43/75 Defrenne II**: - *"Article 119 pursues a double aim"*: 1. To prevent discrimination in countries where equal pay had not been implemented. 2. To form part of the broader social objectives of the Community. - **Social Progress**: Not only an economic union but one aimed at improving living and working conditions. - **Case C-50/96 Schröder**: - **Para 57**: The **economic aim** (eliminating competition distortions) is **secondary** to the **social aim** of equality, which is a **fundamental human right**. **CJEU's Role in Expanding EU Sex Equality Law** - The **CJEU** has been crucial in broadening the interpretation of **Article 157 TFEU** (formerly Article 119 EEC), with rulings that include: - The inclusion of benefits like: - Travel facilities - Severance pay and severance grants - Compensation for unfair dismissal - Salary classification systems - Sick and maternity pay **Gender Equality: Pay or Social Security?** - **Why does it matter?** - **157 TFEU** is directly effective in providing equal pay. - **Social Security Directive 79/7** allows for some exceptions. - **Case Law**: - **Case 80/70 Defrenne I**: Social security is not considered pay. - **Case 170/84 Bilka-Kaufhaus**: Occupational pensions fully financed by the employer = pay. - **Case C--262/88 Barber**: Contracted-out pension schemes = pay. **Equality Between Men and Women: The Directives** - **Recast Directive 2006/54** now encompasses: - Equal pay (Chapter 1) - Equal treatment in occupational social security (Chapter 2) - Equal treatment in (access to) employment (Chapter 3) - **Other Important Directives**: - **Directive 79/7/EEC** on equal treatment in social security - **Directive 92/85/EC** on pregnancy protection - **Directive 2004/113/EC** on access to and supply of goods and services - **Directive 2010/41/EC** for self-employed persons - **Directive 2019/1158** on work-life balance **Equality Beyond Gender: The Article 19 Directives** - **Article 19 TFEU** (introduced by the Amsterdam Treaty): - Not directly effective. - Requires unanimity for certain actions and QMV for non-harmonizing measures. - **Key Directives**: - **Race Directive 2000/43** - **Framework Equality Directive 2000/78** - **Proposed Horizontal Equality Directive** (COM/2008/0426 final) **Race Directive 2000/43/EC** - Prohibits discrimination on the basis of **racial or ethnic origin** (Article 1), but not on **nationality** (Article 3(2)). - Wide material scope (Article 3): - Employment, vocational training, working conditions. - Social protection, healthcare, housing, education. - **Challenges**: Distinguishing between \"race,\" nationality, and religion. **Framework Equality Directive 2000/78** - Covers discrimination on the grounds of **religion or belief, disability, age, and sexual orientation**. - **Scope of Application** (Article 3): - Conditions for access to employment (selection, recruitment, promotion). - Access to vocational guidance, training, and retraining. - Employment and working conditions (dismissals, pay). - Membership and participation in workers\' or employers\' organizations. - Special provisions for age, disability, and religion (Articles 6, 5, 4(2)). **U Equality Law -- Common Concepts** - Direct Discrimination - Indirect Discrimination - Harassment and Instruction to Discriminate - Justification - Burden of Proof **Direct Discrimination** - *"Direct discrimination shall be taken to occur 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."* - **Art. 2(2)(a)** Directives 2000/78, 2000/43; **Art. 2(1)(a)** Directive 2006/54 - Established on the basis of a comparator - Basis for differential treatment is the protected ground - Example: An employer publicly states that it will not hire persons of a certain racial/ethnic origin (**Case C-54/07 Feryn**) **Indirect Discrimination** - *"Indirect discrimination shall be taken to occur 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, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."* - **Art. 2(2)(b)** Directives 2000/78, 2000/43; **Art. 2(1)(b)** Directive 2006/54 - Persons with a protected characteristic are disadvantaged - Example: Lower hourly wages for part-time work, where most part-time workers are women (**Case 96/80 Jenkins**) **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."* - **Art. 2(3)** Directives 2000/78, 2000/43; **Art. 2(1)(c)** Directive 2006/54 - Harassment by association is possible (**Case C-303/06 Coleman**) - *'Instruction to discriminate'* is not further defined - **Art. 2(4)** Directives 2000/78, 2000/43; **Art. 2(2)(b)** Directive 2006/54 **Justifying Direct Discrimination** - Direct discrimination can only be justified on one of the limited grounds or exceptions contained in the Treaties or secondary legislation. - There is **no open-ended 'objective justification'** as there is for indirect discrimination. - **Exception**: Age discrimination (**Art. 6(1) Directive 2000/78**) - **Art. 2(5) Directive 2000/78**: *"This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others."* - Only for: **Religion or belief, disability, age, or sexual orientation** **Justifying Direct Discrimination: Occupational Requirements** - *"Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds \[covered\] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that its objective is legitimate and the requirement is proportionate."* - **Art. 4** Directives 2000/78, 2000/43; **Art. 14(2)** Directive 2006/54 **Occupational Requirements** - **Sex**: **Case 165/82 Male Midwives**, **Case 222/84 Johnston**, **Case C--273/97 Sirdar**, **Case C--285/98 Kreil**, **Case C--186/01 Dory** - **Age**: **Case C--229/08 Wolf**, **Case C-447/09 Prigge**, **Case C-258/15 Salaberria Sorondo** - **Religion**: **Case C-188/15 Bougnaoui** - **Art. 4(2) Directive 2000/78**: Special rule for religious organisations - Employers adhering to a particular belief/philosophy (e.g., religious schools, religious hospitals) - Employer must show that religion/belief is a relevant criterion for the job (**Case C-414/16 Egenberger**) **Justifying Indirect Discrimination** - *"Indirect discrimination shall be taken to occur \[...\] unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."* - **Art. 2(2)(b)** / **Art. 2(1)(b)** Directive 2000/78, Directive 2000/43, Directive 2006/54 - 1. Legitimate aim - 1. Appropriate - 1. Necessary - Example: Employer wanting to appear religiously neutral (**Case C-157/15 Achbita**) **Proportionality Test** - The **Burden of Proof**:\ *"When persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the 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 for Assessing Potential Discrimination** 1. **Protected Characteristic** - Sex, race or ethnic origin, religion or belief, disability, age, sexual orientation 2. **Discriminatory Treatment** - Direct discrimination - Indirect discrimination - Harassment - Instruction to discriminate 3. **Justification** - Justification for direct discrimination - Justification for indirect discrimination **Protected Characteristics** - **Sex** (Directive 2006/54) - **Race or ethnic origin** (Directive 2000/43) - **Religion or belief, disability, age, sexual orientation** (Directive 2000/78) - What about the grounds in the **Charter**? - **No!** Recall **Art. 51(2) CFR**: *"The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties."* **Discriminatory Treatment** - **Direct discrimination**: **Art. 2(2)(a)** / **Art. 2(1)(a)** - **Indirect discrimination**: **Art. 2(2)(b)** / **Art. 2(1)(b)** - **Harassment**: **Art. 2(3)** / **Art. 2(1)(c)** - **Instruction to discriminate**: **Art. 2(4)** / **Art. 2(2)(b)** **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**) - Age discrimination (**Art. 6(1) Directive 2000/78**) - **Indirect Discrimination**: - **Art. 2(2)(b) Directive 2000/78**, **Art. 2(2)(b) Directive 2000/43**, **Art. 2(1)(b) Directive 2006/54** - Legitimate aim, appropriate, necessary **Recap** - **EU Equality Law** developed from the equal pay provision (**157 TFEU**) - The **CJEU** interpreted **157 TFEU** widely, constructing **sex equality law** - Codified in **Recast Directive 2006/54** and supplementary directives - **Art. 19 Directives** expanded EU Equality law to other grounds: - **Racial/ethnic origin** (Directive 2000/43), **Religion or belief**, **disability**, **age**, **sexual orientation** (Directive 2000/78) - **3-Step Test** to establish discrimination: - - - **Required Reading:**  **European Union Law, Catherine Barnard & Steve Peers, OUP (4th edition), pp. 630--661**\ This section offers an in-depth analysis of EU law, focusing on key principles such as the free movement of goods, services, people, and capital within the internal market. It covers the EU's legislative processes, the role of the European Court of Justice, and the application of EU law in member states, with a detailed discussion on the interaction between EU and national legal systems.  **Article 154 TFEU**\ Article 154 of the Treaty on the Functioning of the European Union (TFEU) outlines the consultation process between the European Commission and social partners (trade unions and employers' organizations) before the Commission can propose legislation in the fields of labor law, employment, and social policy. It sets the foundation for EU social dialogue and helps guide the creation of labor-related laws.  **Case C-43/75 - Defrenne v SABENA**\ This landmark case established the principle of direct effect in EU law, particularly regarding the prohibition of gender discrimination in the workplace. The European Court of Justice ruled that the principle of equal pay for equal work, enshrined in the Treaty of Rome, applies directly within member states, ensuring that individuals can invoke EU law in national courts to claim equal treatment.  **Equal Treatment Directive (2006/54/EC) (recast)**\ The recast Equal Treatment Directive aims to eliminate gender discrimination in the workplace and improve gender equality across various areas, including pay, occupational social security schemes, and access to goods and services. It strengthens measures for transparency in pay and enhances protection against discrimination, particularly with regard to part-time, temporary, and self-employed workers.  **Equality Directive (2000/78/EC)**\ The Equality Directive prohibits discrimination based on religion, belief, disability, age, or sexual orientation in employment and occupation. It establishes a legal framework to combat discrimination in the workplace, promoting equal opportunities and treatment for all workers, and ensuring that individuals are not disadvantaged by these characteristics in their professional life.  **Racial Equality Directive (2000/43/EC)**\ The Racial Equality Directive aims to combat discrimination based on race or ethnic origin in areas such as employment, education, and access to goods and services. It requires member states to adopt laws to eliminate racial discrimination and provide remedies for individuals who experience such discrimination, ensuring equal treatment for all people regardless of race or ethnicity.  **Work-Life Balance Directive (2019/115/EC)**\ The Work-Life Balance Directive introduces measures to improve the work-life balance of parents and caregivers. It includes provisions for parental leave, carer's leave, flexible working arrangements, and the right to request changes to work schedules. This directive aims to promote gender equality in the labor market by encouraging shared responsibility for caregiving between men and women.  **Case C-236/09 - Association Belge des Consommateurs Test-Achats and Others**\ In this case, the European Court of Justice ruled that insurance companies could no longer use gender as a factor to determine premiums or benefits for life insurance and pensions. This judgment reinforced the EU\'s commitment to gender equality, ensuring that individuals are treated equally in all aspects of life, including in financial services, by prohibiting gender-based pricing.  **Case C-804/18 -- WABE**\ This case deals with the issue of discrimination in employment based on religious symbols, particularly in relation to dress codes and freedom of expression. The Court ruled on the balance between an employer\'s rights to maintain neutrality in the workplace and the protection of employees\' right to religious expression, providing important guidance on the intersection of religious freedom and anti-discrimination laws within the EU. **Week 17: Workers\' Rights in Restructuring Processes** **Subjects Covered:** - Collective redundancies - Transfer of undertakings - Corporate insolvency - Working conditions and transparency **Questions for Class Discussion:** - What rights do workers possess during restructuring and insolvency? - What role do European Works Councils play in the EU labour market? - Does a common European approach to labour functionally exist? powerpoint; **Regulation of Working Time** - One of the first areas of labour organizing and collective action - Current EU instrument: Working Time Directive 2003/88/EC - **Purpose**: "minimum safety and health requirements for the organisation of working time" (Art. 1(1)) - Maximum working time, rest periods, leave periods, rules on night/irregular work - **Why health and safety?** - 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 - New risks today: work from home, constant connectivity, psychosocial risks **Working Time Directive 2003/88/EC** - Applies to all sectors of activity, public or private (Art. 1(3)) - **But**: various exceptions and derogations available - **Personal scope**: Who is a "worker" in the sense of the directive? - CJEU: must be interpreted autonomously, at EU level (C-428/09 Isere) - Broad interpretation, with exceptions interpreted strictly - 'Bogus self-employed persons' may be covered (C-413/13 FNV Kiem) **Working Time: Key Provisions** - **Art. 3**: Daily rest period of 11 consecutive hours for every 24h period - **Art. 4**: Rest break where the working day exceeds 6 hours - **Art. 5**: Weekly break of 35 hours per seven day period (exceptionally 24 hours) - **Art. 6**: Average weekly working time should not exceed 48 hours (calculated over 4 months) - **Art. 7**: Paid annual leave of minimum 4 weeks - **Art. 8**: Night work not exceeding 8 hours for every 24 hours **BUT**: What counts as working time, and what as rest? **Working Time and Rest Periods** - **Art. 2(1)**: 'Working time' means any period during which the worker is working, at the employer\'s disposal and carrying out his activity or duties - **Art. 2(2)**: 'Rest period' means any period which is not working time - Both concepts are EU law concepts = interpreted autonomously - Borderline cases: 'on-call' shifts, stand-by times, travel times, training **Working Time and Rest Periods (Continued)** 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. - Travel time may count (C-266/14 Tyco) - Mandatory vocational training counts (C-909/19 Unitatea Administrativ Teritoriala) - Classification as working time does not imply remuneration! **Annual Leave** - **Art. 7(1)**: MS "shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks" - Watch out! Annual leave is calculated by reference to working days (5 a week) - **Art. 7(2)**: "The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated" - Only the minimum period -- additional leave days can be replaced by an allowance - Also protected in **Art. 31(2) CFR**, can be invoked by workers (C-684/16 Max Planck) **Exceptions and Derogations (Chapter IV)** - **Art. 1(3)** i.c.w. Art. 2 Directive 89/391/EC:\ "This Directive shall not be applicable where characteristics peculiar to certain specific public service activities, such as the armed forces or the police, or to certain specific activities in the civil protection services inevitably conflict with it" - **Art. 17(1)**: General derogation when "on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves" - **Art. 17(2)**: 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(3)-(5)**: Specific sectoral derogations (e.g., security/surveillance, hospitals, tourism, agriculture) - **Art. 20** on mobile/off-shore workers, **Art. 21** on seagoing fishing vessels - **Art. 22**: Individual opt-out from Art. 6 **WORKERS' RIGHTS IN RESTRUCTURING PROCESSES** **Rationale** - **Why does the EU protect workers' rights in restructuring processes?**\ The EU protects the freedom to conduct a business (e.g., Art. 16 CFR), which includes restructuring. Thus, it also took measures to compensate for the social cost. - **Social Action Programme 1974**: - Full and better employment - Improvement of living and working conditions - Increased involvement of social partners in EU decisions and of workers in companies **Rationale (Continued)** - **Three Directives**: - Collective redundancies (98/59/EC) - Transfer of Undertakings (2001/23/EC) - Insolvency (2008/94/EC) - The Directives do not aim to avoid restructuring processes. Instead, they strike a balance between worker protection and business interests. - They introduce: - Minimum procedural requirements - Workers' rights **Collective Redundancies Directive (98/59/EC)** - **What are collective redundancies?**\ Dismissals of a certain (minimum) number of workers for reasons unrelated to the individual worker - **When does the directive apply?** 2 criteria: - Quantitative: How many workers are dismissed? - Qualitative: Why are the workers dismissed? **Definition**: Art. 1(1)(a)\ Reference period: any 30/90 day period in which an individual dismissal occurred, and in which the most dismissals unrelated to the individual worker were effected (C-300/10 Marclean Technologies) **3 Questions remain:** 1. Who is a worker, for the purpose of the Directive? 2. What types of dismissals count? (What is 'unrelated to the individual worker'?) 3. What is an establishment, for the purpose of the Directive? **1. Who is a worker, for the purpose of the Directive?** - No definition in the directive - **CJEU**: concept must be interpreted autonomously, at EU level (C-229/14 Balkaya) - Otherwise, the thresholds would depend on Member State definitions of 'worker', which could deprive the directive of full effect. - **Essential features** of an employment relationship: - 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. **2. What types of dismissals count?** - Redundancies = dismissals for economic reasons, without the worker's consent - **Art. 1**: "For the purpose of calculating the number of redundancies provided for in the first subparagraph of point (a), terminations of an employment contract which occur on the employer\'s initiative for one or more reasons not related to the individual workers concerned shall be assimilated to redundancies, provided that there are at least five redundancies" - E.g. Early retirement, end of contract - **CJEU**: Redundancies have to be interpreted widely - E.g., A worker is dismissed with consent, following a significant reduction in wages (without consent), CJEU considered it a redundancy (Case C-422/14 Pujante Rivera) **3. What is an establishment?** - Not defined in the directive, but a necessary reference point for establishing application - **CJEU**: Must be interpreted autonomously, at the European level (C-449/93 Rockfon) - **BUT**: This may lead to outcomes which conflict with the purpose of the Directive (e.g., C-80/14 USDAW, C-182/13 Lyttle) **Information and Consultation** - **Art. 2(1)**: Obligation to consult with workers' representatives "with a view to reaching an agreement" - **Art. 2(2)**: Consultation must "cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant" - **Art. 2(3)(a)**: Employer must supply "all relevant information" and a minimum of information in writing (Art. 2(3)(b)) - **2(4)**: Obligations apply regardless of whether the decision was taken by the direct employer or a larger undertaking controlling the employer - **Workers' representatives**: workers representatives provided for by law of the MS - Usually trade unions or works councils **Notifying Public Administration** - **Art. 3**: Employers planning collective redundancies must notify the competent public authorities - Notification containing the information from workers' consultation under Art. 2 - Copy must be sent to workers' representatives - **Art. 4**: At least 30 days prior to the redundancies taking effect - MS can provide for public administrations to reduce or extend this period - Rationale: Administration to assist in finding and implementing social measures **Transfer of Undertakings Directive (2001/23/EC)** - **What are transfers of undertakings?** - **Art. 1(1)(a)**: Transfers of (parts of) companies to another employer "as a result of a legal transfer or a merger" - **When does the directive apply?** - **Art. 1(1)(b)**: "where there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary" - **Art. 1(1)(c)**: "to public and private undertakings engaged in economic activities whether or not they are operating for gain. - **Art.1(2)**: "within the territorial scope of the Treaty" - Exceptions for public administration and seagoing vessels **2 Questions remain:** 1. When does an economic entity "retain its identity"? 2. Who is an employee, for the purpose of the Directive? **When does an economic entity "retain its identity"?** - Change of employer, but economic entity retains its identity - What if there is no change of employer (e.g., majority shareholder changes)? - **Information and Consultation Directive 2002/14/EC** - Identity: "Organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary" - **CJEU**: Distinction between activities based essentially on manpower, and activities based essentially on assets (C-392/92 Schmidt) - For entities based on assets, taking over essential assets can indicate retaining the identity - For entities based on manpower, a major portion of staff assigned to the relevant tasks **What is an employee?** - National law definition - **Art. 2(1)(d)**: \"employee\" shall mean any person who, in the Member State concerned, is protected as an employee under national employment law - **Art. 2(2)**: MS may not exclude persons from the scope of the Directive based merely on: - The number of working hours - Their fixed-term contract - The fact that they are employed as temporary agency workers - Employees do not have to be formally employed by the transferor (C-242/09 Albron) **Rights of Employees** - 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 - **Art. 3(1)**: Transferred employee retains rights and obligations of original employment relationship, now with transferee (this includes working conditions) - **Art. 3(3)**: Includes terms and conditions from collective agreements - Including with regard to incorporation clauses (incorporation clauses = clause in employment contract which incorporates collective agreement) **Rights of Employees (Continued)** - 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) - **Art. 4(2)**: If employee ends relationship because the transfer entails "substantial change in working conditions to the detriment of the employee", employer is considered responsible - This does not mean that the employer is liable for wrongful dismissal (C-396/07 Juuri) - **Chapter III**: Information and consultation obligations - Mirror the obligations in the Collective Redundancies Directive - **Art. 7**: Both transferor and transferee are obliged to inform affected workers' representatives - **Art. 6**: Workers' representatives status and function shall be preserved, on the same terms and conditions **Insolvency Directive 2008/94/EC** - Provides for protection of employees in the event of employer insolvency - Establishes minimum protection to guarantee the payment of outstanding claims - **When is an employer insolvent?** **Insolvency Directive: Key Provisions** - **Art. 3(1)**: MS "shall take the measures necessary to ensure that guarantee institutions guarantee \[...\] payment of employees' outstanding claims resulting from contracts of employment or employment relationships, including \[...\] severance pay on termination of employment relationships" - **Art. 3(2)**: Claims prior to/after a date set by MS - **Art. 4**: MS may limit the liability of the guarantee institutions and set ceilings for payments - **Arts. 6-8**: Social Security payments - **Art. 9**: For cross-border insolvency, the responsible MS is that "in whose territory they work or habitually work" **Recap** - EU working time legislation aims to improve health and safety by instituting minimum rest and maximum work hours - In the case of collective redundancies, EU law institutes consultation and information duties - In cases of transfers, EU law provides additionally for minimum rights aimed at continuing the employment relationship - In case of insolvency, EU law obliges MS to establish institutions which can guarantee (parts of) outstanding payments **Required Reading:** **Summary of Key EU Law Readings on Employment and Worker Protection** 1. **European Union Law, Catherine Barnard & Steve Peers, OUP (4th edition), pp. 630--661**\ This section provides a thorough analysis of the legal foundations of the European Union, particularly focusing on key areas such as the internal market, free movement, competition law, and the role of EU institutions. It explores the relationship between EU law and national legal systems, including the enforcement of EU regulations and the functioning of the European Court of Justice. 2. **Transfer of Undertakings Directive (2001/23)**\ The Transfer of Undertakings Directive seeks to protect employees when the business they work for is transferred to a new employer. It ensures that workers\' rights, such as employment contracts, remain unchanged after a transfer, and it provides protections regarding continuity of employment and social security. The directive is designed to prevent dismissal due to a transfer and ensures that employees receive adequate notice and consultation. 3. **Employer Insolvency Directive (2008/94)**\ The Employer Insolvency Directive provides protection for employees whose employer becomes insolvent. It ensures that workers are entitled to claim unpaid wages, pensions, and other employment-related benefits from a national guarantee fund. The directive is intended to mitigate the negative impact of employer insolvency on employees and safeguard their rights to compensation and security. 4. **Collective Redundancies Directive (Council Directive 98/59/EC)**\ The Collective Redundancies Directive regulates the process by which employers must notify and consult with employee representatives when planning collective redundancies (i.e., when a certain threshold of dismissals is met). It aims to ensure that workers are given early notice and adequate information regarding the planned redundancies and are provided with opportunities for consultation, aiming to reduce the social impact of such decisions. 5. **European Works Council Directive (2009/38/EC)**\ The European Works Council Directive establishes a framework for creating European Works Councils (EWCs) in multinational companies with at least 1,000 employees across the EU. The directive aims to improve the information and consultation of employees on transnational issues affecting them, ensuring that workers are involved in decision-making processes, particularly those related to mergers, restructurings, and major changes within the company. **Week 18: Revisions and Summaries** **Subjects Covered:** - Review of the material taught throughout the course **Required Reading:** - **Review materials as per individual syllabus** (Focus on key topics such as Data Protection, EU Labour Law, and Equality Law) **Complete List of Required Case Law** **Case C-362/14 -- Maximilian Schrems v. Data Protection Commissioner (Schrems I)** **Summary**: In this landmark case, the CJEU invalidated the EU-U.S. Safe Harbor framework for data transfers, citing inadequate protection against U.S. surveillance practices. Schrems challenged Facebook\'s transfer of personal data to the U.S., arguing that U.S. law did not meet EU data protection standards. **One-sentence summary**: The Court invalidated the Safe Harbor framework, ruling it did not adequately protect EU citizens\' data from U.S. surveillance. **2. Case C-311/18 -- Data Protection Commissioner v. Facebook Ireland Limited and Maximilian Schrems (Schrems II)** **Summary**: This case examined whether the EU-U.S. Privacy Shield, a replacement for Safe Harbor, provided sufficient protection for data transferred from the EU to the U.S. The Court found the Privacy Shield inadequate due to U.S. government surveillance practices, further solidifying the importance of data protection. **One-sentence summary**: The CJEU invalidated the EU-U.S. Privacy Shield, deeming it insufficient to protect personal data against U.S. surveillance. **3. Case 97/2022/PB -- Decision on whether the European Commission collects sufficient information to monitor Ireland's implementation of GDPR** **Summary**: This case focuses on the European Commission's role in ensuring EU member states, particularly Ireland, comply with the General Data Protection Regulation (GDPR). The Court considered whether Ireland provided enough information to demonstrate effective enforcement of data protection laws. **One-sentence summary**: The case questioned whether Ireland was providing sufficient information to the Commission to demonstrate GDPR compliance. **4. Case C-43/75 -- Defrenne v SABENA** **Summary**: The Court ruled that the principle of equal pay for equal work between men and women is directly enforceable in national courts, even in the absence of national legislation. This case was instrumental in advancing gender equality in the workplace within the EU. **One-sentence summary**: The Court established that the principle of equal pay for equal work is directly enforceable in EU law. **5. Case C-236/09 -- Association Belge des Consommateurs Test-Achats and Others** **Summary**: This case focused on the EU's prohibition on gender-based discrimination in insurance premiums. The Court ruled that gender discrimination in the pricing of insurance products was unlawful, declaring that all insurance premiums must be calculated without considering gender. **One-sentence summary**: The Court ruled that using gender to determine insurance premiums is discriminatory and violates EU law. **6. Case C-804/18 -- WABE** **Summary**: The case dealt with whether employers could restrict employees from wearing religious symbols at work, specifically regarding a Muslim woman who wore a headscarf. The Court concluded that employers could impose such restrictions if justified by a legitimate aim, such as neutrality in customer-facing roles. **One-sentence summary**: The Court allowed employers to restrict religious symbols at work under certain conditions, particularly for neutrality in customer-facing roles. **7. Directive 98/59/EC -- Council Directive on Collective Redundancies** **Summary**: This directive sets out the procedures that employers must follow when planning collective redundancies, including consultation with employees and notification to national authorities. Its goal is to mitigate the social impact of layoffs and ensure fair treatment of employees. **One-sentence summary**: The directive requires employers to follow procedures for consulting employees and notifying authorities when planning collective redundancies. **8. Directive 2001/23 -- Directive on the Transfer of Undertakings** **Summary**: This directive protects employees' rights when a business is transferred to another employer. It ensures the continuity of employment contracts, including terms and conditions, even after the business is sold or restructured. **One-sentence summary**: The directive ensures the protection of employees' rights during business transfers, maintaining continuity of their employment conditions. **9. Directive 2008/94 -- Directive on Employer Insolvency** **Summary**: This directive protects employees\' rights to payment of outstanding wages and severance pay if their employer goes bankrupt. It ensures that member states provide safeguards for workers in the event of insolvency, protecting their claims against employers. **One-sentence summary**: The directive protects employees by ensuring payment of wages and severance in case of employer insolvency.. **Koninklijke Nederlandse Lawn Tennisbond (KNLTB) v. Autoriteit Persoonsgegevens (C-131/12)** **Summary**: The case dealt with the balance between privacy rights and the need for personal data processing in the context of a tennis association. The Court clarified that the processing of personal data for administrative and legal purposes should comply with the principles of data protection, including necessity and proportionality, and that national authorities have the right to investigate data protection breaches. **One-sentence summary**: The case highlights the balance between privacy rights and data processing obligations in the context of sports organizations. **2. K.H. and Others v. Slovakia (Application No. 32881/04)** **Summary**: The European Court of Human Rights ruled that Slovakia violated the applicants\' rights by failing to provide adequate protection for their personal data. The case focused on the failure to protect sensitive medical data under national laws, reinforcing the necessity of robust data protection mechanisms under the European Convention on Human Rights. **One-sentence summary**: Slovakia was found to have violated the applicants' privacy by failing to protect sensitive medical data adequately. **3. CJEU, C-201/14, Smaranda Bara and Others v. Casa Naţională de Asigurări de Sănătate (October 1, 2015)** **Summary**: The Court examined whether national authorities could restrict access to healthcare services for individuals without a clear legal basis and concluded that such restrictions must be justified by public interest concerns, and any limitation on fundamental rights must be proportionate and non-discriminatory. **One-sentence summary**: The case emphasizes that healthcare restrictions must be legally justified and proportionate to the public interest. **4. CJEU, Joined cases C-293/12 and C-594/12, Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others \[GC\] (April 8, 2014)** **Summary**: This judgment focused on the European Union's Data Retention Directive, ruling that it was invalid because it infringed on fundamental rights, particularly privacy. The CJEU concluded that the directive's broad data retention requirements were disproportionate and violated the right to privacy and protection of personal data. **One-sentence summary**: The Court invalidated the Data Retention Directive, finding it incompatible with fundamental privacy rights. **5. CJEU, C-362/14, Maximilian Schrems v. Data Protection Commissioner \[GC\] (October 6, 2015)** **Summary**: Schrems challenged Facebook's data transfers to the United States under the Safe Harbor framework. The CJEU ruled that the Safe Harbor agreement did not provide adequate protection for EU citizens\' personal data and invalidated it, highlighting the need for stronger safeguards against surveillance in the U.S. **One-sentence summary**: The Court invalidated the Safe Harbor framework, stressing the need for better protection of EU citizens' data from U.S. surveillance. **6. Case C‑692/19 (Yodel)** **Summary**: This case focuses on whether the company Yodel was complying with EU regulations regarding the classification of its workers. It addresses key issues surrounding platform work and employment rights in the digital economy. **One-sentence summary**: The case explores compliance with EU regulations regarding platform work and worker classification. **7. Directive (EU) 2024/2831 on Improving Working Conditions in Platform Work** **Summary**: This directive aims to ensure better working conditions for individuals in platform work, addressing issues such as transparency of work conditions, minimum wage guarantees, and the classification of workers to prevent exploitation. **One-sentence summary**: The directive seeks to improve the working conditions of platform workers through increased protections and clearer regulations. **8. Equality Framework Directive 2000/78/EC (Arts. 2-5)** **Summary**: This directive prohibits discrimination in employment and occupation based on religion, belief, disability, age, or sexual orientation, ensuring equal treatment across the EU labor market. **One-sentence summary**: The directive mandates equal treatment and prohibits discrimination in the workplace based on specific grounds like religion or age. **9. Case C-157/15 Achbita** **Summary**: The Court ruled on the issue of religious symbols in the workplace, specifically regarding a Muslim woman who was fired for wearing a headscarf. The Court upheld the employer's policy banning visible religious symbols, provided it was applied consistently and proportionately. **One-sentence summary**: The case allowed employers to prohibit religious symbols in the workplace if the policy is applied consistently and proportionately. **10. Case C-354/13 Kaltoft** **Summary**: The Court addressed the issue of discrimination based on obesity in the workplace, concluding that discrimination on grounds of obesity could be considered if it substantially limits the individual's ability to participate in professional life. **One-sentence summary**: The Court ruled that discrimination based on obesity could be actionable if it limits the ability to work. **11. Working Time Directive 2003/88/EC** **Summary**: This directive sets out minimum requirements for working hours, rest periods, and annual leave to ensure a balance between work and personal life across the EU. **One-sentence summary**: The directive establishes minimum standards for working time and rest to protect workers' health and well-being. **12. Transfer of Undertakings Directive 2001/23/EC** **Summary**: The directive protects employees\' rights when a business is transferred from one employer to another, ensuring continuity of employment terms and conditions. **One-sentence summary**: The directive safeguards employees\' rights during the transfer of a business, ensuring continuity of their employment conditions. **13. Collective Redundancies Directive 98/59/EC** **Summary**: This directive ensures that employees are protected when their employer plans collective redundancies, requiring prior consultation with workers and notifying the authorities to prevent unfair layoffs. **One-sentence summary**: The directive mandates consultation and notification procedures before implementing collective redundancies to protect workers\' rights.

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