May case law digest
This month’s CJEU cases include European Arrest Warrant, calculation of retirement pension, Google’s position in the online advertising industry and Facebook privacy case.
Employment Law - parental leave - dismissal - calculation of compensation
Case C-486/18 – RE v Praair MRC SAS
EU member state: France
Date of decision: 8/05/2019
The Court of Justice EU held that the framework agreement on parental leave precludes a national provision which involves taking into account the reduced salary received by a worker on part-time parental leave when the dismissal takes place.
Therefore, the calculation of compensation payments for dismissal and redeployment of an employee who is on part-time parental leave must be carried out on the basis of the full-time salary.
The Court further held that where a worker was employed full-time and for an indefinite duration and was dismissed at the time he takes part-time parental leave, his compensation payment for dismissal must be determined entirely on the basis of his full-time salary.
Employment Law - Calculation of retirement pension – discrimination – part time workers
Case C-161/18 - Violeta Villar Láiz v Instituto Nacional de Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS)
EU member state: Spain
Date of decision: 8/05/2019
The Court of Justice of the EU held that working directive prevents Spanish legislation if it places at a particular disadvantage to workers who are women. Therefore, the Spanish legislation on the calculation of retirement pensions for part-time workers is contrary to EU law if it is found to be particularly disadvantageous to female workers.
The Court clearly stated that discrimination is based indirectly on sex in a situation in which an apparently neutral provision puts persons of one sex at a particular disadvantage compared with persons of the other sex. The disadvantage exists when the legislation affects a significantly greater proportion of individuals of one sex as compared with individuals of the other sex.
Press Release on this case is available here.
EU Law – Freedom of establishment
Case C-431/17 - Monachos Eirinaios v Dikigorikos Syllogos Athinon
EU member state: Greece
Date of decision:7/05/2019
The Court of Justice of the EU held that national legislation which prohibits a monk who has the status of lawyer, and who is registered as a lawyer with the competent authority of the home Member State, from registering with the competent authority of the host Member State in order to practise there under his home-country professional title is contrary to the directive.
Therefore, the Greek legislation prohibiting a monk who has the status of lawyer in another Member State from registering at the bar, on account of the incompatibility between the status of monk and the profession of lawyer, is contrary to EU law.
Press Release on this case is available here.
Immigration – Refugee status – revocation of refugee status – protection – security
Joined Cases C-391/16, C-77/17 and C-78/17 - M v Ministerstvo vnitra, X and X v Commissaire général aux réfugiés et aux apatrides
EU member state: Belgium
Date of decision: 14/05/2019
The Court of Justice EU held that both a national of a non-EU country and a stateless person with a well-founded fear of persecution in his or her country of origin or residence must be classified as a refugee for the purposes of the directive and the Geneva Convention. In that regard, the Court finds that ‘refugee status’ is defined by the directive as being the recognition of a person as a refugee by a Member State and that that act of recognition is purely declaratory and is not constitutive of being a refugee.
The Court considered that the effect of the revocation of refugee status or the refusal to grant that status is not that a person who has a well-founded fear of persecution in his or her country of origin is no longer a refugee. Thus, although such a person will not or will no longer be entitled to all the rights and benefits that the directive reserves for persons with refugee status, he or she is or continues to be entitled to a certain number of rights laid down in the Geneva Convention.
The Court specifies that a person who is a refugee must be guaranteed the rights enshrined in the Geneva Convention expressly referred to in the directive 4 in the context of the revocation of or the refusal to grant refugee status, together with the rights provided for by that convention which do not require a lawful stay, but merely the refugee’s physical presence in the territory of the host Member State.
The Court also held that the relevant provisions of the directive are in line with the Geneva Convention and with the rules of the Charter and the Treaty on the Functioning of the European Union requiring compliance with that convention.
Press Release on this case is available here.
Criminal Law – European Arrest Warrant (EAW)
Cases C-508/1/ & C509/18 - OG (Public Prosecutor’s office of Lübeck) and C-82/19 PPU PI (Public Prosecutor’s office of Zwickau) and in PF (Prosecutor General of Lithuania)
EU member states: Ireland, Germany, Lithuania
Date of decision: 27/05/2019
The Court of Justice EU held that the authority responsible for issuing an European arrest warrant must act independently in the execution of its functions, even where that arrest warrant is based on a national arrest warrant issued by a judge or a court.
However, in regard to Germany, the Court held that the public prosecutor’s offices do not provide a sufficient guarantee of independence from the executive for the purposes of issuing an European arrest warrant.
As for Lithuania, the Court held that the Prosecutor General of Lithuania does provides such a guarantee of independence.
The full judgment of this case is available here.
The Council of Bars and Law Societies of Europe (CCBE) published their comment on the case here.
Advocates General’s opinions
Case C-28/18 - Verein für Konsumenteninformation v Deutsche Bahn AG
Opinion date: 2/05/2019
An Austrian consumer protection association (Verein für Konsumenteninformation) brought an action before the Austrian Courts against Deutsche Bahn, a German railway company, which also offers Austrian customers the opportunity to book train journeys on the internet. The Austrian association asserts that the German company’s online payment system, which accepts payments by credit card, instant bank transfer or under the Single Euro Payments Area (SEPA) direct debit scheme was not compatible with the SEPA Regulation2 prohibiting payees from specifying the Member State in which the payer’s account is to be located.
Advocate General Maciej Szpunar provided that, by imposing a residence condition, Deutsche Bahn does not formally require customers wishing to use the direct debit scheme to have their payment account in any particular Member State, customers generally have a payment account with a bank established in the Member State where they reside.
He took the view that requiring a customer to be resident in a certain Member State is equivalent to specifying in which Member State a payment account must be located. He found that the contested payment practice of Deutsche Bahn is contrary to the SEPA Regulation.
In his opinion, Advocate General Maciej Szpunar concluded that that under the SEPA Regulation, a company is not required to offer its customers the possibility of paying by direct debit. However, once it has decided to provide customers with such a possibility, it has to offer that service in a non-discriminatory manner.
Press release of this case is available here.
Referrals for preliminary rulings
Belgian Data Protection Authority v. Facebook
EU Member state: Belgium
Date of Decision: 8/05/2019
On 8 May 2019, the Court of Appeal of Brussels ruled in the Facebook case following the pleadings of 27 and 28 March 2019.
The Court of Appeal decided to refer the case to the Court of Justice of the European Union for a preliminary ruling. The case raises important issues for the application of the GDPR (consistency mechanism).
Further information on this case is available here.
C-532/18 - Niki Luftfahrt
Member State: Austria
Hearing Date at CJEU: 19/06/2019
Question referred by the Austrian Court:
- Where a cup of hot coffee, which is located on the shelf of the seat in front of a person in an aircraft in flight, slides and tips over, causing a passenger to suffer scalding, does this constitute an ‘accident’ triggering a carrier’s liability within the meaning of Article 17(1) of the Convention for the Unification of Certain Rules for International Carriage by Air?
(Case C-482/18) (2018/C 352/28) - Google Ireland Limited v Nemzeti Adó- és Vámhivatal Kiemelt Adó- és Vámigazgatósága
Member State: Hungary
Hearing Date at CJEU: 04/06/2019
1. Should Articles 18 and 56 of the Treaty on the Functioning of the European Union (‘TFEU’) and the prohibition on discrimination be interpreted as precluding a Member State’s tax legislation in which the penalty provisions require, for beach of the obligation to register for the purposes of an advertisement tax, the imposition of a fine for failure to comply, the total amount of which, for companies not established in Hungary, can be 2000 times greater than the amount of the fine for companies established in Hungary?
2. Can the penalty described in the previous question, which involves a markedly large sum and is punitive in nature, be considered as capable of discouraging service providers who are not established in Hungary from providing service in that country.
3. Should Article 56 and the prohibition on discrimination be interpreted as precluding legislation under which, for undertakings established in Hungary, the obligation to register is satisfied automatically, without making an explicit application, through the allocation of a Hungarian tax identification number as part of the process of registering with the Companies registry, irrespective of whether or not the undertaking publishes advertisements, whereas for undertakings that are not established in Hungary but that publish advertisements in that country it is not established in Hungary but that publish advertisements in that country it is not satisfied automatically, and instead they have specifically to comply with the obligation to register, and can be subject to a specific penalty if they fail to do so?
4. If the answer to the first question is in the affirmative, should Article 56 TFEU and the prohibition on discrimination be interpreted as precluding a penalty such as the one at issue in the main proceedings, imposed for breach of the obligation to register for the purposes of an advertisement tax, in so far as the aforesaid legislation may be contrary to that article?
5. Should Article 56 TFEU and the prohibition on discrimination be interpreted as precluding a provision under which the decision to impose a fine on an undertaking established abroad is final and enforceable from the moment when notice of it is served, and the decision may be contested only through judicial proceedings in which the court may not hold a hearing and only documentary evidence is admissible, while fines imposed on undertakings established in Hungary may be contested in an administrative procedure and, moreover, the judicial proceedings are not restricted in any way?
6. In view of the right to good administration established in Article 41(1) of the Charter of Fundamental Rights (‘the Charter’), should Article 56 TFEU be interpreted as meaning that this obligation is not satisfied where the fine for failure to comply is imposed in the form of a daily fine, meaning that the amount of the fine is tripled while the service provider is still unaware of the earlier decision and is therefore unable to make good its omission before the imposition of the next fine?
7. Should Article 56 TFEU, as read with the right to good administration in Article 41(1) of the Charter, the right to be heard in Article 41(2)(a) of the Charter, and the right to an effective remedy and to a fair trial in Article 47 of the Charter, be interpreted as meaning that these requirements are not satisfied where the decision cannot be contested in an administrative procedure and where, in the administrative court proceedings, only documentary evidence is admissible and the court cannot hold a hearing?