There are a large number of cases pending before the European Court of Justice from all over Europe. This is one of the reasons why trade unions across Europe need to become increasingly aware of European law and how it is developing.

Pending cases involving the Acquired Rights Directive - on which the United Kingdom TUPE regulations are based - have been put forward by national courts in Belgium, Germany and Spain. Cases involving EC law on sex equality are the result of legal action in Belgium, France, Germany, Greece, Ireland and Italy. Cases on remedies for violation of community employment and social security law are coming from Germany and Italy, as well as the United Kingdom. 

In June of this year the European TUC Legal Experts Network (NETLEX) decided to establish a Working Group to co-ordinate trade union litigation strategy. A look at the following cases pending before the European Court of Justice shows why this step is necessary.

Transfers of undertakings

One of the most difficult issues in recent years has been the question of when there is a transfer of an undertaking, particularly where no tangible or intangible business assets have been transferred. The ECJ's expansive approach in Schmidt [1994] ECR I-1311, extending the protection of the Directive, led to much employer discontent. Pressure was brought to bear on the Commission to re-define and narrow the concept of transfer protected by the Directive. 

In Rygaard [1995] ECR I-2745, however, the court, by insisting that the transfer had to be of a "stable economic entity", seemed to respond to the pressure by throwing doubt on whether a transfer involving a contract to carry out specific works was covered. 

Now, two cases from Germany, Ayse Suzen v Zehnacker Gabaudereinigung and Moll v Mesghena, are soon to be decided. Both involve contract cleaners changing employers. The Advocate General's views in the Suzen case suggest a more restrictive approach. The sensitivity of the issue is evident in other similar cases pending from Germany including Seidel and Santner, and from Spain including Hidalgo and Gomez Perez. 

It is expected that the court, against the background of the recent conflict over revision, will make another attempt to state clearly when the protection of the Directive applies. A recent advisory opinion by the EFTA Court on this question - Eidesund v Stavanger Catering, decided 25 September 1996, reviewed all the recent cases and distinguished Rygaard as an unusual case of a transfer "limited to performing one specific works contract". This supports the view of the Employment Appeal Tribunal in Tuck v BSG. The EFTA court reiterated that termination of a catering contract with one company and the conclusion of a new contract for the same services with another company, does not exclude the Directive from being applicable. 

Another important issue is the question of the mandatory effect of a transfer on employment. In the pending case from Belgium of Rotsart de Hartaing v Benoidt and IGC Housing Service the European Court is asked whether all employment contracts are transferred automatically, without any option on the part of transferor or transferee. In an opinion on the case Advocate General Lenz stated that they have no choice: all existing employment contracts are automatically transferred, even where the transferee rejects the employees. 

On the question of the mandatory nature of the transfer, the European Court may also take note of the view of the EFTA Court in Langeland v Norske Fabricom, decided 25 September 1996: as a matter of public policy the Directive's protection is: (paragraphs 42-43) "independent of the will of the parties to the contract of employment, the rules of the Directive must be considered to be mandatory, so that it is not possible to derogate from them in a manner unfavourable to employees." 

Another case from Belgium, Jules Dethier Equipment v Dassy and SOVAM, concerns the Directive's exclusion of insolvency procedures, and asks whether a voluntary liquidation aimed at keeping the company going is excluded from the Directive. In the opinion of Advocate General Lenz, the Directive applies in such a case.

Sex equality

One of the most controversial decisions in this field was Kalanke in which the Court declared unlawful a hiring procedure in Bremen which gave automatic, unconditional and mandatory preference to women. Now a carefully crafted question from Germany is testing this point in Marschall v Land Nordrhein-Westfalen. This case involves a rule which gives priority to women where they are fewer in a grade, but allows for exceptions where reasons specific to a male candidate predominate. If some discretion exists, is the positive action lawful? 

Ireland's Labour Court has referred Hill v Stapleton which concerns job sharing. It asks whether it is lawful that employees who convert from job sharing to full time work are not credited as full time workers for their job sharing period for the purpose of progress on an incremental pay scale. An important point on justification of indirect discrimination was the finding of fact that there was no link of seniority with skill. 

Another case involving part-time workers comes from Germany. Gerster v Bayern asks whether it is lawful to calculate periods of service involving one-half to two-thirds of normal working hours as counting as seniority towards promotion only as two-thirds normal working hours. Other sex equality cases pending include, from France, CNAVTS v Thibault which asks whether denying a woman a performance assessment, and, consequently, the possibility of advancement in her career, on grounds of absence from work by reason of maternity leave, violates the equal treatment Directive. 

Two other cases from Denmark also concern pregnancy discrimination. Pedersen et al v Kvickly Skive et al, asks whether Danish legislation, which provides for full pay during illness, but not for women unable to work as a result of pregnancy, violates EC law where abnormal pregnancies cause women to be off work as medically unfit. 

Larsson v Fotex asks whether the equal treatment Directive prohibits dismissal as a result of absence following the end of maternity leave, if the absence is due to illness during pregnancy which continued during and after maternity leave. 

A case from Italy, Balestra v INPS, concerns differential age limits between men and women for the purposes of early retirement, and the calculation of pension benefits, and consequent differential treatment as regards credited contributions.

Remedies

Two cases question the limits on compensation imposed by national law. The United Kingdom case of Sutton asks whether payment of interest is required when a social security benefit is denied contrary to EC law, and from what date. EC law requires effective remedies, and UK limits on back-dated claims are under challenge. 

A case from Germany, Draehmpael v Urania, challenges German legislation requiring fault. Two cases from Italy take up the Francovich saga, Danila Bonifaci v INPS and Palmisani v INPS, both challenge Italian law seeking to impose procedural limitations on such claims. 

Clearly a number of important judgments are going to be made that will effect workers all over Europe. So keep your eyes on the ECJ.Â