ETUF-ETUC Project Partner Committee
“End Precarious Work Now” Project
DRAFT OUTLINE
CONFIDENTIAL
LEGAL PROFESSIONAL PRIVILEGE
Stockholm, 5 October
Case: 24652130
DRAFT LEGAL OPINION OUTLINE
PRECARIOUS WORK PRACTICES AND EUROPEAN UNION LAW
INTRODUCTION
I – PRECARIOUS WORK AND EU EMPLOYMENT POLICY
A – The Principle of Equal Treatment between workers: A Foundational Concept in European
Union Law
Equal Treatment and Precarious Work – Introduction
a. General concept of equal treatment
i. General principles of the EU

Mangold, C-144/04, EU:C:2005:709

Gina Livioara Goga, “The General Principle of non Discrimination and Equal
Treatment in the Legislation and Jurisprudence of the Court of Justice of the
European Union”, Acta Universitatis Danubius, (2013), Vol.5(1), pp.138145.
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b. Protected groups and justficiations
i. Direct discrimination vs. indirect discrimination
ii. Positive discrimination
iii. Gender
iv. Race
v. Disability
vi. Age
c. Relevance to precarious work
i. Steve Peers, “Equal Treatment of Atypical Workers: A New Frontier for EU
Law?”, Yearbook of European Law, (2013), Vol. 32(1), pp. 30-56.
Early Thinking on Equal Treatment in EU Law
a. Initial Treaty Sources of Equal Treatment: Nationality and Equal Pay for Women and
Men
i. Article 18 TFEU: prohibition of discrimination on the bounds of nationality
ii. Article 45(2) TFEU: right to equal treatment for workers on grounds of nationality
iii. Article 157 TFEU: equal pay for male and female workers for equal work or work
of equal value
b. Early thinking on equal treatment in labour law : a market-driven approach
i. The Brussels Report on the General Common Market (Spaak Report), June 1956

Non-discrimination between workers would allow efficient market allocation
of labour

Social issues should only be regulated insofar as they constitute a block to
market integration

Ultimately an economic rationale governing non-discrimination

See analysis in Jari Hellsten, On Social and Economic Factors in the
Developing European Labour Law, Reasoning on Collective Redundancies,
Transfer of Undertakings and Converse Pyramids, (Stockholm: Elanders
Gotab, 2005).
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ii. ILO Report on Social Aspects of European Economic Cooperation (Ohlin Report)
(1957)

“widespread agreement that government interference with the freedom of
collective bargaining, if it becomes necessary at all, should be kept to a
minimum”
c. Development of equal treatment and the social function of the European Community
i. Commission v France, C-167/73, EU:C:1974:35

the Court recognized that the principle of non-discrimination not only has the
effect of allowing nationals of other Member States equal access to
employment and to providing services in other Member State, but also of
guaranteeing the State's own nationals that they shall not suffer the
unfavourable consequences which could result from the offer or acceptance
by nationals of other Member States of conditions of employment or
remuneration less advantageous than those obtaining under national law and
collective agreements.

Non-discrimination, therefore, is not only designed to benefit workers
seeking access to employment in other member states, but has a broader
protective function for native workers from being undercut by external wage
competition.
ii. Defrenne v Sabena, C-43/75, EU:C:1976:56

Direct effect of Article 157 TFEU: dual economic and social purpose of the
provision highlighted by the court
iii. European Social Charter (1961)
iv. Article 7, 1989 Community Charter of the Fundamental Rights of Workers
The Treaty of Amsterdam and Beyond: Broader Efforts in Non-Discrimination
a. New primary law developments:

Article 19: EU may take action to combat discrimination on the basis of sex,
racial or ethnic origin, religion or belief, disability, age, or sexual orientation
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
Article 21 Charter Fundamental Rights
b. Legislative efforts
i.
Directive 2006/54/EC of the European Parliament and of the Council of 5 July
2006 on the implementation of the principle of equal opportunities and equal
treatment of men and women in matters of employment and occupation (recast) (OJ
L 204, p. 23.)
ii.

Meister, C‑ 415/10, EU:C:2012:217

AI v Court of Justice, F‑ 85/10, EU:F:2012:97

Elbal Moreno, C‑ 385/11, EU:C:2012:746

Haupt-Lizer v Commission, F-86/12, EU:F:2013:117

Napoli, C‑ 595/12, EU:C:2014:128

D., C‑ 167/12, EU:C:2014:169

Z., C‑ 363/12, EU:C:2014:159

X., C-318/13, EU:C:2014:2133

Maïstrellis, C-222/14, EU:C:2015:473
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of
equal treatment between persons irrespective of racial or ethnic origin (OJ L 180, p.
22).
iii.

Feryn, C-54/07, EU:C:2008:397

Runevič-Vardyn and Wardyn, C-391/09, EU:C:2011:291

Meister, C-415/10, EU:C:2012:217

Agafiţei and Others, C-310/10, EU:C:2011:467

Kamberaj, C-571/10, EU:C:2012:233

Belov, C-394/11, EU:C:2013:48

CHEZ Razpredelenie Bulgaria, C-83/14, EU:C:2015:480

Commission v Finland, C-538/14, EU:C:2015:401
Council Directive 2000/78/EC of 27 November 2000 establishing a general
framework for equal treatment in employment and occupation (OJ L 303, p. 16).

Hectors, T-181/01, EU:T:2003:13
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
Lutz Herrera, T-219/02 and T-337/02, EU:T:2004:318

Mangold, C‑ 144/04, EU:C:2005:709

Chacón Navas, C-13/05, EU:C:2006:456

Palacios de la Villa, C‑ 411/05, EU:C:2007:604

Maruko, C‑ 267/06, EU:C:2008:179

Coleman, C‑ 303/06, EU:C:2008:415

Bartsch, C-427/06, EU:C:2008:517

Q v Commission, F‑ 52/05, EU:F:2008:161

Age Concern England, C‑ 388/07, EU:C:2009:128

Mariano, C-217/08, EU:C:2009:160

Hütter, C‑ 88/08, EU:C:2009:381

Petersen, C‑ 341/08, EU:C:2010:4

Wolf, C‑ 229/08, EU:C:2010:3

Kücükdeveci, C‑ 555/07, EU:C:2010:21

Bulicke, C-246/09, EU:C:2010:418

Ingeniørforeningen i Danmark, C‑ 499/08, EU:C:2010:600

Rosenbladt, C‑ 45/09, EU:C:2010:601

Georgiev, C‑ 250/09 and C‑ 268/09, EU:C:2010:699

Römer, C‑ 147/08, EU:C:2011:286

Agafiţei and Others, C-310/10, EU:C:2011:467

Fuchs and Köhler, C‑ 159/10 and C‑ 160/10, EU:C:2011:508

Hennigs and Mai, C‑ 297/10 and C‑ 298/10, EU:C:2011:560

Prigge and Others, C‑ 447/09, EU:C:2011:573

Meister, C‑ 415/10, EU:C:2012:217

Tyrolean Airways Tiroler Luftfahrt, C‑ 132/11, EU:C:2012:329

Hörnfeldt, C-141/11, EU:C:2012:421

Commission v Hungary, C‑ 286/12, EU:C:2012:687

Dittrich and Others, C-124/11, C-125/11 and C-143/11, EU:C:2012:771

Odar, C‑ 152/11, EU:C:2012:772

HK Danmark, C-335/11 and C-337/11, EU:C:2013:222

Asociația Accept, C‑ 81/12, EU:C:2013:275
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
Commission v Italy, C-312/11, EU:C:2013:446

HK Danmark, C-476/11, EU:C:2013:590

Dansk Jurist- og Økonomforbund, C‑ 546/11, EU:C:2013:603

Hay, C‑ 267/12, EU:C:2013:823

Z., C‑ 363/12, EU:C:2014:159

Glatzel, C‑ 356/12, EU:C:2014:350

Specht and Others, C‑ 501/12 to C‑ 506/12, C‑ 540/12 and C‑ 541/12,
EU:C:2014:2005
iv.

Schmitzer, C-530/13, EU:C:2014:2359

Vital Pérez, C‑ 416/13, EU:C:2014:2371

FOA, C-354/13, EU:C:2014:2463

Felber, C‑ 529/13, EU:C:2015:20

ÖBB Personenverkehr, C‑ 417/13, EU:C:2015:38

Ingeniørforeningen i Danmark, C-515/13, EU:C:2015:115

SCMD, C-262/14, EU:C:2015:336
Other include:

Council Directive 2004/113/EC implementing the principle of equal
treatment between men and women in the access to and supply of goods and
services. (OJ L 373, p. 37)

Council Directive 96/34/EC of 3 June 1996 on the framework agreement on
parental leave concluded by UNICE, CEEP and the ETUC (OJ L 145, p. 4)
The Importance of Equal Treatment as an Underlying Concept in this Study
a. The importance of equal treatment

Provides an overarching and structural argument as to why protection for
precarious work should go further than it does currently: it is not only a
political and frankly, ethical decision, the very logic of the system of the
European Union legal framework suggests it should.
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
Its enduring presence in political discourse: see A New Start for Europe: My
Agenda for Jobs, Growth, Fairness and Democratic Change; Political
Guidelines for the next European Commission Opening Statement in the
European Parliament Plenary Session Jean-Claude Juncker Candidate for
President of the European Commission, Strasbourg, 15 July 2014: “I will
initiate a targeted review of this Directive to ensure that social dumping has
no place in the European Union. In our Union, the same work at the same
place should be remunerated in the same manner.”

Stefano Giubboni, Social Rights and Market Freedom in the European
Constitution: A Labour Law Perspective, (Cambridge, Cambridge University
Press, 2009), p. 45-46.
b. Beyond equal treatment? The limitations of an equality analysis to precarious work

Normalising atypical working arrangements as accepted and simply capable
of being remedies by equal treatment: Leah F. Vosko, “Confronting the
Norm: Gender and the International Regulation of Precarious Work”, Paper
prepared for the Law Commission of Canada, July 2004.
B – The Main Definitions of Precarious Work from An Academic/Theoretical Perspective
a. Early thinking about precarious work
i. P. Sylos Labini, “Precarious Employment in Sicily” (1964) in Nicola Countouris,
Strengthening the Protection of Precarious Workers: The Concept of Precarious
Work, ILO International Training Centre, 2011.

Italian economist Sylos Labini seminal work in the International Labour
Review: precarious work as that which provides no stability of income and
no guarantee of long-term security or improvement.

Precariousness referred both to the nature of the work and to the social
position it generates for the individual. Labini highlighted the correlation
between precarious work and partial employment; work for very short
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periods; hidden unemployment in agriculture; and those with very low and
unstable incomes such as peasants, small artisans, and traders.
ii. Gerry Rodgers, “Precarious Work in Western Europe: The State of the Debate”, in
G. Rodgers and J. Rodgers, Precarious Jobs in Labour Market Regulation: The
Growth of Atypical Employment in Western Europe (Brussels: International
Institute for Labour Studies, 1989), p.1.

In the 1970s and 1980s: growing concern over the rise of non-standard work
practices – eg. short-term work, part-time work, agency contracts

precarious work as a phenomenon that “goes beyond the form of employment
to look at the range of factors that contribute to whether a particular form of
employment exposes the worker to employment instability, a lack of legal
and union protection and economic vulnerability.”

Rodger’s definition, therefore, sought to move past a formalistic definition
based on certain contractual arrangements to discern common dimensions of
precarious work that cut across different employment relationships. He
suggested four key themes that can be summarised as follows:
(i) temporal: ie. the amount of certainty over the timeframe of the
employment
(ii) organisational: workers’ individual and collective control over work in
what concerns working conditions, working time and shifts, work intensity,
pay, health and safety
(iii) economic: adequacy of remuneration and appropriate salary
progression
(iv) social: access to social protections eg. unfair dismissal, discrimination,
etc. as well as access to benefits protecting against illness, accidents, or
unemployment.
iii. See also Diamond Ashiagbor, “Promoting Precariousness? The Response of EU
Employment Policies to Precarious Work”, in J. Fudge and R. Owens (eds.),
Precarious Work, Women and the New Economy: The Challenge to Legal Norms,
(Oxford, Hart Publishing, 2006), p. 80.
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b. Contemporary definition
v.
2004 ESOPE Study for Commission: Miguel Laparra Navarro et. al,
Precarious Employment in Europe, 2004, pp. 8-9

used Rodger’s dimensions to offer what is probably the most suitable
working definition of precarious work for the purposes of this study

“a variety of forms of employment (e.g. temporary employment,
underemployment, quasi self-employment, on-call work) established below
the socially accepted normative standards (typically expressed in terms of
rights, of employment protection legislation, and of collective protection) in
one or more respects (the four dimensions) which results from an unbalanced
distribution towards and amongst workers (towards workers vs. employers,
and amongst workers, which leads to the segmentation of labour) of the
insecurity and risks typically attached to economic life in general and to the
labour market in particular”. (9)

Timothy Bartkiw, “Book Review: The Fissured Workplace: Why Work
Became So Bad For So Many and What Can be Done to Improve It, David
Weil, 2014 (Cambridge, Massachusetts, Havrard University Press, 424PP)”,
Camparative Labor Law and Policy Journal, (Winter 2015), Vol 36, p.323.
c. Range of interpretations of the term
i. Nicola Countouris, Strengthening the Protection of Precarious Workers, pp.6-7.
ii. Virginia Mantouvalou, Human Rights for Precarious Workers: The Legislative
Precariousness of Domestic Labour, UCL Labour Rights Institute On-Line
Working
Papers,
LRI
WP
2/2012,
available
online
at
http://www.ucl.ac.uk/laws/lri/papers/VM%20precarious%20workers.pdf , p.2.

Both two sources above contain important discussions of Vosko (2006),
Evans and Gibb (2009), and Fudge and Owens (2006). These divergent
definitions of precarious work have placed greater emphasis on non-wage
work; work with distinctively high risks to psychological and physical health;
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social dimensions, especially from a gender and race perspective; and poorly
paid jobs incapable of sustaining a household.
iii. Nicola Kountouris, “The Legal Determinants of Precariousness in Personal Work
Relations: A European Perspective”, Comparative Labor Law and Policy Journal,
(Fall 2012), Vol. 34, p.21.
iv. Other points

the multidimensional and contested nature of precarious work as a concept,
as well as the considerable overlap with broader concepts of bad or “lowquality” work, dead-end jobs, and decent work.

Project partners have also rightfully pointed out that illegal work, trafficking,
certain forms of prostitution, and the atrocities of modern slavery are
arguably the ultimate forms of precarious work, with individuals trapped in
often-inescapable cycles of destitution and exploitation, working under
terrible and even life-threatening conditions. These areas, however, are
deserving of their own in-depth analysis, and while they form part of the rich
background against which this study analyses precarious work practices, they
are not the focus of its enquiry.
Definition Employed for the Purpose of this Study
a. Adopt the working definition provided by the 2004 study: particular emphasis on
autonomy and dignity: the ability of a person to have a sense of autonomy over the
manner in which they work, and the ability to engage in decent work with a living wage
and safe, appropriate conditions.
b. The primary focus of this legal opinion is on particular structural features and trends
within the European Union that underpin precarious work, namely:

attempts to deny individuals conducting work the status and rights of an
employee, especially through bogus self employment arrangements or
agency work
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
attempts to shield the “real” employer from accountability and liability
towards those working of their behalf

linkages with social dumping, flags of convenience, and forum shopping

failure to ensure the employee knows the terms of the employment contract

the denial of indefinite, full-time employment, especially via fixed-term
work, part-time work, etc.

unclear or insecure parameters of working time during the employment
period including both overworked employees and underworked employees
(such as in the case of zero-hour contracts)

certain aspects of low wage work

lack of or limited opportunities for enforcing rights at work

lack of access to social protection and benefits associated with full-time work

limits on the right to engage in trade union activity

arbitrary or unfair dismissal

the treatment of third-country nationals
c. Given the legal focus of this opinion and the project’s general scope, there is
considerable emphasis placed upon analysing atypical or non-standard working
arrangements, which include:

part-time work

fixed-term work or short-term contracts

temporary agency work and posted work

zero-hour contracts and similar arrangements

bogus self-employment and abuse of apprenticeship and traineeship
programs
Related Terms: Precarious Work, Atypical Work, and Non-Standard Forms of Employment
a. Atypical work

difficulty associated with empirically studying incidences of precarious
work: atypical working arrangements often serves as a useful indicator for
understanding various precarious work practices.
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c. But what is “typical work?”

2004 ESOPE Study for Commission: Miguel Laparra Navarro et. al,
Precarious Employment in Europe, 2004: important national differences
throughout the European Union in what is considered to form a typical
working arrangement. Eg. typical work in Germany and France closely
mirrors the “standard employment relationship” (ie. full-time, indefinite,
direct employment) cf. UK tends to consider a much wider ambit of working
arrangements as constituting the norm, with part-time work, for example,
considered much more of an acceptable and typical arrangement, especially
for women.

not an empirical question of, statistically speaking, what working
arrangements are prevalent in each given country, although prevalence
inevitably casts influence over local attitudes.

Rather, “typical work” is a normative reference point, infused within both
regulation and social conception.

“Non-Standard Forms of Employment”, Report for Discussion at the Meeting
of Experts on Non-Standard Forms of Employment, Geneva, 16-19 February
2015, MENSFE/2015, International Labour Organization, p.1.: atypical work
constitutes work that markedly deviates from the traditional standard
employment relationship of full-time, indefinite, direct subordinate
employment.
d. Is all atypical/non-standard work necessarily precarious?

Not all atypical working arrangements, in all circumstances, should be
considered precarious.

The International Labour Organization (ILO) refers to certain forms of
atypical work which are entered into voluntarily as falling outside the scope
of precarious work.

Others emphasise the extent to which the atypical working arrangement has
the potential to form a genuine transition to full traditional employment as a
key distinguishing factor.
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
Of course, judging the extent to which a worker is truly “voluntarily” entering
into atypical work is inherently problematic. For many workers, especially
those within tough economic and personal circumstances, the “choice” as to
which form of work to enter into may be entirely theoretical.

Perhaps the most appropriate distinguish factor is that of a general sense of
autonomy: those in atypical working arrangements that have a high degree of
autonomy over the nature of their working arrangements are less likely to fall
into the category of precarious work. This may be derived from the economic
and personal capacity to choose to work part time (for example, to balance
family or study commitments), a substantial degree of control over the nature
of work and working conditions (such as in the case of a self-employed
specialist consultant), or even a high-level of remuneration and flexibility (for
example, in relation to executive positions).

The problem of distinguishing atypical work from precarious work is
diminished when precarious work is not considered as a duality (ie. work is
either precarious or not precarious) but as a feature existing on a contextually
defined continuum (ie. degree of precariousness).1
C – Precarious Work and International Labour Organisation policy discourse
a. Precarious work’s mirror: decent work

Kerry Rittich, “Rights, Risk, and Reward: Governance Norms in the
International Order and the Problem of Precarious Work”, in ”, in J. Fudge
and R. Owens (eds.), Precarious Work, Women and the New Economy: The
Challenge to Legal Norms, (Oxford, Hart Publishing, 2006), p. 40.

The documented rise of precarious work worldwide has placed precarious
work on the ILO’s agenda.
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
Indeed, it is possible to view the ILO’s core “Decent Work Agenda” as an
attempt to address precarious work by holding up its mirror image via the
four pillars of employment creation, social protection, rights at work, and
social dialogue.2
b. Precarious work in the ILO Bureau for Workers’ Activities

ACTRAV, Outcome Document to the Workers’ Symposium on Policies and
Regulations to Combat Precarious Employment, International Labour
Organization, 2012, p. 27.

the term has increasingly featured in policy publications and documents from
the organisation, especially those involving the trade union sector.

highlighted the multifaceted and context-specific nature of the concept of
precarious work, eg. the function of precarious work as a means to shift risks
responsibilities from employers to workers; and the work being characterised
by a range of “objective (legal status) and subjective (feeling) characteristics
of uncertainty and insecurity

set down a matrix of contractual arrangements (relating to both the duration
and nature of the relationship) and working conditions (low wage, low or no
protection or access to rights enforcement).

Crucially, the findings from the symposium highlighted precariousness not
only as a reference to the work itself, but to the nature of the life that ensues
from being engaged in precarious work: precarious work leads to precarious
lives.
c. The broader use of non-standard forms of employment NSFE – a more neutral though
more limited term (precarious work can happen in even standard forms of employment)
Kerry Rittich, “Rights, Risk, and Reward: Governance Norms in the International Order and the Problem of
Precarious Work”, in ”, in J. Fudge and R. Owens (eds.), Precarious Work, Women and the New Economy: The
Challenge to Legal Norms, (Oxford, Hart Publishing, 2006), p. 40.
2
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
International Labour Organization, “Non-Standard Forms of Employment”,
http://www.ilo.org/global/topics/employment-security/non-standardemployment/lang--en/index.htm.

Within the broader organisation, the ILO has recently opted in favour of nonstandard forms of employment to discuss the atypical working arrangements
that often give rise to incidences of precarious work.

undoubtedly a reflection of the institution’s delicate political balance
between the different representatives of its tripartite membership. Across the
gamut of member states, employers, and worker’s unions represented at the
ILO lies a broad range of perspectives as to the proper role of atypical
working conditions in the modern economy.

International Labour Office, Conclusions of the Meeting of Experts on NonStandard Forms of Employment, GB.323/POL/3, 12-27 March 2015, p.8.:
tripartite Meeting of Experts in February 2015 on non-standard forms of
employment. The Worker Vice-Chairperson identified the lack of political
neutrality of the terminology used when discussing the issue, observing that
the trade union movement has routinely employed “precarious work” to
encapsulate their concerns, while employers have highlighted “flexibility”.

NSFE therefore a more neutral term for stakeholders to discuss and agree on
common
objectives
for
reform
and
protection.
The
meeting’s
recommendations called on the ILO to improve its monitoring and data
collection, consider innovative practices for worker protection, and to
examine and address current barriers to protection.

In particular, the ILO was recommended to assess gaps in current labour
standards and evaluate the need for new ones.
D – Precarious Work and EU Policymaking
Early Thinking: The Social Dimension of the Common Market
a. Ohlin and Spaak Reports: economic justifications for equal treatment
b. Limited social competence and focus, change of direction to give EU a human face –
see Jari Hellsten, On Social and Economic Factors in the Developing European Labour
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Law, Reasoning on Collective Redundancies, Transfer of Undertakings and Converse
Pyramids, (Stockholm: Elanders Gotab, 2005).
The 1980s and 1990s: Atypical Work and Minimum Standard Directives
a. The major developments in EU labour and employment powers

The 1987 Single Economic Act

1992 Maastrict Treaty and the Protocol on Social Policy and Agreement on
Social Policy

1996 European Social Charter

1997 Treaty of Amsterdam and revised social chapter
d. The legislative agenda: push from 1980s Delors Presideny for action on atypical work

Article 7 1989 Community Charter of Fundamental Social Rights of Workers
makes direct reference to atypical work: “The completion of the internal
market must lead to an improvement in the living and working conditions of
workers in the European Community. This process must result from an
approximation of these conditions while the improvement is being
maintained, as regards in particular the duration and organization of working
time and forms of employment other than open-ended contracts, such as
fixed-term contracts, part-time working, temporary work and seasonal work.”

Proposal for Council Directive supplementing the measure to encourage
improvement in the safety and health at work of temporary workers COM(90)
228 of 29 June 1990 (largely unsuccessful – not till Temporary Agency Work
Directive 2008/104/EC is there any great action here)

Proposal SEC (1995) 1540, under which a consultation with the social
partners was launched which finally led to the adoption of the two framework
agreements ie. Part-Time Time Work Directive 97/81/EC, and Fixed-Term
Work Directive 1999/70/EC
e. Protections coinciding with push for diversification of the workforce: Since European
Employment Strategy (EES) in 1997, Member States have been encouraged to
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“examine the possibility of incorporating . . . more adaptable types of contract, taking
into account the fact that forms of employment are increasingly diverse.”

See comments on Essen European Council in Mascellani, C-221/13,
EU:C:2014:2286, para 20
Lisbon and Beyond: Quality Jobs and Flexicurity
a. Lisbon Strategy: Lisbon European Council, Presidency Conclusions, 23 and 24 March
2000.

Strategy to make Europe “the most competitive and dynamic knowledgebased economy in the world” capable of sustainable economic growth with

Emphasis on “more and better jobs and greater social cohesion”.
b. COM (2006) 708 final, “Green Paper - Modernising Labour Law to Meet the
Challenges of the 21st Century”, 22 November 2006.

rigidity of the standard employment relationship contributing to
diversification of non-standard employment relationships: creation of twotier labour market of insiders and outsiders

“outsiders” especially those in precarious work who “occupy a grey area
where basic employment or social protection rights may be significantly
reduced, giving rise to a situation of uncertainty about future employment
prospects and also affecting crucial choices in their private lives” (3).
c. COM (2007) 359 final, “Communication from the Commission to the European
Parliament, the Council, the European Economic and Social Committee and the
Committee of the Regions - Towards Common Principles of Flexicurity: More and
better jobs through flexibility and security”, 27 June 2007, pp. 4-5.

Not simply coupling of two objectives: simply takings measures on both
flexibility and security in isolation can cancel one another out. Rather, a
strategy for enhancing the agility of enterprises and workers to respond to
economic demands

Emphasis on employment security rather than job security: emphiasis on
enabling swifter transitions between jobs, social protection, and life-long
18(60)
skills building. See related discussion in Manfred Weiss, “Job security: A
Challenge for EU Social Policy”, in N. Countouris and M. Freedland (eds.),
Resocialising Europe in a Time of Crisis, (Cambridge: Cambridge University
Press, 2013), pp. 278-289.
d. Europe 2020 Strategy:

adopted in 2010 to govern smart, sustainable, inclusive growth. To raise the
employment rate of the population aged 20–64 from the current 69% to at
least 75%.

European Semester: an annual cycle of macro-economic, budgetary and
structural policy coordination. Inclusion of social indicators since 2014: eg.
Spanish labour segmentation and precariousness of work noted in review. See
COM (2015) 28 final, “Country Report Spain 2015 - Including an In-Depth
Review on the prevention and correction of macroeconomic imbalances”, 26
February 2015, p.41.

COM (2013) 83 final, “Towards Social Investment for Growth and Cohesion
– including implementing the European Social Fund 2014-2020European
Social Investment Package”, 20 February 2013: shift from social expenditure
as a cost to an investment.
e. The emphasis on not just on “more jobs” but on “quality jobs” in recent policy papers,
as well as a discussion of “labour force segmentation”

OR 70005/15, Council of the European Union, Joint Employment Report
2015, 9 March 2015: “addressing the challenge of segmented labour markets,
ensuring a proper balance between flexibility and security”

OR 13693/14, Social Protection Committee, Europe 2020 Strategy: Mid-term
review, including the evaluation of the European Semester, 7 October 2014.

Particular recent focus on undeclared work eg. COM (2014) 221 final.
Proposal for a decision of the European Parliament and of the Council on
establishing a European Platform to enhance cooperation in the prevention
and deterrence of undeclared work, 9 April 2014.
19(60)

Particular recent focus on youth employment eg. Council Recommendation
of 22 April 2013 on establishing a Youth Guarantee (OJ C 120, 26.4. 2013,
pp. 1-6), point 16; 2013 Youth Guarantee, Council Recommendation of 10
March 2014 on a Quality Framework for Traineeships (OJ C 88, p. 1)
The Groundswell: The Term Precarious Work in Recent European Policy Discourse
a. An increase in Parliamentary questions regarding precarious work, and using precarious
work as a term of reference

Dominique Martin (ENF) , Joëlle Mélin (ENF), Aymeric Chauprade (ENF),
Question for written answer to the Commission, 3 July 2015, E-010803/2015.
(Answer pending).

Thomas Händel (on behalf of Committee on Employment and Social
Affairs), Question for oral answer to the Commission, 16 July 2015, O000091/2015.

Vilija Blinkevičiūtė (S&D), Question for written answer to the Commission,
25 June 2015, E-010251/2015. See corresponding Answer given by Ms
Thyssen on behalf of the Commission to written question E-010251/2015, 25
August 2015.

Inês Cristina Zuber (GUE/NGL), Question for written answer to the
Commission, 18 June 2015, E-009989/2015. See corresponding Answer
given by Mr Moscovici on behalf of the Commission to written question EE-009989/2015, 17 August 2015.

Dominique Martin (ENF), Joëlle Mélin (ENF), Sylvie Goddyn (ENF), JeanFrançois Jalkh (ENF), and Mireille D'Ornano (ENF), Question for written
answer to the Commission, 3 June 2015, E-008989-15. (Answer pending).

Paloma López Bermejo (GUE/NGL), Question for written answer to the
Commission, 29 May 2015, E-008596-15. Corresponding Answer given by
Ms Thyssen on behalf of the Commission to written question E-008596-15,
5 August 2015.
20(60)

Nina Gill (S&D), Question for written answer to the Commission, 13
February 2015, E-002447/2015. See corresponding Answer given by Ms
Thyssen on behalf of the Commission to written question E-002447/2015, 17
April 2015.

Kateřina Konečná (GUE/NGL), Question for written answer to the
Commission, 19 January 2015, E-000654/2015. See corresponding Answer
given by Ms Thyssen on behalf of the Commission to written question E- E000654/2015, 7 April 2015.

Merja Kyllönen (GUE/NGL), Question for written answer to the
Commission, 5 December 2014, E-010284-14. See corresponding Answer
given by Ms Thyssen on behalf of the Commission to written question E010284-14, 26 January 2015.

Siôn Simon (S&D), Question for written answer to the Commission, 2
October 2014, E-007465/2014; Siôn Simon (S&D), Question for written
answer to the Commission, 2 October 2014, E-007466/2014 ; and Siôn Simon
(S&D), Question for written answer to the Commission, 13 October 2014, E007858/2014. See corresponding Joint Answer given by Ms Thyssen on
behalf of the Commission to written questions E-007858/14, E-007465/14,
and E-007466/14, 1 December 2014.

Emer Costello (S&D), Question for written answer to the Commission, 23
April 2014, E-005270/2014. See corresponding Answer given by Mr Andor
on behalf of the Commission to written question E-005270/2014, 11 June
2014.

Roberta Metsola (PPE), Question for written answer to the Commission, 15
April 2014, E-004721/2014. See corresponding Answer given by Mr Andor
on behalf of the Commission to written question E-004721/2014, 5 June
2014.

Roberta Metsola (PPE), Question for written answer to the Commission, 15
April 2014, E-004718/2014. See corresponding Answer given by Mr Andor
on behalf of the Commission to written question E-004718/2014, 4 June
2014.
21(60)

Catherine Stihler (S&D), Question for written answer to the Commission, 13
February 2014, E-001601-14. See corresponding Answer given by Mr Andor
on behalf of the Commission to written question E-001601-14, 7 April 2014.

Willy Meyer (GUE/NGL), Question for written answer to the Commission,
12 February 2014, E-001481-14. See corresponding Answer given by Mr
Rehn on behalf of the Commission to written question E-001481-14, 24
March 2014.

João Ferreira (GUE/NGL) , Inês Cristina Zuber (GUE/NGL), Question for
written answer to the Commission, 18 October 2013, E-011924-13. See
corresponding Answer given by Mr Andor on behalf of the Commission to
written question E-011924/2013, 10 December 2013.

Catherine Stihler (S&D), Question for written answer to the Commission, 23
September 2013, E-010783-13. See corresponding Answer given by Mr
Andor on behalf of the Commission to written question E-010783-13, 11
November 2013.

Claudette Abela Baldacchino (S&D), Question for written answer to the
Commission, 27 September 2013, E-011027/2013. See corresponding
Answer given by Mr Andor on behalf of the Commission to written question
E-011027/2013, 15 November 2013.

Claudette Abela Baldacchino (S&D), Question for written answer to the
Commission, 27 August 2013, P-009626/2013. See corresponding Answer
given by Mr Andor on behalf of the Commission to written question P009626/2013, 19 September 2013.

Nicole Sinclaire (NI), Question for written answer to the Commission, 6
August 2013, E-009517-13. See corresponding Answer given by Mr Andor
on behalf of the Commission to written question E-009517-13, 19 September
2013.

Angelika Werthmann (ALDE), Question for written answer to the
Commission, 8 April 2013, E-003907-13. See corresponding Answer given
by Mr Andor on behalf of the Commission to written question E-003907-13,
6 June 2013.
22(60)

Angelika Werthmann (ALDE), Question for written answer to the
Commission, 12 November 2012, E-010294-12. See corresponding Answer
given by Mr Andor on behalf of the Commission to written question E010294-12, 21 January 2013.

Konstantinos Poupakis (PPE), Question for written answer to the
Commission, 12 April 2012, E-003707/2012. See corresponding Answer
given by Mr Andor on behalf of the Commission to written question E003707/2012, 7 June 2012.

Roberta Angelilli (PPE) , Alfredo Antoniozzi (PPE) , Francesco De Angelis
(S&D) , Alfredo Pallone (PPE) , Potito Salatto (PPE) , David-Maria Sassoli
(S&D) and Marco Scurria (PPE), Question for written answer to the
Commission, 7 February 2012, E-001082/2012. See corresponding Answer
given by Mr Andor on behalf of the Commission to written question E001082/2012, 20 March 2012.
II – THE PROTECTION OF “TYPICAL” WORKERS UNDER EUROPEAN LAW
E – The notion of “workers” under EU-law
Defining a Worker – Article 45 of the TFEU
a. The EU definition of a worker is defined autonomously at the EU level, and not left to
member states (though sometimes national definitions of workers will apply when
implementing certain elements of EU law – see below). The EU definition must not be
interpreted narrowly, given it holds the gate way to such important rights eg. free
movement

Hoekstra, C-75/63, EU:C:1964:19, [1964] ECR 177, p. 184.

Commission v Netherlands, C-542/09, EU:C:2012:346, para 68

Raccanelli, C-94/07, EU:C:2008:425 (a)

N., C-46/12, EU:C:2013:97 (a)

Haralambidis, C-270/13, EU:C:2014:2185 (a)

Lehtonen and Castors Braine, C-176/96, EU:C:2000:201 (a)
23(60)
b. Definition: person who “performs services for and under the discretion of another
person in return for which he receives remuneration”

Lawrie-Blum, C-66/85, EU:C:1986:284

Petersen, C-544/11, EU:C:2013:124, para 30

Brown, C-197/86, EU:C:1988:323

Sotgiu, C-152/73, EU:C:1974:13, para. 5

Echternach, C-389/87 and 390/87, EU:C:1989:130

Genova, C-179/90, EU:C:1991:464

Meeusen, C-337/97, EU:C:1999:284, para 15

My, C-293/03, EU:C:2004:821

Gardella, C-233/12, EU:C:2013:449

Časta, C-166/12, EU:C:2013:792

Bischoff, F-36/14, EU:F:2015:48 (in French –can’t understand..)

Davis and others, F-54/06, EU:F:2007:103

Alevizos, C-392/05, EU:C:2007:251

Christopher McCrudden, “Two Views of Subordination: The Personal Scope
of Employment Discrimination Law in Jivraj v Haswani”, Industrial Law
Journal (2012), Vol. 41(1), pp.30-55.
c. Limiting principle: “effective and genuine economic activity”

Levin, C-53/81, EU:C:1982:105

Ninni-Orasche, C-413/01, EU:C:2003:600, para 27

Raccanellli, C-94/07, EU:C:2008:425

Bettray, C-344/87, EU:C:1989:226., especially paras 16-17

Trojani, C-456/02, EU:C:2004:488, para 24.

Steymann, C-196/87, EU:C:1988:475, para 12.
d. Limiting principle: de minimis rule

Levin, C-53/81, EU:C:1982:105 para 17.

Raulin, C-357/89, EU:C:1992:87

Bernini, C-3/90, EU:C:1992:89, para 16

Kempf, C-139/85, EU:C:1986:223
24(60)

Agegate, C-/87, EU:C:1989:650

Ninni-Orasche, C-413/01, para 25.

Vatsouras and Koupatantze, C-22/08 and C-23/08, EU:C:2009:344
e. The abuse of voluntary work/low pay – deprivation of worker status?
f.

Trojani, C-456/02, EU:C:2004:488, para 16 and 22

Levin, C-53/81, EU:C:1982:105 para 17.

Kempf, C-139/85, EU:C:1986:223.

Merci convenzionali Porto di Genova, C‑179/90, EU:C:1991:464
Retaining worker status

Saint Prix, C-507/12, para 37, 38, 41, 42. See analysis in Nicole Busby,
“Crumbs of Comfort: Pregnancy and the Status of ‘Worker’ under EU Law’s
Free Movement of Persons”, Industrial Law Journal, (2015), Vol.44(1),
pp.134-145.

Levin, C-53/81, para 21.

Collins, C-138/02, EU:C:2004:172, paras 28 and 29.

Article 7 and Article 14(4)(b) of Citizen’s Rights Directive 2004/38/EC (OJ
2004 L 158)

Caves Krier Frères, C-379/11, EU:C:2012:798, para 26 and case-law cited

Ferlini, C-411/98, EU:C:2000:530 (f)
Under EU Secondary Legislation
Regulations
a. Règlement du Conseil nº 3, concernant la sécurité sociale des travailleurs migrants
[Council Regulation No. 3 on the Social Security of Migrant Workers] (OJ 42, p. 831)

Unger, 75/63, EU:C:1964:19

Janssen. C-23/71, EU:C:1971:101
b. Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of
movement for workers within the Community (OJ L 257, p. 2)
25(60)

Brown, C-197/86, EU:C:1988:323

Lair, C-39/86, EU:C:1988:322

Raulin, C-357/89, EU:C:1992:87

Bernini, C-3/90, EU:C:1992:89

Martínez Sala, C-85/96, EU:C:1998:217

Meeusen, C-337/97, EU:C:1999:284

Ninni-Orasche, C-413/01, EU:C:2003:600

Collins, C-138/02, EU:C:2004:172

Hartmann, C-212/05, EU:C:2007:437
c. Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of
social security schemes to employed persons and their families moving within the
Community (OJ L 149, p. 2)

Brack, C-17/76, EU:C:1976:130

Pierik, C-182/78, EU:C:1979:142

Van Roosmalen, C-300/84, EU:C:1986:402

Bergemann, C-236/87, EU:C:1988:443

Merino García, C-266/95, EU:C:1997:292

Stöber and Piosa Pereira, C-4/95 and C-5/95, EU:C:1997:44

Kulzer. C-194/96, EU:C:1998:85

Dodl and Oberhollenzer, C-543/03, EU:C:2005:364

Mertens, C-655/13, EU:C:2015:62
Directives and other Acts: Which Definition Applies?
a. Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws
of the Member States relating to the safeguarding of employees' rights in the event of
transfers of undertakings, businesses or parts of businesses (OJ L 61, p. 26)

Mikkelsen, C-105/84, EU:C:1985:331

Danmols Inventar, C-151/02, paras 26-28.
b. Decision No 1/80 of the Association Council of 19 September 1980 on the development
of the Association
26(60)

Kurz, C-188/00, EU:C:2002:694
c. Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to
encourage improvements in the safety and health at work of pregnant workers and
workers who have recently given birth or are breastfeeding (tenth individual Directive
within the meaning of Article 16 (1) of Directive 89/391/EEC) (OJ L 348, p.1)

Kiiski, C-116/06, EU:C:2007:536

Danosa, C-232/09, EU:C:2010:674

Allonby, C-256/01, EU:C:2004:18
d. Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the
Member States relating to collective redundancies (OJ L 225, p.16)

Commission v Italy, C-596/12, EU:C:2014:77

Balkaya, C-229/14, EU:C:2015:455
e. Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002
establishing a general framework for informing and consulting employees in the
European Community - Joint declaration of the European Parliament, the Council and
the Commission on employee representation (OJ L 80, p. 29)

f.
Confédération générale du travail and Others, C-385/05, EU:C:2007:37
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 (OJ L 299, p 9)

May, C-519/09, EU:C:2011:221

Fenoll, C-316/13, EU:C:2015:200

Union Syndicale Solidaires Isère, C-428/09, EU:C:2010:612, para 28.
The Notion of a Worker under National Law
a. How the court decides when national definition of worker applies or whether the EU
definition applies
27(60)

Martínez Sala, C-85/96, EU:C:1998:217

Balkaya, C-229/14, EU:C:2015:455

cf. Danmols Inventar, C-151/02, paras 26-28.

Kiiski, C-116/06, EU:C:2007:536

Jaeger, C-151/02, EU:C:2003:437, para 59

Dellas and Others, C-14/04, EU:C:2005:728C, para 45

Opinion of AG Kokott in O’Brien, C-393/10, EU:C:2011:746, para 25.

Allonby, C-256/01, EU:C:2004:18

Levin, C-53/81, EU:C:1982:105 para 17.
b. Even when definition of worker for purposes of EU law is deferred to the member states,
there are certain limits on the discretion to define

Judgment and Opinion of AG Kokott in O’Brien, C-393/10, EU:C:2011:746,
para 25.

Recital 16 of Part Time Work Directive 97/81/EC (OJ 1998 L 14), p.9
F – The Right of Establishment, Non-Discrimination of Self-Employed Persons and Equal
Treatment of Workers
The Concept of Self-Employment
a. Content of Article 49 TFEU and the concept of establishment, both for legal and natural
(self-employed) persons. Self-employed persons are defined in contrast to employed
people; ie. no “positive” definition.

European Foundation for the Improvement of Living and Working
Conditions, Self-employed workers: industrial relations and working
conditions, 2010.

Inasti, C-53/95, EU:C:1996:58

Asscher, C-107/94, EU:C:1996:251

Allonby, C-256/01, EU:C:2004:18

Commission v Portugal, C-171/02, EU:C:2004:270

Commission v France, C-255/04, EU:C:2006:401

FNV Kunsten Informatie en Media, C-413/13, EU:C:2014:2411
28(60)
b. Article 50 and Article 53 TFEU – competence for the EU to legislate
c. The obligation for legal and natural persons to follow national law in the country where
they establish themselves.
d. Can workers’ rights constitute obstacles to establishment? Article 52 TFEU: grounds
of justification for obstacles to the right of establishment: public health, public policy
and public security. Justifications in case law. Proportionality.

International Transport Workers’ Federation and Finnish Seamen’s Union,
C-438/05, EU:C:2007:772

Arblade, C-369/96 and C-376/96, EU:C:1999:575
G – Free Movement of Services and Equal Treatment of Workers

Article 56 TFEU
a. The definition of a service and the distinction between establishment and services
(Articles 49 and 56)

Gebhard, C-55/94, EU:C:1995:411,
b. Articles 58 TFEU on transport and Article 59 TFEU on the EU competence to issue
directives on the liberalisation of services
c. Article 52 TFEU: grounds of justification for obstacles to the right of establishment,:
public health, public policy and public security. Justifications in case law.
Proportionality.

Dos Santos Palhota and others (C-515/08, ECR 2010 p. I-9133)

Vicoplus and others, C-307/09, C-308/09 and C-309/09, EU:C:011:64

Martin Meat, C-586/13

De Clercq and others (C-315/13)

Finalarte and others, C-49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to
C-71/98, EU:C:2001:564
29(60)
d. The right to move staff to provide services in other Member States: unfair competition
and impact on the labour market in the State of destination?

Rush Portuguesa, C-113/89, EU:C:1990:142 (reference to Section III.C on
posted workers below)

Cremers, J., Free movement of services and equal treatment of workers: the
case of construction, European Review of Labour and Research, Summer
(2006) , Vol 12(2), pp. 167-181
e. Directive 2006/123/EC of the European Parliament and of the Council of 12 December
2006 on services in the internal market OJ L 376, 27.12.2006
f.
Differentiating from Article 45 and 49

Clean Car Autoservice, C-350/96, EU:C:1998:205

Abatay and others, C-317/01 and C-369/01, EU:C:2003:572
H – The protection of workers and the application of competition law

Albany, C-67/96, EU:C:1999:430

Brentjens', C-115/97, C-116/97 and C-117/97, EU:C:1999:434

Drijvende Bokken, C-219/97, EU:C:1999:437

Pavlov and others, C-180/98, C-181/98, C-182/98, C-183/98 and C-184/98,
EU:C:2000:428

van der Woude, C-222/98, EU:C:2000:475

AG2R Prévoyance, C-437/09, EU:C:2011:112
III – THE PROTECTION OF “ATYPICAL” WORKERS UNDER EU SECONDARY LEGISLATION
A – Part Time Work
Description

Employers may use part time employment contracts to circumvent the higher level of protection for
workers with full employment. Examples are involuntary part-time work and workers having to
accept reduced working hours to remain in employment.
30(60)

Steve Peers, “Equal Treatment of Atypical Workers: A New Frontier for EU
Law?”, Yearbook of European Law, (2013), Vol. 32(1), pp. 30-56.

Mark Bell, “Strengthening the protection of precarious workers: part-time
workers, ILO International Training Centre, (no date)
The Legal Landscape
a. Council Directive 97/81/EC of 15 December 1997 concerning the Framework
Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998, L
14, p. 9)

In accordance with Clause 1(a) of the Framework Agreement annexed to that
directive, the purpose of that agreement is ‘to provide for the removal of
discrimination against part-time workers and to improve the quality of parttime work’.

Clause 4(1) is thus intended to ensure respect for the principle of nondiscrimination as regards the employment conditions of part-time workers,
the framework of that agreement.3

The purpose of the Directive: A principle of European Union social law, or a
means to promote part time work? See the contrast between Bruno and
Others, C‑ 395/08 and C‑ 396/08, EU:C:2010:329 and the ruling in
Mascellani, C-221/13, EU:C:2014:2286
3

Wippel, C-313/02, EU:C:2004:607

Michaeler and others, C-55/07 and C-56/07, EU:C:2008:248

Dai Cugini, C-151/10, EU:C:2011:223

Yangwei, C-349/11, EU:C:2011:826

O'Brien, C-393/10, EU:C:2012:110

Heimann and Toltschin, C-229/11 and C-230/11, EU:C:2012:693

Elbal Moreno, C-385/11, EU:C:2012:746

Brandes, C-415/12, EU:C:2013:398

Österreichischer Gewerkschaftsbund, C-476/12, EU:C:2014:2332
See the third paragraph in the preamble to the Framework Agreement.
31(60)

Cachaldora Fernández, C-527/13, EU:C:2015:215
In Focus

The relation between part-time work and gender discrimination in the 30 Member States of the EU

Susanne Burri and Helga Aune, “Sex Discrimination in Relation to Part-Time
and Fixed-Term Work – The application of EU and national law in practice
in 33 European countries”, European network of legal experts in the field of
gender equality, Published by the European Commission, 2013.
B – Fixed-Term workers
Description

Employers may use successive fixed-term employment contracts to circumvent the higher level of
protection for workers with permanent employment.

Steve Peers, “Equal Treatment of Atypical Workers: A New Frontier for EU
Law?”, in Yearbook of European Law, Vol. 32, No. 1 (2013), pp. 30-56.

Pascale Lorber, “Strengthening the protection of precarious workers: fixed
term workers, ILO International Training Centre, (no date)

“Precarious Employment in Europa: A Comparative Study of Labour Market
related Risks in Flexible Economies”, ESOPE Report, Project HPSECT2001-00075, 2004.
The Legal Landscape
a. Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement
on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43)

Mangold, C-144/04, EU:C:2005:709

Adeneler and others, C-212/04, EU:C:2006:443

Marrosu and Sardino, C-53/04, EU:C:2006:517

Vassallo, C-180/04, EU:C:2006:518

Del Cerro Alonso, C-307/05, EU:C:2007:509

Impact, C-268/06, EU:C:2008:223

Vasilakis and others, C-364/07, EU:C:2008:346
32(60)

Angelidaki and others, C-378/07, C-379/07 and C-380/07, EU:C:2009:250

Koukou, C-519/08, EU:C:2009:269

Aayhan and others, F-65/07, EU:F:2009:43

Adjemian and others v Commission, F-134/07 and F-8/08, EU:F:2009:51

O v Commission, F-69/07 and F-60/08, EU:F:2009:128

Lagoudakis, Ladakis and others and Zacharioudakis, C-162/08, C-163/08
and C-164/08, EU:C:2009:727

Sorge, C-98/09, EU:C:2010:369,

Affatato, C-3/10, EU:C:2010:574

Vino, C-20/10, EU:C:2010:677

Gavieiro Gavieiro and Iglesias Torres, C-444/09 and C-456/09,
EU:C:2010:819

Berkizi-Nikolakaki, C-272/10, EU:C:2010:819

Deutsche Lufthansa, C-109/09, EU:C:2011:129

Montoya Medina, C-273/10, EU:C:2011:167

Scheefer v Parliament, F-105/09, EU:F:2011:41

Clarke and others v OHIM, F-82/08, EU:F:2011:45

Rosado Santana, C-177/10, EU:C:2011:557

Adjemian and others v Commission, T-325/09, EU:T:2011:506

Kücük, C-586/10, EU:C:2012:39

Lorenzo Martínez, C-556/11, EU:C:2012:67

Huet, C-251/11, EU:C:2012:133

Sibilio, C-157/11, EU:C:2012:148

AI v Court of Justice, F-85/10, EU:F:2012:97

Valenza and others, C-302/11 to C-305/11, EU:C:2012:646

Avogadri and others v Commission, F-58/08, EU:F:2013:16

Bojc Golob v Commission, F-74/11, EU:F:2013:22

Pepi v ERCEA, F-33/12, EU:F:2013:27

Bertazzi and others, C-393/11, EU:C:2013:143

Christoph and others v Commission, F-63/08, EU:F:2013:36

Della Rocca, C-290/12, EU:C:2013:235

Carratù, C-361/12, EU:C:2013:830
33(60)

Papalia, C-50/13, EU:C:2013:873

Nierodzik, C-38/13, EU:C:2014:152

Márquez Samohano, C-190/13, EU:C:2014:146

D'Aniello and others, C-89/13, EU:C:2014:299

Fiamingo and others, C-362/13, C-363/13 and C-407/13, EU:C:2014:2238

Bertazzi and others, C-152/14, EU:C:2014:2181

Mascolo and others, C-22/13, C-61/13 to C-63/13 and C-418/13,
EU:C:2014:2401

León Medialdea, C-86/14, EU:C:2014:2447

Nisttahuz Poclava, C-117/14, EU:C:2015:60

Commission v Luxembourg, C-238/14, EU:C:2015:128

Todorova Androva v Council, F-78/12, EU:F:2015:37

Regojo Dans, C-177/14, EU:C:2015:450

Blanpain, R., “Regulation of fixed-term employment contracts: a
comparative overview”, Kluwer Law International, 2010.
In Focus
a. Potential case study: Academic Sector in Estonia

The European Commission has referred Estonia to the EU Court of Justice
over its national law which does not provide sufficient protection against
abuse arising from the use of successive fixed-term employment contracts or
relationships in the academic sector. Estonian law limits successive fixedterm employment to 5 years. If this limit is reached, the fixed-term
employment is converted to a permanent contract. However, the limit only
applies to fixed-term contracts concluded with less than 2 months between
the contracts. In accordance with the case law of the Court of Justice, the
specific context of the sector has to be taken into account in the assessment
of whether a particular definition of ‘successive’ fixed-term employment
provides effective protection as required by the Fixed-Term Work Directive.

The academic sector is characterised by long closures over the summer
period. In Estonia, the academic year ends in the first half of June and begins
34(60)
in September, meaning that it is possible for universities to employ teachers
indefinitely on fixed-term contracts covering the academic year, by
interrupting the employment contract over the summer closure period. This
does not provide effective protection against abuse arising from successive
fixed-term employment. The Commission sent Estonia a reasoned opinion in
October 2012, giving Estonia 2 months to comply with EU rules but Estonia
has not adapted its national law to guarantee sufficient protection against
abuse arising from the use of successive fixed-term employment contracts or
relationships in the academic sector. The Commission therefore decided to
refer Estonia to the EU Court of Justice.
b. Potential case study: The academic sector in Sweden and the use of successive fixedterm contracts.
c. Potential case study: The European Commission has supported a complaint made by
Poland’s Independent and Self-governing Trade Union about the regulation of fixedterm contracts. The Commission has questioned the regulations governing the length of
the notice period for fixed-term contracts, the use of excessive consecutive fixed-term
contracts, the permitted interval between one contract and another, and the concept of
‘tasks conducted periodically’.
C – Posted workers
Description
The Legal Landscape
a. Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning
the posting of workers in the framework of the provision of services (OJ L 18, p.1).

Wolff & Müller, C-60/03, EU:C:2004:610

Commission v Germany, C-341/02, EU:C:2005:220

Laval un Partneri, C-341/05, EU:C:2007:809

Rüffert, C-346/06, EU:C:2008:189
35(60)

Commission v Luxembourg, C-319/06, EU:C:2008:350

RANI Slovakia, C-298/09, EU:C:2010:343

dos Santos Palhota and others, C-515/08, EU:C:2010:589

Vicoplus and others, C-307/09, C-308/09 and C-309/09, EU:C:2011:64

Isbir, C-522/12, EU:C:2013:711

Bundesdruckerei, C-549/13, EU:C:2014:2235

De Clercq and others, C-315/13, EU:C:2014:2408

Sähköalojen ammattiliitto, C-396/13, EU:C:2015:86

Martin Meat, C-586/13, EU:C:2015:405
In Focus
a. Case Study:
D – Temporary Agency Workers
Description
a. Definitions
b. The question of application of general EU law principles and sector legislation
c. The variety of applicable rules in the Member States
d. Directive 2008/104
e. Particular challenges
f.
Revision of Directive 2008/104?
The Legal Landscape
a. Directive 2008/104 / EC of the European Parliament and of the Council of 19 November
2008 on temporary agency work (OJ L 327, p. 9).

Webb, C-279/80, EU:C:1981:314

FTS, C-202/97, EU:C:2000:75

Commission v. Italy, C-279/00, EU:C:2002:89

Briot, C-386/09, EU :EU:C:2010:526

Jouini m.fl., C-458/05, EU:C:2007:512
36(60)

Vicoplus and others, C-307/09, C-308/09 and C-309/09, EU:C:2011:64

ADV Allround, C-18710, EU:C:2012:35

Della Rocca, C-290/12, EU:C:2013:235

Strojírny Prostějov och ACO Industries Tábor, C-53/13, EU:C:2014:2011

AKT, C-533/13, EU:C:2015:173

Martin Meat, C-586/13, EU:C:2015:405
In Focus
a. Case Study:
E – Migrant workers
Description
The Legal Landscape
a. Directive 2011/98 / EU of the European Parliament and of the Council of 13 December
2011 establishing a single application procedure for issuing a single permit for thirdcountry nationals to reside and work in the territory a Member State and on a common
set of rights for third-country workers legally residing in a Member State, (OJ L 343, p.
1)
b. Directive 2014/36 / EU of the European Parliament and of the Council of 26 February
2014 establishing the conditions of entry and residence of third-country nationals for
employment as a seasonal worker (D0 L 94, p. 375)
In Focus
a. Case Study:
37(60)
IV – THE PROTECTION AGAINST PRECARIOUS WORKING CONDITIONS UNDER EU LAW
A – Attempts to Deny those Doing the Work the Status and Rights of “Workers” or “Employees”
a. Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on
the application of the principle of equal treatment between men and women engaged in
an activity in a self-employed capacity and repealing Council Directive 86/613/EEC,
OJ L 180, p. 1
Undeclared Work
Description
The Legal Landscape
a. Proposal for a decision of the European Parliament and of the Council on establishing
a European Platform to enhance cooperation in the prevention and deterrence of
undeclared work (COM(2014) 221 final of 9.4.2014
In Focus
b. Case Study:
Bogus self-employment
Description
a. The general concept of bogus self-employment; the concept in EU law and in different
Member States; persons operating under a service contract but in fact being wholly
dependent on the service recipient; the concept of subordination; self-employment as a
way for the employer to avoid taxes and social charges and impose poor working
conditions.

Albany, C-67/96, EU:C:1999:430.

FNV Kunsten Informatie en Media, C-413/13, EU:C:2014:2411
38(60)

European Foundation for the Improvement of Living and Working
Conditions, Self-employed workers: industrial relations and working
conditions, 2010.

Jorens, Y. Self-employment and bogus self-employment in the European
Construction Industry, Part 1 A comparative study of 11 Member States

European Parliament, Directorate General for Internal Policies, Social
protection rights of economically dependent self-employed workers, IP/A/E,
April 2013.

M. Westerveld, The “new” self-employed: an issue for social policy? The
‘New’ Self-Employed: An Issue for Social Policy? European Journal of
Social Security, (2012), Vol. 14(3)

ILO, A. Bibby, Working Paper No. 295, Employment relationships in the
media industry, 2014.
The Legal Landscape
a. Measures to tackle or sanction bogus self-employment can justify restrictions on the
free movement of persons

Commission v Belgium, C-577/10, EU:C:2012:814
b. Bogus self-employment as such is not regulated in EU law: are there directives and
regulations concerning working conditions applicable to self-employed persons that
reduce the importance of whether a person is legally considered to be a self-employed
or not?
i. Directive 2010/41 EU of the European Parliament and of the Council of 7 July
2010 on the application of the principle of equal treatment between men and
women engaged in an activity in a self-employed capacity and repealing Council
Directive 86/613/EEC OJ L 180, 15.7.2010
ii. Directives and Regulations sometimes refer to “employees” as employees as
defined by national law. National law may contain provisions stating that a
“bogus self-employment” should be considered to be a regular employment,
39(60)
making the self-employed person an employee also for the purposes of applying
certain directives or regulations
c. Many directives on working conditions applicable to workers are also applicable to selfemployed people. Some directives may have “spill-over” effects for self-employed
persons (e.g. workplace safety)
i.
Council Directive 79/7/EEC of 19 December 1978 on the progressive
implementation of the principle of equal treatment for men and women in matters
of social security OJ L 6, 10.1.1979, p. 24–25
ii. Council Directive of 12 June 1989 on the introduction of measures to encourage
improvements in the safety and health of workers at work (89/391/EEC) (OJ L
183, 29.6.1989, p. 1): including individual dorectives within the meaning of
Article 16 (1)
iii. Council Directive 92/57/EEC of 24 June 1992 on the implementation of
minimum safety and health requirements at temporary or mobile constructions
sites (eighth individual Directive within the meaning of Article 16 (1) of Directive
89/391/EEC) OJ L 245, 26.8.1992, p. 6
iv. Council Directive 96/29/EURATOM of 13 May 1996 laying down basic safety
standards for the protection of the health of workers and the general public against
the dangers arising from ionizing radiation (OJ L 159, 29.6.1996, p. 1)
v. Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary
pension rights of employed and self-employed persons moving within the
Community OJ L 209, 25.7.1998, p. 46–49
vi. Council Directive 2000/78/EC of 27 November 2000 establishing a general
framework for equal treatment in employment and occupation OJ L 303,
2.12.2000, p. 16–22
40(60)
vii. Directive 2002/15/EC of the European Parliament and of the Council of 11 March
2002 on the organisation of the working time of persons performing mobile road
transport activities, OJ L 80, 23.3.2002, p. 35–39
viii. Regulation (EC) No 561/2006 of the European Parliament and of the Council of
15 March 2006 on the harmonisation of certain social legislation relating to road
transport and amending Council Regulations (EEC) No 3821/85 and (EC) No
2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ L 102,
11.4.2006, p. 1)
ix. Directive 2006/54/EC of the European Parliament and of the Council of 5 July
2006 on the implementation of the principle of equal opportunities and equal
treatment of men and women in matters of employment and occupation (recast),
OJ L 204, 26.7.2006, p. 23–36
d. EU legislation on social benefits also apply to self-employed people, as well as workers
i. Regulation (EC) No 883/2004 of the European Parliament and of the Council of
29 April 2004 on the coordination of social security systems, OJ L 166, 30.4.2004,
p. 1–123
ii. Regulation (EU) No 465/2012 of the European Parliament and of the Council of
22 May 2012 amending Regulation (EC) No 883/2004 on the coordination of social
security systems and Regulation (EC) No 987/2009 laying down the procedure for
implementing Regulation (EC) No 883/2004 OJ L 149, 8.6.2012, p. 4–10
iii. Council Regulation (EC) No 1408/71 of 14 June 1971on the application of social
security schemes to employed persons, to self-employed persons and to members
of their families moving within the Community (8) (9) (10) (11) OJ L 149, 5.7.1971
In Focus
• Potential Case Studies
a. Service contracts in German Slaughterhouses
41(60)

EFFAT, European Meat Conference Denounces Abuse of Workers, Berlin,
21 June 2012: Over 51 000 people in the German slaughterhouse industry
work on service contracts. That represents 90 % of all workers in the four
major German slaughterhouses. This has had a major impact on wages in the
meat industry in Germany.
b. Self-employed pilots in low-fair airlines (LFAs)

Jorens, Y., D. Gillis, L. Valcke & J. De Coninck, Atypical Employment in
Aviation, European Social Dialogue, European Commission, 2015: Selfemployment contracts for pilots, often young pilots, are used extensively by
low-cost airlines. This has lead to self-employed pilots, although working for
only one airline with no influence over their own working conditions or
working time, are deprived of social security rights and job security

Ryanair case study: using information available from ETF sources
c. Different national frameworks and different risks for self-employed workers in the
construction industry in different EU Member States

Jorens, Y. Self-employment and bogus self-employment in the European
Construction Industry, Part 1 A comparative study of 11 Member States
B – Attempts to shield the “real” employer from accountability and liability towards those
working on their behalf
a. Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of
the Member States relating to the protection of employees in the event of the insolvency
of their employer

Commission v Italy, C-22/87, EU:C:1989:45

Commission v Greece, C-53/88, EU:C:1990:380

Francovich and Others, C‑ 6/90 and C‑ 9/90, EU:C:1991:428

Suffritti and Others v INPS, C-140/91, C-141/91, C-278/91 and C-279/91,
EU:C:1992:492

Wagner Miret, C-334/92, EU:C:1993:945
42(60)

Francovich v Italy, C-479/93, EU:C:1995:372

Bonifaci and Others and Berto and Others v INPS, C-94/95 and C-95/95,
EU:C:1997:348

Palmisani v INPS, C-261/95, EU:C:1997:351

Maso and Others, C-373/95, EU:C:1997:353

Mosbæk v Lønmodtagernes Garantifond, C-117/96, EU:C:1997:415

Regeling, C-125/97, EU:C:1998:358

Dumon and Froment, C‑ 235/95, EU:C:1998:365

Andersson and Wåkerås-Andersson, C‑ 321/97, EU:C:1999:307

Everson and Barrass, C-198/98, EU:C:1999:617

Gharehveran, C‑ 441/99, EU:C:2001:551

Rodríguez Caballero, C-442/00, EU:C:2002:752

Mau, C-160/01, EU:C:2003:280

Walcher, C‑ 201/01, EU:C:2003:450

Pflücke, C-125/01, EU:C:2003:477

Barsotti and Others, C-19/01, C-50/01 and C-84/01, EU:C:2004:119

Olaso Valero, C-520/03, EU:C:2004:826

Guerrero Pecino, C-177/05, EU:C:2005:764

Cordero Alonso, C-81/05, EU:C:2006:529

Robins and Others, C-278/05, EU:C:2007:56

Velasco Navarro, C-246/06, EU:C:2008:19

Robledillo Núñez, C‑ 498/06, EU:C:2008:109

Holmqvist, C-310/07, EU:C:2008:573

Visciano, C‑ 69/08, EU:C:2009:468

Defossez, C-477/09, EU:C:2011:134

van Ardennen, C‑ 435/10, EU:C:2011:751

Gomes Viana Novo and Others, C-309/12, EU:C:2013:774

Macedo Maia and Others, C-511/12, EU:C:2014:268

Tümer, C-311/13, EU:C:2014:2337
43(60)
b. Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of
the Member States relating to the protection of employees in the event of the insolvency
of their employer (OJ L 283, p. 23)
In Focus
a. Potential Case Study: EPSU, EFFAT, SEIU and War on Want, Unhappy Meal: € 1
Billion In Tax Avoidance on the Menu at McDonald’s, 2014

Centros, C-212/97, EU:C:1999:126
b. Potential Case Study: Letterbox companies

See, for example, campaign materials at “Stop Letterbox Companies”,
http://www.stopletterboxcompanies.eu/downloads
44(60)
C – Failure to ensure the employee knows the terms of the employment contract
Description
• Workers with informal, unclear, or unknown conditions of their employment: uncertainty, lack of
ability to enforce terms
• Particularly problematic in cases of informal or undeclared work that often don’t even involve a
written contract
• Sonia McKay et. al., Study on Precarious Work and Social Rights, carried out for the European
Commission, Working Lives Research Institute, April 2012: absence of a written contract as an indicator
of both informality and precariousness.
The Legal Landscape
• Obligation on employers to inform employees about the conditions of the employment contract
a. Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to
inform employees of the conditions applicable to the contract or employment
relationship (OJ L 288, p. 32)

Helmut Kampelmann and Others, C-253/96, C-254/96, C-255/96, C-256/96,
C-257/96 and C-258/96, EU:C:1997:585

Lange, C-350/99, EU:C:2001:84

Andersen, C-306/07, EU:C:2008:743

Mascolo and Others, C‑ 22/13, C‑ 61/13 to C‑ 63/13 and C‑ 418/13,
EU:C:2014:2401
In Focus
a. The cleaning and care sector: large incidences of precarious and informal work practices
where individuals offer services to homes for cash-in-hand payment, often with no
written contract and no protections
b. EFBWW report on Romanian workers in Vicenza, Italy with no contracts or salary for
over 3 months: http://www.stopsocialdumping.eu/case/257
45(60)
D – Unclear or Insecure Parameters of Working Time during the Employment Period
Description

The nature of the problem: asymmetry of bargaining power between employer and employee can
lead to (a) employee working too much without being granted a break (in the short term) or accruing
leave (in the long term), (b) employees working too little even though required to work on demand
and being paid only for work done (zero hours contracts)
Working Time Under EU Law – General
a. Directive 2003/88 / EC of the European Parliament and of the Council of 4 November
2003 concerning certain aspects of the organization of working time (OJ L 299, p. 9)
i. who is a worker for the purposes of the directive – the EU definition applies

Union syndicale Solidaires Isère, C-428/09, EU:C:2010:612

Expanded scope now includes parts of transport sector (see also sectoral
arrangements below) and doctors-in-training

Commission v Spain, C-158/09, EU:C:2010:292
ii. limits to hours worked

48 hours per seven days in relevant reference period

Article 17 exceptions permitted for “surveillance activity” or activity
requiring continuity:
Union syndicale Solidaires Isère, C-428/09,
EU:C:2010:612
iii. what counts as worked hours?

Jaegar, C-151/02, EU:C:2003:437: On-call time if required to stay at work
or a place of the employer’s choosing, thus separated from family/ social
environment

Grigore, C-258/10, EU:C:2011:122

Deidre McCann, “Prompting Formalisation Thorugh Labour Market
Regulation: A ‘Framed Flexibility’ Model for Domestic Work”, Industrial
Law Journal, (September 2014), Vol. 43, p.319.
46(60)
iv. entitlement to paid annual leave

Schultz-Hoff and others, C-350/06 and C-520/06, EU:C:2009:18

Vicente Pereda, C-277/08, EU:C:2009:542

Williams and others, C-155/10, EU:C:2011:588

Dominguez, C-282/10, EU:C:2012:33

Maestre García, C-194/12, EU:C:2013:102

KHS, C-214/10, EU:C:2011:761

Heimann and Toltschin, C-229/11 and C-230/11, EU:C:2012:693

ANGED, C-78/11, EU:C:2012:372

Lock, C-539/12, EU:C:2014:351

Brandes, C-415/12, EU:C:2013:398

Bollacke, C-118/13, EU:C:2014:1755

Strack v Commission, F-120/07, EU:F:2011:22

Bombín Bombín v Commission, F-22/10, EU:F:2011:64

Neidel , C-337/10, EU:C:2012:263

Commission v Strack, T-268/11 P, EU:T:2012:588

Réexamen Commission v Strack, C-579/12 RX-II , EU:C:2013:570
v. entitlements to daily and weekly breasks and rest periods

Vorel, C‑ 437/05, EU:C:2007:23

Accardo and others, C-227/09, EU:C:2010:624

Commission v Ireland, C-87/14, EU:C:2015:449

Commentary in Catherine Barnard, EU Employment Law, 4th ed., (Oxford:
Oxford University Press, 2012), p.538.
vi. waivers, enforcement, and other issues

Fuß, C-243/09, EU:C:2010:609

Fuß, C-429/09, EU:C:2010:717

Begue and others v Commission, F-27/10, EU:F:2011:20
Specific Sectoral Directives
47(60)
a. Road: Directive 2002/15/EC of the European Parliament and of the Council of 11
March 2002 on the organisation of the working time of persons performing mobile road
transport activities (OJ L 80, p.35).

Spain and Finland v Parliament and Council, C-184/02 and C-223/02,
EU:C:2004:497

Commission v Poland, C-169/13, EU:C:2013:847

Antonino Accardo and Others, C-227/09, EU:C:2010:624

Commission v Finland, C-178/13, EU:C:2013:814

Commission v Luxembourg, C-364/06, EU:C:2007:306

Commission v Spain, C-392/06, EU:C:2007:376

Commission v Portugal, C-410/06, EU:C:2007:401
b. Air: Council Directive 2000/79/EC of 27 November 2000 concerning the European
Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation
concluded by the Association of European Airlines (AEA), the European Transport
Workers' Federation (ETF), the European Cockpit Association (ECA), the European
Regions Airline Association (ERA) and the International Air Carrier Association
(IACA) (Text with EEA relevance) (OJ L 302, p. 57)

Commission v Ireland, C-46/05, EU:C:2006:146

Williams and Others C-155/10, EU:C:2011:588
c. Rail: Council Directive 2005/47/EC of 18 July 2005 on the Agreement between the
Community of European Railways (CER) and the European Transport Workers’
Federation (ETF) on certain aspects of the working conditions of mobile workers
engaged in interoperable cross-border services in the railway sector (OJ L 195, p. 15).

Commission v Luxembourg, C-305/10, EU:C:2011:226

Commission v Portugal, C-286/10, EU:C:2011:6

Commission v Italy, C-291/10, EU:C:2011:4

Commission v Estonia, C-306/10, EU:C:2011:143
d. Sea: Council Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the
organisation of working time of seafarers concluded by the European Community
48(60)
Shipowners' Association (ECSA) and the Federation of Transport Workers' Unions in
the European Union (FST) - Annex: European Agreement on the organisation of
working time of seafarers (OJ L 167, p. 33).
e. Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000
amending Council Directive 93/104/EC concerning certain aspects of the organisation
of working time to cover sectors and activities excluded from that Directive (OJ L 195,
p. 41)

Commission v Luxembourg, C-23/05, EU:C:2005:660

Antonino Accardo and Others, C-227/09, EU:C:2010:624
Focus: Overworked Employees
• Workers subject to excessive hours
a. Potential Case study: Junior Doctors in the UK

pressure to opt out of the 48 work week cap in the Working Time Directive

BMA founds extension of routine working hours from 60 to 90 as
“unacceptable”

Asa Bennett, “How much are junior doctors paid, and why are they
threatening to strike?”, The Telegraph, 25 September 2015,

http://www.telegraph.co.uk/news/nhs/11887308/How-much-are-juniordoctors-paid-and-why-are-they-threatening-to-strike.html

Fiona Keating, “Junior doctors call for strike action over extended working
hours”,
International
Business
Times,
19
September
2015,
http://www.ibtimes.co.uk/uk-junior-doctors-call-strike-action-overextended-working-hours-1520389
b. Potential Case study: excessive hours and conditions of road transport industry

ETF Europe, Modern slavery in modern Europe? – An ETF account on the
working and living conditions of professional drivers in Europe, October
2012.
49(60)
• Workers subject to lack of proper breaks, or unreasonable pay arrangements as to what constitutes
“working time”
a. Potential Case studies from UNIEuropa information: parcel industry, shift work in the
care sector etc.
b. Potential case study from rail sector: rests on board cross-border rail services for crew
Focus: Underworked Employees: The Use of Zero Hour Contracts
• Defining the concept of zero hour contracts:
a. Definition and treatment at the EU level

Wippel, C-313/02, EU:C:2004:607: “working according to need, [where the
employee] works under a contract which stipulates neither the weekly hours
of work nor the manner in which working time is to be organised, but it leaves
her the choice of whether to accept or refuse the work offered by [the
employer]” (59) – non-discrimination principle in Part Time Work Directive
couldn’t be used to defeat zero-hour contract arrangement.
b. Lack of clarity and coherence around the legal notion of a zero-hour contract:

Abi Adams et. al, The ‘Zero-Hours Contract’: Regulating Casual Work, Or
Legitimating Precarity?, Labour Law Research, Working Paper Draft,
Summer 2014. : the creation of a “spot market” for labour: different terms –
reservist, on-call, as and when contracts, regular casuals, key time, min-max
contracts, zero-hour contracts etc.

Distinction between on-call zero-hour contracts where employee promises to
be ready and available, and other zero-hour casual work arrangements where
employer and employee mutually guarantee no committed hours, and
employees are free to accept or decline work (though in practice this
distinction is highly blurred)
• Case studies and other
a. General information regarding use: spread across country contexts, public v private
sector, and industries with high concentrations of zero-hour contracts
50(60)

Andrew Walker, “Who Uses Zero Hour Contracts and Why?”, BBC World
Service Economics, 1 April 2005.

International Labour Organization, On-Call Work and “Zero Hour”
Contracts,
b. Potential Case Study: McDonald’s UK – 82,800 (90%) of contracts are zero hour
contracts

Most consensual zero-hour contracts in the UK are lawful under domestic
law unless they violate extreme doctrines of illegality, the commission of a
legal wrong, or violation of public policy.

EPSU, EFFAT, SEIU, and War on Want, Unhappy Meal - €1 billion in Tax
Avoidance on the Menu at McDonald’s, Brussels, 24 February 2015.

John Hall, “They Won’t be Lovin’ It: McDonald’s admits 90% of Employees
are on Zero Hours Contracts without Guaranteed Work or a Stable Income”,
The
Independent,
6
August
2013,
http://www.independent.co.uk/news/uk/home-news/they-wont-be-lovin-itmcdonalds-admits-90-of-employees-are-on-zero-hours-contracts-without8747986.html

Norman Pickavance, Zeroed Out: The place of Zero-hours Contracts in a
Fair and Productive Economy.
c. Potential Issue: Link with receiving unemployment benefits: possible penalties to
jobseeker’s allowance or equivalent scheme in the event of refusal to accept a zero-hour
contract

Abi Adams et. al, The ‘Zero-Hours Contract’: Regulating Casual Work, Or
Legitimating Precarity?, Labour Law Research, Working Paper Draft,
Summer 2014.
d. Potential Case Study: demonstrating that zero-hour contracts can equally be combined
with excessive hours ie. the “worst of both worlds” – case study of private security
sector
51(60)

GMB@Work, “End Abuse of Zero Hours on Security Contracts”,
http://www.gmb.org.uk/newsroom/end-abuse-of-zero-hours-on-securitycontracts
E – Low Wages for Work Done
F – Lack of or Limited Opportunities for Workers to Enforce Their Rights at Work
Description
The Legal Landscape
In Focus
G – Lack of Access to Social Protection and Benefits Usually Associated with Full-Time Standard
Employment
Description
The Legal Landscape
a. Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of
social security schemes to employed persons and their families moving within the
Community (OJ L 149, p. 2).

Mr and Mrs F. v Belgian State, C-7/75, EU:C:1975:80

Inzirillo v Caisse allocations familiales Lyon, C-63/76, EU:C:1976:192

Jansen, C-104/76, EU:C:1977:72

Ministère public v Even, C-207/78, EU:C:1979:144

Toia, C-237/78, EU:C:1979:197

Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn Kalmthout, C249/83, EU:C:1985:139
52(60)

Scrivner v Centre public d'aide sociale de Chastre, C-122/84,
EU:C:1985:145

Frascogna v Caisse des dépôts et consignations, C-157/84, EU:C:1985:243

ONEM v Deak, C-94/84, EU:C:1985:264

Pinna v Caisse d'allocations familiales de la Savoie, C-41/84, EU:C:1986:1

Roviello v Landesversicherungsanstalt Schwaben, C-20/85, EU:C:1988:283

Lenoir v Caisse d'allocations familiales des Alpes-Maritimes, C-313/86,
EU:C:1988:452

Pinna v Caisse d'allocations familiales de la Savoie, C-359/87,
EU:C:1989:107

Allué and others v Università degli studi di Venezia, C-33/88,
EU:C:1989:222

Buhari Haji / INASTI, C-105/89, EU:C:1990:402

Masgio v Bundesknappschaft, C-10/90, EU:C:1991:107

Commission v France, C-307/89, EU:C:1991:245

Commission v Luxembourg, C-111/91, EU:C:1993:92

Schmid v Belgian State, C-310/91, EU:C:1993:221

Grana-Novoa
v
Landesversicherungsanstalt
Hessen,
C-23/92,
EU:C:1993:339

Lepore and Scamuffa v Office national des pensions, C-45/92 and C-46/92,
EU:C:1993:921

Leguaye-Neelsen v Bundesversicherungsanstalt für Angestellte, C-28/92,
EU:C:1993:942

Yousfi v Belgian State, C-58/93, EU:C:1994:160

Hoorn v Landesversicherungsanstalt Westfalen, C-305/92, EU:C:1994:175

Bestuur van de Nieuwe Algemene Bedrijfsvereniging v Drake, C-12/93,
EU:C:1994:336

Bestuur van de Sociale Verzekeringsbank v Cabanis-Issarte, C-308/93,
EU:C:1996:169

Hallouzi-Choho v Bestuur van de Sociale Verzekeringsbank, C-126/95,
EU:C:1996:368
53(60)

Hoever and Zachow v Land Nordrhein-Westfalen, C-245/94 and C-312/94,
EU:C:1996:379

Martínez Losada and others v Instituto Nacional de Empleo and Instituto
Nacional de la Seguridad Social, C-88/95, C-102/95 and C-103/95,
EU:C:1997:69

Mora Romero, C-131/96, EU:C:1997:317

Office national des pensions v Cirotti, C-144/96, EU:C:1997:459

Meints v Minister van Landbouw, Natuurbeheer en Visserij, C-57/96,
EU:C:1997:564

Commission v France, C-35/97, EU:C:1998:431

Commission v Greece, C-185/96, EU:C:1998:516

Commission v France, C-169/98, EU:C:2000:85

Commission v France, C-34/98, EU:C:2000:84

Commission v Germany, C-68/99, EU:C:2001:137

Offermanns, C-85/99, EU:C:2001:166

Fahmi and Esmoris Cerdeiro-Pinedo Amado, C-33/99, EU:C:2001:176

Leclere and Deaconescu, C-43/99, EU:C:2001:303

Gottardo, C-55/00, EU:C:2002:16

Kaske, C-277/99, EU:C:2002:74

Duchon, C-290/00, EU:C:2002:234

Gaumain-Cerri and Barth, C-502/01 and C-31/02, EU:C:2004:413

Commission v Belgium, C-469/02, EU:C:2004:489, unpublished

Adanez-Vega, C-372/02, EU:C:2004:705

Chateignier, C-346/05, EU:C:2006:711

Celozzi, C-332/05, EU:C:2007:35

Hendrix, C-287/05, EU:C:2007:494

Klöppel, C-507/06, EU:C:2008:110

Petersen, C-228/07, EU:C:2008:494

Leyman, C-3/08, EU:C:2009:595

Commission v Germany, C-206/10, EU:C:2011:283

Landtová, C-399/09, EU:C:2011:415

Commission v Austria, C-75/11, EU:C:2012:605
54(60)

Larcher, C-523/13, EU:C:2014:2458
b. Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29
April 2004 on the coordination of social security systems (OJ L166 p.1).

Reichel-Albert, C‑ 522/10, EU:C:2012:475

Jeltes and Others, C‑ 443/11, EU:C:2013:224

Brey, C‑ 140/12, EU:C:2013:565

United Kingdom v Council, C‑ 431/11, EU:C:2013:589

Guinet v EIB, F‑ 107/12, EU:F:2014:1

Würker, C-32/13, EU:C:2014:107

Wagener, C-250/13, EU:C:2014:278

I, C‑ 255/13, EU:C:2014:1291

B., C‑ 394/13, EU:C:2014:2199

Dano, C‑ 333/13, EU:C:2014:2358

E.S., C-646/13, EU:C:2015:276
In Focus
H – Limits on the Right to Engage in Trade Union Activity
Michelle O’Sullivan et. al., “Is Individual Employment Law Displacing the Role of Trade Unions?”,
Industrial Law Journal, (2015), Vol. 44(2), pp.222-245.
I – Arbitrary or Unfair Dismissal
Description
• In many circumstances of precarious work there is no limit on the employer’s right to terminate
employment and little or no protection against unfair dismissal
a. Manfred Weiss, “Job Security: A Challenge for EU Social Policy”, in N. Countouris
and M. Freedland (eds.), Resocialising Europe in a Time of Crisis (Cambridge:
Cambridge University Press, 2013) pp.278-289
55(60)

Removing fear of arbitrary job loss crucial to motivation, productivity, work
quality, long-term life planning, investing in qualification/training
b. Sonia McKay, “Disturbing Equilibrium and Transferring Risk: Confronting Precarious
Work”, in N. Countouris and M. Freedland (eds.), Resocialising Europe in a Time of
Crisis (Cambridge: Cambridge University Press, 2013) pp.191-212.

Precarious work offering no protection against termination: part of shifting
risk to employees
c. Guy Davidov and Edo Eshet, “Intermediate approaches to unfair dismissal protection”,
Industrial Law Journal, (2015), Vol. 44(2), pp.167-193: three aspects of dismissal:

(i) substantive: ie. when can a dismissal be made eg. with just cause

(ii) procedural ie. who decides whether just cause exists

(iii) remedial ie. reinstatement, financial compensation, etc.
• Link with certain types of non-standard forms of employment:
a. Fixed term work: ending of fixed term contract means protection useless
b. Temporary agency work: tendency to have fewer protections, shorter terms of service
c. Bogus self-employed: not classified as worker and therefore services simply terminated
The Legal Landscape
• Article 30, EU Charter of Fundamental Rights: right to protection against unfair dismissal:
a. Application: Article51(1) and (2): applies only when implementing EU law
b. The scope of “implementing EU law”:

Dereci, C-256/11, EU:C:2011:734

cf. Polier, C‑ 361/07, EU:C:2008:16

Seymour Smith, C-167/97, EU:C:1999:60

Corpul Naţional al Poliţiştilor, C‑ 434/11, EU:C:2011:830
c. The effect of Article 30
56(60)

Article 51(1) “in accordance with Community law and national law and
practice”

Limitations to be narrowly construed as per Article 52(1)

Objectives of the EU: Article 3(3) TEU and Article 151 TFEU – see Zaera,
C-126/86, EU:C:1987:395

Catherine Barnard, “The Charter in Time of Crisis – a Case Study of
Dismissal”, in N. Countouris and M. Freedland (eds.), Resocialising Europe
in a Time of Crisis (Cambridge: Cambridge University Press, 2013) pp.250277.
• Unfair dismissal is not directly regulated at the EU level, although certain aspects have been covered
by EU Directives:
a. Article 14(1)(c) of Directive 2006/54/EC of the European Parliament and of the Council
of 5 July 2006 on the implementation of the principle of equal opportunities and equal
treatment of men and women in matters of employment and occupation (recast) (OJ L
204, p. 23).

Zentralbetriebsrat
der
Landeskrankenhāuser
Tirols,
C‑ 486/08,
EU:C:2010:215

Schwab, C-547/09, EU:C:2011:329

D., C‑ 167/12, EU:C:2014:169

Z., C‑ 363/12, EU:C:2014:159

Napoli, C‑ 595/12, EU:C:2014:128

C-595/12, EU:C:2014:128

Mascolo and Others, C‑ 22/13, C‑ 61/13 to C‑ 63/13 and C‑ 418/13,
EU:C:2014:2401

D’Aniello and Others, C‑ 89/13, EU:C:2014:299
b. Article 3(1)(c) of Council Directive 2000/43/EC of 29 June 2000 implementing the
principle of equal treatment between persons irrespective of racial or ethnic origin (OJ
L 180, p. 22)

CHEZ Razpredelenie Bulgaria, C-83/14, EU:C:2015:480

Commission v Finland, C-538/14, EU:C:2015:401
57(60)
c. Article 3(1)(c) of Council Directive 2000/78/EC of 27 November 2000 establishing a
general framework for equal treatment in employment and occupation (OJ L 303, p. 16)

Chacón Navas, C‑ 13/05, EU:C:2006:456

Römer, C‑ 147/08, EU:C:2011:286

Dittrich and Others, C-124/11, C-125/11 and C-143/11, EU:C:2012:771

Specht and Others, C‑ 501/12 to C‑ 506/12, C‑ 540/12 and C‑ 541/12,
EU:C:2014:2005

Unland, C-20/13, EU:C:2015:561

Mascolo and Others, C‑ 22/13, C‑ 61/13 to C‑ 63/13 and C‑ 418/13,
EU:C:2014:2401

D’Aniello and Others, C‑ 89/13, EU:C:2014:299

Vital Pérez, C‑ 416/13, EU:C:2014:2371

ÖBB Personenverkehr, C‑ 417/13, EU:C:2015:38

Ingeniørforeningen i Danmark, C-515/13, EU:C:2015:115

Felber, C‑ 529/13, EU:C:2015:20

Schmitzer, C‑ 530/13, EU:C:2014:2359

Sindicatul Cadrelor Militare Disponibilizate, C-262/14, EU:C:2015:336
d. Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the
Member States relating to collective redundancies

Commission v Italy, C-32/02, EU:C:2003:555

Commission v Portugal, C‑ 55/02, EU:C:2004:605

Junk, C‑ 188/03, EU:C:2005:59

Confédération générale du travail and Others, C‑ 385/05, EU:C:2007:37

Athinaïki Chartopoïïa, C‑ 270/05, EU:C:2007:101

Mono Car Styling, C‑ 12/08, EU:C:2009:466

Akavan
Erityisalojen
Keskusliitto
AEK
and
Others,
EU:C:2009:533

Rodríguez Mayor and Others, C‑ 323/08, EU:C:2009:770

Claes and Others, C‑ 235/10 to C‑ 239/10, EU:C:2011:119
C‑ 44/08,
58(60)

Nolan, C‑ 583/10, EU:C:2012:638

USDAW and Wilson, C‑ 80/14, EU:C:2015:291

Lyttle and Others, C-182/13, EU:C:2015:317

Rabal Cañas, C-392/13, EU:C:2015:318
e. Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of
the Member States relating to the safeguarding of employees' rights in the event of
transfers of undertakings, businesses or parts of undertakings or businesses (OJ L 82,
p. 16).
f.

Sozialhilfeverband Rohrbach, C-297/03, EU:C:2005:315

Güney-Görres and Demir, C‑ 232/04 and C‑ 233/04, EU:C:2005:778

Jouini and Others, C‑ 458/05, EU:C:2007:512

Kirtruna and Vigano, C‑ 313/07, EU:C:2008:574

Juuri, C‑ 396/07, EU:C:2008:656

Klarenberg, C‑ 466/07, EU:C:2009:85

Commission v Italy, C‑ 561/07, EU:C:2009:363

UGT-FSP, C‑ 151/09, EU:C:2010:452

Albron Catering, C-242/09, EU:C:2010:625

CLECE, C-463/09, EU:C:2011:24

Briot, C-386/09, EU:C:2010:526

Scattolon, C‑ 108/10, EU:C:2011:542

Alemo-Herron and Others, C‑ 426/11, EU:C:2013:521

Amatori and Others, C‑ 458/12, EU:C:2014:124

Österreichischer Gewerkschaftsbund, C-328/13EU:C:2014:2197

Gimnasio Deportivo San Andrés, C‑ 688/13, EU:C:2015:46

Ferreira da Silva e Brito and Others, C-160/14, EU:C:2015:565

Aira Pascual and Others, C-509/14
Clause 5(2) of Council Directive 97/81/EC of 15 December 1997 concerning the
Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC
59(60)
(OJ L 14, p.9): Refusal by employee to change from full-time to part-time or vice versa
cannot be a reason for dismissal

Mascellani, C-221/13, EU:C:2014:2286
g. Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of
measures to encourage improvements in the safety and health at work of pregnant
workers and workers who have recently given birth or are breastfeeding (tenth
individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC) (OJ
L 348, p. 1): Member states are obliged to develop protection against dismissals relating
to maternity leave

Jiménez Melgar, C‑ 438/99, EU:C:2001:509

Tele Danmark, C-109/00, EU:C:2001:513

Mayr, C‑ 506/06, EU:C:2008:119

Paquay, C‑ 460/06, EU:C:2007:601

Pontin, C‑ 63/08, EU:C:2009:666

Danosa, C‑ 232/09, EU:C:2010:674
h. Clause 5(4) of Annex to Council Directive 2010/18/EU of 8 March 2010 implementing
the
revised
Framework
Agreement
on
parental
leave
concluded
by
BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC
(Text with EEA relevance) (OJ L 68, p.13): Member states are obliged to develop
protection against dismissals relating to parental leave 96/34/EC
i.
International and non-binding standards

ILO Termination of Employment Convention, 1982 (No. 158)

ILO Termination of Employment Recommendation, 1982 (No. 166)

Article 24 European Social Charter – right to protection in cases of
termination of employment
60(60)
V – ENFORCEMENT
VI - CONCLUSIONS