Employment Law

Judgment in Case C-193/17  (22.01.2019)

Cresco Investigation GmbH v Markus Achatzi

Religious holidays:  The grant under Austrian law of a paid public holiday on Good Friday only to employees who are members of certain churches constitutes direct discrimination on grounds of religion,  prohibited under EU law.

In Austria, where most of the population belongs to the Roman Catholic Church, Good Friday is a paid public holiday only for members of the Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church and the United Methodist Church. This special regime allows members of those churches to practise their religion on a religious holiday that is particularly important for them, without having to obtain their employer’s consent to take a day’s leave.

If a member of one of those churches works on that day, he is entitled to additional pay in respect of that public holiday.

The Claimant was not a member of any of the churches in question and claimed discrimination by being denied public holiday pay for the work he did on 3 April 2015, which was Good Friday.

The Court found that national legislation, such as that at issue, constitutes direct discrimination on grounds of religion.

Until Austria has amended its legislation, in order to restore equal treatment, a private employer who is subject to that legislation is now obliged also to grant his other employees a public holiday on Good Friday, provided that they have sought prior permission from their employer to be absent from work on that day, and, consequently, to recognise that those employees are entitled to a payment in addition to their regular salary for work done on that day where the employer has refused to agree to such a request.

The press release is available here and the full judgment here.


Geographical Limits on the “right to be forgotten” - Google v CNIL (C-507/17)

On 10 January 2019  Advocate General (AG) Maciej Szpunar, recommended the CJEU  limit the scope of application of search-engine de-referencing obligations to the territory of the EU. The case at hand was referred to the CJEU after a dispute between search engine operator Google and French Data Protection Authority CNIL. The CNIL had imposed a 100 000 euro fine on Google after the company refused to remove web pages relating to a natural person from all domains listed in its search engine, rather than just EU Member State domains.

In his Opinion, AG Szpunar held that the “right to be forgotten” must be balanced against other fundamental rights, such as the right to data protection and the right to privacy, as well as the legitimate public interest in accessing the information sought. The AG noted that, if worldwide de-referencing were permitted, the EU authorities would not be able to define and determine a right to receive information, especially since public interest in accessing information will necessarily vary from one third State to another, depending on its geographic location. There would thus be a risk that persons in third States would be prevented from accessing information and, in turn, that third States would prevent persons in the EU Member States from accessing information. The AG did, however, not rule out the principal possibility for the existence of cases in which worldwide de-referencing would be justified. He recommended the CJEU to rule that upon receiving a request for de-referencing, search engine providers should not be obliged to implement such measures on all its listed domains. Nevertheless, they should be obliged to implement all possible measures, including geo-blocking, to enforce effective de-referencing for all IP addresses located in the EU, regardless of the used domain.


Advocate General Opinion - Opinion in Avis 1/17 ECG EU-Canada Agreement

In his opinion, Advocate General Yves Bot held that the mechanism for the settlement of disputes of the Comprehensive Economic and Trade Agreement between Canada and the EU (CETA) is compatible with the Treaties, including with fundamental rights. The AG stated that the agreement does not adversely affect the autonomy of EU law and does not affect the principle that the CJEU has the ultimate competence in interpreting EU law.

The full text of the opinion is available here.