Case Comment: CD v ST and Z v A Government Department & Ors (C-167/12 and C-363/12)

Michèle Finck, University of Oxford

Human procreation is not longer what it used to be. While medical research has created a number of mechanisms that allow people to engage in sexual intimacy without a resulting pregnancy, it also allows those wishing to procreate but who are unable to do so biologically to have children. IVF and surrogacy in many ways challenge our conception of human procreation. Naturally, the law needs to adapt to these changes.  Surrogacy in particular however raises a number of value-laden questions, which complicates the law’s response to these medical avenues. It is thus not surprising that no homogenous position exists between Member States on this issue.

In the CD and Z cases, the CJEU had to pronounce itself on how to reconcile surrogacy with an existing legal framework on maternity leave that did not account for motherhood resulting from that mechanism. More precisely, it was faced with the question of whether a mother who did not give birth to her own child, born via a surrogate, has a right to maternity leave under EU law. Family law is not a EU competence. Maternity leave is, however, regulated by the Pregnant Workers Directive (PWD) and some aspects arising out of motherhood and employment are addressed by the Sex Discrimination Directive. In Mayr, the CJEU had already clarified that the Sex Discrimination Directive is applicable to workers undergoing IVF that have not yet been successful.

In CD and Z, the Grand Chamber established that, as a matter of EU law, only women who themselves give birth to the child can benefit from maternity leave. Two Advocates General, Wahl and Kokott, issued opinions and came to opposed conclusions. The Court followed Advocate General Wahl in its judgment. Applying Mayr, it found that the PWD only applies to women who are in fact pregnant. The Sex Discrimination Directive was found not to be applicable either as the commissioning mother of a surrogacy agreement would be in the same position as a commissioning father. Having found that the question fell outside of the ambit of EU law, the CJEU also found the Charter of Fundamental Rights to be inapplicable. In the Z judgment, the CJEU further clarified that the Framework Equality Directive and its provisions on disabilities do not apply to women unable to become or carry out a pregnancy as the directive only targets disabilities that render a worker’s involvement in professional life more burdensome, which is not the case for medical conditions that prevent women from getting pregnant or carrying out a pregnancy. Continue reading

After AMS: remaining uncertainty about the role of the EU Charter’s principles

Jasper Krommendijk

On 15 January 2014, the CJEU issued its long awaited judgement in the case of AMS (Case-176/12 [2014]) in which it concluded that article 27 of the Charter of Fundamental Rights of the European Union does not have horizontal effect and can thus not be invoked in a dispute between private parties. This blog entry examines the judgments as well as the -different- Opinion of the Advocate General.

I. Facts and judgment

AMS is an association governed by private law. Its main objective is reintegration of unemployed persons. It challenged and consequently suspended the appointment of Mr. Laboubi as a trade union representative. AMS was of the opinion that this appointment was not required since AMS only had 11 staff members. The French Labour Code only obliges the appointment of a representative for workplaces with more than 50 employees. In its calculation, AMS excluded between 120 and 170 employees with particular contracts (‘accompanied-employment’) from the calculation. This practice was in line with the French Labour Code (Article L. 1111-3). The trade union argued that the latter provision was not in accordance with Directive 2002/14 providing for the consultation of employees. Nonetheless, the trade union could not invoke the Directive, because of the prohibition of horizontal direct effect in legal disputes between private parties, as the case in hand. The trade union thus based its argument on Article 27 of the Charter dealing with workers’ right to information and consultation within the undertaking:

Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices.

In that light the Cour de Cassation in April 2012 referred preliminary questions to the CJEU asking whether article 27 can be invoked in a dispute between private parties. Continue reading

Clarification of the Article 9(2) ECHR qualification? Eweida and Others v the UK

BlogPhotoDr Iyiola Solanke

Can an employer compel a Christian employee to: a) remove jewellery worn to manifest religious belief or b) carry out workplace duties which are felt to contravene central tenets of their faith? How far must employers go to accommodate religion and belief? Do they have to accommodate believers, whose ‘commitment to religion ‘involves not just participation in the worship and corporate life of the religion concerned but adherence to its system of values’ in a way that influences their behaviour in their daily lives, outside the context of the religion’s corporate life? Must organisational aims respect religion?

Since the introduction in England and Wales of the Employment (Religion and Belief) Regulations in 2003 – in avowed implementation of  Directive 2000/78/EC (the Employment Equality Directive) – , domestic courts in the UK have understood the requirements of EU law to place only a limited obligation upon employers to recognize and accommodate the religious beliefs of employees in the workplace: Muslim claimants such as Mohmed and Azmi[1] were unsuccessful in gaining legal support to wear a long beard or the hijab; Christian claimants such as Mba[2] have not persuaded judges that their religion should relieve them from Sunday working.   Of course (national law implementing) EU law in this area is intended to be interpreted in a manner which is also consistent with the requirements of the ECHR (see R (on the application of AMICUS–MSF section, NUT and others) v. Secretary of State for Trade and Industry [2007] ICR 1176 (EWHC, Admin) ).   Strasbourg jurisprudence seems to be supportive of this stance with its dual approach to Article 9 ECHR on freedom of religious expression. In Kokkinakis[3], it said that religious freedom “implies freedom to manifest ones religion. Bearing witness in words and deeds is bound up with the existence of religious convictions” but it is agreed that this right is not absolute – Continue reading

Carrying Over Holiday Pay When Sick

Claire Darwin

This piece was orginally posted on Daniel Barnett’s employment law bulletin, and is reposted here with thanks.

The hard-working judges in the CJEU have yesterday, in KHS AG v Schulte (C-214/10) handed down a judgment which casts doubt on whether a holiday taken pursuant to the Working Time Directive should involve mere relaxation and leisure.

It is now long established that workers on long-term sick leave accumulate holiday (Stringer v HMRC (C-350/06)). However in Schulte the CJEU confirmed that this right is not without limits, and that to allow workers to accumulate unlimited amounts of holiday entitlement, or pay in lieu, does not reflect the purpose of Article 7 of the Working Time Directive. Whilst many of us might disagree with this, the CJEU held that holiday taken after a certain point in time ceases to provide a rest from work, and becomes “merely a period of relaxation and leisure”. They held that a holiday which involves mere relaxation and leisure, but does not provide a worker with a rest from work, is not consistent with the aim of Article 7 of the Working Time Directive.

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Come Fly With Me Part II: Holiday Pay under EU Law

Andrew Smith

Williams & Others v British Airways plc (C-155/10)

The CJEU last week (15 September 2011) handed down another important judgment in a claim brought by commercial airline pilots, seeking to enforce their employment law rights under EU law.

This claim concerned the proper method of calculating the amount of holiday pay owed to BA pilots, whose remuneration under their contracts of employment comprised three main components:

  1. A fixed annual salary;
  2. A supplemental payment which varied according to the time spent flying BA’s aircraft (calculated at £10 per flying hour); and
  3. A supplemental payment to compensate the pilots for time spent away from base (calculated at £2.73 per hour).

The ‘flying supplement’ was treated as fully taxable remuneration.  As regards the ‘off base’ supplement, 82% was treated as having been paid on account of expenses and only 18% was treated as taxable remuneration.

The claimants’ contracts of employment provided that their holiday pay entitlement was calculated by reference to the fixed annual salary only; the supplemental payments were disregarded for this purpose.

The UK Court of Appeal ([2009] IRLR 491) had accepted BA’s argument that the fixed annual salary alone constituted remuneration; and that its method of calculating workers’ entitlement to holiday pay was therefore permissible.

The Supreme Court ([2010] IRLR 451) referred the matter to the CJEU, requesting clarification of the correct approach under EU law. The relevant provisions under consideration by the CJEU were Article 7 of Council Directive 2003/88/EC (“the Working Time Directive”) and Clause 3 of the European Agreement annexed to Council Directive 2000/79/EC (“the Aviation Directive”).

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