European Labour and Social Security Law – Complete Summary
Week 1 – General Introduction and Working Time
Lecture 1
TFEU provisions on social policy
Article 151 TFEU states that social progress shall ensure from the common market, which will favour
the harmonisation of social systems. However, this article only states broad objectives, as the actual
social competences transferred to the EU were very limited.
Article 156 TFEU states that the Commission shall promote cooperation among Member States in the
fields of employment, labour law, social security, etc.
Article 157 TFEU provides for the equal treatment between men and women in matters concerning
employment under the principle of equal pay for equal work.
o This is derived from Article 119 EC, which was only added to the Rome Treaty because France
already had such a provision in its national legislation and feared a competitive disadvantage
if the other Member States would not commit to equal pay between men and women as well.
o In Defrenne, it was held that Article 119 EC produces direct effect. The Court’s reasoning here
was based on the fact that not a single Member State had introduced in its national legal
systems legislation on equal pay for men and women, despite their obligation to do so under
Article 119 EC.
Article 115 TFEU, together with Article 114 TFEU allows the Union to harmonise legislation in order to
secure the functioning of the internal market and may thus be used for social purposes.
Article 45 TFEU provides for the free movement of workers throughout the Union, including the
principle of non-discrimination
Article 48 TFEU allows the EP and the Council by way of the OLP to “adopt measures in the field of
social security as are necessary to provide for the freedom of movement for workers”.
Tutorial 1 – Working Time
1) The Working Time Directive 2003/88
Purpose: Article 1(1) -> to lay down minimum safety and health requirements for the organisation of
working time
Scope:
o Article 1(2) -> applies to:
(a) minimum periods of daily rest, weekly rest and annual leave, breaks and
maximum weekly working time
Article 2(1) -> ‘working time’ is defined as “any period during which the
worker is working, at the employer’s disposal and carrying out his activity or
duties, in accordance with national laws and/or practice”.
o In SIMAP, the Court concluded that time spent on call by doctors in
health centres must be considered as working time if they are
required to be present at the place of employment. In this regard,
it is decisive, as established in Dallas, whether the worker is
required to be physically present to the employer at the place of
employment.
o In Matzak, the Court ruled that requirements to reach the place of
employment within a certain number of minutes limited the
worker’s ability to devote himself to his own interests. Such
standby periods can thus be considered as working time.
o In Tyco, it was established that travel time was to be considered
working time, as the employee has to be available to the employer
and is not able to use that time freely.
, Article 2(2) -> ‘rest period’ is defined as “any period which is not working
time”.
(b) certain aspects of night work, shift work and patterns of work.
o Article 1(3) -> applies to all sectors of activity, both public and private.
o It should be noted that the concept of ‘worker’ is not defined in the directive but rather in the
Framework Directive 89/391, which only defines it as a person employed by an employer.
In SIMAP, the Court ruled that, based on the objective of the directive and on Article
2(1), the scope must be interpreted broadly and that the exceptions under Articles
1(3) and 17 restrictively.
Furthermore, self-employed persons strictly speaking are not covered by the
directive. Nevertheless, in FNV KIEM (paras 35-37), the Court found that a self-
employed person under national law might still be considered an employee under
Union law if they are not genuinely independent.
o Derogations
Article 17(1) provides for a general derogation from Articles 3 to 6, 8 and 16 in cases
where the duration of the working time is not measured and/or predetermined or
can be determined by the worker themselves, e.g. (a) managing executives or (b)
family workers.
Article 18 allows for derogations to be made from Articles 3, 4, 5, 8, and 16 on rest
time (but not from Article 6!) by means of collective agreements or agreements
concluded between the two sides of industry.
Article 22 allows for individual opt-outs for Member States not to apply Article 6, but
this requires the consent of individual workers and, as established in Jaeger, that of a
trade union representative may not be given in their stead. However, this is subject
to the conditions in subparagraphs (a) to (e).
Core provisions:
o Articles 3 to 6 lay down standards for daily rest, breaks, weekly rest periods and maximum
working time.
Article 3 (daily rest): “every worker is entitled to a minimum daily rest period of 11
consecutive hours per 24-hour period”.
Article 5 (weekly rest period): “every worker is entitled to a minimum uninterrupted
rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3”.
Article 6(b) (maximum weekly working time): the average working time of each
seven-day period. Including overtime, may not exceed 48 hours.
o Article 7 obliges the Member States to take measures to ensure that workers are entitled to
paid annual leave of at least four weeks.
o Article 8 provides for standards concerning night work
2) The calculation of working time
Working time must be considered to include:
o Time spent on call by doctors in health centres (SIMAP), decisive is whether the worker is
required to be physically present to the employer at the place of employment (Dallas);
o Stand-by time (Matzak);
o Travel time (Tyco).
Reference periods, under Article 16(b), may be laid down by the Member State, for the application of
Article 6, provided they do not exceed four months.
o However, under Article 18, derogations may be made to the reference period provided for in
Article 16(b) by means of collective agreements or agreements concluded between the two
sides of industry at national or regional level or at a lower level. The limit to thus, provided for
by Article 19(1), is a reference period not exceeding six months, though this may be 12
months in the case of collective agreements or agreements concluded between the two sides
of industry.
, o Article 17(1) provides for a general derogation from Articles 3 to 6, 8 and 16 in cases where
the duration of the working time is not measured and/or predetermined or can be
determined by the worker themselves, e.g. (a) managing executives or (b) family workers.
Such family workers must generally be considered workers on a family farm or a
family business, but not foster parents, as established in Sindicatul Familia
Constanţa.
3) ‘Accumulated’ days of leave that become invalid after a carry-over period
Under Article 7(1), workers are entitled to paid annual leave of at least four weeks under the
conditions laid down in national law and/or practice.
Schulzhoff and Max Planck Gesellschaft established that days of leave cannot expire if the employee
has not had the possibility of taking their leave. Therefore, regulations under which ‘accumulated’
days of leave become invalid after a carry-over period are not precluded under Union law, provided
that the employer has not made it objectively impossible for the employee concerned to use their
leave. If that is nevertheless the case, the employee must have made this known beforehand and they
must make the argument that the employer knowingly made it impossible for them to use their leave.
o Decu established that during parental leave, employees do not accumulate paid annual leave.
4) Direct effect of the Working Time Directive
When it comes to the direct effect of directives, Van Duyn v Home Office established that these confer
vertical direct effect upon individuals. Marshall v Southampton Health Authority, however, determined
that directives do not confer horizontal direct effect. Thus, in vertical situations, directives may be
relied upon by individuals.
The applicant may moreover want to rely on Article 31(2) of the Charter, which, in Bauer and
Wilmeroth, was ruled not to preclude horizontal direct effect, and to entail an obligation on the
employer to grant period of paid leave, thereby making it horizontally applicable.
o Moreover, since the Charter provisions are phrased more broadly, applicants may want to
rely on these, as opposed to the more specifically phrase provisions of the WTD.
Week 2 – Non-Discrimination and Equal Treatment
Lecture 2
Discrimination and equal treatment
First of all, equal treatment means that equal cases should be treated equally. It must thus first be
established whether the two cases in question are really comparable.
This requires a relevant difference between the two cases to be found. A relevant difference in this
regard means that the difference must be forbidden by law. Difference in treatment may arise in
particular with regard to:
o Nationality, as prohibited under Article 18 TFEU;
o Sex, racial/ethnic origin, religion/belief, disability, age, sexual orientation, measures against
which can be found in secondary legislation;
o Types of work, such as part-time work, fixed-term work, and agency-work (week 3).
Discrimination may be of a direct or an indirect nature?
o Direct discrimination refers to different or less favourable treatment that is directly linked to
a suspect criterion.
o Indirect discrimination refers to different or less favourable treatment through an apparently
neutral provision, criterion or practice that nevertheless puts a certain group of people at a
disadvantage compared to other groups of people, unless this can be objectively justified by a
legitimate aim, and the means to do so are appropriate and necessary.
This thus requires the claimant to prove, based on statistical data, general
knowledge or research, that a certain group of people is treated less favourably than
others based on an apparently neutral provision.
