WRITTEN STATEMENT - COMMISSION PROPOSAL FOR THE DIRECTIVE ON TRANSPARENT AND PREDICTABLE WORKING CONDITIONS
This information note complements the main discussion note and includes background information on ECJ case law defining the term “worker”.
I. Context:
On the basis of the ECJ case law, the European Commission concludes in its impact assessment (of the proposal for the directive on transparent and predictable working conditions) that:
It is settled case-law as regards Article 45 TFEU and other legal acts that make no reference to the definition of the term “worker” under national legislation that the essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he or she receives remuneration, the legal characterisation under national law and the form of that relationship, as well as the nature of the legal relationship between those two persons, not being decisive
II. Article 45 TFEU:
- Freedom of movement for workers shall be secured within the Union.
- Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
- It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
- The provisions of this Article shall not apply to employment in the public service.
III. Main ECJ rulings:
Lawrie Blum C-66/85
A British national tried to get a job as trainee teacher at the university in Germany. German Federal law stated that such posts could only be held by German citizens. German court claimed that teacher's activity falls under education policy and it is not an economic activity. It also claimed that the term 'worker' within the meaning of Article 48 of the Treaty (freedom of movement of workers) covers only persons whose relationship to their employer is governed by a contract subject to private law and not persons whose employment relationship is subject to public law.
In Para 12 the ECJ said: “The term 'worker' covers any person performing for remuneration work the nature of which is not determined by himself for and under the control of another, regardless of the legal nature of the employment relationship”.
Levin C-53/81
the ECJ found that the definition of ‘worker’ for the purposes of Article 45 TFEU should encompass also those working part-time. In particular, it stated that:
“[S]ince part-time employment, although it may provide an income lower that what is to be considered to be the minimum required for subsistence, constitutes for a large number of persons an effective means to improve their living conditions, the effectiveness of Community law would be impaired and the achievement of the objectives of the Treaty would be jeopardised if the enjoyment of rights conferred by the principle of freedom of movement of workers were reserved solely to persons engaged in full time employment earning, as a result, a wage at least equivalent to the guaranteed minimum wage in the sector under consideration.”
However, the ECJ also held that, in order to be protected under Article 45 TFEU, the migrant must engage in an activity which is ‘genuine and effective’ and not on such a small scale as to be ‘marginal and ancillary’.
Genc C‑14/09,
The ECJ restated that to determine whether someone is a worker under Article 45 TFEU the employment relationship should be looked at as a whole, and that the fact that the worker was only employed for 5 and a half hours a week did not, in itself, exclude the existence of a genuine employment relationship. “Although the fact that a person works for only a very limited number of hours in the context of an employment relationship may be an indication that the activities performed are marginal and ancillary (Case C‑357/89 Raulin [1992] ECR I-1027, paragraph 14), the fact remains that, independently of the limited amount of the remuneration for and the number of hours of the activity in question, the possibility cannot be ruled out that, following an overall assessment of the employment relationship in question, that activity may be considered by the national authorities to be real and genuine, thereby allowing its holder to be granted the status of ‘worker’ within the meaning of Article 39 EC. »
Fenoll, C-316/13
The case concerns the interpretation of the concept of a ‘worker’ within the meaning of working time Directive (2003/88/EC). It is related to the request by a person placed in a work rehabilitation centre for an allowance in lieu of paid annual leave not taken. French law did not provide for such a right as the person was not considered an employee.
According to the Court, the working time directive “makes no reference to the term ‘worker’ as appearing in Directive 89/391, or to the definition of that term under national legislation” therefore "the concept of a ‘worker’ may not be interpreted differently according to the law of Member States but has an autonomous meaning specific to EU law". The court confirms that “any person who pursues real, genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’” in such a case. “The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration “
Similar interpretation of the concept of a ‘worker’ within the meaning of working time Directive (2003/88/EC) was made in the judgment Union syndicale Solidaires Isère, C‑428/09,
Danosa, C‑232/09
A member of the board of directors of Latvian company took legal action after being dismissed. The question was whether a member of the Board of Directors of a capital company who provides services to the company must be regarded as a worker within the meaning of Pregnant Workers Directive 92/85. The ECJ underlined that in this Directive “the EU legislature intended to give the concept of ‘pregnant worker’ its own independent meaning in EU law, even though, in respect of one element of that definition − namely that relating to the details of the procedure for informing the employer of her condition − it refers back to national legislation and/or national practice.”
The Court also pointed out that ‘The sui generis nature of the employment relationship under national law is of no consequence as regards whether or not a person is a worker for the purposes of EU law, which the Court interprets in accordance with its settled jurisprudence”.
With regard to the concept of “subordination” the ECJ noted that “the answer to the question whether a relationship of subordination exists within the meaning of the above definition of the concept of ‘worker’ must, in each particular case, be arrived at on the basis of all the factors and circumstances characterising the relationship between the parties.” “ The fact that Ms Danosa was a member of the Board of Directors of a capital company is not enough in itself to rule out the possibility that she was in a relationship of subordination to that company: it is necessary to consider the circumstances in which the Board Member was recruited; the nature of the duties entrusted to that person; the context in which those duties were performed; the scope of the person’s powers and the extent to which he or she was supervised within the company; and the circumstances under which the person could be removed.”
Ruhrlandklinik C-216/15
The case concerns the interpretation of Directive 2008/104/EC on temporary agency work. A nurse, member of a non-for profit association, was assigned to the nursing clinic. She did not have a contract of employment and did not have a status of worker under the German law, but the association payed its members according to standard practices in the field of activity concerned.
Directive 2008/104/EC states that “For the purposes of this Directive: (a) “worker” means any person who, in the Member State concerned, is protected as a worker under national employment law”. In addition, directive 2008/104 defines “temporary agency worker” as a worker with a contract of employment or an employment relationship with a temporary-work agency with a view to being assigned to a user undertaking to work temporarily under its supervision and direction.
The ECJ held that the legal characterisation under national law of the relationship between the person in question and the temporary-work agency is not decisive for the purpose of characterising that person as a ‘worker’ within the meaning of Directive 2008/104. The key is whether someone is in an "employment relationship", the essential feature of which is that a person performs services for, and under the direction of, another person for a certain period of time in return for remuneration. The ECJ claimed that member states are free to determine the scope of "worker" under national law, but they cannot unilaterally define that concept for the purpose of the Directive. Otherwise, it could jeopardise the aim of the Directive which is to establish a protective framework for agency workers which is non-discriminatory, transparent and proportionate.
