Flash reports on labour law October 2023 : summary and country reports.
Date: 2023-11-17
Institutions: Directorate-General for Employment, Social Affairs and Inclusion
Subjects: EU Member State, EU law, European Economic Area, health risk, labour law, labour market, labour relations, national law, paid leave, report, serial publication, social policy, teleworking, working conditions, working time

Flash Reports on Labour Law 
October 2023 
Summary and country reports 

Written by The European Centre of 
Expertise (ECE), based on reports 
submitted by the Network of Labour 
Law Experts 

October 2023 

 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Directorate DG Employment, Social Affairs and Inclusion 

Unit C.1 – Labour Law 

Contact: Marie LAGARRIGUE 

E-mail:  Marie.LAGARRIGUE@ec.europa.eu 

European Commission 

B-1049 Brussels 

 
 
 
Flash Report 10/2023 on Labour Law 

Manuscript completed in October 2023 

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KE-CC-23-010-EN-N

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

Country  
Austria 

Belgium 

Bulgaria 

Croatia 

Cyprus 

Czech Republic 

Denmark 

Estonia 

Finland 

France 

Germany 

Greece 

Hungary 

Iceland 

Ireland 

Italy 

Latvia 

Liechtenstein 

Lithuania 

Luxemburg 

Malta 

Netherlands 

Norway 

Poland 

Portugal 

Romania 

Slovakia 

Slovenia 

Spain 

Sweden 

United Kingdom 

Labour Law Experts  
Martin Gruber-Risak 

Daniela Kroemer 

Wilfried Rauws 

Krassimira Sredkova 

Albena Velikova 

Ivana Grgurev 

Nicos Trimikliniotis 

Nataša Randlová 

Natalie Videbaek Munkholm 

Mette Soested 

Gaabriel Tavits 

Elina Soomets 

Ulla Liukkunen 

Francis Kessler 

Bernd Waas 

Costas Papadimitriou 

Tamás Gyulavári 

Leifur Gunnarsson 

Anthony Kerr 

Edoardo Ales 

Kristīne Dupate 

Wolfgang Portmann 

Tomas Davulis 

Jean-Luc Putz 

Lorna Mifsud Cachia 

Miriam Kullmann 

Suzanne Kali 

Marianne Jenum Hotvedt 

Alexander Næss Skjønberg 

Leszek Mitrus 

José João Abrantes 

Isabel Valente Dias 

Raluca Dimitriu 

Robert Schronk 

Barbara Kresal 

Joaquín García Murcia 

Iván Antonio Rodríguez Cardo 

Andreas Inghammar 

Erik Sinander 

Catherine Barnard 

 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

Table of Contents 

Executive Summary ....................................................................................... 1 

Austria .......................................................................................................... 4 
National Legislation ................................................................................... 4 
1 
Court Rulings ............................................................................................ 4 
2 
Implications of CJEU Rulings ....................................................................... 8 
3 
4 
Other Relevant Information ........................................................................ 8 

Belgium ......................................................................................................... 9 
National Legislation ................................................................................... 9 
1 
Court Rulings .......................................................................................... 10 
2 
Implications of CJEU Rulings ..................................................................... 10 
3 
4 
Other Relevant Information ...................................................................... 11 

Bulgaria ...................................................................................................... 12 
National Legislation ................................................................................. 12 
1 
Court Rulings .......................................................................................... 13 
2 
Implications of CJEU Rulings ..................................................................... 13 
3 
4 
Other Relevant Information ...................................................................... 14 

Croatia ........................................................................................................ 15 
National Legislation ................................................................................. 15 
1 
Court Rulings .......................................................................................... 15 
2 
Implications of CJEU Rulings ..................................................................... 15 
3 
4 
Other Relevant Information ...................................................................... 15 

Cyprus ......................................................................................................... 17 
National Legislation ................................................................................. 17 
1 
Court Rulings .......................................................................................... 17 
2 
Implications of CJEU Rulings ..................................................................... 17 
3 
4 
Other Relevant Information ...................................................................... 18 

Czech Republic ............................................................................................ 19 
National Legislation ................................................................................. 19 
1 
Court Rulings .......................................................................................... 20 
2 
Implications of CJEU Rulings ..................................................................... 20 
3 
4 
Other Relevant Information ...................................................................... 21 

Denmark ..................................................................................................... 22 
National Legislation ................................................................................. 22 
1 
Court Rulings .......................................................................................... 22 
2 
Implications of CJEU Rulings ..................................................................... 23 
3 
4 
Other Relevant Information ...................................................................... 24 

Estonia ........................................................................................................ 25 
National Legislation ................................................................................. 25 
1 
Court Rulings .......................................................................................... 25 
2 
Implications of CJEU Rulings ..................................................................... 25 
3 
4 
Other Relevant Information ...................................................................... 25 

Finland ........................................................................................................ 27 
National Legislation ................................................................................. 27 
1 
Court Rulings .......................................................................................... 27 
2 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

3 
4 

Implications of CJEU Rulings ..................................................................... 27 
Other Relevant Information ...................................................................... 27 

France ......................................................................................................... 29 
National Legislation ................................................................................. 29 
1 
Court Rulings .......................................................................................... 29 
2 
Implications of CJEU Rulings ..................................................................... 30 
3 
4 
Other Relevant Information ...................................................................... 31 

Germany ..................................................................................................... 32 
National Legislation ................................................................................. 32 
1 
Court Rulings .......................................................................................... 32 
2 
Implications of CJEU Rulings ..................................................................... 33 
3 
4 
Other Relevant Information ...................................................................... 34 

Greece ......................................................................................................... 35 
National Legislation ................................................................................. 35 
1 
Court Rulings .......................................................................................... 35 
2 
Implications of CJEU Rulings ..................................................................... 35 
3 
4 
Other Relevant Information ...................................................................... 35 

Hungary ...................................................................................................... 36 
National Legislation ................................................................................. 36 
1 
Court Rulings .......................................................................................... 36 
2 
Implications of CJEU Rulings ..................................................................... 36 
3 
4 
Other Relevant Information ...................................................................... 38 

Iceland ........................................................................................................ 39 
National Legislation ................................................................................. 39 
1 
Court Rulings .......................................................................................... 39 
2 
Implications of CJEU Rulings ..................................................................... 39 
3 
4 
Other Relevant Information ...................................................................... 39 

Ireland ........................................................................................................ 40 
National Legislation ................................................................................. 40 
1 
Court Rulings .......................................................................................... 40 
2 
Implications of CJEU Rulings ..................................................................... 41 
3 
4 
Other Relevant Information ...................................................................... 41 

Italy ............................................................................................................ 42 
National Legislation ................................................................................. 42 
1 
Court Rulings .......................................................................................... 42 
2 
Implications of CJEU Rulings ..................................................................... 42 
3 
4 
Other Relevant Information ...................................................................... 43 

Latvia .......................................................................................................... 44 
National Legislation ................................................................................. 44 
1 
Court Rulings .......................................................................................... 44 
2 
Implications of CJEU Rulings ..................................................................... 44 
3 
4 
Other Relevant Information ...................................................................... 44 

Liechtenstein ............................................................................................... 45 
National Legislation ................................................................................. 45 
1 
Court Rulings .......................................................................................... 45 
2 
Implications of CJEU Rulings ..................................................................... 45 
3 
4 
Other Relevant Information ...................................................................... 46 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

Lithuania ..................................................................................................... 47 
National Legislation ................................................................................. 47 
1 
Court Rulings .......................................................................................... 47 
2 
Implications of CJEU Rulings ..................................................................... 47 
3 
4 
Other Relevant Information ...................................................................... 47 

Luxembourg ................................................................................................ 48 
National Legislation ................................................................................. 48 
1 
Court Rulings .......................................................................................... 48 
2 
Implications of CJEU Rulings ..................................................................... 48 
3 
4 
Other Relevant Information ...................................................................... 48 

Malta ........................................................................................................... 49 
National Legislation ................................................................................. 49 
1 
Court Rulings .......................................................................................... 49 
2 
Implications of CJEU Rulings ..................................................................... 49 
3 
4 
Other Relevant Information ...................................................................... 49 

Netherlands ................................................................................................. 50 
National Legislation ................................................................................. 50 
1 
Court Rulings .......................................................................................... 53 
2 
Implications of CJEU Rulings ..................................................................... 55 
3 
4 
Other Relevant Information ...................................................................... 56 

Norway ....................................................................................................... 57 
National Legislation ................................................................................. 57 
1 
Court Rulings .......................................................................................... 57 
2 
Implications of CJEU Rulings ..................................................................... 57 
3 
4 
Other Relevant Information ...................................................................... 58 

Poland ......................................................................................................... 59 
National Legislation ................................................................................. 59 
1 
Court Rulings .......................................................................................... 59 
2 
Implications of CJEU Rulings ..................................................................... 59 
3 
4 
Other Relevant Information ...................................................................... 60 

Portugal ...................................................................................................... 61 
National Legislation ................................................................................. 61 
1 
Court Rulings .......................................................................................... 61 
2 
Implications of CJEU Rulings ..................................................................... 62 
3 
4 
Other Relevant Information ...................................................................... 63 

Romania ...................................................................................................... 65 
National Legislation ................................................................................. 65 
1 
Court Rulings .......................................................................................... 65 
2 
Implications of CJEU Rulings ..................................................................... 65 
3 
4 
Other Relevant Information ...................................................................... 65 

Slovakia ...................................................................................................... 66 
National Legislation ................................................................................. 66 
1 
Court Rulings .......................................................................................... 66 
2 
Implications of CJEU Rulings ..................................................................... 67 
3 
4 
Other Relevant Information ...................................................................... 68 

Slovenia ...................................................................................................... 69 
National Legislation ................................................................................. 69 
1 
Court Rulings .......................................................................................... 71 
2 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

3 
4 

Implications of CJEU Rulings ..................................................................... 71 
Other Relevant Information ...................................................................... 72 

Spain ........................................................................................................... 73 
National Legislation ................................................................................. 73 
1 
Court Rulings .......................................................................................... 73 
2 
Implications of CJEU Rulings ..................................................................... 74 
3 
4 
Other Relevant Information ...................................................................... 74 

Sweden ....................................................................................................... 75 
National Legislation ................................................................................. 75 
1 
Court Rulings .......................................................................................... 75 
2 
Implications of CJEU Rulings ..................................................................... 75 
3 
4 
Other Relevant Information ...................................................................... 75 

United Kingdom ........................................................................................... 77 
National Legislation ................................................................................. 77 
1 
Court Rulings .......................................................................................... 77 
2 
Implications of CJEU Rulings ..................................................................... 77 
3 
Other Relevant Information ...................................................................... 78 
4 

 
 
 
 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

Executive Summary 

National 
developments 

level 

In  Romania,  a  new  methodology  for 
eliminating  workplace  harassment  has 
been adopted. 

In  October  2023,  24  countries  (all  but 
Greece, 
Iceland, 
Hungary, 
Luxembourg,  Latvia,  Malta  and 
Norway)  reported  some  labour  law 
developments.  The  following  were  of 
particular  significance  from  an  EU  law 
perspective: 

Transfer of undertakings 

In Germany, the Federal Labour Court 
provided  the  reasons  for  its  earlier 
decision  that  a  managing  director  of  a 
GmbH  can  fall  within  the  scope  of  the 
provisions on transfers of undertakings.  

In  Denmark,  a  recent  ruling  from  the 
Danish  Labour  Court  added  to  the 
existing  case  law  on  the  concept  of 
transfers  of  undertakings,  in  line  with 
existing practice concerning transfers of 
cleaning services.   

In  the  Netherlands,  in  its  decision 
following  the  preliminary  ruling  of  the 
CJEU in the Heiploeg case, the Supreme 
Court  decided  that  the  Dutch  pre-pack 
procedure does not fall under the scope 
of the Dutch Civil Code. 

Working time  

In Italy, the Court of Cassation ruled on 
issues  related  to  leaves  and  overtime 
work. 

In  the  Netherlands,  a  district  court 
delivered  a  ruling  on  the  question 
whether 
constitutes 
working time. 

‘log-in 

time’ 

Equal treatment  

the  age-discriminatory 
In  Austria, 
payment  scheme  for  civil  servants  and 
state  employees  has  been  amended  to 
ensure that so-called “other” periods of 
when 
service 
establishing  the  civil  servant’s  level  of 
remuneration 
any 
discrimination. 

considered 

without 

are 

Plaform 
work 
employment status 

and 

In  France,  platform  workers  (drivers) 
have a new collective agreement that is 
in the process of being validated by the 
authorities.  Furthermore,  the  Court  of 
Cassation  has  once  again  reclassified  a 
contractual 
relationship  between  a 
platform  worker  and  the  platform  as  a 
salaried employment contract. 

In Ireland, the Supreme Court clarified 
the  approach 
taken  when 
to  be 
determining the employment status. 

Temporary agency work 

In Austria, the Supreme Court ruled on 
the possible abuse of rights in the case 
of temporary agency workers.  

(2)  of 

In  the  Netherlands,  the  Court  of 
Appeal  and  two  district  courts  have 
interpreted  Article  6 
the 
Temporary  Agency  Work  Directive. 
Another  district  court  ruled  that  trade 
unions are allowed to continue collective 
proceedings  with  a  view  to  classifying 
temporary  agency  work  employment 
relationships/contracts. 

Other developments  

In  Austria,  the  Supreme  Court  has 
issued  a ruling  that deal with the costs 
for experts used be the European Works 
Council, and one dealing with the equal 
treatment of frontier workers working in 
one Member State but living in another. 

In Germany, the Federal Labour Court 
delivered an important judgment on on-
call work.  

In Slovakia, the Constitutional Court of 
ruled 
the 
on 
Slovak 
fixed-term 
discrimination 
employment. 

Republic 
and 

October 2023 

1 

 
 
 
 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

In Spain, the Supreme Court referred to 
the CJEU and concluded that paid leave 
for family reasons cannot commence on 
a non-working day or a public holiday.  

Table 1: Major labour law developments 

Topic 

Countries 

Collective bargaining and collective action  CY FI FR HR IE PT 

Minimum wage 

BG CZ EE HR NL 

Transfer of undertakings 

Working time 

DE DK NL 

FR IT NL 

Platform work / employment status 

FR IE 

Fixed-term work 

Temporary agency work  

Equal treatment 

European Works Council 

Annual leave 

On-call work 

Work-life balance 

CZ ES 

AT NL 

AT RO 

AT 

BE 

DE 

ES  

October 2023 

2 

 
 
 
 
 
 
 
 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

the interpretation of the rules contained 
in  the  Labour  Code  regarding  the 
consequences of unlawful dismissal. 

problems 

potentially 

On  the  other  hand,  some  countries 
of 
reported 
conformity  with  the  CJEU  ruling.  In 
Hungary, there is no clear legal basis in 
the Labour Code to consider the period 
termination  and 
between  unlawful 
reinstatement  as  working  time  when 
calculating  the  entitlement  to  paid 
annual leave. Furthermore, in Poland, it 
was reported how not the entire period 
between 
the 
employment contract and reinstatement 
is treated as a period of actual work for 
the purposes of determining entitlement 
to paid annual leave.  

termination  of 

the 

Implications 
Rulings 

of  CJEU 

CJEU  Case  C-57/22,  12  October  2023, 
Ředitelství silnic a dálnic 

case, 

the  present 

In 
the  CJEU 
interpreted Article 7 (1) of the Working 
Time Directive. In this regard, the CJEU 
decided  that  a  worker  who  had  been 
unlawfully  dismissed  and  was  then 
reinstated 
is 
entitled  to  paid  annual  leave  for  the 
period  between  the  date  of  dismissal 
and the date of his or her reinstatement, 
as  he  or  she  is  already  entitled  under 
national  law  to  wage  compensation 
during that period. 

in  their  employment, 

The  ruling  will  reportedly  have  little  to 
no  implications  for  the  majority  of 
countries,  as  national  legislation  and 
case  law  are  already  in  line  with  the 
CJEU’s  decision.  Furthermore,  some 
countries indicated that there is no right 
to  reinstatement  in  case  of  unlawful 
or 
Belgium), 
dismissal 
reinstatement 
is  only  exceptionally 
awarded  as  a  remedy  (e.g.,  Estonia, 
Iceland, Ireland). In Germany, it was 
legal 
pointed  out 
consequence of an unlawful dismissal is 
the invalidity of that dismissal: a Court 
order for reinstatement is therefore not 
required. 

the  only 

(e.g., 

that 

to 

clarification 

the  ruling 
In  Denmark,  however, 
provides 
the 
a 
interpretation  of  national  legislation, 
which  lacks  comparable  rules  on  wage 
compensation  in  the  period  between 
unlawful dismissal and reinstatement, or 
related practice. Similarly, in Portugal, 
the ruling may reportedly be relevant for 

October 2023 

3 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

Austria 

Summary  

(I)  The  age-discriminatory  payment  scheme  for  civil  servants  and  state  employees 
has been amended to ensure that so-called “other” periods of service are considered 
when establishing the civil servant’s level of remuneration without any discrimination. 

(II) The Supreme Court has issued three rulings that deal with the costs for experts 
used be the European Works Council, the equal treatment of frontier workers working 
in one Member State but living in another and the possible abuse of rights in the case 
of temporary agency workers. 

_____________________________________________________________________ 

1 

National Legislation 

1.1    Amendment of Civil Servants’ Pay Act  

In its judgment C-650/21, the CJEU finds that the provision to take so-called “other” 
periods of service for civil servants and state employees into account was discriminatory 
on the grounds of age: it had the effect that only “other” periods of service gained after 
the  age  of  18  were  considered  when  determining  remuneration  (see  CJEU  C-88/08, 
Hütter). The judgment concerned legislation that determined pay for civil servants and 
state  employees  who  had  entered  civil  service  before  mid-2015  (from  mid-2015 
onwards, the remuneration scheme, specifically with regards to taking previous periods 
of  service  into  account  to  determine  the  civil  servant’s  remuneration,  has  been  in 
compliance  with  anti-discrimination  legislation).  Following  the  CJEU’s  decision  in  C-
650/21,  Austria  had  to  amend  its  provisions  in  the  Civil  Servants’  Pay  Act  on  the 
retroactive  consideration  of  previous  years  of  service  when  determining  the  level  of 
remuneration.  

On 18 October 2023, the Austrian National Assembly passed the amendment: “other” 
periods of service are now taken into consideration from 30 June of the year in which 
the civil servant (or state employee) has completed (or would have completed) his/her 
ninth  year  of  compulsory  schooling  Other  periods  of  service  are  not  taken  into 
consideration at 50 per cent (as was previously the case), but at 42.86 per cent.  

The  amendment,  specifically the  factor of  42.86 per  cent,  represented  a compromise 
between  civil  servants’  and  state  employees’  unions  to  ensure  a  fair  compromise 
between pay raises due to the increased consideration of (additional) “other” periods of 
service and the financial implications of pay raises, which must be paid out retroactively 
from  01  May  2016  onwards.  It  is  also  unrelated  to  the  age  at  which  individuals 
accumulated their “other” periods of service.  

Most civil servants and state employees are expected to profit from the new legislation. 
For  those  few  who  do  not,  and  whose  remuneration  would  decrease  due  to  the 
retroactive  reassessment  of  their  level  of  remuneration,  an  allowance  has  been 
introduced to ensure that those civil servants and state employees continue to receive 
their last remuneration. 

The legislation will enter into force once it has passed Federal Assembly. 

2 

Court Rulings 

2.1    European Works Council 

Supreme Court, 29 August 2023, 8 ObA 28/23k 

European  Works  Council  Directive  2009/38/EC  (hereinafter  referred  to  as  EWCD) 
provides in Article 5 (4) that for the purpose of the negotiations, the special negotiating 

October 2023 

4 

 
 
 
 
Flash Report 10/2023 on Labour Law 

body  may  request  assistance  from  experts  of  its  choice,  which  may  include 
representatives  of  competent  recognised  Community-level  trade  union  organisations. 
Paragraph  6  regulates  that  any  expenses  relating  to  the  negotiations  referred  to  in 
paragraphs  3  and  4  shall  be  borne  by  the  central  management  to  enable  the  special 
negotiating body to carry out its task in an appropriate manner. In compliance with this 
principle, Member States may lay down budgetary rules on the operation of the special 
negotiating body. They may in particular limit funding to cover one expert only. A similar 
provision exists for EWC in Annex I paragraph 6 and 6. 

the  Labour  Constitution  Act 
In  Austria, 
(Arbeitsverfassungsgesetz – ArbVG). The relevant provisions read as follows (unofficial 
translation as well as highlights by the author): 

the  EWCD 

transposed 

in 

is 

§ 186 ArbVG 

(1)  The  central  management  shall  provide  the  special  negotiating  body  with  material 
requirements  free  of  charge  for the proper fulfilment  of  its  tasks  to an  extent  that is 
appropriate  to  the  size  of  the  enterprise  or  group  of  enterprises  and  the  special 
negotiating body’s needs. 

(2)  The  special  negotiating  body’s  administrative  expenses  necessary  to  properly 
fulfil  its  tasks,  in  particular  the  costs  incurred  for  the  organisation  of  meetings  and 
each preparatory and follow-up meeting, including the costs of interpretation and the 
costs  for  at  least  one  expert,  as  well  as  the  special  negotiating  body  members’ 
accommodation and travel expenses and for at least one expert, shall be borne by 
the central management. 

In  the  present  case,  the  amount  of  costs  considered  appropriate  for  an  expert  was 
disputed;  the  plaintiff,  a  European  Works  Council  (EWC),  had  claimed  costs  for 
translators, experts, lawyers and consultants, which up until then had been borne by a 
specialised  consultancy  firm  (E*  Gmbh).  The  central  management  claimed  that  the 
plaintiff  (the  EWC)  should  have  taken  advantage  of  the  free  advice  offered  by  the 
Chamber  of  Labour  or  the  Austrian  Federation  of  Trade  Unions.  The  central 
management’s  obligation  to  bear  the  costs  only  starts  where  the  mentioned  interest 
groups reach the limits of their consulting possibilities. The hourly rate of EUR 300 was 
also considered excessive. An appropriate reimbursement of costs should be based on 
the Tarif for Attorneys at Law, which is to be applied analogously, and subsidiarily on 
the Autonomous Fee Criteria of the Bar Association. The average hourly rate for legal 
services is EUR 180. The obligation to reimburse costs was also limited to one expert 
per  subject  matter  of  the  consultation.  Therefore,  the  costs  incurred  through 
subcontracting  as  well  as  those  incurred  through  the  commissioning  of  additional 
experts were not to be reimbursed. 

The  lower  courts  mostly  accepted  the  claims  but  rejected  the  claim  concerning 
attorneys’ fees. They were not part of the ruling of the Supreme Court as this part of 
the ruling was not appealed. This question therefore remains open. 

The Supreme Court granted the claim concerning the experts’ fees to the full extent. It 
rejected the argument that the EWC should primarily use the free advice provided by 
the Chamber of Labour or the trade union. Neither from the principles of proper business 
management nor from the respective rights and obligations standardised in the EWCD, 
can it be derived that the EWC, when consulting an expert, may only make use of the—
in this case also partially rejected—free information provided by interest representations 
of a certain Member State. This would also not be compatible with the principle of free 
choice  of expert  as provided for in  the EWCD  and in  the  Austrian ArbVG  (arg.  “of  its 
choice”). An expert’s task is to replace the lack of the EWC’s expertise, i.e. to advise it 
with regard to concrete questions—often covering several legal systems—to enable it to 
conduct negotiations with the employer in an informed manner. The selection of expert 
must therefore be based on the content and significance of the issues to be dealt with. 

October 2023 

5 

 
 
 
Flash Report 10/2023 on Labour Law 

The Supreme Court pointed out that it was correct that it follows from the limitation to 
the “necessary administrative expenses” in § 186 ArbVG that a compensation of higher 
costs than those considered reasonable for expert services rendered is not foreseen in 
the  Act.  A  claim  for  compensation  is  therefore  ruled  out  not  only  in  the  case  of  a 
deliberate  misuse  of  services.  However,  which  costs  can  actually  be  considered 
reasonable shall be dealt with in a case-by-case basis. 

In the present case, the EWC essentially used legal consulting services, although not by 
an attorney at law. Therefore, the Tarif for Attorneys at Law is not applicable; this is 
also the case as it only regulates legal services connected to legal procedures and not 
for the mere provision of legal expertise. Here, the Autonomous Fee Criteria would apply 
and according to these, the hourly rates amount to between EUR 220 and EUR 400 and 
have already been deemed to be appropriate in the past. 

It was then stressed that, in addition to the proven expertise in the area of the European 
Works  Constitution,  it  was  important  for  the  plaintiff,  according  to  the  findings,  for  a 
specialised consultancy firm (E* GmbH) to pre-finance the costs of its activities and of 
commissioned sub-contracted experts. Since the EWC has no assets of its own and the 
financing  by  the  defendant  (the  central  management)  was  not  secured,  this 
circumstance  was  also  relevant.  Whether  the  expert  consulted  uses  further  sub-
contracted experts to provide his/her services is ultimately not decisive, as long as no 
additional costs are incurred as a result. On the other hand, costs may also arise due to 
the coordination of several experts required for different concrete questions or specialist 
areas. They may also be regarded to be necessary in individual cases. 

The Supreme Court thus concluded that in assessing the costs claimed to be reasonable 
by the EWC, the Court of Appeal did not exceed the scope of discretion granted by law, 
even taking into account the complexity of cross-border issues, the considerable total 
period of time (over two years) and the amount of the costs. 

The  ruling  is  important  as  it  clarifies  a  number  of  issues  connected  to  the  costs  for 
experts  used  by  EWC:  whether  the  EWC  is  required  to  primarily  take  advantage  of 
services provided free of charge by interest organisations (no); whether the costs are 
limited  by  tariffs  (no);  whether the  experts may  use  sub-contracted  experts  (yes)  or 
whether the costs for coordinating them must also be borne by the central management 
(yes).  This  ensures  that  the  services  are  indeed  necessary,  and  that  the  costs  are 
appropriate. The question how to calculate the fees of attorneys at law used as experts 
by the EWC remains open, however. The Austrian Supreme Court deemed all its answers 
to have been covered by ‘acte claire’ and therefore did not initiate a preliminary ruling 
with the CJEU. This ruling may be of interest for other Member States as well, where 
courts may be faced with similar questions.  

The  proceedings  also  highlight  the  EWC’s  weakness  when  the  central  management 
refuses  to  bear  costs  it  considers  inappropriate.  In  the  present  case,  a  specialised 
consultancy firm had pre-financed the fees over the course of more than two years and 
very likely also the legal proceedings that ultimately led to this ruling. If this had not 
been the case, it would have been very likely that the EWC would not have been able 
to use experts as stated in the EWCD, simply because the central management refused 
to  pay  for  them.  There  would  have  not  been  any  means  to  pre-finance  them  and  to 
litigate. This issue should be addressed at EU level to prevent an obstruction of proper 
functioning of the EWC by non-compliant central managements.  

2.2   Equal treatment of frontier workers during the COVID 19-pandemic 

Supreme Court, 29 August 2023, 8 ObA 48/23a 

the present case examined whether a foreign quarantine measure during the COVID-19 
pandemic  involving  a  frontier  worker  who  worked  in  Austria  but  lived  in  the  Czech 
Republic  was  to  be  considered  an  isolation  measure  under  the  Austrian  Epidemic  Act 
(Epidemiegesetz), thus granting the employer a refund for the continuation of payment 

October 2023 

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in  case  the  employee  was  quarantined  in  line  with  an  administrative  decision. 
Interestingly, the two lower courts did not refer to any Union law aspects, especially the 
prohibition of the discrimination of workers who make use of the freedom of movement. 
This only played a central role when the dispute was dealt with by the Supreme Court. 

The  Supreme  Court  referred  to  the  CJEU’s  decision  in  case  C-411/22,  Thermalhotel 
Fontana, of 15 June 2023 concerning a request for a preliminary ruling by the Austrian 
Supreme Administrative Court (Verwaltungsgerichtshof – VwGH). The CJEU stated that 
Article  45  TFEU  and  Article  7  of  Regulation  (EU)  No.  492/2011  on  the  freedom  of 
movement for workers within the Union must be interpreted as precluding legislation of 
a Member State under which the granting of compensation for loss of earnings affecting 
a  worker  as  a  result  of  isolation  ordered  following  a  positive  COVID-19  test  result  is 
subject to the condition that the imposition of the isolation measure be ordered by an 
authority of that Member State under that legislation. The Austrian VwGH of 20 June 
2023  in  Ra 2021/03/0098  then  ruled  that  against  this  legal  background,  an 
interpretation  under  the  Austrian  Epidemic  Act,  according  to  which  the  mandatory 
prerequisite for compensation for loss of earnings pursuant to this provision is in any 
case an isolation ordered (only) by an Austrian authority, is prohibited. Rather, for the 
purpose of compensation for loss of earnings, isolation measures imposed by authorities 
of another Member State shall also be taken into consideration if they are comparable 
to segregation measures in view of their objective, nature and effects, ordered pursuant 
to the Austrian Act. The Austrian Epidemic Act therefore applied. 

2.3    Temporary agency work 

Supreme Court, 27 September 2023, 9 ObA 64/23m 

The collective bargaining agreement for blue collar temporary agency workers provides 
that the first month of an employment relationship is to be considered a probationary 
period during which the employment contract can be terminated by both parties without 
observing any notice period and without having to provide any good cause (Article IV 
paragraph 1). 

In the present case, a temporary agency worker (TAW) was employed three times. The 
first  two  contracts  ended  by  mutual  agreement  and  were  continued  after  a  short 
interruption (about two weeks). The third one ended shortly after the TAW informed the 
temporary work agency of her illness, making use of the ‘easy’ immediate termination 
during the probationary period. The TAW claimed that revoking the probationary period 
was  abusive  and  claimed  damages.  The  employer  countered  that  the  collective 
bargaining agreement’s provisions apply and that the termination was therefore lawful. 

The Supreme Court followed the Court of Appeal’s decision and ruled that the referral 
to the probationary period could be an abuse of rights. The assignment of the employee 
to  the  same  employer  to  perform  the  same  activity  and  the  termination  of  the 
employment relationship during the probationary period does not in itself constitute an 
abuse of rights. Additional circumstances must be present which indicate that the unfair 
motive  of  exercising  this  right  (termination  of  the  employment  relationship  by  the 
employer during the probationary period) clearly outweighs the fair motive. A criterion 
for this assessment is also the circumstance how and, if applicable, on which initiative 
the  dissolution  of  the  previous  employment  relationship  had  occurred.  The  Supreme 
Court pointed out that for the assessment of the question in the present case whether 
the termination of the TAW’s (third) employment relationship during the probationary 
period  by  the  defendant  constituted  an  abuse  of  rights,  it  was  particularly  relevant 
whether the termination by mutual consent—according to the assertion of the TAW, who 
is  required  to  provide  evidence—took  place  on  the  initiative  of  the  defendant  to 
circumvent  the  payment  of  a  ‘standing  time’  during  the  user  undertaking’s  company 
vacation. However, the court of first instance did not make any findings in this regard, 
which  is  why  the  Court  of  Appeal  was  right  to  set  aside  the  court  of  first  instance’s 
decision and requested additional findings. 

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This  case  reflects  the  practices  of  the  temporary  work  industry  in  Austria,  which 
sometimes clearly abuses the weakness of the TAW to cut costs not only by avoiding 
paying for ‘standing times’ when the TAW is not assigned to a user undertaking but also 
to having to continue payment in case of sickness. That they then may makes use of a 
collective  bargaining  agreement  that  includes  certain  clauses  that  are  very  much  in 
favour  of  the  employer  is  another  unpleasant  aspect  of  this  case.  The  avenue  the 
Supreme Court chose is not very convincing but in line with existing case law that applies 
the  collective  bargaining  agreement’s  probationary  period  clause  generously 
(8 ObA 42/05t; 9 ObA 68/21x; 8 ObA 43/21p). A purposive approach should be taken 
in  this  context  and  the  application  of  the  probationary  period  restricted  in  cases  of 
continuous contracts where the TAW is employed in areas that are completely unrelated 
with his/her previous line of work – otherwise, the temporary work agency knows who 
it is employing based on the individual’s previous experience with the undertaking and 
a probationary period therefore is not necessary.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

Under Austrian law, an employee who is reinstated following a successful reinstatement 
claim is entitled to paid annual leave for the period between the date of dismissal and 
the date of reinstatement. Hence, Austrian law is in line with CJEU case law.  

4 

Other Relevant Information 

Nothing to report.  

October 2023 

8 

 
 
 
 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

Belgium 

Summary  

(I) The Royal Decree of 28 September 2023 how the end of service annual leave pay 
of white collar workers is settled at the next employer following the termination of the 
employment contract. 

(II) In the event of termination of the employment contract by the employer during 
a period of reduced working hours in the context of care leave, severance pay must 
be calculated on the worker’s full-time salary. 

_____________________________________________________________________ 

1 

National Legislation 

1.1    Annual leave 

It was common administrative practice for many years for new employers to deduct the 
annual leave pay of untaken leave of white collar workers who had changed employers 
as a lump sum from the annual leave pay owed by the new employer at the time the 
white  collar  worker  took  his/her  main  annual  leave.  There  were  some  discussions, 
however, that this administrative practice violates the provisions of the Wage Protection 
Law of 12 April 1965.  

To  better  understand  this  practice,  two  introductory  remarks  are  of  relevance.  The 
employer of a white collar employee pays an annual leave allowance, which consists of 
two  components:  first  the  employee’s  regular  remuneration,  referred  to  as  ‘single 
annual leave pay’; and a second one for each month of work performed (or assimilated 
periods for the service year in which the leave is due – an allowance equal to 1/12 of 
92  per  cent  of  the  gross  amount  of  the  month  in  which  entitlement  to  annual  leave 
commences, referred to as ‘double annual leave pay’. A special arrangement applies to 
white  collar  employees  in  the  event  of  dismissal  or  other  form  of  termination  of  the 
employment  contract;  in  this  case,  the  former  employer  must  pay  out  the  (end  of 
service) annual leave pay in advance. 

A Royal Decree of 28 September 2023, was recently published and defines new rules 
for the offset of end of service annual leave pay. The Royal Decree follows the proposal 
formulated by the National Labour Council Opinion No. 2 297 of 01 June 2022. 

The new rules apply: firstly, when offsetting the end of service annual leave pay of an 
employee who changes employers, secondly, when offsetting the annual leave pay of a 
blue collar worker who becomes a white collar employee.  

The information the former employer’s annual leave certificates must contain, must be 
supplemented. They must now include the new rules of settlement.  

If  requested  by  the  worker,  the  employer  must  inform  him/her  in  detail  about  the 
method of calculation applied and the offset rules. 

The new rules provide for two phases. 

In the first phase, each time the white collar employee takes annual leave days with the 
new  employer,  which  he/she  acquired  during  his/her  service  with  his/her  former 
employer, the new employer will pay for those annual leave days with a deduction of 90 
per  cent  of  the  employee’s  gross  daily  wage  of  the  month  in  which  the  white  collar 
employee takes his/her annual leave. Upon taking his/her main annual leave, the new 
employer  also  pays  the  double  annual  leave  pay  after  deducting  the  double  end  of 
service annual leave pay that was already paid. 

In the second stage, i.e. in December of the relevant vacation year, a final settlement 
of  the  end  of  service  annual  leave  pay  is  due  for  the  single  annual  leave  pay.  The 
employer will then be able to make any necessary corrections. 

October 2023 

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The employer must inform the white collar employee of any corrections, namely of any 
amount withheld or paid through the December pay slip. 

Similar  calculation  rules  are  provided  for  the  payment  of  annual  leave  pay  to  an 
employee who was employed as a blue collar worker during the previous ‘annual leave 
service year’, i.e. the year prior to the year in which the annual leave is due. 

The new Royal Decree takes retroactive effect as of 01 January 2023, and will apply for 
the first time to the 2024 vacation year, i.e. vacation service year 2023. In the current 
vacation year 2023, the settlement of end of service holiday pay may still take place 
one more in in accordance with the former administrative practice. 

2 

Court Rulings 

2.1    Severance pay in case of dismissal during a period of care leave 

Antwerp Labour Court of Appeal, 20 February 2023 

In  a  recently  published  ruling  of  the  Antwerp  Labour  Court  of  Appeal  of  20  February 
2023 (Limburgs Rechtsleven 2023, 250), the Court ruled that in the event of termination 
of the employment contract by the employer during the period of reduced working hours 
in the context of care leave to provide medical assistance to or care for a seriously ill 
family member or relative, the severance pay must be calculated on the full-time salary. 

The Antwerp Labour Court arrived at this decision by referring to a recent judgment of 
the Court of Cassation of 22 June 2020 on part-time time credit in the context of caring 
for a child under the age of eight years. According to the Belgian Court of Cassation, in 
that  situation,  the  termination  indemnity  in  case  of  untimely  termination  of  the 
employment contract should be calculated based on the employee’s full-time salary. 

The Cour de Cassation based its decision on the Praxair-ruling of the Court of Justice of 
08 May 2019, No. C-486/18 on parental leave. The CJEU considered this case in light of 
Article 157 TFEU on equal pay for men and women. 

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

This  CJEU  ruling  dealt  with  a  Czech  case.  An  employee  who  had  been  unlawfully 
dismissed  and  later  resumed  employment  following  the  judicial  annulment  of  his 
dismissal and in accordance with national law, retains the right to paid annual leave for 
the  period  between  his  dismissal  and  his  reinstatement.  The  fact  that  the  worker 
concerned did not carry out actual work in the service of his employer during the period 
between his wrongful dismissal and his reinstatement was attributable to the employer’s 
actions, leading to the wrongful dismissal. Without those acts, the employee would have 
been  able  to  work  and  exercise  his  right  to  annual  leave.  Consequently,  the  period 
between  the  wrongful  dismissal  and  the  worker’s  reinstatement  after  the  judicial 
annulment  of  the  dismissal  must  be  assimilated  to  a  period  of  actual  work  for  the 
purpose of determining entitlements to paid annual leave.  

This  ruling  has  only  minor  implications  for  Belgian  labour  law,  because  in  case  of 
unlawful dismissal there is no judicial annulment thereof and no right to reinstatement.  

Belgian employment contract law is characterised by the so-called power of dismissal. 
This means that each party to the employment contract has the option to immediately 
terminate it by dismissal, even if the dismissal in itself is unlawful. This implies, inter 
alia, that in the event of unlawful dismissal, the injured party is in principle not entitled 
to demand further performance or fulfilment of the employment contract. In principle, 
the injured party cannot claim nullity of the unlawful dismissal, nor can reinstatement 

October 2023 

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Flash Report 10/2023 on Labour Law 

be forced on either party. The only remedy envisaged in employment law is the payment 
of a fixed amount of severance pay. 

4 

Other Relevant Information 

Nothing to report.  

October 2023 

11 

 
 
 
 
Flash Report 10/2023 on Labour Law 

Bulgaria 

Summary  

The employment register and employment labour record were established.   

_____________________________________________________________________ 

1 

National Legislation 

1.1    Employment register 

The  National  Assembly  adopted  a law  amending  and  supplementing the  Labour Code 
(promulgated State Gazette No. 85 dated 10 October 2023). 

The changes introduce a digitalisation of the employment book, which aims to remove 
the administrative burden for employers and employees while using paper employment 
books; to provide permanent access to the electronic employment records for both the 
employee and employer; to limit the cases of loss of paperwork books; to facilitate the 
calculation of length of service, etc. The amendments will enter into force on 01 June 
2025, except for certain provisions. Below is a summary of the more important changes. 

Pursuant of the above pointed amendments and supplements to the Labour Code, by 
01  June  2025,  the  National  Revenue  Agency  must  establish  an  employment  register, 
which  contains  the  uniform  electronic  labour  records  of  employees  (Article  347).  The 
creation  and  maintenance  of  the  employment  register  is  carried  out  based  on  the 
principles of ensuring accuracy of the stored data, ensuring that they are up to date, 
providing a suitable environment for data exchange, guaranteeing regulated access to 
data in the employment register and ensuring information security. Access to the data 
is provided free of charge in the territorial directorates of the National Revenue Agency. 
The initial data will be filled in ex officio based on the register of employment contracts 
and other sources. The format and procedure for storing the data in the employment 
register,  the  procedure  and  the  terms  for  entry  of  data,  deletion  and  certification  of 
circumstances,  and  the  conditions  for  access  to  the  data  shall  be  determined  by  the 
Regulation,  the  adoption  of  which  is  pending.  The  processing  of  personal  data  in  the 
employment register is carried out in accordance with Regulation (EU) 2016/679 of the 
European Parliament and of the Council of 27 April 2016 on the protection of natural 
persons in relation to the processing of personal data and on the free movement of such 
data  and  to  repeal  Directive  95/46/EC  (General  Data  Protection  Regulation)  and  the 
Personal Data Protection Act. 

There will be no requirement for the employer to submit a notification for the conclusion, 
amendment or termination of the employment contract, but he/she will be required to 
enter the relevant data in the employment register established and maintained by the 
National  Revenue  Agency.  The  time  limits  for the  registration  of  the  said  information 
shall remain unchanged, namely: within three days from the conclusion or amendment 
of the employment contract and within seven days from its termination. The minimum 
data submitted by the employer to the employment register shall include the information 
under Article 349, Paragraph 1 of the LC, and the employer must accurately and timely 
record the changes that have occurred therein. Among the new details submitted to the 
register is information on the amount of the agreed paid annual leave and the days of 
paid annual leave, already used in the year of termination of the employment contract. 
The Council of Ministers must determine the procedure and data required for registration 
in the employment register according to Regulation 2016/679 until 01 June 2024. 

1.2    Single electronic labour record 

The above-mentioned law provides for the establishment of a single electronic labour 
record (Article 347a). This is an electronic document replacing the paperwork book or 

October 2023 

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Flash Report 10/2023 on Labour Law 

service  book  for  civil  servants,  as  of  01  June  2025.  This  electronic  document  must 
contain  data  and  any  information  related  to  the  employee’s  labour  activity  and  is  an 
official  certification  document.  The  employee  has  the  right  to  access  his/her  unified 
electronic labour record. Parents, guardians and guardians of employees under the age 
of 18 years have the right to access their respective single electronic employment record 
until  they  reach  the  age  of  18.  The  employee  has  the  right  to  information  about  the 
history of access to his/her unified electronic labour record, except for cases of access 
by the bodies of pre-trial proceedings under the order of the Criminal Procedure Code 
and  of  the  State  Agency  “National  security”  employers  have  the  right  to  information 
about their employees entered by previous employers, with the exception of their amount 
of  wages  and  benefits  received  from  previous  employers.  The  unified  electronic 
employment record can be used to certify the existence of work experience, when such 
is required in a competition for a given position after obtaining the candidate’s consent. 

The labour inspectorate is allowed to enter data into the single electronic labour record 
on  the  duration  of  work  experience  established  by  a  court  decision  in  case  of  an 
employer’s  refusal  to  do  so  or  when  this  is  impossible.  When  the  dismissal  of  the 
employee  is  recognised  as  illegal  or  the  grounds  for  termination  of  the  employment 
relationship are corrected, the entry shall be made by the employer who terminated the 
employment relationship, and in case of refusal or when this is impossible, by the labour 
inspectorate (Article 350a). 

The  provisions  regulating  the  obligation to  present  the  workbook  upon  entry  into  the 
employment relationship and upon its termination; the employer’s obligation to issue a 
workbook to all employees that enter into an employment relationship for the first time; 
the provisions concerning the reissuing of a lost workbook are revoked. 

The liability of the employer and of the responsible officials for the unlawful retention of 
the  workbook  has  now  transformed  into  liability  for  the  damage  suffered  by  the 
employee due to the employer’s failure to enter the relevant data on the termination of 
the  employment  contract  into  the  employment  register  when  the  employment 
relationship  has  been  terminated.  Accordingly,  the  employee  shall  be  entitled  to 
compensation in the amount of his/her gross remuneration from the date of termination 
of  the  employment  relationship  until  the  termination  is  entered  into  the  employment 
register. 

1.3    Minimum wage 

The Council of Ministers adopted Decree No. 193 to determine the amount of minimum 
wage (promulgated in State Gazette No. 87 of 17 October 2023). From 01 January 2024, 
the  minimum  monthly  wage  will  amount  to  BGN  933  and  the  minimum  hourly  wage 
BGN 5.58 for a normal working time of eight hours and a five-day work week. 

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

The decision in case C-57/22 of 12 October 2023 of the Court (Sixth Chamber) will not 
have  an  impact  on  Bulgarian  legislation  and  national  practice  in  relation  to  the 
requirements  of  Article  7,  Paragraph  1  of  Directive  2003/88/EC  of  the  European 
Parliament,  and  the  Council  of  04  November  2003  regarding  certain  aspects  of  the 
organisation of working time.  

October 2023 

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Flash Report 10/2023 on Labour Law 

With the entry into force of a court decision by which the dismissal of an employee is 
recognised as illegal, and he/she is reinstated, the legal consequences of the dismissal 
are deleted, and it is considered that the employment relationship was not terminated. 
The time during which the employee was out of work—from the date of dismissal until 
his/her  reinstatement—is  recognised  as  work  experience  (Article  354,  item  1  of  the 
Labour Code). In such cases, the worker has the right to paid annual leave in proportion 
to the time considered as work experience under Article 354, item 1 of the Labour Code). 
After returning to work, he/she has the right to use this leave. If the employee does not 
use the leave he/she is entitled to in full or only uses part of it, he/she is entitled to 
compensation following the termination of the employment relationship (Article 224 of 
the Labour Code). 

4 

Other Relevant Information 

Nothing to report.  

October 2023 

14 

 
 
 
 
 
Flash Report 10/2023 on Labour Law 

Croatia 

Summary  

(I)  The  Government  of  the  Republic  of  Croatia  has  passed  the  regulation  on  the 
amount of minimum wage for the year 2024.  

(II)  The  representativeness  of  employers’  associations  and  trade  unions  for 
participation in tripartite bodies at the national level has been determined.   

_____________________________________________________________________ 

1 

National Legislation 

1.1    Minimum wage 

The Government of the Republic of Croatia has passed the Regulation on the amount of 
the minimum wage for the year 2024. 

The amount of the minimum wage for the period from 01 January to 31 December 2024 
will amount to gross EUR 840. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

In the settled case law of Croatian courts, unfairly dismissed employees are entitled to 
salary  compensation,  material  and  moral  damages  and  reinstatement.  Case  law  on 
salary compensation deems that if the employee has found another job in the meantime, 
he or she is only entitled to the difference in salary. This implies that he or she is not 
entitled to salary compensation in case his or her salary is higher than that of his or her 
previous employer. 

The unfairly dismissed employee is entitled to paid annual leave but based on Article 84 
of the Labour Act (Official Gazette Nos. 93/14, 127/17, 98/19, 151/22, 64/23), he/she 
can take that leave only by 30 June of the following calendar year at the latest upon 
returning to work. This excludes the accumulation of two or more unused annual leaves. 

Based  on  the  CJEU’s  judgment  in  this  case,  the  Croatian  courts  need  to  amend  the 
settled  case  law.  However,  due  to  the  fact  of  the  lengthy  labour  disputes  before  the 
national  courts,  which  last  for  years,  in  case  of  the  employee’s  reinstatement,  the 
employers will have to face the burden of lengthy annual leaves.  

4 

Other Relevant Information 

4.1    Representativeness of employers’ associations and trade unions 

The Commission for Determining Representativeness identified the following higher level 
trade union associations as being representative for participation in tripartite bodies at 
the  national  level:  the  Union  of  Autonomous  Trade  Unions  of  Croatia  (SSSH), 
Independent Croatian Trade Unions (NHS) and the Association of Croatian Trade Unions 
(MHS). On the other hand, the only higher level employers’ association representative 

October 2023 

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Flash Report 10/2023 on Labour Law 

for  participation  in  tripartite  bodies  at  the  national  level  is  the  Croatian  Employers’ 
Association (HUP). 

The  decision  on  determining  the  representativeness  of  higher-level  trade  union 
associations  for  participation  in  tripartite  bodies  at  the  national  level  is  published  in 
Official Gazette No. 120/2023 as is the decision on determining the representativeness 
of  higher-level  employers’  associations  for  participation  in  tripartite  bodies  at  the 
national level. 

4.2   Annexes to the collective agreements in the public sector 

The  Annex  to  the  Collective  Agreement  for  civil  servants  and  employees  in  the  civil 
service as well as the Annex to the Basic Collective Agreement for Public Servants and 
Employees in the public service have been concluded. They regulate, among others, the 
increase in salaries, Christmas bonus and annual leave allowance.  

October 2023 

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Flash Report 10/2023 on Labour Law 

Cyprus 

Summary  

Doctors and nurses in state hospitals went on strike.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU Case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

In the present case, Article 7 (1) of Directive 2003/88 was interpreted. The CJEU decided 
that a worker, who had been unlawfully dismissed and was then reinstated in his/ her 
employment, is entitled to paid annual leave for the period between the date of dismissal 
and the date of his or her reinstatement, as he or she is already entitled under national 
law to wage compensation during that period. 

This  is  not  likely  to  have  any  effect  on  the  Republic  of  Cyprus’  labour  law  as  this  is 
standard practice already. A lawful termination of the employment relationship means 
that  no  employment  or  contractual  relationship  exists  from  the  time  of  termination. 
Article 19 (2) of that same law states that when a worker’s employment relationship is 
terminated  within  12  months  of  him/  her  reaching  retirement  age,  the  amount  of 
compensation  payable  is  reduced  by  one-twelfth  for  every  completed  month  of  age 
during this 12-month period. 

An employer who dismisses an employee who was employed for at least 26 weeks is 
liable to pay compensation calculated on the basis of the employee’s duration of service. 
The length of continuous employment prior to termination is also relevant for assessing 
whether the employee was dismissed during his/ her probationary period, in which case 
no right to compensation arises; and for calculating redundancy pay which a redundant 
employee  is  entitled  to  receive  from  the  State’s  Redundancy  Fund.  Private  sector 
employees who are unfairly dismissed are entitled to compensation, however, this right 
is lost when the employee reaches retirement age (65 years).  

Employers  who  employ  over  19  employees  may  be  required  by  the  Labour  Disputes 
Court  to  reinstate  an  employee  whose  dismissal  was  either  manifestly  unlawful  or 
unlawful and made in bad faith, if so, required by the dismissed employee, as well as to 
compensate him or her for any loss suffered as a result of the dismissal, provided the 
amount does not exceed 12 months of wages.  

Under Article 3 of the termination of employment law, the employee may either seek 
reinstatement or, if the relationship between the parties is deemed to be irreparable, 
damages may be sought. The latter is often the case.   

The  compensation  to  which  the  employee  is  entitled  paid  by  the  employer  does  not 
exceed the employee’s daily wages for a year. 

October 2023 

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4 

Other Relevant Information 

4.1    Strike of doctors and nurses in state hospitals 

Around 7 000 doctors and nurses went on an eight-hour strike in public hospitals on 30 
October  following  the  collapse  of  the  talks  between  the  unions  and  the  State  Health 
Services Agency (OKYPY). The nursing homes only operated from 7 a.m. to 3 p.m. with 
security  staff  and  patients  who  had  scheduled  appointments  with  a  doctor  or  were 
scheduled to undergo surgical procedures and their procedures were not carried out. 

The unions have warned that if OKYPY does not proceed to a collective agreement with 
a content similar to the agreements applied to other semi-government organisations, 
they will intensify their actions, with the strike only being the beginning. 

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Czech Republic 

Summary  

(I) The bill on the consolidation of public budgets contains the  limitation of the tax 
deductibility of certain employee benefits and, in particular, the insurance relating to 
agreements to complete a job, which will affect the flexibility of employment in the 
Czech Republic. 

(II) An amendment with the objective to stabilise the position of employment agencies 
and  to  increase  the  stability  and  predictability  of  the  employment  of  temporary 
workers and one introducing a statutory indexation mechanism for the minimum wage 
have been submitted.  

_____________________________________________________________________ 

1 

National Legislation 

1.1    Act on the consolidation of public budgets  

The Chamber of Deputies approved the bill on the consolidation of public budgets (Print 
450). The bill amends tax and insurance regulations and aims to reduce the state budget 
deficit. The main changes vis-à-vis labour relations concern the abolition or limitation of 
the tax deductibility of certain employee benefits and the extension of social security 
coverage  to  agreements  to  complete  a  job.  Although  the  bill  does  not  introduce  any 
changes to the Labour Code, the limitation of the tax deductibility of certain employee 
benefits  and,  in  particular,  the  insurance  relating  to  agreements  to  complete  an 
assignment  that  overlaps  in  a  given  calendar  month  will  affect  the  flexibility  of 
employment in the Czech Republic and the standard of working conditions. In contrast 
to  current  legislation,  an  employee  who  works  under  an  agreement  to  complete  an 
assignment is required to pay social security contributions if his/her total income from 
all such agreements to complete an assignment with one employer reaches 25 per cent 
of the average wage in the national economy (EUR 400). Insurance coverage will also 
be extended to cases where the employee’s income from agreements to complete a job 
with all employers in a calendar month reaches 40 per cent of the average wage in the 
national economy (EUR 640). The bill is subject to approval by the Senate in November, 
and the proposed effective date of these changes is 01 July 2024.  

1.2    Fixed-term work 

The  draft  amendment  to  Act  435/2004  Sb.,  on  Employment  and  Other  Related  Acts 
approved  by  the  government  has  been  submitted  to  the  Chamber  of  Deputies  as 
Parliamentary  Print  540.  The  objective  is  to  stabilise  the  position  of  employment 
agencies and to increase the stability and predictability of the employment of temporary 
workers whose employment relationship is only agreed for the period of their temporary 
assignment. This will help avoid endless chains of temporary assignments to the same 
user. 

A  detailed  analysis  of  the  changes  have  been  provided  in  previous  Flash  Reports.  A 
number of amendments to the proposal have been tabled, some of which significantly 
change  the  content  of  the  original  proposal.  More  information  will be  provided  in  the 
next Flash Report as it is expected that the proposal will have been approved by the 
Chamber of Deputies and submitted to the Senate. 

1.3    Minimum wage 

The Ministry of Labour and Social Affairs has submitted a draft amendment to the Labour 
Code for external comments. It aims to introduce a statutory indexation mechanism for 

October 2023 

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the minimum wage based on the value of the average wage in the national economy, 
thereby establishing the method of its regular indexation and increasing its predictability 
and link to the income generally generated by employment in the country. In addition, 
the draft amendment reduces the number of guaranteed wage levels and, in one version 
of the draft, proposes the complete abolition of the guaranteed wage in the legislation. 
It  also  addresses the  plurality  of  trade  unions  within  an employer when  concluding  a 
collective agreement. The current wording of Section 24 LC does not allow an employer 
to  conclude  a  collective  agreement  unless  all  the  trade  unions  operating  under  the 
employer agree on a common procedure. Unfortunately, this often leads to a stalemate 
which  makes  it  impossible  for  employees  to  exercise  their  right  to  collective 
representation in regulating their working conditions. Under the draft amendment, the 
trade union with the most members, namely the employer’s employees, would have the 
right  to  conclude  a  collective  agreement,  unless  half  of  all  the  employer’s  employees 
declare  that  they  do  not  support  such  a  procedure.  As  an  alternative,  it  also  allows 
employees  to  designate  another  trade  union  to  which  they  give  their  mandate  to 
negotiate a collective agreement.  

The  draft  amendment  is  generating  a  great  deal  of  interest  from  commentators, 
particularly  the  social  partners,  and  a  large  number  of  substantive  comments  and  a 
complex  legislative  process  can  be  expected  on  the  road  to  its  submission  to  the 
government. With this in mind, the draft amendment will be discussed in more detail in 
future Flash Reports in light of legislative developments.  

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

The procedure described by the referring court is based on older and established Czech 
case law (Decision of the Supreme Court of the Czech Republic 21 Cdo 2343/2003, SJ 
4/2004, p. 287) pertaining to Section 69 (1) LC, relating to a specific situation where 
the  employment  relationship  has  not  been  properly  terminated,  thus  making  the 
employee  eligible  to  compensation  for  wages  or  salary  in  the  amount  of  average 
earnings  to  compensate  him/her  for  the  damage  suffered,  in  which  the  provisions  of 
Section 208 LC on obstacles to work on the part of the employer do not apply. 

Section 69 (1) LC states that if the employer has given the employee an invalid notice 
of termination and the employee has immediately informed the employer in writing that 
he/she insists on maintaining his/her employment with the employer, the employment 
relationship continues, and the employer is required to compensate the employee for 
wages or salary. Thus, the law deals with the employee’s loss of earnings during the 
period when  he/she was unable to work under his/her employment contract with the 
employer  because  the  employer  wrongfully  terminated  the  employment  relationship. 
Although the provision in question deals only with compensation for lost wages, it could 
be inferred from the wording of the provision, as well as from its meaning and purpose, 
that the employment relationship continued. If the employee was no longer assigned 
any work due to an unlawful act on the part of the employer, this fact may be considered 
an obstacle to work on the part of the employer pursuant to Section 208 or, ultimately, 
in  light  of  existing  Czech  case  law,  a  special  obstacle  to  work,  which,  however,  is 
considered to be the performance of work pursuant to Section 348 (1)(a) LC, even for 
the purposes of annual leave.    

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It can thus be considered that the wording of the Czech Labour Code does not contradict 
the Court of Justice’s judgment. Contradicting the judgment of the Court of Justice is 
existing  case  law,  which  treats  the  interpretation  and  application  of  Section  69  as  a 
special procedure that differs from the treatment of obstacles to work on the part of the 
employer and their full credit towards leave.  

It should be noted in furtherance to the preliminary ruling that according to the required 
Euro  conform  interpretation  of  Article  69  (1)  LC,  in  light  of  Article  7  (1)  of  Directive 
2003/88/EC  of  the  European  Parliament  and  of  the  Council  of  4  November  2003 
concerning certain aspects of the organisation of working time, the employee is entitled 
under  Czech  law  to  paid  annual  leave  for  the  entire  period  during  which  he/she  was 
unable to work because of the invalid termination of his/her employment. In the case 
of  a  continuing  employment  relationship,  it  will  be  necessary  to  take  all  the  leave, 
without  the  possibility  of  reducing  it  or  providing  financial  compensation  for  its  non-
taking.  

4 

Other Relevant Information 

Nothing to report. 

October 2023 

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Denmark 

Summary  

A  recent  ruling  from the Danish  Labour Court adds to  the  existing  case law  on  the 
concept  of  transfers  of  undertakings.  The  ruling  is  in  line  with  existing  practice 
concerning transfers of cleaning services.    

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

2.1    Transfer of undertaking  

Labour  Court 
ruling,  25  October  2023,  case  2021-6076,  Fagbevægelsens 
Hovedorganisation for Fagligt Fælles Forbund mod Dansk Arbejdsgiverforening for DIO 
for OKS Service A/S 

The case  concerned  a potential  transfer  of undertaking of  cleaning services from  one 
service provider (Rema Rengøring) to another (OKS Service). Both companies provided 
cleaning  services  for  a  Danish  municipality  under  a  contract,  and  provided  cleaning 
services for several schools, among others. 

OKS Service took over seven cleaners from Rema Rengøring, who had been working for 
the  cleaning  services  that  OKS  Service  had  taken  over  from  Rema  Rengøring.  OKS 
Service did not take over any tangible assets, only the cleaning activity. OKS Service 
employed a total of 23 employees to perform the cleaning services. 

The Labour Court ruled that no transfer of undertaking had taken place, cf. the Act on 
Transfer of Undertakings, section 1. The Act implements Directive 2001/23/EC.  

The decisive question was whether the transferor had taken over ‘a major part of the 
workforce in terms of number and skills’, cf. C-13/96 Süzen. 

The Danish law on the transfer of cleaning services was established in former Labour 
Court rulings of 24 September 2013, AT 2013.0458 and AR 2013.0760. In the present 
case,  the  Labour  Court  clarified  that  an  assessment  whether  the  transferred  activity 
constitutes a considerable part of the enterprise should be assessed on a case-by-case 
basis.  What  is  decisive  is  whether  the  number  of  employees  taken  over  are  able  to 
consistently perform the activity. Within the cleaning industry, this would normally only 
be  possible  if  the  majority  of  the  workforce  is  transferred  –  however,  this  does  not 
establish a clear 50 per cent limit, but must be assessed in detail.  

In the current case, there were seven cleaners. The trade union argued that the majority 
of  cleaners  performed  cleaning  services  in  the  specific  school  where  the  claimant 
worked. The employer’s association, on the other hand, argued that this was not the 
majority, as the transferee’s company counted 23 cleaners.  

The question was therefore whether the ‘majority’ should be considered in relation to 
the entire cleaning enterprise and services performed by the transferor/transferee or in 
relation to the cleaning services performed at each school.   

The Labour Court concluded that the assessment should be considered in relation to the 
cleaning services in their entirety and not only to the transfer of employees to perform 
services  at  each  of  the  individual  institutions/schools.  Taken  as  a  whole,  the  transfer 
included only a small share of the total number of employees. Furthermore, there was 
no indication that the transferred employees were considered ‘key personnel’.  

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Thus,  the  transfer  of  services  did  not  constitute  a  transfer  of  undertaking  in  the 
understanding of the Transfer of Undertakings Act. 

The  employee  concerned  could  not  direct  a  claim  for  outstanding  salary  and  pension 
contributions from the period of employment with the former employer against the new 
employer. 

The ruling is in line with EU law, including CJEU case law on transfers of undertakings. 
The Danish Labour Court also relied on existing case law of the CJEU and the Danish 
courts. 

It  has  consistently  been  held  that  for  cleaning  services,  it  is  decisive  whether  the 
transferor has taken over ‘a major part of the workforce in terms of their number and 
skills’.  

The ruling confirms existing practice that the reference is not per unit of workers that 
are transferred, but the reference is the entire enterprise of the receiving company. As 
such, the ruling adds nothing new to Danish law.   

3 

Implications of CJEU Rulings  

3.1    Paid annual leave  

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

The  case  concerned  the  dismissal  of  an  employee  which  was  ruled  unfair  by  a  court 
ruling three years later. The employee then resumed her employment. That year, she 
requested  to  take  unused  annual  leave  transferred  from  the  three  year-period.  The 
employer denied the request, as the employee had not been assigned to perform work 
between her dismissal and the reinstatement.  

Despite  the  refusal,  the  employee  did  not  show  up  for  work  on  the  dates  she  had 
requested  leave  for,  and  she  was  therefore  dismissed  for  unlawful  absence.  The 
employee filed a claim of financial compensation for her unused holiday for the three-
year period.  

The  CJEU  found  that  Article 7(1)  of  Directive  2003/88/EC  must  be  interpreted  as 
precluding national case law according to which a worker is not entitled to paid annual 
leave for the period between unlawful dismissal and reinstatement on the ground that 
the worker did not perform work and was already entitled to wage compensation during 
the period.  

The  new  CJEU  ruling  confirms  that  the  main  provision  of  the  ruling  in  C-762/18  also 
applies, even if the employee receives wage compensation in the interim period. Wage 
compensation  is  used  to  compensate  lost  income.  The  right  to  annual  leave  is  an 
individual right that cannot be interpreted narrowly.  

In the same manner as the ruling in C-762/18, the CJEU’s case law on annual leave and 
reinstatement may have implications for Danish law from a technical point of view, but 
in practice, the situation will rarely arise.  

Under Danish law, there is no general duty to nullify or reinstate the employee in case 
of unlawful termination. A legal basis for reinstatement only applies in rare situations 
that  are  regulated  by  law,  e.g.  the  Act  on  Equal  Treatment  of  Men  and  Women,  the 
Equal  Pay  Act,  and  the  Act  on  Freedom  of  Association.  A  legal  basis  to  claim 
reinstatement is also provided in some collective agreements in case of an unreasonable 
dismissal, such as the LO/DA General Agreement in section 4(3) litra E.  

However, even when a claim for reinstatement has legal basis, it is very rarely applied 
due  to  the  damage  to  mutual  trust  and  confidence  in  the  relationship  between  the 
employee  and  the  employer.  Cooperation  based  on  mutual  trust  and  confidence  has 

October 2023 

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Flash Report 10/2023 on Labour Law 

often become impossible as a consequence of the (attempted) dismissal and the ensuing 
judicial dispute. 

The  legal  basis  for  re-instatement  can  be  supplemented  by  a  speedy  assessment 
procedure to avoid ‘a break’ in the employment relationship. Most notably, this is found 
in  the  Act  on  Freedom  of  Association.  In  addition,  the  court  can  suspend  a  dismissal 
during the proceedings, as well as give suspensory effect in case of an appeal of the 
ruling of the first instance, cf. sections 4b (1) and (2). The effect is that the employee 
continues his/her employment relationship until the issue of reinstatement is settled by 
the courts. For this reason, it is highly unlikely that there is an interim period under this 
Act in particular.  

Under Danish law, the right to annual leave is regulated in the Danish Holiday Act (No. 
230  of  12  February  2021).  The  question  of  a  right  to  paid  annual  leave  from  the 
employer in a potential interim period is not addressed in the preliminary works, and 
was  not  the  subject  of  legal  proceedings.  In  other  words,  there  are  no  similar  or 
comparable rules on wage compensation in the period between unlawful dismissal and 
reinstatement as in the recent CJEU case.  

The right to pay or annual leave during an interim period is usually not regulated in the 
legal basis for reinstatement  mentioned  above. Particularly  for the protection  against 
unfair  dismissal  under  the  LO/DA  General  Agreement,  case  law  asserts  that  the 
employee  has  a  right  to  pay  in  the  interim  period,  cf.  rulings  No.  618.1994  and  No. 
2009.0449.  The  right  to  annual  leave  is  not  specifically  addressed  in  the  rulings, 
however.  

The  legal  status  of  the  interim  period  is  in  itself  not  entirely  clear  in  Danish  law—as 
examples  of  reinstatement  cases  are  very  limited—and  economic  issues  are  often 
resolved as a matter of damages for the economic loss. 

The  right  to  accrue  annual  paid  leave  by  the  employer  in  the  interim  period  is  not 
addressed in case law, statutory provisions or collective agreements. As a general rule, 
annual leave is only accrued in periods where the employee is employed (and receives 
his/her salary) from the employer.  

A  right  to  accrue  paid  annual  leave  in  the  interim  period  is  provided  as  part  of  the 
unemployment  benefits  scheme  available  to  members  of  unemployment  insurance 
funds.  Approximately  70  per  cent  of  all  employees  are  members  of  unemployment 
insurance funds. 

A right to take paid annual leave in the interim period may be provided by accrued, but 
untaken, paid annual leave from the ‘former’ employer, who must deposit accrued and 
untaken  paid  annual  leave  with  the  publicly  administered  Holiday  Fund  upon  the 
termination of any employee for any reason. 

The CJEU has again clarified the right to paid annual leave as a fundamental right of the 
employee.  

In the Danish context, the clarification is of similar importance as the ruling in CJEU C-
762/18 for the accrual of paid annual leave during the interim period in the few instances 
where reinstatement can be and is  claimed, and where there is a break between the 
end of the notice period and actual reinstatement. 

4 

Other Relevant Information 

Nothing to report.  

October 2023 

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Flash Report 10/2023 on Labour Law 

Estonia 

Summary  

Trade unions and employers have agreed on the new minimum wage. As of 2024, the 
new monthly minimum wage will amount to gross EUR 820.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

The  present  decision  concerned  a  situation  in  which  the  employee  had  to  be 
compensated for unused leave for the period during which the employee was unable to 
work  due  to  a  labour  dispute  related  to  the  termination  of  the  employment  contract. 
Such a situation can arise when an employee requests reinstatement.  

The implications of the said judgment on Estonian labour law is  limited. According to 
the Estonian Employment Contract’s Act, it is not possible to apply for reinstatement of 
an employee in case of illegal termination of the employment contract. In case of illegal 
termination of the employment contract, the possible protection measure is the payment 
of compensation in the amount of three months’ average salary. 

The  situation  mentioned  in  the  court  decision  could  only  become  relevant  if  the 
termination of the employment contract is contested by either a pregnant woman or an 
employee entitled to maternity leave or an employee representative. In such situations, 
there is a possibility of reinstatement provided by law. For such circumstances, the CJEU 
interpretation is relevant. 

The same situation may arise in the case of civil servants, whose service relationships 
are  regulated  in  the  Civil  Service  Act.  In  the  case  of  civil  servants,  there  is  also  no 
provision for reinstatement in case of illegal termination of employment.  

Only in specific situations can the reinstatement be claimed. An official who is pregnant 
during the release from service, who has the right for maternity leave, paternity leave 
or adoptive parents leave or who is raising a child under the age of seven, is entitled to 
demand,  upon  the  unlawful  release  from  service,  the  reinstatement  into  service  and 
remuneration for the period of forced absence from the service. 

4 

Other Relevant Information 

4.1    Minimum wage 

The  labour  market  parties,  i.e.  the  representatives  of  the  Central  Union  of  Estonian 
Employers  and  the  Central  Union  of  Estonian  Trade  Unions,  agreed  on  the  minimum 
wage  for  2024.  According  to  the  agreement,  the  minimum  wage  will  rise  by  EUR  95 
from EUR 725 to EUR 820. 

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As a result of the agreement, the minimum salary will increase by 13.1 per cent and will 
make up 42 per cent of the average salary predicted by Bank of Estonia in 2024. 

The EUR 820 gross minimum wage per month will help smooth out the decrease in the 
purchasing power of the minimum wage caused by inflation and improve the economic 
situation of many families.  

The Central Union of Employers stated that new agreements shall take into account both 
the good will agreement on the minimum wage concluded in the spring and the actual 
business situation and prospects. Employers are now more uncertain about the future 
than in the spring, because the Estonian economy has declined for six quarters in a row, 
foreign demand remains weak, and the competitiveness of companies is under strong 
pressure. Considering these conditions, it was  agreed to increase the minimum wage 
for  next  year,  which  should  meet  both  the  high  expectations  of  contractors  and  real 
possibilities of employers. 

The longer term goal of the labour market parties is to reach a minimum wage of half 
the average wage by 2027. 

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Flash Report 10/2023 on Labour Law 

Finland 

Summary  

A  report  of  the  tripartite  working  group  of  the  Ministry  of  Economic  Affairs  and 
Employment, which prepared draft amendments to the industrial peace legislation to 
improve industrial peace in the labour market, has been issued for comments.   

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

There  is  no  case  law  in  Finland  concerning  situations  that  would  be  similar  to  the 
constellation  in  case  C-57/22  preventing  employees  from  receiving  the  paid  annual 
holiday they are entitled to in case of illegal dismissal. 

4 

Other Relevant Information 

4.1    Proposed amendments to industrial leave legislation 

A  working  group  report  containing  proposed  legislative  amendments  related  to  the 
industrial peace legislation has been issued for comments. The amendments have been 
prepared  by  a  tripartite  working  group  which  was  not  unanimous  in  its  work.  The 
Ministry of Economic Affairs and Employment has requested comments on the report to 
be returned by 23 October 2023.  

The working group’s report proposes amending the sanction system concerning unlawful 
strikes. The level of compensatory fines would be raised, with the maximum amount set 
at  EUR  150  000  and  the  minimum  amount  at  EUR  10  000.  According  to  the  working 
group’s  report,  the  level  of  compensatory  fine  could  be  reduced  below  the  minimum 
amount  or  fully  waived  for  a  special  reason.  Moreover,  the  working  group  proposes 
employees  who  continue  an  industrial  action  which  the  Labour  Court  has  deemed 
unlawful  would  be  subject  to  pay  compensation  in  the  amount  of  EUR  200  to  the 
employer.  The  purpose  of  the  amendments  is  to  reduce  the  number  of  unlawful 
industrial actions.  

According to the report, when an obligation to maintain industrial peace is in force, a 
solidarity  action  could  not  be  carried  out  if  the  way  it  is  carried  out  or  its  harmful 
consequences  for  those  not  party  to  the  main  dispute  were  to  be  manifestly 
disproportionate to the objective being pursued. When an industrial peace obligation is 
not in force, the above-mentioned restriction would only apply to situations where the 
industrial action’s aim is to conclude a collective agreement. The body implementing the 
solidarity  action  would  have  to  ensure  the  continuation  of  services  or  operations 
necessary for the functioning of society. 

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The  duration  of  political  industrial actions  would  be  limited.  According  to the working 
group report, the maximum duration of political work stoppages would be 24 hours, and 
that of other industrial actions would be two weeks. 

It is proposed in the report that those organising a solidarity action or political industrial 
action in  the form  of  a  work  stoppage would have  to  notify the National Conciliator’s 
Office, the employer affected by the industrial action, if possible, and, the parties to a 
collective  agreement  no  later  than  seven  days  before  it  starts  if  the  industrial  peace 
obligation were in force. 

The  Government  Programme  includes  proposals  on  improving  industrial  peace.  The 
tripartite working group addressed issues related to industrial peace covering 03 July to 
15 October 2023. Its task was to draw up a report in the form of a government proposal. 
Following the consultation round, preparatory work will continue. The government aims 
to submit its proposal on legislative amendments on industrial peace to Parliament on 
01 February 2024. 

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Flash Report 10/2023 on Labour Law 

France 

Summary  

(I) Platform workers (drivers) have a new collective agreement that is in the process 
of  being  validated  by  the  authorities.  The  Court  of  Cassation  has  once  again 
reclassified a contractual relationship between a platform worker and the platform as 
a salaried employment contract. 

(II)  Exceeding  the  maximum  number  of  hours  of  night  work  no  longer  requires  a 
separate injury to entitle an employee to damages.  

_____________________________________________________________________ 

1 

National Legislation 

1.1    Coverage  of  the  consequences  of  occupational  exposure  to 
asbestos 

A  decree  dated  14  October  2023  improves  the  coverage  of  the  consequences  of 
occupational exposure to asbestos by creating Table 30 ter relating to larynx and ovary 
cancer caused by the inhalation of asbestos dust. The decree of 14 October also sets 
out the conditions under which occupational diseases are covered, as well as the list of 
workplaces likely to cause these diseases. 

2 

Court Rulings 

2.1    Platform work 

Social Division, Court of Cassation, 27 September 2023, No. 20-22.465 

The Court of Cassation has ruled on the issue of platform workers. This is a ruling which, 
in law, essentially adds nothing new. The ruling can be interpreted as a new impetus for 
the process of reclassifying contractual relationships in France. In the present case, a 
courier who had entered into a delivery services contract with the company “Tok Tok 
Tok” requested that it be reclassified as an employment contract. The courier based his 
claim  on  the  existence  of  a  relationship  of  subordination,  in  particular  because  the 
company  provided  the  service  provider  with  an  assignment  order  setting  out  the 
conditions under which the service was to be performed and made available to him the 
equipment to be used to perform the service, as well as a bank card enabling him to 
purchase the product to be delivered. In addition to these elements, the service provider 
was  required  to  indicate  his  availability  times  on  an  application  at  least  two  days  in 
advance,  and  to  accept  all  assignment  orders  proposed  during  these  times  while 
remaining reachable. The Court of Cassation censured the decision of the lower courts, 
which dismissed the courier’s claim. The Court criticised the Paris Court of Appeal for 
making  its  decision  “without  carrying  out  a  comprehensive  analysis  of  the  actual 
conditions in which the delivery driver carried out his activity”. This ruling can therefore 
be seen as setting a course for the lower courts, according to which they should identify 
the slightest indication of the existence of a bundle of factors that make it possible to 
establish a relationship of subordination. 

2.2    Maximum weekly working time for night workers 

Social Division, Court of Cassation, 27 September 2023, No. 21-24.782 

In line with several of its previous positions on non-compliance with working hours, the 
Court  of  Cassation  has  taken  a  clear  position  on  night  workers:  “Exceeding  the 
maximum  weekly  working  time  for  night  workers  alone  gives  rise  to  a  right  to 
compensation”. In France, the maximum work week for night workers is calculated over 

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a 12-week period and may not, in principle, exceed 40 hours. However, under certain 
conditions,  a  company,  establishment  or  branch  agreement  may  provide  for  this 
maximum  to  be  exceeded  where  this  is  justified  by  the  specific  characteristics  of  the 
sector’s activity. It should also be remembered that in 2016, French case law established 
the general rule that any breach by the employer must, in principle, cause harm to the 
employee in order to give rise to a claim for damages. The ruling in question is one of 
a number of exceptions to this principle that have been made by the Court of Cassation. 
In fact, in cases where the maximum working time is exceeded, compensation is self-
executing without the need to demonstrate a separate loss. According to the Court of 
Cassation, this solution is in line with the objective of guaranteeing the health and safety 
of workers by ensuring that they take a rest period and effectively comply with the limits 
on maximum working hours set out in Directive 2003/88/EC of the European Parliament 
concerning certain aspects of the organisation of working time and Directive 2002/15/EC 
of  the  European  Parliament  on  the  organisation  of  the  working  time  of  persons 
performing mobile road transport activities (the case concerned a transport driver with 
night  worker  status  who,  following  his  dismissal,  claimed  compensation  for  the 
employer’s failure to comply with maximum working hours).  It is very likely that this 
solution  will  soon  be  extended  to  cases  of  non-compliance  with  the  maximum  daily 
working time for night workers. 

2.3    New legal tool for terminating collective agreements 

Social Division, Court of Cassation, 04 October 2023, No. 22-23.551 

In its ruling of 04 October 2023, the French Supreme Court of Cassation paved the way 
for a new method of terminating collective agreements of indefinite duration. It is now 
possible to terminate the application of a branch collective agreement by means of a 
revision-extinction amendment, provided that a new agreement is intended to replace 
it. Prior to this ground-breaking ruling, it was possible to legally sign away a collective 
agreement by terminating it or calling it into question.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

In September, the Court of Cassation was asked the same questions as dealt with in 
the ruling in question. France had to bring its national law into line with European law 
on  annual  leave.  More  specifically,  on  23  September  2023,  the  Court  of  Cassation 
handed down a series of rulings on the acquisition of paid annual leave during sick leave. 
The  issue  before  the  high  court  centred  around  the  same  concept  as  the  ruling  in 
question: the apprehension of actual work. 

Contrary to Article 7 of Directive 2003/88/EC of 04 November 2003 and Article 31 (2) 
of the Charter of Fundamental Rights of the European Union, the French Labour Code 
does not take into account periods of suspension of the contract of employment due to:  

•  parental leave;  

•  non-occupational illness, occupational illness or accident at work when the period 

of suspension exceeds one year.  

The Court of Cassation has therefore, through an extensive interpretation of Article 7 of 
EU Directive 2003/88/CE of 04 November 2003, together with Article 31 of the Charter 
of the Fundamental Rights of the EU, confirmed that :  

•  an  employee  whose  employment  contract  is  suspended  due  to  a  non-

occupational illness is entitled to paid leave for this period, 

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•  Employees on leave due to an occupational illness or accident continue to earn 

paid leave after an uninterrupted period of one year 

Moreover, although European Union law guarantees a minimum of four weeks of annual 
leave,  the  rules  laid  down  by  the  Court  de  Cassation  are  valid  for  five weeks  of  paid 
leave legally required in France. This means that holiday entitlement does not stop at 
the end of the fourth week but continues until the statutory and collective bargaining 
minimum holiday entitlement has been reached. 

4 

Other Relevant Information 

4.1    New collective agreement for platform drivers 

On  06  October  2023,  the  Employment  Platforms  Social  Relations  Authority  (ARPE  in 
French)  issued  an  opinion  on  the  approval  of  an  agreement  concluded  as  part  of  the 
social dialogue between the platforms and the self-employed workers who use them for 
their activity in the employment sector of drivers (VTCs in French). The agreement dated 
19  September  2023  will  come  into  force  within  one  month  unless  the  professional 
organisations  of  the  platforms  are  recognised  as  representative  in  the  sector.  As  a 
reminder, the agreement concerns the transparency of the operation of VTC reservation 
centres and the conditions for suspending and terminating referral services in the VTC 
platform sector. 

4.2    Bill on unemployment 

The bill for full employment”” presented by the French Labour Minister in July 2023 was 
adopted  by  the  National  Assembly  on  10  October  2023.  In  particular,  the  National 
Assembly approved the creation of the France Travail operator, which will replace Pôle 
Emploi  with  enhanced  missions.  It  also  approved  the  creation  of  the  Réseau  pour 
l'emploi network.  Another  major measure  adopted  by the National Assembly  was the 
generalised and automatic registration with the France Travail operator of jobseekers, 
young  people  requesting  support  from  Missions  locales,  people  with  disabilities 
requesting support from Cap Emploi and claimants of the active solidarity income (RSA 
in French). In the case of the latter, the National Assembly also approved making this 
income  conditional  on  a  minimum  weekly  working  time  of  15  hours.  On  Monday  23 
October  2023,  the  deputies  and  senators  meeting  in  a  joint  committee  reached  an 
agreement on the text. The final stage before the text is adopted is validation by a vote 
in both houses of Parliament. 

October 2023 

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Germany 

Summary  

The  Federal  Labour  Court  delivered  an  important  judgment  on  on-call  work,  and 
provided the reasons for its earlier decision that a managing director of a GmbH can 
fall within the scope of the provisions on transfers of undertakings.   

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

2.1    On-call work 

Federal Labour Court, 18 October 2023, 5 AZR 22/23 

The  Court’s  decision  concerned  so-called  on-call  work  (`Arbeit  auf  Abruf`).  If  the 
employer  and  the  employee  agree  that  the  employee  is  to  perform  his/her  work 
according  to  the  workload  (on-call  work),  they  must,  according  to  section  12  (1) 
sentence  2  of  the  Part-Time  and  Fixed-Term  Contracts  Act  (`Teilzeit-  und 
Befristungsgesetz, TzBfG’) stipulate a specific duration of weekly working hours in the 
employment contract. If they fail to do so, section 12 (1) sentence 3 of the TzBfG closes 
this loophole in that a work week of 20 hours is deemed to have been agreed by law.  

The Court has now ruled that another duration of weekly working hours may be assumed 
by way of supplementary interpretation of the contract. However, this is only the case 
if the legal fiction of section 12 (1) sentence 3 of TzBfG is not an appropriate regulation 
in the employment relationship in question, and there are objective indications that the 
employer and employee would have made a different provision and agreed to a higher 
or lower duration of weekly working hours upon conclusion of the contract if they had 
been aware of the gap. 

Section 12(1) of the TzBfG reads as follows:  

“Employers  and  employees  may  agree  that  the  employee  must  perform  work  in 
accordance  with  the  workload  (on-call  work).  The  agreement  must  specify  a  certain 
duration of weekly and daily working hours. If the duration of the weekly working time 
is  not  specified,  a  working  time  of  20  hours  is  deemed  to  have  been  agreed.  If  the 
duration of daily working time is not specified, the employer must utilise the employee’s 
work performance for at least three consecutive hours in each case.” 

2.2    Transfer of undertaking 

Federal Labour Court, 20 July 2023, 6 AZR 228/22 

On  20  July  2023,  the  Federal  Labour  Court  ruled  that  in  the  event  of  a  transfer  of 
undertaking  pursuant  to  Section  613a  of  the  Civil  Code  (`Bürgerliches  Gesetzbuch, 
BGB`), the employment relationship with a managing director of a GmbH, but not the 
position as the executive body, is transferred to the transferee if the legal relationship 
between the executive body and the company is based on an employment relationship. 
The reasons for this decision are now available. 

Firstly, the Court refers to the so-called principle of separation contained in Section 38 
(1)  of  the  German  Limited  Liability  Companies  Act  (`GmbH-Gesetz`).  Accordingly,  a 
distinction must be made between the relationship between the executive body and the 
employment relationship. Both are independent of each other in their existence. 

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In this specific case, the Court assumed that an employment relationship had existed 
between the parties involved. In the Court’s opinion, this was not precluded by the fact 
that a GmbH’s managing director regularly worked on the basis of a service contract. It 
is  true  that  an  obligation  to  follow  instructions,  which  goes  beyond  the  usual 
entrepreneurial  right  of  a  company  to  issue  instructions  to  a  managing  director  and 
which is so strong that it suggests the status of the managing director in question as an 
employee, can only be considered in “extreme exceptional cases”. However, this only 
applies  to  cases  in  which,  contrary  to  the  designation  of  the  contract  as  a  service 
contract,  an  employment  contract  can  be  assumed  due  to  its  actual  implementation. 
However, if the parties had explicitly agreed on an employment relationship—as in the 
present case—it would regularly be qualified as such. 

In  such  a  case,  section  14  (1)  No.  1  of  the  German  Dismissal  Protection  Act 
(`Kündigungsschutzgesetz, KSchG`) is also applicable. According to this, the application 
of  the  KSchG  is  excluded  to  a  large  extent  “in  companies  of  a  legal  entity  for  the 
members of the body that is appointed to legally represent the legal entity”. The legal 
fiction of section 14 (1) No. 1 of the KSchG also comes into effect if the employment 
relationship underlying the position in the executive body is an employment relationship. 
A different understanding is also not required from the perspective of EU law. Protection 
against socially unjustified dismissals regulated in the first section of the KSchG does 
not fall within the scope of application of Union law (see already BAG of 21 September 
2017 – 2 AZR 865/16). 

However, section 613a  of the BGB is applicable. The provision is based on Union law 
and must therefore be applied and interpreted in accordance with Union law. According 
to Article 2 (1) lit. d, (2) of Directive 2001/23/EC, the national definition of employee 
applies.  Accordingly,  any  person  who  is  protected  as  such  under  the  labour  law  of  a 
Member  State  is  to  be  considered  an  employee  within  the  meaning  of  the  Directive. 
Since, according to section 613a (1) sentence 1 of the BGB, only rights and obligations 
arising  from  an  employment  relationship  are  transferred.  The  position  as  executive 
body,  on  the  other  hand,  the  legal  basis  of  which  is  not  the  underlying  employment 
relationship, is not transferred. Contrary to the assumption of the State Labour Court, 
EU law also does not require a restriction (teleological reduction) of section 613a BGB. 
Managing  directors  who  work  on  the  basis  of  an  employment  relationship  are  also 
subject to the protection of the Directive. 

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

The CJEU ruled that Article 7(1) of Directive 2003/88  

“must be interpreted as precluding national case-law by virtue of which a worker 
who was unlawfully dismissed and then reinstated in his or her employment, in 
accordance with national law, following the annulment of his or her dismissal by 
a decision of a Court, is not entitled to paid annual leave for the period between 
the date of the dismissal and the date of his or her reinstatement in his or her 
employment on the ground that, during that period, that worker did not actually 
carry out work for the employer as the latter did not assign him or her work and 
as he or she is already entitled, under national law, to wage compensation during 
that period”. 

The decision is likely to be of limited significance in Germany, if only because the legal 
consequence of an unlawful dismissal is the invalidity of that dismissal (see section 1 
(1) of the KSchG:  

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“The  termination  of  an  employment  relationship  with  an  employee  whose 
employment relationship has existed in the same business or company for more 
than six months without interruption is legally invalid if it is socially unjustified.”).  

This is determined by the Court in the dismissal protection proceedings (see section 4 
sentence 1 of the KSchG:  

“If an employee wishes to assert that a dismissal is socially unjustified or legally 
invalid for other reasons, he must file an action with the labour court within three 
weeks  of  receipt  of  the  written  notice  of  dismissal  for  a  declaration  that  the 
employment relationship has not been terminated by the dismissal.”).  

A Court order for reinstatement is therefore not required. 

4 

Other Relevant Information 

Nothing to report.  

October 2023 

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Greece 

Summary  

Nothing to report.   

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

Pursuant  to  Article  5  of  Law  539/1945,  upon  termination  of  the  employment 
relationship, the worker shall be entitled to financial compensation for any unused paid 
annual leave.  

The purpose of the right to paid annual leave is to enable the worker to both rest from 
the  work  he  or  she  is  required  to  perform  under  the  contract  of  employment  and  to 
enjoy a period of relaxation and leisure. 

Where  a  worker  is  unlawfully  dismissed  but  is  later  reinstated  by  a  judicial  decision, 
he/she is entitled to paid annual leave for the period from the date of dismissal until the 
date  of  reinstatement.  The  reason  is  that  the  worker  was  unable  to  perform  his/her 
duties for a reason that was unforeseeable and beyond his/her control. 

The Greek Supreme Court has stated that the unlawfully dismissed employee, who is 
later reinstated by a judicial decision, is entitled to paid annual leave for the period from 
the date of dismissal until the date of reinstatement (AreiosPagos 110/1990, EErgD 50, 
369). Therefore, Greek law is in line with the CJEU’s case law and the above judgment 
has no implications for Greece.  

4 

Other Relevant Information 

Nothing to report.  

October 2023 

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Hungary 

Summary  

Nothing to report.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

Act 1 of 2012 of the Labour Code contains all the relevant provisions on the calculation 
of annual paid leave. Article 83 (2) of the Labour Code states that  

“as  regards  entitlements  arising  after  the  employment  relationship  was  reinstated  in 
connection  with  the  duration  of  employment,  the  time  between  the  termination 
(cessation)  of  the  employment  relationship  and  the  day  of  reinstatement  shall  be 
regarded as time spent in employment”. 

Since  entitlement  to  paid  annual  leave  based  on  employment  in  the  period  between 
unlawful termination of employment and reinstatement is an entitlement arising before 
the employment relationship was reinstated, Article 83 (2) cannot be the legal basis of 
such a claim and the related judgment. 

Article 115 contains the specific rules on calculation of the entitlement to annual leave: 

“(1)  Employees  are  entitled  to  paid  annual  leave  based  on  their  working  time, 
comprising vested vacation time and extra vacation time. 

(2) For the purposes of Subsection (1), working time shall include: 

a) any duration of exemption from work as scheduled; 

b) any duration of paid leave; 

c) any duration of maternity leave; 

d) the first six months of leave of absence without pay for caring for a child (Section 
128); 

e) any duration of leave taken up to three months for the purpose of actual voluntary 
reserve military service; 

f) the duration of exemption from work specified in Paragraphs a)-m) of Subsection (1) 
of Section 55 and in Subsection (5) of Section 55”. 

Point  f)  above  refers  to  Article  55  of  the  Labour  Code,  which  lists  the  compulsory 
exemptions from work:  

(1) Employees shall be exempt from the requirement of availability and from work duty: 

a) if incapacitated for work, for the duration thereof, or if unable to perform his or her 
job due to health reasons, for the duration thereof; 

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Flash Report 10/2023 on Labour Law 

b) if  receiving  treatment  in  a  healthcare  institution  related  to  a  human  reproduction 
procedure, as specified in the relevant legislation; 

c) for the duration of mandatory medical examinations; 

d) for the length of time required to donate blood, for a period of at least four hours; 

e) if they are nursing mothers, for one hour twice daily, or two hours twice daily in the 
case of twins during the first six months of breastfeeding, and thereafter for one hour 
daily, or two hours daily in the case of twins until the end of the ninth month; 

f) for two working days upon the death of a relative; 

g)  for  the  duration  of  classes  in  the  case  of  employees  pursuing  secondary  school 
studies, for the duration of training if participating in initial and continuing training by 
agreement of the parties; 

h) for the duration of engagement in firefighting operations in a voluntary or industrial 
fire brigade; 

i) when called upon by the court or an authority, or for the duration of participating in 
proceedings in person; 

j) for up to ten working days a year during the period of preparation of lawful adoption, 
for the purpose of visiting with the child to be adopted in person; 

k) for  any  duration  of  absence  due  to  personal  or  family  reasons  deserving  special 
consideration, or as justified by unavoidable external reasons; 

l) for up to five working days a year for the purpose of providing personal care or support 
to a relative, or to a person who lives in the same household as the worker, and who is 
in need of extensive care or support for a serious medical reason; or 

m) for any duration specified by employment regulations”. 

The relevant provisions do not contain a specific legal basis for considering the period 
between the unlawful termination and the reinstatement as time spent at work when 
calculating the entitlement to paid annual leave. Therefore, the court cannot really find 
a provision to argue that the employee is not entitled to paid leave for this period. 

In case law, the decision of the Supreme Court (No. BH2018. 25) addressed a similar 
problem. The public employee had worked under the scope of Act 33 of 1992 on public 
employees,  where  certain  provisions  of  the  Labour  Code  must  be  applied,  such  as 
Articles  55  and  115  of  the  Labour  Code  regarding  entitlement  to  annual  leave. 
Accordingly, the Court stated that the employee is entitled to annual leave based on the 
period of exemption from work during half of the notice period. This decision was based 
on Point m) of Article 55 (1) of the Labour Code (see above) on the following case of 
exemption from work:  

“for any duration specified by employment regulations”.  

As  Article  115  (2)  of  the  Labour  Code  contains  a  reference  to  this  point  as  a  case  of 
working time, this period of exemption from work shall also be the basis for calculating 
annual  leave.  Employment  regulation  means  legislation,  collective  agreements  and 
works  agreements,  and  the  binding  decisions  of  the  conciliation  committee  adopted 
according to Section 293. 

There is a slight analogy between the period of exemption from work during the notice 
period, on the one hand, and the period between unlawful termination of employment 
and reinstatement, on the other. However, their legal nature is rather different, since in 
the former case, the Labour Code orders exemption from work, but in the latter, the 
employee makes it impossible for the employee to work as a consequence of unlawful 
termination of employment. Therefore, the reference to Point m) of Article 55 (1) and 
Point f) of Article 115 (2) would not be a solid legal basis. 

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In short, there is no clear legal basis in the Labour Code to consider the period between 
unlawful  termination  and  reinstatement  as  working  time  when  calculating  the 
entitlement to paid annual leave. Therefore, it is very difficult for the courts to find a 
legal basis to come to this conclusion in order to comply with the CJEU’s judgment. 

4 

Other Relevant Information 

Nothing to report.  

October 2023 

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Flash Report 10/2023 on Labour Law 

Iceland 

Summary  

Nothing to report.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

This  ruling  will  noy  have  any  implications  for  Icelandic  labour  law,  as  the  right  to 
reinstatement following an unlawful dismissal is not guaranteed in Icelandic law.  

4 

Other Relevant Information 

Nothing to report.  

October 2023 

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Flash Report 10/2023 on Labour Law 

Ireland 

Summary  

(I) The government announced an increase in the national minimum hourly rate of 
pay. 

(II)  The  Supreme  Court  clarified  the  approach  to  be  taken  when  determining  the 
employment status.  

_____________________________________________________________________ 

1 

National Legislation 

1.1    Minimum wage 

In July 2023, the Low Pay Commission recommended the national minimum hourly rate 
of pay to be increased from EUR 11.30 to EUR 12.70, as stated in LPC No. 19 (2023). 
The  government  has  now  accepted  this  recommendation  and  the  increase  will  be 
implemented with effect from 01 January. 

2 

Court Rulings 

2.1    Employment status 

The issue of whether a person is employed under a “contract of service”—and is thus an 
employee—or  under  a  “contract  for  services”—and  is  thus  self-employed—was  given 
detailed  consideration  by  the  Supreme  Court  in  Revenue  Commissioners  v  Karshan 
(Midlands) Ltd [2023] IESC 24. Having reviewed the extensive case law from Ireland 
and other common law jurisdictions, Murray J., delivering the unanimous decision of the 
Court, said that the issue in any given case, particularly in relation to those engaged in 
occasional  and  intermittent  work,  should  be  resolved  essentially  by  reference  to  the 
answers to the following: 

•  Does the contract involve the exchange of wage or other remuneration for 

work? 

• 

• 

• 

If so, is the contract one pursuant to which the worker is agreeing to provide 
their own services, and not those of a third party, to the employer? 

If  so,  does  the  employer  exercise  sufficient  control  over  the  putative 
employee to render the contract one that is capable of being a contract of 
service? 

If these three questions are answered in the affirmative, the decision maker 
must then determine whether the terms of the contract, interpreted in light 
of  the  admissible  factual  matrix  and  having  regard  to  the  working 
arrangements  between  the  parties  as  disclosed  by  the  evidence,  are 
consistent  with  a  contract  of  service,  or  with  some  other  form  of  contract 
having  regard,  in  particular,  to  whether  the  arrangements  point  to  the 
putative employee working for themselves or for the putative employer. 

•  Finally, it should be determined whether there is anything in the particular 
legislative  regime  under  consideration  that  requires  the  decision  maker  to 
adjust or supplement any of the foregoing. 

The  dispute  in  this  case  was  whether  the  Tax  Appeal  Commissioner  (“the 
Commissioner”) was entitled to conclude that drivers, who provided delivery services 
for the company’s pizza business, were “employees” for tax purposes. This depended 
on a finding that the drivers were employed under contracts of service. The company 

October 2023 

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Flash Report 10/2023 on Labour Law 

contended  that  the  drivers  were  engaged  as  independent  self-employed  contractors 
under  contracts  for  services.  The  Commissioner  ruled  in  favour  of  Revenue  and  on 
appeal, the High Court upheld that decision. A majority of the Court of Appeal, however, 
allowed the company’s appeal, deciding that the Commissioner had erred in finding that 
the  drivers  were  employees.  Revenue  then  obtained  leave  to  appeal  to  the  Supreme 
Court. 

Having  considered  the  five  matters  set  out  above,  the  Supreme  Court  ruled  that  the 
Commissioner was entitled to conclude that the drivers were employees engaged under 
contracts  of  service.  The  evidence  disclosed  close  control  by  the  company  over  the 
drivers  while  they  were  at  work  and,  although  there  were  some  features  of  their 
activities  that  were  consistent  with  their  being  independent  contractors  engaged  in 
business  on  their  own  account,  the  Commissioner  was  entitled  to  conclude  that  the 
preponderance  of  the  evidence  pointed  to  the  drivers  carrying  on  the  company’s 
business rather than their own. 

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

There are no legislative provisions in Ireland similar to those involved here. A significant 
point of difference between the two jurisdictions is that employees in Ireland, who are 
wrongfully or unfairly dismissed, are rarely awarded reinstatement as a remedy. In the 
vast  majority  of  cases,  the  remedy  awarded  is  compensation  for  the  financial  loss 
sustained  as  a  result  of  the  dismissal.  In  those  rare  cases  where  reinstatement  is 
awarded,  the  employee  is  entitled  to  reinstatement  in  the  position  he  or  she  held 
immediately  before  the  dismissal  on  the  terms  and  conditions  on  which  he/  she  was 
employed immediately before the dismissal, together with a term that the reinstatement 
shall be deemed to have commenced on the day of the dismissal. It follows that such 
an  employee  is  entitled  to  be  paid  full  arrears  of  salary.  The  implication  of  this  CJEU 
decision is that such an employee would also be entitled to carry-over his/her accrued 
annual leave.  

4 

Other Relevant Information 

Nothing to report.  

October 2023 

41 

 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

Italy 

Summary  

The Corte di Cassazione dealt with issues related to leaves and overtime work. 

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

2.1    Leaves and overtime work 

Corte di Cassazione, 10 October 2023, No. 28320 

The Court ruled that a clause in a collective agreement providing for a restrictive concept 
of remuneration for leaves, excluding certain items relating to night work or overtime, 
is legitimate only if night work or overtime work are mere means of service performance, 
which could be terminated at any time, and not when they constitute a typical feature 
of the employment relationship. 

In  the  present  ruling,  the  Court  recalled  the  European  Social  Charter  (Article  4),  the 
Charter of Fundamental Rights of the European Union (Articles 23 and 31), the European 
Pillar  of  Social  Rights  2017  (Point  6a),  Directive  (EU)  2022/2041  of  the  European 
Parliament and of the Council of 19 October 2022 on adequate minimum wages in the 
European Union and some CJEU rulings. 

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

The  Court  of  Justice  dealt  with  annual  leaves  and  unlawful  dismissals  in  Italy  in  the 
ruling C- 37/19 (CJEU 25 June 2020, joint cases C-762/18 and C- 37/19). Both in that 
ruling and in those at stake, the CJEU does not censure national law, but national judicial 
interpretation. Indeed, in a civil law system, such as the Italian one, “national case law” 
that is based on national law that is not compliant with European case law, the decision 
is not legitimate. 

In  Italy,  there  are  two  types  of  reinstatement.  In  the  first  case,  protection  is  strong 
because the reinstated employee is entitled to all lost wages, starting from the day of 
dismissal to the day of actual reinstatement. In this case, compensation automatically 
covers also leaves not taken. 

In the second case ( “weak protection”), the employer is entitled to reinstatement and 
to a compensation that does not cover all lost wages. In this case, annual leave is not 
specifically paid. 

According to the Italian Constitutional Court of 23 April 2018, No. 86, the sums paid to 
an  unlawfully  dismissed  employer  are  compensation,  as they  are the  consequence  of 
"contra ius" conduct of the employer. Moreover, the correlation between the lost wages 
and the amount of compensation is reasonable because it is based on the lost profit.  

The  CJEU  ruling  does  not  clarify  whether  Italian  law  on  unlawful  dismissals  (as 
interpreted by the Italian Constitutional Court) is compliant with European law, because 
the  question  does  not  concern  the  legislation  on  annual  leave,  but  precisely  the 
protection against unfair dismissals.  

October 2023 

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Flash Report 10/2023 on Labour Law 

4 

Other Relevant Information 

Nothing to report. 

October 2023 

43 

 
 
 
 
 
Flash Report 10/2023 on Labour Law 

Latvia 

Summary  

Nothing to report.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

The CJEU decision in case C-57/22 YQ does not have direct implications on Latvian legal 
regulation and its application in practice. According to a decision of the Senate of the 
Supreme Court in case SKC-2241/2016, in case a notice of dismissal is deemed unlawful 
and reinstatement is ordered, there is no legal ground for compensation of unused paid 
annual leave, as compensation in lieu is permissible only in case of termination of the 
employment relationship. It follows from this finding that an employee retains his/her 
right to paid annual leave in case of reinstatement for the entire period he/she did not 
make use of it. Moreover, Latvian legal regulation does not limit the use of the right to 
paid annual leave and there is no carry-over period for use of this right, Article 149 (5) 
of the Labour Law. 

It follows that Latvian case law complies in substance with the interpretation given by 
the CJEU in case C-57/22. 

4 

Other Relevant Information 

Nothing to report.  

October 2023 

44 

 
 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

Liechtenstein 

Summary  

According  to  Decision  No.  111/2020  of  the  EEA  Joint  Committee,  notified  by  the 
Liechtenstein  government  on  12  October  2023,  Directive  (EU)  2018/131  is  to  be 
incorporated into the EEA Agreement.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

This decision is of little practical relevance for Liechtenstein. 

First,  it  should  be  noted  that  the  principle  of  freedom  of  termination  applies  under 
Liechtenstein  law.  This  means  that  no  specific  reasons  are  required  to  terminate  an 
employment  contract,  not  even  on  the  part  of  the  employer.  The  termination  must 
simply not be abusive. Even if the contract is terminated abusively, the termination is 
not null and void, but the terminating party must pay a monetary severance payment. 
This also means that the employee is not reinstated in his/her job (cf Liechtenstein Civil 
Code  (Allgemeines  bürgerliches  Gesetzbuch,  LR  210.0),  section  1173a,  Article  45(1) 
(freedom  of  termination),  Article  46  (abusive  termination),  Article  47  (severance 
payment)). 

The  same  system  of  sanctions  applies  in  the  event  of  unjustified  termination  without 
notice. Here, too, there is no reinstatement, but only claims for damages and severance 
payments (cf Liechtenstein Civil Code (Allgemeines bürgerliches Gesetzbuch, LR 210.0), 
section 1173a, Article 56(1) (claim for damages), Article 56(3) (severance payment)). 

There is an exception, for example, according to Article 49(2). 

In line with the decision of the competent Czech court in the present case, the worker 
was not entitled to paid annual leave for the period between the date of the unlawful 
dismissal and the date of her reinstatement on the ground that during that period, the 
worker had not actually performed work for the employer, as the latter had not assigned 
her  any  work,  although  she  was  entitled,  under  national  law,  to  wage  compensation 
during that period. 

This case would have been decided differently under Liechtenstein law, namely in line 
with the CJEU’s decision. If the employee cannot work because the employer does not 
assign  her  work,  it  is  a  case  of  failure  to  accept  performance  (‘Annahmeverzug’, 
‘Gläubigerverzug’) (Cf. Liechtenstein Civil Code (Allgemeines bürgerliches Gesetzbuch, 
LR 210.0), section 1173a, Article 17). 

On  the  one  hand,  this  means  that  the  employer  continues  to  be  required  to  pay  the 
employee’s salary, but the employee is not required to make up the time that has been 
lost.  On  the  other  hand,  it  is  undisputed  that  the  employment  relationship  continues 
during  this  period.  The  corresponding  period  must  therefore  be  included  in  the 

October 2023 

45 

 
 
 
 
 
Flash Report 10/2023 on Labour Law 

calculation of paid annual leave. The pro rata temporis principle is expressly laid down 
in the law (cf. Liechtenstein Civil Code (Allgemeines bürgerliches Gesetzbuch, LR 210.0), 
section 1173a, Article 30(2)). 

Section 1173a Article 31 of the Liechtenstein Civil Code gives the employer the right to 
reduce annual leave in certain cases. This provision was derived from Swiss labour law 
(Article 329b of the Swiss Code of Obligations = Schweizerisches Obligationenrecht, SR 
220). According to the prevailing doctrine, it is undisputed that the employer may not 
reduce annual leave if the prevention of work is not due to the fault or the person of the 
employee,  in  particular  in  the  case  of  failure  to  accept  work  performance  (see 
Portmann/Wildhaber, Schweizerisches Arbeitsrecht, 4th ed., Zurich/St. Gallen 2020, No. 
506). 

In conclusion, it can be stated that Liechtenstein law is fully in line with the judgment 
in CJEU case C-57/22. 

4 

Other Relevant Information 

4.1    Decision No. 111/2020 of the EEA Joint Committee 

The  Government  has  notified  Decision  No.  111/2020  of  the  EEA  Joint  Committee 
amending Annex XVIII to the EEA Agreement (see Liechtenstein Landesgesetzblatt no. 
381  of  12  October  2023).  According  to  this  decision,  the  following  Directive  is  to  be 
incorporated into the EEA Agreement: Council Directive (EU) 2018/131 of 23 January 
2018 implementing the Agreement concluded by the European Community Shipowners' 
Associations (ECSA) and the European Transport Workers’ Federation (ETF) to amend 
Directive  2009/13/EC  in  accordance  with  the  amendments  of  2014  to  the  Maritime 
Labour Convention, 2006, as approved by the International Labour Conference on 11 
June 2014 (text with EEA relevance). 

4.2  Liechtenstein’s EEA presidency in 2/2023 

Liechtenstein is holding the EEA presidency in the second half of 2023 and is committed 
to  the  proper  functioning  of  the  EEA.  Delayed  incorporation  of  EU  legislation  into  the 
EEA Agreement stands in the way of equal participation in the single market and can 
lead  to  distortions  of  competition.  During  its  presidency,  Liechtenstein  is  focusing  on 
accelerating this process through improved cooperation and coordination with Iceland 
and Norway. 

Newsletter "SEWR-News" 3/2023 

October 2023 

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Flash Report 10/2023 on Labour Law 

Lithuania 

Summary  

The government has proposed a reshaping of the system of sanctions in case of illegal 
work.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

Lithuanian labour law covers specifically covers the issue deal with in the present case 
and its provisions are in full conformity with the interpretation given by CJEU in the case 
C-57/22.  The  timeframe  between  dismissal  from  work  and  the  reinstatement  by  the 
labour dispute resolution body (Commission of Labour Disputes or court) is referred to 
as ‘the period of involuntary idle time’ (in Lithuanian – ‘priverstine pravaiksta’) (Article 
218 (2) of the Labour Code). Article 127 (4) of the Labour Code explicitly states that 
the period of involuntary idle time shall be included in the number of working days of 
the year of employment for which annual leave is granted. 

4 

Other Relevant Information 

4.1    Proposal to adapt the sanctions for illegal work  

The Lithuanian government proposes changes in Decree No. 810 of 25 October 2023, 
Registry of Legal Acts, 2023 No. 21023 to the Law on Employment, which would partially 
reshape the system of sanctions for illegal work activities. The future law, if adopted, 
would impose severe sanctions for employers when using undeclared work. The Ministry 
of  Social  Security  and  Labour  considers  that  domestic  cases  of  illegal  work  of  legally 
working national residents should be considered (and punished) in the same manner as 
the work of illegally staying third-country nationals—the activity which shall be banned 
in accordance with harmonising Directive 2009/52/EC—is another seemingly erroneous 
interpretation  of  the  Directive.  This  is  not  the  first  time  when  the  (partially  wrongly) 
perceived European legal requirement is transposed in a way to impose the European 
stipulation on domestic (different) situations (in 2021, the amendments to the Labour 
Code introduced the liability of national subcontractors in purely national subcontracting 
cases).  

October 2023 

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Flash Report 10/2023 on Labour Law 

Luxembourg 

Summary  

Nothing to report.   

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

The  ruling  will  have  only  limited  impact  on  Luxembourg’s  labour  law.  In  principle, 
unjustified  and  unfair  dismissal  (‘licenciement  abusive’)  only  gives  rise  to  a  right  to 
damages and does not lead to nullity and reinstatement. 

Nullity  may  only  be  requested  by  the  employee  if  it  is  explicitly  provided  for.  In  this 
case, the nullity must generally be requested in court within a very short timeframe (15 
days/ one month from termination depending on the case), and the judge will rule on 
the case using an accelerated procedure. Cases of nullity are often associated with a 
specific capacity of the employee (e.g. staff representative, pregnant women, etc.) and 
therefore, do not give rise to in-depth debates. In addition, nullity is rarely requested 
by  such protected employees.  Other  cases  of nullity  could give  rise  to  more  in-depth 
legal debates in court (e.g. discriminatory dismissal, protection of whistleblowers, etc.), 
but such cases are rare in practice. 

In short, cases of nullity are therefore very rare in Luxembourg. In any case, we are not 
aware of any case law that has ruled on the impact of reinstatement on the entitlement 
for  paid  annual  leave.  However,  since  nullity  is  retroactive  to  the  date  of  unlawful 
dismissal, case law draws the conclusion that the employee’s  salary is due, even in the 
absence of work. Following the same logic, it would therefore be consistent to accept 
that the employee may also claim annual leave for the period between dismissal and 
reinstatement, even if he/she was able to rest and did not engage in strenuous work 
impacting  his/her  health  or  safety.  There  is  therefore  no  obstacle  for  Luxembourg  to 
comply with the interpretation given by the CJEU. 

4 

Other Relevant Information 

4.1    Legislative elections 

The legislative elections for the Chamber of Deputies have just taken place. Talks about 
a coalition agreement are underway between the Liberal Party (DP) and the Christian 
Social  Party  (CSV).  Information  on  the  direction  the  agreement  will  take  in  terms  of 
employment relationships will be shared in due time. The expected coalition between 
these parties leads us to assume that there will be some stability in terms of labour law 
legislation.  

October 2023 

48 

 
 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

Malta 

Summary  

Nothing to report.   

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

The Annual Leave National Standard Order, 2018 is silent on the issues arising from the 
judgment under review. The Annual Leave National Standard Order clarifies, however, 
that annual leave continues to accrue during periods of maternity leave (see Regulation 
5) and injury and sick leave (see Regulation 6). If one were to extrapolate the principles 
underlying the annual leave national standard order and to apply it to the facts of the 
case  under  review,  the  result  would  have  to  be  the  same  because  in  both  instances, 
there  are  no  tasks  assigned  to  the  employee  (in  the  present  case,  despite  the 
employee’s  request  to  be  provided  with  tasks)  and  during  the  periods,  the  employee 
would still be entitled to a salary, in spite of not performing any tasks for the employer. 

The difference lies in what constitutes an unfair dismissal and its consequences. Under 
Maltese law, a dismissal enters into force when the employer dismisses the employee. 
If the employee submits a claim against the employer for unfair dismissal, the Industrial 
Tribunal has to rule on whether the specific dismissal was indeed unfair and whether 
the  employee  is  entitled  to  compensation.  There  is  no  formula  on  what  constitutes 
compensation – it is mostly decided on a case-by-case basis. However, the payment of 
compensation is not deemed to include any payment for any vacation leave, even if the 
Industrial Tribunal determines the dismissal to have been unfair. The important point to 
note, however, is that even if the Industrial Tribunal were to rule that the dismissal has 
been unlawful and orders reinstatement, it is not considered that the employee has been 
in employment since the original dismissal date and hence the employee would not be 
entitled to wage compensation for said period and consequently, the employee would 
not  be  entitled  to  the  vacation  leave  accrued  during  that  period.  Therefore,  it  is 
submitted that whilst Maltese law makes it clear that during periods of other types of 
leave (as aforementioned) annual leave continues to accrue, the facts of the case under 
review make it rather unlikely for it to have any real implications under Maltese law.  

4 

Other Relevant Information 

Nothing to report.  

October 2023 

49 

 
 
 
 
 
 
Flash Report 10/2023 on Labour Law 

Netherlands 

Summary  

(I)  Three  different  internet  consultations  have  been  launched:  the  clarification  of 
assessment employment relationships and the legal presumption of the Employment 
Relationship  Act,  the  amendments  to  the  SLIM  regulation,  and  the  amendments  of 
reintegration obligations in the second year of sickness for employees of small- and 
medium-sized employers.  

(II)  The  government  has  introduced  a new  bill  aiming  to  increase  the  employment 
opportunities  for  individuals  with  an  employment  impairment  and  has  introduced  a 
legislative proposal concerning the admission of agency work.  

(III) The Supreme Court delivered its ruling in the Heiploeg case.  

(IV) The Court of Appeal and two district courts have interpreted Article 6 (2) of the 
Temporary Agency Work Directive. Another district court ruled that trade unions are 
allowed  to  continue  collective  proceedings  with  a  view  to  classifying  (temporary 
agency work) employment relationships/contracts. 

(V)  A  district  court  delivered  another  ruling  on  the  question  whether  ‘log-in  time’ 
constitutes working time.   

_____________________________________________________________________ 

1 

National Legislation 

1.1    Internet consultation on the ‘amendments to SLIM regulation’ 

Medium-sized  enterprises  and  large  companies  in  the  agriculture,  hospitality  or 
recreation  sectors  in  the  Netherlands  can  claim  an  annual  subsidy  from  the  SLIM 
(Stimuleringsregeling  Leren  en  ontwikkelen  in  MKB-ondernemingen)  regulation.  This 
regulation  helps  entrepreneurs  promote  learning  and  development  within  their 
company. To improve and clarify the regulation, a number of adjustments have been 
initiated. The amendment is now open for consultation. 

Through the amendment, the maximum eligible hourly rate for external consultants will 
increase from EUR 125 to EUR 135 per hour (excluding VAT). This adjustment aligns 
with the changing economic circumstances. Additionally, a pay slip will be requested to 
ascertain  the  accuracy  and  market  alignment  of  the  reported  wage  costs  for  internal 
hours. 

The  SLIM  regulation  offers  subsidies  for  various  activities.  Two  of  these  activities 
required clarification. First, the updated guidelines clarify that organisations can apply 
for a “learning culture scan”. This scan sheds light on the type of development needed 
to strengthen the organisation’s learning environment. Second, the term ‘method’ in the 
regulation will change to ‘learning and development method’, primarily focusing on the 
learning  and  development  of  employees  in  the  organisation.  Applicants  for  the  SLIM 
grant must explain how their method contributes structurally to the learning culture in 
their company. 

1.2  Internet  consultation  on  the  amendments  of  reintegration 
obligations in the second year of sickness for employees of small- and 
medium-sized employers  

This proposed act is designed to bring clarity and flexibility to small- and medium-sized 
employers in managing sick employees and their reintegration. The act is part of the 
labour market package presented in April with related measures for more security for 

October 2023 

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Flash Report 10/2023 on Labour Law 

workers and more flexibility for entrepreneurs, specifically, the ‘Measure wage payment 
during sickness’. 

The  government  proposes  giving  small-  and  medium-sized  employers  the  possibility, 
under certain conditions, to conclude the reintegration of the sick employee after one 
year of sickness (so-called first track). The cut-off applies from the start of the second 
year of sickness. A predetermined moment for the first track’s closure is necessary to 
attain the intended clarity this law seeks to provide.  

In case of closure of the first track, the employer is no longer required to reserve the 
employee’s  position  (even  after  full  recovery),  and  the  employee  is  not  required  to 
reintegrate into the same organisation. 

If the employee fully recovers during his/her second year of illness, both the employer 
and employee will continue their efforts for the remainder of the second year to facilitate 
the employee’s return to work for another employer. The obligation for wage payment 
and  reintegration  will  continue  for  104  weeks.  This  period  will  not  be  reduced.  For 
severely ill employees, the expectation is that they will continue to reintegrate with their 
own (small- or medium-sized) employer after the first year of sickness. The idea behind 
this exception  is that  reintegration  is easier that way  (given their  familiarity with the 
company and job) and the financial incentives remain in place.  

1.3      Internet  consultation  on  the  proposed  act  on  clarifying 
employment relations and the legal presumption 

The Ministry of Social Affairs and Employment started the internet consultation on the 
proposed  act,  which  aims  to  restore  the  balance  between  employment  and  self-
employment, on the one hand and, on the other, working with and as employees. 

This legislative proposal is part of an overarching aim for a labour market reform that 
ensures  a  better  balance  between  security  and  flexibility  in  the  labour  market  and 
future-proof social security. The government presented its Letter elaborating a labour 
market package in July 2022, further elaborated in the Letter on labour market reform 
of April 2023 (see also April 2023 Flash Report). 

This  proposal  aims  to  fight  false  self-employment,  thereby  clarifying  the  notion  of 
working  in  the  service  of  (‘in  dienst  van’)  as  laid  down  in  Article  7:610  Civil  Code. 
Identifying false self-employment is the main problem. There are three causes for the 
current  problems  surrounding  false  self-employment:  (1)  an  uneven  playing  field 
between different forms of contract; (2) limited enforcement on false self-employment; 
and (3) a highly blurred boundary line between employees and self-employed persons. 

Thus, it is proposed to provide a clear assessment framework for self-employed persons 
and  employing  entities,  which  relies  on  existing  EU  and  national  case  law.  The  three 
main  elements  structuring  the  ‘working  in  the  service  of’  standard  (work-content 
steering,  organisational  embedding,  and—as  a  counter  indication—working  for  one’s 
own account and risk) will be further specified by indicators. While the main elements 
are planned to become part of Article 7:610 Civil Code, the indicators will most likely be 
laid down in a regulation (‘Algemene Maatregel van Bestuur’). 

1.4   Bill  to increase  employment opportunities  for individuals with an 
employment impairment 

The Dutch Cabinet has introduced a new bill that aims to simplify the jobs agreement 
and quota system, making it easier and more attractive for employers to hire people 
with  an  employment  impairment.  The  jobs  agreement,  published  in  2013,  aimed  to 
create 125 000 additional jobs for individuals with work impairments by 2026. However, 
as  of  the  end  of  2022,  only  81  000  jobs  had  been  created.  The  new  law  intends  to 

October 2023 

51 

 
 
 
 
 
Flash Report 10/2023 on Labour Law 

increase the number of job opportunities for those with employment impairments and 
create a more inclusive labour market with equal opportunities for all. 

To achieve this, the government proposes several improvements. Firstly, employers will 
be entitled to a labour cost benefit of up to EUR 2,000 per employee per year if they 
hire someone from the job’s agreement. Currently, this benefit is limited to a maximum 
of three years. However, under the new law, employers will be able to retain this benefit 
as  long  as  the  employee  remains  employed  with  them.  Additionally,  employers  and 
employees will no longer have to apply for a special statement to receive the labour cost 
benefit, thus reducing administrative burdens. 

Furthermore,  the  distinction  between  employers  in  terms  of  their  responsibility  to 
provide additional jobs will be removed. Instead, there will be a single job agreement 
for all employers, emphasising the importance of employment and participation rather 
than which employer someone works for. 

The bill also maintains the quota regulation, which penalises employers who fail to meet 
the  agreed  number  of  jobs  with  a  levy.  Nevertheless,  changes  to  the  regulation  will 
reward companies that perform well by providing them with a higher labour cost benefit. 
This  bonus  aims  to  encourage  companies  to  hire  more  individuals  with  disabilities, 
ultimately increasing job opportunities for this group. 

By simplifying the jobs agreement and quota system, the Dutch government seeks to 
create a more inclusive labour market and provide equal opportunities for individuals 
with  employment  impairments.  The  proposed  improvements,  such  as  extending  the 
labour cost benefit and removing administrative burdens, aim to incentivise employers 
to hire more people with disabilities. These efforts align with the government's goal of 
reaching the agreed target of 125 000 additional jobs by 2026. 

1.5   Law on the admission of agency work 

On  6  October  2023,  the  Minister  of  Social  Affairs  and  Employment  presented  the 
Legislative  proposal  for  a  law  on  the  admission  of  agency  work  (Wet  toelating 
terbeschikkingstelling  van  arbeidskrachten).  Earlier,  we  reported  about  a  legislative 
proposal for a compulsory certification system of temporary work agencies (TWAs) (see 
also December 2022 Flash Report). The  legislative proposal presented on 06 October 
goes a step further, as explained in the accompanying Letter that was published on 10 
October 2023, by seeking to introduce a public admission system for TWAs. From 2026, 
TWAs may only supply workers if they have been authorised to do so by the Minister of 
Social  Affairs  and  Employment.  To  be  admitted,  TWAs  must  be  able  to  demonstrate 
compliance  with  relevant  laws  and  regulations,  submit  a  certificate  of  conduct 
(Verklaring Omtrent het Gedrag; VOG) and provide financial security. User undertakings 
may  only  do  business  with  authorised  TWAs.  The  Netherlands  Labour  Authority 
supervises the admission requirement and can fine both TWAs and user undertakings if 
they do not comply with the rules of the admission system. Combined with intensified 
enforcement, the measures in the bill aim to ensure that it is only possible for bona fide 
TWAs to supply workers. As already mentioned, the earlier legislative proposal proposed 
to introduce a compulsory certification system. Following the advice of the Council of 
State  of  29  March  2023  (No.  W12.22.00200/III),  the  government  decided  to  not 
propose a public-private certification system, but a public-law admission system. The 
admission system is considered to be simpler and more effective and to allow all parties 
in the system, public and private, to better fulfil their roles.  

1.6   Minimum wage 

On 01 January 2024, the statutory minimum wage will increase by 3.75 per cent. That 
means that employees aged 21 years and over will receive EUR 13.27 per hour (gross). 
This is a regular indexation; every six months, the minimum wage rises along with the 

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collective  wage.  At  the  same  time,  the  government  is  introducing  a  new  law  for  the 
minimum hourly wage on 01 January 2024 (see also July 2023 Flash Report). 

Introducing a uniform statutory minimum hourly wage means that there will no longer 
be statutory minimum daily, weekly and monthly wages. An employee’s monthly wage 
will  thus  be  determined  by  the  actual  number  of  hours  worked.  This  addresses  the 
inequality that those currently working 40 hours have a lower hourly wage than people 
who work 36 hours. 

See here for the exact statutory minimum hourly wage levels as of 01 January 2024. 

2 

Court Rulings 

2.1    Pre-pack procedure 

Supreme Court, 06 October 2023, ECLI:NL:HR:2023:1372 (Heiploeg) 

In  its  decision  following  the  preliminary  ruling  of  the  CJEU  in  the  Heiploeg  case,  the 
Supreme  Court,  unsurprisingly,  came  to  the  conclusion  that  the  Dutch  pre-pack 
procedure  does  not  fall  under  the  scope  of  Article  7:666  Dutch  Civil  Code  (the 
implementation of Article 5 (1) Directive 2001/23/EC). The Dutch pre-pack procedure, 
specifically  the  position  of  the  ‘prospective  insolvency  administrator’  and  the 
‘prospective supervisory judge’, is not governed by statutory or regulatory provisions. 
This  is  in  line  with  the  CJEU’s  judgment.  It  is  therefore  up  to  the  Dutch  legislator  to 
provide the pre-pack with a legal basis. 

2.2    Temporary agency work 

District  Court  Overijssel,  26  September  2023  (published  02  October  2023), 
ECLI:NL:RBOVE:2023:3846 

This case concerned the interpretation of ‘access to employment’ as codified in Article 6 
(2) Directive 2008/104/EC and more specifically, a dispute between a temporary work 
agency and a former employee. The former employee sought to work directly for the 
user  undertaking  after  completing  his  assignment  as  a  self-employed  worker.  To 
accomplish this, he requested the temporary work agency to negotiate on his behalf to 
conclude  an  employment  contract  with  the  user  undertaking.  The  former  employee 
signed a meditation contract with the temporary work agency which stated that in return 
for the negotiations, the employee had to pay a fee. 

The question was whether this mediation agreement violated Article 9a Waadi, which 
implements Article 6 (2) Directive 2008/104/EC. The employee claimed that the fee for 
the negotiation on his behalf qualified as ‘any clause prohibiting (…) the conclusion of 
an  employment  contract  after  his  assignment’  which  would  constitute  a  violation  of 
Article 9a Waadi, the implementation of Article 6 (2) Directive 2008/104/EC. The District 
Court ruled that the employee was free to negotiate the conclusion of an employment 
contract with the user undertaking(which he had done before requesting the temporary-
work agency to mediate). In the end, it had been the employee who started working as 
a  self-employed  worker  for  the  user  undertaking.  The  fact  that  the  former  employee 
had  asked  the  temporary  work  agency  to  negotiate  on  his  behalf  meant  that  it  was 
reasonable for the temporary work agency to request a fee. This fee does not qualify as 
a clause within the meaning of Article 6 (2) Directive 2008/104/EC. Therefore, the Court 
denied the employee’s claims. 

Court  of  Appeal  Amsterdam,  22  August  2023  (published  09  October  2023), 
ECLI:NL:GHAMS:2023:2207 

This  present  case  involved  the  interpretation  of  Article  6  (2)  Directive  2008/104/EC 
focusing on a dispute between a temporary work agency and a former employee. In this 

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case,  the  former  employee  entered  into  an  employment  contract  with  a  different 
employer, but performed tasks for the former user undertaking, contravening the non-
solicitation clause. The former employee claimed that the non-solicitation clause violates 
Article 9a Waadi (which implements Article 6 (2) Directive 2008/104/EC). The Court of 
Appeal clarified that Article 9a Waadi applies when the former employee enters into an 
employment  contract  with  the  user  undertaking.  However,  it  does  not  extend  to 
situations in which the employee concludes a contract with a different employer to work 
for the former user undertaking.  

This  interpretation  is  consistent  with  the  aim  of  the  Temporary  Agency  Workers 
Directive, which aims to enhance the position of temporary agency workers and facilitate 
their transition to permanent employment. As a result, the Court of Appeal concludes 
that the Waadi does not apply in this specific situation. 

District  Court  Rotterdam  05  October  2023  (published  23  October  2023), 
ECLI:NL:RBROT:2023:9483 

This  was  another  case  on  the  interpretation  of  Article  6  (2)  Directive  2008/104/EC, 
particularly  involving  a  temporary  work  agency  and  an  employee.  In  this  case,  the 
employee claimed that there is a clause prohibiting the conclusion of an employment 
contract  with  the  user  undertaking  before  the  employment  contract  has  ended. 
According  to  the  District  Court,  Article  9a  Waadi  should  be  interpreted  in  compliance 
with Directive 2008/104/EC. Article 6 (2) Directive 2008/104/EC states that ‘any clauses 
prohibiting the conclusion of the employment contract after his assignment are null and 
void’.  The  District  Court  ruled  that  the  employee  is  still  on  his  assignment  with  the 
temporary work agency. Therefore, the employee’s claim was denied. 

2.3   Working time 

District  Court  The  Hague,  03  August  2023  (published  11  October  2023), 
ECLI:NL:RBDHA:2023:14542 

The  central  question  in  this  case  was  whether  the  time  the  employee  claims  to  have 
needed before the start of her shift to be able to start her work (call operations) for the 
employer  should  be  considered  working  time  within  the  meaning  of  Directive 
2003/88/EC. The employer’s scheduling rules state that employees are required to be 
present  ten  minutes  before  their  shift  and  to  have  completed  their  log-in.  In 
ECLI:NL:GHDHA:2023:738 (see also May 2023 Flash Report), a case involving the same 
employer,  this  10-minute  rule  was  deemed  to  be  working  time,  since,  inter  alia,  the 
employee had to report to his supervisor ten minutes before the start of his shift. This 
entailed  that  it was irrelevant how much time was  involved in starting  up/logging  in. 
Unlike the employee in that case, however, the employee in the current case performed 
her work at home. According to the District Court, this left her free to organise her time 
until the start of her shift. During that time, she did not have to perform any work and 
the employer had no control over her and how she wanted to arrange that time. In the 
opinion  of  the  District Court,  the  ten-minute  rule  in  this  case  did  not  mean  that  that 
time qualifies as working time. 

2.4   Collective bargaining 

Court  of  Amsterdam  11  October  2023,  ECLI:NL:RBAMS:2023:6389  (FNV  and 
CNV/Temper) 

This case between the trade unions FNV and CNV and the platform Temper addressed 
the  question  whether  trade  unions  can  act  as  exclusive  representatives  (see  on  this 
particular aspect: Rb. Amsterdam 13 July 2022, ECLI:NL:RMABS:2022:4035) on behalf 
of all Temper workers in the context of legal proceedings aimed at protecting the similar 

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interests of other persons, insofar as it protects those interests pursuant to its statutes 
and insofar as those interests are adequately safeguarded (Article 3:305a Civil Code). 
The Court of Amsterdam decided to open the possibility for Temper workers to opt-out 
of  this  collective  proceeding  initiated  by  the  trade  unions.  The  opt-out  possibility  of 
Article 1018f(1) Civil Procedure Code allowed Temper workers to express that they do 
not want to be bound by any judgment resulting from the court proceedings. Without 
opt-out, Temper workers would be bound by the outcome of the proceedings. 

Out  of  61  292  Temper  workers  who  received  the  invitation  to  express  their  opt-out,           
20 398 opted out (not corrected for duplicates) (see on this aspect: Rb. Amsterdam 31 
May 2023, ECLI:NL:RBAMS:2023:3585). As explained by Temper, it is likely that the 
number of unique opt-out declarations is about a quarter lower than the total number 
of  opt-out  declarations,  resulting  in  15.298  opt-outs,  which  is  the  number  the  Court 
took into account. 

According  to  the  Court,  while  this  number  is  large,  there  is  no  reason  to  end  the 
collective proceedings in general. It acknowledges that the trade unions also have more 
ideal  interests  to  ensure  a  fair  labour  market  where  workers’  rights  are  generally 
respected and where there is no unfair competition. Thus, the collective proceedings will 
be  continued  in  so  far  as  it  addresses  the  question  whether  Temper  workers  can  be 
classified as temporary agency workers or employees, as well as whether Temper has 
violated the registration obligation for temporary work agencies laid down in Article 7a 
Waadi.  The  classification  of  the  contracts  concluded  follows  from  the  law  and  is 
mandatory in nature, and therefore it is not (entirely) at the discretion of the  parties 
involved in the legal relationship, including the Temper workers.  

Other claims seeking confirmation that Temper, inter alia, violates the equal treatment 
principle for temporary agency workers laid down in Article 8 Waadi (implementation of 
Article  5  Directive  2008/104/EC)  and/or  the  generally  binding  ABU  Collective 
Agreement,  that  the  contractors  of  Temper  are  jointly  and  severally  liable  based  on 
Article 7:616a Civil Code, and that Temper has violated the prohibition to charge any 
fees in exchange for arranging for them to be recruited by a user undertaking following 
Article 9 Waadi (implementation of Article 6 (3) Directive 2008/104/EC) only serve to 
protect the interests of Temper workers and will therefore not be part of the collective 
proceedings. 

The case will be dealt with by the Court of Amsterdam on 22 November 2023. 

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

This case concerned the right to paid annual leave when a worker is unlawfully dismissed 
and then reinstated in his/her employment by decision of a court. The CJEU ruled that 
the  worker  is  entitled  to  paid  annual  leave  during  the  period  between  the  date  of 
dismissal and the date of the reinstatement. In Dutch law, a distinction must be made 
between two different ways in which the employment contract can be reinstated by the 
Court:  (1)  the  termination  of  the  employment  contract  can  be  annulled,  and  (2)  the 
employment contract can be reinstated. 

(1) The termination of the employment contract is annulled 

If the Court rules that the termination of the contract must be annulled, the employment 
contract  will  continue  retroactively  and  the  rights  and  obligations  arising  from  it  will 
continue to exist even during the period between the termination and the court order. 

In  short,  if  the  termination  of  the  contract  is  annulled  because  the  termination  was 
unlawful, the worker will  be  entitled  to  all rights arising  from  it.  For instance,  salary, 

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pensions, bonuses and paid annual leave still must be paid. This is in line with the CJEU 
case. 

(2) The employment contract is reinstated.  

The  employment  contract  can  be  reinstated  in  the  following  situations  (Article  7:682 
Civil Code): 

•  After a successful appeal in court against a termination for which permission has 
been  granted  by  the  Netherlands  Employees  Insurance  Agency  (UWV)  or  a 
collective dismissal committee.   

•  On appeal against a termination accepted by the District Court or a dissolution 

of the employment contract by the District Court. 

• 

In the event of a breach of re-employment obligation. 

If  the  employment  contract  is  reinstated  by  the  court,  the  court  shall,  in  accordance 
with Article 7:682(6) Civil Code, determine the date on which the employment contract 
shall  be  reinstated  and  make  provisions  regarding  the  legal  consequences  of  an 
interruption of the employment contract. The same applies to an appeal as stipulated in 
Article 7:683(4) Civil Code. 

Regarding  the  content  of  the  provision  of  legal  consequences  of  interruption  of  the 
employment contract, the court has considerable freedom. However, the law determines 
that  the  court  “shall  make  provisions”  (italics  added),  suggesting  that  the  court  is 
required to make these provisions. 

for 

income  damages  and  compensation 

With  regard  to  these  provisions,  the  Parliamentary  History  mentions,  for  instance, 
for  pension  damages 
compensation 
(Kamerstukken I 2013/14, 33 818, nr. C, p. 110-111 en 114). Regarding the application 
of  the  CJEU’s  case,  in  Dutch  law,  the  court  shall  make  provisions  on  the  legal 
consequences  of  interruption  of  the  employment  contract.  In  conjunction  with  the 
Parliamentary History, paid annual leave can be included in these consequences. 

4 

Other Relevant Information 

Nothing to report.  

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Norway 

Summary  

Nothing to report.   

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

In the event of a dispute before the court on whether an employment relationship has 
been legally terminated in accordance with the Working Environment Act Section 15-7, 
the  employee  as  a  main  rule  has  the  right  to  remain  in  his/her  post  during  the 
negotiations  and  during  the  case  proceedings,  cf.  Section  15-11.  There  is  a  rather 
narrow exception: if requested by the employer, and if the court finds it “unreasonable” 
for  the  employee  to  remain  in  his/her  post,  the  court  may  decide  that  the  employee 
must  leave  the  post.  In  the  event  of  summary  dismissals  (with  no  notice  period)  in 
accordance with Section 15-14, the rule is similar, but opposite: the main rule is that 
the employee shall leave his/her post, and the court may decide otherwise—granting 
the right to remain in the post—if requested by the employee.  

An  employee  who  challenges  the  dismissal  may  demand  the  dismissal  to  be  found 
invalid, which implies that the employment relationship continues cf. Section 15-12 (1). 
The  employee  may  also  claim  compensation,  cf.  Section  15-12  (2).  If  the  employee 
challenges  the  dismissal  but  does not want the employment  relationship to  continue, 
he/she may choose to only demand compensation. This is usually the case where the 
employee has not remained in the post. Compensations shall be fixed at the amount 
the  court  deems  reasonable  given  the  employee’s  financial  loss,  the  circumstances 
relating to the employer and the employee and other facts of the case, cf. Section 15-
12 (2). 

A situation as in the present case—where an employee has been dismissed and later 
reinstated after the dismissal has been found invalid by the court—will therefore rarely 
occur in Norway. If the situation arises, the regulatory approach in Norway is to consider 
the right to leave as separate from the right to holiday pay.  

The right to paid annual leave is implemented in the Norwegian Holiday Act (LOV-1988-
04-29-21). Here, the right to annual leave (‘feriefritid’) is regulated  as a right that is 
separate from the right to holiday pay (‘feriepenger’), cf.  Chapter II and Chapter III, 
respectively. Simply put, holiday pay is accrued through wages from the employer in 
the qualifying year and paid during annual leave taken the following year, i.e. the holiday 
year.  This  regulatory  structure  has  led  the  ESA  to  question  whether  the  Norwegian 
implementation  of  the  right  to  paid  annual  leave  is  in  accordance  with  Directive 
2003/88/EC  Article  7.  Against  this  background,  the  Norwegian  government  has 
announced that the Holiday Act will be reformed, see also March 2023 Flash Report. 

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In a situation as in the present case, the normal approach for the employee would be 
to take regular annual leave in the holiday year after reinstatement, while the lack of 
accrued  holiday  pay  for  the  period  between  dismissal  and  reinstatement  can  be 
addressed in the compensation claim. We are not aware of any case where the employee 
has requested days of annual leave during the period from dismissal to reinstatement 
in addition to regular leave after reinstatement.  

If so, it is possible that the Holiday Act can be interpreted to allow such a claim in light 
of  the  present  ruling.  The  act  stipulates  that  leave  days  not  taken  by  the  end  of  the 
holiday  year  shall  be  transferred  to  the  following  holiday  year,  cf.  Section  7  (3) 
subsection 2. The preparatory works state that there are no limitations on the right to 
transfer days of leave not taken, cf. Ot.prp. No. 65 (2007-2008) chapter 2.5.2.  

Whether  holiday  pay  can  be  claimed  for  the  transferred  leave  is  another  question. 
Holiday pay is calculated on the basis of “wages paid in the qualifying year”, cf. Section 
10. It is an unresolved issue whether this provision, in light of the present ruling, can 
be interpreted so that holiday pay is accrued.  

4 

Other Relevant Information 

Nothing to report.  

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Poland 

Summary  

Nothing to report.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

Under Polish law, any termination of an employment contract is effective, even if the 
employer  has  violated  statutory  provisions.  A  dismissed  employee  can  challenge  the 
dismissal  before the  labour court (Article  44 of  the Labour Code, hereinafter:  LC).  In 
case of termination of an open-ended or fixed-term employment contract, an employee 
can claim reinstatement to a previous position or receive financial compensation (Article 
45 § 1 LC). 

According to Article 47 LC, an employee who resumed employment due to reinstatement 
has the right to remuneration for the period during which he/she was unemployed, but 
for no more than two months or, where the notice period was three months, for no more 
than  one  month.  If  an  employment  contract  has  been  terminated  with  an  employee 
covered in Article 39 LC (i.e. an employee of pre-retirement age) or with an employee 
who is pregnant or on maternity leave or in the period from the day when an employee 
filed a request for granting maternity leave or a part thereof to the end date of such 
leave,  remuneration  shall  be  paid  for  the  entire  period  of  unemployment.  The  above 
shall also apply to cases where the termination of an employment contract is subject to 
restrictions by operation of a special provision (e.g. with regard to trade union officers 
or employee council members). 

Article 51 § 1 LC determines that in case of an employee who has taken up employment 
following reinstatement, the time of unemployment for which remuneration has been 
awarded shall be included in the period of employment.  

Thus,  the  labour  court’s  judgment  on  reinstatement  has  ex  nunc  effect,  i.e.  it  re-
establishes  an  employment  contract  pro  futuro,  and  there  is  an  interval  in  the 
employee’s period of employment. Article  51 §  1  LC  clearly  determines that  only  the 
period for which remuneration has been awarded is considered part of the employee’s 
period of employment. According to Article 47 LC, for those employees who do not enjoy 
special  protection  against  dismissal  (e.g.  pregnant  female  employees,  trade  union 
officers, employee council members), remuneration can only be awarded for a period of 
two months or one month, depending on the length of the period of notice.  

Consequently, where a labour court finds a dismissal unlawful and annuls it, the period 
between the date of that dismissal and that of reinstatement is considered retroactively 
as forming part of the period of employment with the given employer, provided that the 
remuneration for this period has been awarded (in principle, for a period of two months 
or for a period of one month). Only this period is considered to determine the length of 

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the  employee’s  annual  leave.  In  other  words,  not  the  entire  period  between  the 
termination  of  the  employment  contract  and  reinstatement  is  treated  as  a  period  of 
actual work for the purposes of determining entitlement to paid annual leave.  

4 

Other Relevant Information 

4.1    Possible  development  in  the  field  of  labour  law  following  the 
parliamentary elections 

On  15  October,  parliamentary  elections  took  place  in  Poland.  The  opposition  political 
parties, i.e. Platforma Obywatelska (‘Civic Platform’), Trzecia Droga (‘Third Way’) and 
Lewica  (‘Left-Wing  Party’)  won  the  majority.  There  are  good  chances  that  a  coalition 
government consisting of these political parties will form, and that it will subsequently 
modify the previous course of policy actions.  

It is expected that under the new parliamentary majority, the rule-of-law state will be 
re-introduced. Moreover, it can be expected that some labour law issues will represent 
topics of debate and potential legislative actions. Firstly, there might be a discussion on 
the ban on Sunday trading activities in commercial establishments. The prohibition of 
such activities was introduced in 2018 (see also January 2018 Flash Report). The Civic 
Platform  declared  its  intention  during  the  electoral  campaign  to  abolish  the  ban  on 
trading  activities.  Instead,  employees  would  be  entitled  to  double  remuneration  in 
exchange for work on Sunday, and at least two free weekends per month.    

Secondly, during the electoral campaign, several social policy issues were highlighted 
by the Left-Wing Party. These refer to increased labour market stability, including the 
fight  against  long-term  civil  law  contracts  and  bogus  self-employment,  as  well  as 
regulating the situation of platform workers. Raising the minimum wage, strengthening 
the prohibition of discrimination in employment (including reducing the gender pay gap), 
improving  social  dialogue,  reducing  the  amount  of  weekly  working  time,  as  well  as 
introducing the right to disconnect have also been mentioned. 

The  abovementioned  issues  have  been  raised  in  the  political  context  of  the  electoral 
campaign.  It  can  be  expected,  however,  that  some  social  policy  matters  will  be 
discussed  in  the  months  to  come.  It  seems  that  the  potential  legislative  actions  may 
first and foremost relate to the prohibition of Sunday trade activities and working time 
issues.  

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Portugal 

Summary  

(I)  The  Appeal  Court  of  Lisbon  ruled  that  the  right  to  strike  is  a  fundamental  right 
enshrined  in  the  Constitution,  but  is  not,  however,  an  absolute  right  and  may 
therefore be subject to restrictions in cases where the possibility of collision may arise 
between the right to strike and other fundamental rights.  

(II)  The  government  and  social  partners  entered  into  an  agreement  for  the 
improvement of income, wages and competitiveness.  

(III)  The  State  Budget  Law  proposal  for  2024  has  been  presented,  which  contains 
some labour-related measures.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

2.1    Right to strike and minimum services 

Ruling of the Appeal Court of Lisbon, 11 October 2023, No. 2568/23.4YRLSB-4 

In  this  judgment,  the  Appeal  Court  of  Lisbon  ruled  that  the  right  to  strike  is  a 
fundamental  right  enshrined  in  Article  57  of  the  Portuguese  Constitution,  but  is  not, 
however, an absolute right and may therefore be subject to restrictions in cases where 
the possibility of collision may arise between the right to strike and other fundamental 
rights. The minimum services that impose the provision of work during the strike action 
consist of a typical situation of restrictions to the right to strike. The minimum services 
are  limited  to  the  services  necessary  to  ensure  the  safety  and  maintenance  of  both 
equipment  and  premises,  as  well  as  the  minimum  services  necessary  to  ensure  that 
essential social needs are adequately met.  

In this ruling, the Court analysed the scope of the minimum services set forth in the law 
and ruled that under Article 57(3) of the Portuguese Constitution and Article 537(1) and 
538(5) of the Portuguese Labour Code, a strike likely to entail the risk of paralysing the 
healthcare  services  must  be  accompanied  by  a  definition  of  minimum  services  in 
accordance with the principles of necessity, adequacy and proportionality. However, in 
the  present  case,  the  strike  was  related  to  IT  workers  (who  provide  services  for 
hospitals)  and not  workers  who  directly provide healthcare  services (doctors,  nurses, 
operational  assistants)  and,  therefore,  the  Court  concluded  that  the  imposition  of 
minimum services would depend on whether the absence of these IT workers during the 
strike period would have an impact on the provision of healthcare and on the measure 
of such an impact. The provision of services by the IT workers were deemed to not be 
essential to ensure the provision of healthcare services, nor would their participation in 
the  strike  have  an  impact,  and  hence  the  Court  ruled  that  the  minimum  services 
established by arbitration decision are illegal. Thus, the fact that the strike occurs in a 
company or establishment that belongs to one of the sectors of activity included in the 
legal list as being intended to meet society’s essential needs is not enough, per se, to 
conclude that the provision of minimum services is mandatory.  

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3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

This ruling concerned the interpretation of Article 7 (1) of Directive 2003/88/EC, of 04 
November  2003,  concerning  certain  aspects  of  the  organisation  of  working  time, 
according to which  

“Member States shall take the measures necessary to ensure that every worker 
is  entitled  to  paid  annual  leave  of  at  least  four  weeks  in  accordance  with  the 
conditions for entitlement to, and granting to, such leave laid down by national 
legislation and/or practice”. 

In  the  present  case,  the  worker  was  unlawfully  dismissed  and  then  reinstated  in  her 
employment.  After  the  reinstatement,  the  employer  refused  to  grant  her  the  unused 
annual leave related to the period between the date of her dismissal and the date of her 
reinstatement (i.e. the period between 01 January 2014 and 10 January 2017) on the 
grounds that the worker had not performed work during that period.  

The  CJEU  analysed  whether  Article  7  (1)  of  Directive  2003/88/EC  is  compatible  with 
national case law by virtue of which a worker who has been unlawfully dismissed and 
then  reinstated  in  his/her employment  in  accordance  with  national  law,  following  the 
annulment of his/her dismissal by a court decision, is not entitled to paid annual leave 
for the period between the date of dismissal and the date of reinstatement.  

According to the CJEU, “in certain specific situations in which the worker is incapable of 
carrying out his or her duties, the right to paid annual leave cannot be made subject by 
a Member State to a condition that the worker has actually worked”, as was the case in 
which a worker has been unlawfully dismissed and later reinstated in her employment, 
has not, during the period between the date of the unlawful dismissal and the date of 
her reinstatement, been given the opportunity to perform actual work for her employer. 
As referred to by the CJEU, “the fact that the worker has not, during the period between 
the  date  of  his  or  her  unlawful  dismissal  and  the  date  of  his  or  her  reinstatement, 
actually  carried  out  work  for  his  or  her  employer  is  the  consequence  of  the  latter’s 
actions that led to the unlawful dismissal, without which the worker would have been in 
a  position  to  work  and  to  exercise  his  or  her  right  to  annual  leave”.  For  this  reason, 
according to the CJEU, “the period between the date of the worker’s unlawful dismissal 
and the date of his or her reinstatement, in accordance with national law, following the 
annulment of that dismissal by a judicial decision, must be treated as a period of actual 
work for the purposes of determining entitlement to paid annual leave”. 

Based on the arguments referred to above, the CJEU ruled in case C-57/22 that  

“Article 7  (1)  of  Directive  2003/88/EC  of  the  European  Parliament  and  of  the 
Council of 04 November 2003 concerning certain aspects of the organisation of 
working time  must  be  interpreted  as  precluding  national  case-law  by  virtue  of 
which a worker who was unlawfully dismissed and then reinstated in his or her 
employment, in accordance with national law, following the annulment of his or 
her dismissal by a decision of a court, is not entitled to paid annual leave for the 
period between the date of the dismissal and the date of his or her reinstatement 
in his or her employment on the ground that, during that period, that worker did 
not actually carry out work for the employer as the latter did not assign him or 
her  work  and  as  he  or  she  is  already  entitled,  under  national  law,  to  wage 
compensation during that period”.  

Under Portuguese law, workers who are unlawfully dismissed are entitled to: (i) their 
remuneration that corresponds to the period from the date of dismissal to the date of 
the  court’s  final  decision  and  (ii)  the  reinstatement  under  the  same  exact  terms  and 
conditions of employment or an indemnity set by the court between 15 and 45 days of 

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the employee’s base remuneration and seniority premiums, with a minimum of three 
months’ pay (Articles 389 to 391 of the Portuguese Labour Code).  

The  remuneration  referred  to  in  (i)  includes  the  remuneration  corresponding  to  the 
annual leave period as well as vacation and Christmas allowances. Therefore, a worker 
who has been unlawfully dismissed is entitled to receive the remuneration he/she would 
have received during the vacation period if the dismissal had not occurred.  

However, there is no specific provision regarding the effects of a judicial decision that 
declares  the  dismissal  of  a  certain  worker  unlawful  in  what  concerns  his/her  right  to 
take annual leave relating to the period between the date of dismissal and the date of 
the court’s final decision. In this regard, it should be noted that Portuguese case law 
tends  to  consider  that  a  worker  who  has  been  unlawfully  dismissed  is  not  entitled  to 
enjoy, following reinstatement, the referred annual leave period, because the grounds 
and purposes of this entitlement would not apply to a worker in this situation. As stated 
by  the  Supreme  Court  of  Justice,  “unlawful  dismissal  does  not  entitle  the  dismissed 
worker  to  actual  holiday  entitlement  for  the  period  between  the  dismissal  and 
reinstatement, after the latter has taken place” nor the right to receive compensation 
for the violation of his/her holiday entitlement by the employer (Ruling of 19 June 2013, 
Process No. 111/11.7TTPTG.E1.S1).  

The CJEU’s ruling seems to point towards recognition of the right of a worker who has 
been unlawfully dismissed to take annual leave that relates to the period between the 
date  of  dismissal  and  the  date  of  reinstatement.  In  that  sense,  this  ruling  may  be 
relevant  for  the  interpretation  of  the  rules  contained  in  the  Portuguese  Labour  Code 
regarding the consequences of unlawful dismissal. 

4 

Other Relevant Information 

4.1    Agreement between the government and social partners  

On  07  October  2023,  the  government  and  social  partners  entered  into  the 
“Reinforcement of the Medium-Term Agreement for the Improvement of Income, Wages 
and Competitiveness”.  

This  document  contains  an  assessment  of  the  implementation  of  the  “Medium-Term 
Agreement for the Improvement of Income, Wages and Competitiveness” entered into 
on 09 October 2022 (see Flash Report of October 2022) as well as the establishment of 
new commitments, such as: 

Strengthening complementary retirement instruments; 
Enhancing  the  promotion  of  conciliation  between  personal,  family  and 

Increase in wages per worker by 5 per cent in 2024; 
The minimum national monthly wage will reach EUR 820 in 2024; 
Creation of tax and social security incentives for the provision of housing by the 

(i) 
(ii) 
(iii) 
employer; 
(iv) 
(v) 
professional life; 
(vi) 
Tax incentive in 2024 applicable to workers’ profit sharing up to the limit of one 
monthly base salary and a maximum amount of five times the amount of the national 
minimum wage, provided that the employer has increased the salary of its employees 
in 2024 in line with the terms or with the above stipulated points in this agreement.  

4.2    2024 State Budget Law proposal 

The State Budget Law proposal for 2024 (Law Proposal No. 109/XV/2) was presented 
on 10 October 2023. This proposal includes some labour-related measures, such as (i) 
the  exemption  from  taxes  and  social  security  contributions  on  the  income  in  kind  of 
employees  resulting  from  the  use  of  permanent  housing  in  the  Portuguese  territory 
made available by the employer, and (ii) the exemption from taxes on the profit share 

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distributions to the benefit of employees up to a limit of five times the national minimum 
wage (which will depend on the employer increasing by at least 5 per cent, on average, 
the fixed remuneration per employee in 2024).  

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Romania 

Summary  

A new methodology for eliminating workplace harassment has been adopted. 

_____________________________________________________________________ 

1 

National Legislation 

1.1    Workplace harassment 

By Government Decision No. 970/2023, published in the Official Gazette No. 939 on 17 
October  2023,  the  Methodology  for  the  Prevention  and  Fight  Against  Gender-Based 
Harassment and Moral Harassment in the Workplace was approved.  

With the aim of ensuring equal opportunities and treatment between women and men 
in the field of work, specifically recognising the right of every citizen to a workplace free 
from  violence  and  harassment,  and  encouraging  the  maintenance  of  a  work  culture 
based  on  mutual  respect  and  dignity,  both  public  institutions  and  private  companies 
have the obligation to implement this methodology, developed based on the Guide for 
the Prevention and Fight Against Gender-Based Harassment and Moral Harassment in 
the Workplace. The guide is included as an annex to the new Government Decision. 

2 

Court Rulings 

Nothing to report. 

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

According to Article 80 (2) of the Romanian Labour Code, at the employee’s request, 
the  Court  that  annuls  the  termination  of  the  employment  contract  can  restore  the 
situation prior to the issuance of the dismissal decision. Therefore, if the court approves 
the  employee's  action  to  annul  the  dismissal,  and  the  employee  is  reinstated,  it  is 
considered that the employment contract never ceased. The employee is reinstated to 
the previous situation, as if the termination had not been issued as a result of the nullity 
of  the  termination,  and  the  individual’s  status  as  an  employee  is  retroactively 
recognised. 

In accordance with Article 144 (1) of the Labour Code, the right to paid annual leave is 
guaranteed to all employees. Consequently, the reinstated employee will continue to be 
entitled to all the rights he/she would have enjoyed had the termination not been issued, 
including  financial  rights  and  the  right  to  take  unused  annual  leave.  It  is  irrelevant 
whether  the  employee  effectively  performed  work  for  the  employer  that  issued  the 
illegal  dismissal,  just  as  it  is  irrelevant  whether  the  employee  temporarily  worked 
elsewhere during the period of the proceedings. 

Thus, the Romanian legal system has already integrated the interpretation provided by 
Article 7 (1) of Directive 2003/88/EC through the CJEU’s decision in case C-57/22. 

4 

Other Relevant Information 

Nothing to report. 

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Slovakia 

Summary  

A  decision  of  the  Constitutional  Court  of  the  Slovak  Republic  on  discrimination  and 
fixed-term employment relationships was published.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

2.1    Fixed-term work 

According to Article 48 paragraph 2 of the Labour Code (Act No. 131/2001 Collection of 
laws - Coll. - as amended), a fixed-term employment relationship may be agreed for 
maximum  two  years.  A  fixed-term  employment  relationship  may  be  extended  or 
renewed at most twice within a two-year period. But according to Article 48 paragraph 
6 of the Labour Code, a further extension or renewal of an employment relationship for 
a fixed term of up to two years or over two years can be agreed with a teacher in higher 
education  or  a  creative  employee  in  science,  research  or  development  if  there  are 
objective  reasons  relating  to  the  character  of  the  activities  of  the  teacher  in  higher 
education or creative employees in science, research or development as stipulated in 
special regulations. 

On 22 March 2022, the National Council of the Slovak Republic (Parliament) as part of 
the  amendment  of  Act  No.  131/2002  Coll.  on  universities  and  on  the  amendment  of 
certain  acts  also  approved  the  amendment  of  Article  77  (filling  posts  of  university 
teachers and function posts of associate professors and professors). (Act No. 137/2022 
Coll.). 

According  to  the  new  Article  77  paragraph  5,  the  post  of  university  teacher  may  be 
concluded on the basis of a single competition for a maximum of five years. 

The cited provisions were challenged by a group of opposition members of the National 
Council  of  the  Slovak  Republic  at  the  Constitutional  Court  of  the  Slovak  Republic  as 
discriminatory.  According  to  their  submission  to  the  Constitutional  Court,  a  serious 
discrimination  against  teaching  staff  of  universities  must  have  occurred  in  relation  to 
other staff who are not covered by the provisions in  question. In their opinion, these 
contradict the following provisions of the Constitution of the Slovak Republic: 

- Article 1 paragraph 1 (“The Slovak Republic is a sovereign, democratic state 
governed by the rule of law. It is not bound to any  ideology or religion.”) and 
paragraph 2 (“The Slovak Republic acknowledges and adheres to general rules 
of  international  law,  international  treaties  by  which  it  is  bound,  and  its  other 
international obligations.”), 

- Article 12 paragraph 1 (“All human beings are free and equal in dignity and in 
rights.  Their  fundamental  rights  and  freedoms  are  inviolable,  inalienable, 
imprescriptible, and indefeasible.”) and paragraph 2 (“Fundamental rights shall 
be guaranteed in the Slovak Republic to everyone regardless of sex, race, colour, 
language, belief and religion, political affiliation, or other conviction, national or 
social origin, nationality or ethnic origin, property, descent or any other status. 
No one shall  be aggrieved, discriminated  against, or favoured  on any of  these 
grounds.”) 

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In connection with Article 36 paragraph 1 letter b) of the Constitution (“Employees shall 
have  the  right  to  fair  and  satisfactory  conditions  of  work.  The  law  shall  ensure,  in 
particular: the protection from arbitrary dismissal and discrimination at work.”). 

The Constitutional Court of the Slovak Republic decided at a closed plenary session on 
24  October  2023  that  it  did  not  agree  with  the  proposal  of  the  deputies  in  question. 
According to the Constitutional Court, the provisions of the Labour Code and the Act on 
Universities,  which  relate  to  the  fixed-term  employment  relationship  of  university 
teachers, are in accordance with the Constitution of the Slovak Republic. 

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

According to Article 101 of the Labour Code (Act No. 131/2001 Collection of laws – Coll. 
– as amended), an employee who, during the continuous duration of an employment 
relationship with the same employer, performed work for the employer for at least 60 
days within the calendar year shall be entitled to annual paid leave or a proportionate 
part  thereof,  unless  the  employment  relationship  lasted  continuously  throughout  the 
entire  calendar  year.  A  day  shall  be  considered  a  working  day  where  the  employee 
worked the greater part of their shift; parts of shifts worked across various days shall 
not be summed up. 

Employees  shall  be  entitled  to  wage  compensation  in  the  amount  of  their  average 
earnings  for  the  period  of  drawn  paid  holiday  (Article  116  paragraph  1  of  the  LC). 
Employees shall be entitled to wage compensation at the rate of their average earnings 
for the part of paid holiday in excess of four weeks of basic scope of paid holiday that 
they  were  unable  to  draw  before  the  end  of  the  following  calendar  year  (Article  116 
paragraph 2 of the LC). 

According  to  Article  79  paragraph  1  of  the  Labour  Code  if  an  employer  gave  the 
employee  an  invalid  notice,  or  terminated  the  employment  relationship  in  an  invalid 
manner  with  the  employee  immediately  or  within  a  probationary  period,  and  if  the 
employee informed the employer that he/she insists on retaining his/her employment 
with  the  employer,  his/her  employment  relationship  shall  not  terminate,  with  the 
exception  of  a  court  decision  that  it  cannot  be  justly  required  from  the  employer  to 
further employ the employee. The employer shall be required to provide the employee 
with wage compensation. The employee shall be entitled to such compensation in the 
amount  of  average  earnings  from  the  day  he/she  announced  to  the  employer  that 
he/she insists on maintaining his/her employment, until the employer enables him/her 
to  continue  working,  or  if  the  court  decides  on  the  termination  of  the  employment 
relationship. 

If the overall time for which an employee should receive wage compensation is greater 
than 12 months, at the request of the employer, the court may reduce his/her obligation 
to compensate the wage for a period exceeding 12 months, or not grant the employee 
compensation for a period exceeding 12 months. Wage compensation can be awarded 
for  a  maximum  of  36  months  (Article  79  paragraph  2  of  the  LC).  The  provision  of 
paragraph  2  does  not  apply  to  the  notifier  of  crime  or  other  antisocial  activity  if  the 
employment  relationship  has  ended  when  providing  protection  pursuant  to  a  special 
regulation (Article 79 paragraph 3 of the LC). 

The Supreme Court of the Slovak Republic, with similar legislation in the Labour Code 
No. 65/1965 Coll. (valid until 31 March 2002), decided that for the period during which 
the employee is entitled to compensation for wages due to the invalid termination of 
the  employment  relationship,  he/she  is  not  entitled  to  compensation  for  wages  for 
unused paid annual leave (R 32/2010). 

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Considering the cited provisions of the Labour Code, consistent respect for the judgment 
in  question  of  the  Court  of  Justice  would  probably  require  a  certain  change  in  the 
legislation. The legal regulation of the invalidity of the termination of the employment 
relationship is similar to that in the Czech Republic. 

4 

Other Relevant Information 

Nothing to report.  

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Slovenia 

Summary  

(I)  The  amendments  to  the  Employment  Relationships  Act  transposing  Directives 
2019/1152/EU  and  2019/1158/EU  and  introducing  some  other  improvements  of 
workers’ rights have not yet been enacted due to the suspensive veto by the National 
Council.  

(II)  The  government  has extended  the  measure  of  partial  reimbursement  of  salary 
compensation to temporarily laid-off workers which is one of the measures to mitigate 
or eliminate the consequences of floods and landslides in Slovenia in August 2023.  

_____________________________________________________________________ 

1 

National Legislation 

1.1    Transposition of EU law 

The  Act  Amending  the  Employment  Relationships  Act  (‘Zakon  o  spremembah  in 
dopolnitvah  Zakona  o  delovnih  razmerjih  (ZDR-1D)’)  was  passed  by  the  National 
Assembly  on  26  October  2023,  however,  the  National  Council—at  the  proposal  of  an 
interest  group  of  employers—vetoed  it  (i.e.  a  suspensive  veto),  meaning  that  the 
National  Assembly  will  have  to  reconsider  the  Draft  Act,  According  to  the  rules  on 
procedure, an absolute majority vote is needed for its adoption (it seems that this rule 
should not pose major problems, since an absolute majority was already achieved during 
the first voting by the National Assembly, although nothing is certain).  

An important part of these amendments to the ZDR-1 is devoted to the transposition of 
two EU Directives, which have not yet been fully transposed into national law, namely 
Directive 2019/1152/EU of the European Parliament and of the Council of 20 June 2019 
on transparent and predictable working conditions in the European Union and Directive 
2019/1158/EU of the European Parliament and of the Council of 20 June 2019 on work-
life balance for parents and carers and repealing Council Directive 2010/18/EU insofar 
as it relates to the exercise of employment rights and obligations.  

This part of the proposed amendments has not been problematic, but the employers’ 
side strongly opposed some other solutions in the draft act (for example, provisions that 
aim  to  improve  the  protection  against  dismissal  for  workers’  representatives)  and 
criticised the process of preparing and adopting the amendments which, according to 
their view, did not respect the principles of social dialogue, etc. 

The social partners negotiated the amendments to the Employment Relationships Act 
for  several months  without  any  success  (the  first  version  went  to  a  public  hearing  in 
June 2023 (see also June 2023 Flash Report under 4.2) despite strong opposition from 
the employers’ side who—in response—withdrew from the Economic and Social Council 
in  July;  in  October,  all  three  social  partners  reconvened  and  tried  again  to  find  a 
compromise solution, but again did not succeed), therefore, the government decided—
also under pressure that the two EU Directives had to be transposed to avoid further 
infringement  actions  and  fines—to  submit  the  draft  Act  to  Parliament,  however,  a 
version that was more strongly reflected the trade unions’ interests, while at the same 
time emphasising that negotiations and social dialogue will continue to prepare for the 
second round of amendments and that both parties, the trade unions and the employers’ 
organisations, will have the opportunity to participate with additional proposals. 

In this first round of amendments to the Employment Relationships Act, the following 
was envisaged (the most important solutions are presented below on the basis of this 
text adopted by the National Assembly and submitted to the National Council, and which 
was then vetoed by the latter), with a ‘disclaimer’ that this has not yet become part of 
the Slovenian legal order and is formally still just a proposal/Draft Act:  

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• 

• 

• 

five  days  of  unpaid  care  leave  (in  case  of  care  responsibilities  for  a  family 
member or a person that shares the household with the worker and who requires 
extensive  care  and  support  for  health  reasons;  the  worker  must  inform  the 
employer in advance); 

five  days  of  paid  leave  for  victims  of  domestic  violence  (for  arranging  legal 
matters, dealing with the consequences of domestic violence, etc.); 

special protection in employment relationships for workers-carers and victims of 
domestic violence; 

•  better provisions regulating the right of a worker to be heard (in the event of a 
warning  issued  before  a  dismissal,  an  employer  must  give  a  worker  the 
opportunity to prepare a statement concerning the alleged violations; detailed 
provisions on time limits and the procedure, the role of workers’ representatives 
etc.); 

•  additional provisions improving legal certainty in the event of a warning before 

a dismissal;  

• 

the right to disconnect (worker’s right not to be called by the employer during 
the daily or weekly rest periods, holidays and other justified absences from work; 
obligation to introduce measures in this respect, reverse the burden of proof); 

•  provisions concerning transparent and predictable working conditions,  e.g. the 
worker  can  request  an  alternative,  more  predictable  and  more  secure  form  of 
employment,  where  available;  the employer  is  required to provide  a  reasoned 
response  to  the  worker's  request;  the  employer  must  provide  the  worker  in 
writing with information relating to the employment relationship entered into; 

• 

improved protection for workers’ representatives (for example, the suspension 
of the effect of a dismissal until the decision of the first instance labour court, an 
increased compensation during work suspension (from 50 per cent increased to 
80 per cent of their salary), increased legal protection in case of a warning before 
dismissal;  possibility  of  establishing  a  special  fund  for  reimbursing  such 
compensation); 

•  possibility  of  proposing  a fixed-term part-time employment  contract  for better 
work-life  balance,  for  workers  with  a  child  under  the  age  of  eight  years,  for 
workers who are carers in case of caregiving, for victims of domestic violence; 

•  possibility of proposing work from home schemes for improved work-life balance; 

• 

• 

• 

• 

• 

changed time limit for the use of annual leave (a worker shall have the right to 
use his/her entire annual leave not used in the current calendar year or by 30 
June of the following year for reasons of absence due to illness or injury, parental 
leave or childcare leave, by 31 March of the year that follows the year to which 
the leave can be transferred from the previous year); 

the non-discriminatory subsidiary liability of a contractor for the non-payment of 
salary  to  a  worker  in  the  context  of  subcontracting  (a  contractor  for  whom  a 
subcontractor performs a service will be subsidiarily liable for the non-payment 
of salary to the worker by the subcontractor's employer; subsidiary liability will 
apply to the construction industry;  

some minor improvements in relation to temporary agency workers; 

some minor changes and clarifications in relation to posted workers; 

improved  protection  of  children  who  work  during  holidays  (working  time  of 
children under the age of 15 years who perform light work during school holidays 
may  not  exceed  six  hours  per  day  or  30  hours  per  week;  at  least  two 
uninterrupted weeks of rest). 

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1.2      A  partial  reimbursement  of  salary  compensation  to  temporarily 
laid-off workers  

The  government  has  prolonged  the  urgent  floods-related  measure  of  partial 
reimbursement of salary compensation to temporarily laid-off workers due to the floods 
in August 2023 (see also August 2023 Flash Report under 1.3) until the end of November 
2023. 

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

The  CJEU  has  determined  that  Article  7  (1)  of  Directive  2003/88/EC  (WTD)  must  be 
interpreted  as  precluding  national  case  law  by  virtue  of  which  a  worker  who  was 
unlawfully  dismissed  and  then  reinstated  in  his/her  employment,  in  accordance  with 
national law, following the annulment of his/her dismissal by a decision of a court, is 
not entitled to paid annual leave for the period between the date of the dismissal and 
the  date  of  his/her  reinstatement  in  his/her  employment  on  the  grounds  that  during 
that period, that worker did not actually carry out work for the employer as the latter 
did not assign him/her any work and as he/she is already entitled, under national law, 
to wage compensation during that period. 

According  to  Article  159  of  the  Employment  Relationships  Act  (‘Zakon  o  delovnih 
razmerjih  (ZDR-1)’,  OJ  RS No.  21/2013,  as later amended),  every  employee  has  the 
right  to  paid  annual  leave  which  may  not  be  shorter  than  four  weeks.  An  employee 
obtains the right to paid annual leave by entering into an employment relationship. The 
entitlement  to  paid  annual  leave  is  based  on  the  existence  of  an  employment 
relationship,  the  duration  of  the  leave  depends  (among  others)  on  the  length  of  the 
period of employment, whereby the periods of justified absence from work, including 
sick leave and similar, are counted as periods of employment. There is no provision in 
the  Employment  Relationships  Act  which  would  explicitly  regulate  the  issue  raised  in 
case C-57/22. 

Before the judgment in joined cases C-762/18 and 37/19 from June 2020 (see also July 
2020  Flash  Report),  the  Slovenian  courts  denied  the  right  to  compensation  in  lieu  of 
unused  annual  leave  in  respect  of  the  period  between  the  unlawful  dismissal  and 
reinstatement arguing that granting compensation for unused annual leave would mean 
that the employee would have received two compensations for the same period and that 
the  employee  did  not  perform  work  during  that  period  and  was  therefore  able  to 
regenerate (see, for example judgments of the Higher Labour and Social Court, No. Pdp 
62/2013 13.3.2013; ECLI:SI:VDSS:2013:PDP.62.2013; and No. Pdp 1191/2015 of 21 
July 2016 (ECLI:SI:VDSS:2016:PDP.1191.2015. 

Court 

Slovenian labour courts took the CJEU’s judgment in joint cases C-762/18 and 37/19 
into  account  and  have  adapted  their  case  law  on  annual  leave.  See  the  judgment  of 
2022 
Ips 
Supreme 
(ECLI:SI:VSRS:2022:VIII.IPS.24.2021, which extensively refers to the CJEU judgment 
in C-762/18 and 37/19 and fully follows its argumentation, as well as the judgment of 
Supreme 
2022 
Ips 
(ECLI:SI:VSRS:2022:VIII.IPS.38.2021) where the same interpretation was confirmed.  

38/2021, 

24/2021, 

March 

Court 

June 

VIII 

VIII 

No. 

No. 

28 

29 

This judgment will therefore have no direct implications for Slovenia’s legal order since 
the case law in Slovenia is already in line with this CJEU judgment.  

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4 

Other Relevant Information 

4.1    Collective bargaining 

The Trade Union of Casino Workers of Slovenia (‘Sindikat igralniških delavcev Slovenije’) 
acceded to the already concluded sectoral Collective Agreement for the Hospitality and 
Tourism  Industries  (‘Pristop  h  Kolektivni  pogodbi  dejavnosti  gostinstva  in  turizma 
Slovenije (Uradni list RS, št. 56/18), OJ RS No. 107/23, 20 October 2023, p. 9157). 

The Minister of Labour, on the proposal of the representative trade union in the sector, 
extended the validity of the Collective Agreement for Public Utility Services to the entire 
sector, i.e. all employers in this sector (‘Sklep o ugotovitvi razširjene veljavnosti’, OJ RS 
No. 106/23, 13 October 2023, p. 8945). 

4.2    Equal opportunities for women and men  

The Resolution on the National Programme for Equal Opportunities for Women and Men 
until 2030, adopted by the National Assembly in September, was published in the Official 
Journal (‘Resolucija o nacionalnem programu za enake možnosti žensk in moških 2023–
2030  (ReNPEMŽM23–30)’,  OJ  RS  No.  105/2023,  p.  8772-8819).  Many  goals  and 
measures address equal opportunities in the world of work. 

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Spain 

Summary  

The  Supreme  Court  referred  to  the  CJEU  and  concluded  that  paid  leave  for  family 
reasons cannot commence on a non-working day or a public holiday .   

_____________________________________________________________________ 

1 

National Legislation 

1.1    Employment of foreigners 

In  accordance  with  the  legislation  on  employment  of  foreigners,  this  Resolution 
publishes the “Catalogue of Hard-to-Fill Jobs” in Spain for the fourth quarter of 2023. 
As  its  name  suggests,  this  catalogue  lists  occupations  for  which  there  is  inadequate 
coverage from Spanish workers. Therefore, the recruitment of foreign workers who are 
not already in Spain is permitted. 

The Catalogue of Hard-to-Fill Jobs must be approved by the government each quarter 
of  the  year.  For  several  years,  starting  from  the  onset  of  the  economic  crisis,  such 
occupations were quite limited and mainly included the professional sports sectors (both 
athletes and coaches) and maritime work. 

For the first time in over a decade, the catalogue was expanded this summer to include 
technical  roles  in  the  construction  sector,  such  as  carpenters,  electricians  and  crane 
operators. The catalogue for the fourth quarter of 2023 maintains this expansion. 

2 

Court Rulings 

2.1    Paid special leave for time off from work 

The Spanish Labour Code grants workers several different types of special paid leaves, 
allowing them to take time off work to address specific needs and obligations. Among 
others, Article 37 (3) of the Labour Code provides five calendar days for marriage or 
establishing a domestic partnership, two days in case of death of a spouse, domestic 
partner,  or  close  relative,  five  days  in  case  of  a  serious  accident,  illness,  or 
hospitalisation of family members, and one day for moving from the habitual residence. 

The Supreme Court referred to the CJEU’s ruling of 04 June 2020 (case C‑588/18) and 
concluded that these paid leaves cannot commence on a non-working day or a public 
holiday.  In such cases, the  leave must start on  the  first  working  day  after  the public 
holiday. 

2.2   Fixed-term work in public employment 

As already reported numerous times, fixed-term employment in public administration 
has a long and arduous past in Spain, and largely remains unresolved. Interim contracts 
(replacement contracts) are common and can be used in two situations in accordance 
with  the  relevant  legal  provisions.  Firstly,  in  cases  in  which  an  employer  needs  to 
substitute  workers  with  the  right  to  keep  their  jobs.  Such  contracts  end  when  the 
substituted  worker  returns.  Secondly,  the  employer  can  hire  an  interim  worker  while 
the selection process is underway for a vacant job. Labour law established a maximum 
duration for interim contracts in this particular case (three months), but only applies to 
private employers. This type of interim (replacement) contract in public administration 
had no specified duration limit and could last for years. There was no strict obligation 
for  public  administration  to  initiate  the  selection  process  at  a  particular  moment, 
because the Supreme Court had provided a lot of flexibility.  

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The CJEU  stated  multiple  times  that  Spanish  law was  not  in compliance with  EU  law. 
Following the CJEU case C-726/19, 03 June 2021, Instituto Madrileño de Investigación 
y  Desarrollo  Rural,  Agrario  y  Alimentario,  the  Supreme  Court  modified  its  previous 
doctrine with the aim of adapting it to CJEU case law.  

Such  interim  contracts  may  now  not  last  longer  than  three  years  during  a  selection 
process. Should the duration exceed this limit, the Supreme Court deems the interim 
contract to have become a permanent one.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

This ruling will not have any implications in Spain, because the Supreme Court reached 
the same conclusion in a ruling of 12 July 2022. This ruling refers to CJEU ruling QH and 
states that the worker has the right to take the annual leave accrued during the period 
between his/her dismissal and reinstatement.  

4 

Other Relevant Information 

4.1    Unemployment 

The  number  of  unemployed  people  increased  in  September  by  19  768,  i.e.  the  total 
number  of  unemployed  people  is  currently  2  722  468.  This  is  the  lowest  number  of 
unemployed people in any September since 2008. 

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Sweden 

Summary  

The Swedish Parliamentary Ombudsman has harshly criticised a public employer that 
continuously registers the employees’ criminal records through an external monitoring 
company.  

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

Nothing to report.  

3 

Implications of CJEU Rulings  

3.1    Paid annual leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

The situation in the case before the CJEU is of some relevance for Swedish legislation 
following  the  recently  updated  Swedish  Employment  Protection  Act  (Lagen  om 
anställningsskydd). The previous legislation, in most situations, forced the employer to 
continue employing the employee during a dispute on the fairness of his/her dismissal. 
Even  if  the  employee  might  have  been  relieved  from  performing  his/her  duties,  the 
employment relationship was maintained until the final court decision was issued. After 
a legislative reform in 2022, this is no longer the case and the employment relationship 
is terminated upon the expiry of the (paid) notice period, even if a dispute arises. The 
situation  before  the  CJEU  could  therefore,  from  October  2022,  have  also  occurred  in 
Sweden. The Swedish Vacation Act (Semesterlagen) states that annual leave cannot be 
forced upon the dismissed employee during the notice period (§ 14). In line herewith, 
the  Labour  Court  already  in  1985  ruled  that  the  same  situation  applies  following  the 
annulment of the termination and the continuation of the employment relationship while 
the  dismissal  case  was  under  litigation  before  the  courts  (AD  1985  No.  55).  The 
possibility  of  annulling  the  termination  during  the  litigation  period  was  revoked  in 
October 2022. However, the government clearly states in the preparatory work (Prop. 
2021/22:176  p.  111)  that  the  subsequent  reinstatement  of  an  unfairly  dismissed 
employee must return the employee to the very same position as though the (unfair) 
dismissal had never taken place. The government clarified that this includes “salary and 
other  benefits  which  might  have  been  lost”  (translated  from  Swedish),  also  including 
the calculation of time in employment.  

Based on the statements in the Swedish preparatory works, Swedish labour law is in 
line with the decision by the CJEU.  

4 

Other Relevant Information 

4.1    Integrity of public employees 

The  Swedish  Parliamentary  Ombudsman  (Justitieombudsmannen)  has  severely 
criticised  the Municipality  of  Södertälje (Södertälje kommun)  for violating  employees’ 
integrity.  The  municipality’s  practice  to  continuously  evaluate  reports  from  a  private 
company on the employees’ recent criminal records in the name of preventing organised 

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crime. The records, to a very large extent, fell outside the scope of the obligatory or 
sometimes facultative control of (some) criminal records during the recruitment process 
in specific categories of employment, primarily in schools and preschools which involve 
children. The Parliamentary Ombudsman concluded that the controls and records of the 
employees  constituted  a  substantial  violation  of  personal  integrity,  which  had  been 
applied without consent and without support by relevant legislation. The illegal records 
disrespect  principles  in  the  Swedish  Constitution;  The  Instrument  of  Government, 
(Chapt 2 § 6 Regeringsformen) as well as in the European Convention of Human Rights 
(Article 8).  

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United Kingdom 

Summary  

Nothing to report.   

_____________________________________________________________________ 

1 

National Legislation 

Nothing to report.  

2 

Court Rulings 

2.1     Holiday pay 

In Chief Constable of Northern Ireland v Agnew, 2023, UKSC 33 is a significant case on 
back claims of holiday pay. The facts are complex but have been helpfully summarised 
by Daniel Barnett:  

“The Claimants were police officers and civilian staff working for the police in Northern 
Ireland. They brought claims for underpayment of holiday pay after having historically 
received basic pay only during periods of annual leave. The parties agreed that there 
had been an underpayment, Bear Scotland v Fulton the EAT had previously concluded 
that deductions could only be linked in a series if there was a gap of three months or 
less between each deduction.” 

The  Supreme  Court  in  Agnew has  now held that where a series  of deductions are  all 
based on an employer failing to properly meet its obligations to pay holiday correctly, 
but for the mandatory cut off after three months which was set out in Bear Scotland, 
they  would  otherwise  constitute  a  series,  employees  should  be  able  to  link  each 
deduction. To hold otherwise would produce unfair consequences. 

The Supreme Court concluded that the period during which a claim can be brought is 
three months from the date the last payment was made, but that this three-month limit 
does not restrict or qualify the meaning of a “series” of deductions. 

Whether a claim in respect of two or more deductions constitutes a claim in respect of 
a series of deductions is essentially a question of fact, and in answering that question, 
all  relevant  circumstances  must  be  taken  into  account,  including  in  relation  to  the 
deductions at issue: their similarities and differences; their frequency, size and impact; 
how they came to be made and applied; what links them together, and all other relevant 
circumstances.  Whether  or  not  the  deductions  were  more  or  less  than  three  months 
apart is not, from this point onwards, relevant.” 

3 

Implications of CJEU Rulings  

3.1    Paid Annual Leave 

CJEU case C-57/22, 12 October 2023, Ředitelství silnic a dálnic 

In case C-57/22 Ředitelství silnic a dálnic the Court ruled that Article 7 (1) of Directive 
2003/88/EC  concerning  certain  aspects  of  the  organisation  of  working  time  must  be 
interpreted  as  precluding  national  case  law  by  virtue  of  which  a  worker  who  was 
unlawfully  dismissed  and  then  reinstated  in  his/her  employment,  in  accordance  with 
national law, following the annulment of his/her dismissal by a decision of a court, is 
not entitled to paid annual leave for the period between the date of the dismissal and 
the date of her reinstatement in his/her employment  on the ground that, during that 
period, that worker did not actually perform work for the employer as the latter had not 

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assigned him/her work and as he/she is already entitled, under national law, to wage 
compensation during that period. 

This issue has not arisen so far in the UK case law and so there is no equivalent provision 
to  this  effect.  The  UK  courts,  even  post-Brexit,  will  have  regard  to  the  Court’s  ruling 
where  this  issue  arises.  That  said,  reinstatement  is  very  rarely  awarded  in  unfair 
dismissal cases in the UK. 

4 

Other Relevant Information 

4.1    The Workers (Predictable Terms and Conditions) Act 2023  

As reported last month, the Workers (Predictable Terms and Conditions) Act 2023 has 
received Royal Assent, introducing a new statutory right for workers to request a more 
predictable working pattern.  

The government says ‘If a worker’s existing working pattern lacks certainty in terms of 
the hours they work, the times they work or if it is a fixed term contract for less than 
12  months,  they  will  be  able  to  make  a  formal  application  to  change  their  working 
pattern  to  make  it  more  predictable.  Once  a  worker  has  made  their  request,  their 
employer will be required to notify them of their decision within one month.’ Acas has 
issued  a consultation  on  a new statutory Code  of Practice  on handling  requests  for a 
predictable working pattern, following the enactment of the Workers (Predictable Terms 
and Conditions) Act 2023, which is expected to come into force around September 2024. 

4.2    Director of Labour Market Enforcement Strategy 

Margaret  Beels  was  appointed  Director  of  Labour  Market  Enforcement  in  November 
2021.  Her  Labour  Market  Enforcement  Strategy  for  2023  to  2024  was  submitted  to 
government in March 2023. The 2023 to 2024 Strategy covers four main themes:      

• 

• 

improving the radar picture 

improving focus on effectiveness 

•  better joined-up thinking 

•  better engagement and support with businesses and workers to improve state-

led enforcement of employment rights 

The strategy makes 12 recommendations to be taken forward by the director’s office, 
the Department for Business and Trade, Home Office and by the three      labour market 
enforcement bodies: 

•  Gangmasters and Labour Abuse Authority (GLAA) 

•  Employment Agency Standards Inspectorate (EAS) 

•  HMRC National Minimum Wage and National Living Wage team (HMRC NMW) 

Of perhaps most interest was Ms Beale’s statement:Progress on establishing a Single 
Enforcement Body (SEB) for labour rights, a previous commitment for this government, 
has stalled with no sign that Parliamentary time will be found during the term of this 
government.  Several  benefits  would  have  stemmed  from  a  new  overarching 
enforcement body, including making it easier for workers to know where to go for help, 
more effective use of resources and pooling of intelligence, better support for compliant 
employers,  and  new  powers  and  sanctions  (BEIS,  2021).  Crucial  enforcement  gaps—
such  as  enforcing  holiday  pay  for  vulnerable  workers  and  regulation  of  umbrella 
companies—remain outstanding. A broader Employment Bill could also have sought to 
tackle  the  ongoing  uncertainty  over  employment  status,  aligning  tax  and  labour  law 
approaches,  and  in  doing  so  helping  those  working  in  the  growing  gig  economy  and 
other sectors. The benefits of having a SEB are widely recognised. The author shares 

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the disappointment of the majority of stakeholders who fed into the Call for Evidence in 
2022 around the lack of progress here. 

October 2023 

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