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EU public law
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year 2, quarter 1 - European Public law assignment
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Amber Bijkerk20129696
17-9-2021
EU Public Law Assignment
To: Supervisor
From: Amber Bijkerk, 20129696
Date: 17-09-2021
Subject: EU public law assignment
Introduction
In this memorandum I will explain whether Ms. Smith and Ms. Jones can or cannot invoke Article 8
of Directive 2016/102 before a Dutch national court against their current employer's.
Ms. Smith
Issue
The issue here is whether Ms. Smith can successfully invoke Article 8 of Directive 2016/102 before a
Dutch national court against her current employer.
Law
The applicable laws here are Article 8 and 33 of the Directive 2016/102/EU on working conditions.
Since the Netherlands is a member state of the EU, this jurisdiction is applicable for the case at hand.
Application
Ms Smith recently started to work as a member of the customer service team at the Dutch Railways,
the state-owned, principal passenger railway operator in the Netherlands.
Ms. Smith probationary period would end on 11 November 2021, but on 30 August 2021, she
contacted her immediate supervisor for an unpaid leave of a month due a family emergency.
With a reference to Article 33 of the Dutch law on transparent and predictable working conditions her
supervisor told Ms. Smith that if an employee took a leave during the probationary period, her
probationary period would be subsequently extended to one year according to the Dutch Railways’
internal policy.1
Since the case at hand is a company versus an individual, there is a vertical effect. According to case
C128/92 Banks v British Coal2 we can investigate whether there is a direct effect, to see if it meets
certain conditions, however, Article 8 derives from a directive and whenever there is a directive, there
could be vertical direct effect according to Case Van Duyn v Home Office 3.
Therefore, we look which conditions should be met for a vertical direct effect of a directives case.
The criteria that the provision must meet are:
1. It must be unconditional, meaning that no further elaboration is necessary for its application.
2. It must be sufficiently precise, meaning that the provision is clear and concrete.
1
Case 148/78 Ratti v Italy [1979] ECR 1629
2
Case 26/62 Van Gend and Loos v Administratie der Belastingen [1963] ECR
3
Case 128/92 Banks v British Coal [1994] ECR 1209
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