The Court of Justice of the European Union has been qualifying or directly modifying over the years the judgments of the Spanish courts, interpreting employment rules in the light of Community law.

The Court of Justice of the European Union was created in 1952. Thirty-three years later, Spain and Portugal signed, in June, the treaty of accession to what were then called the European Communities. At present, with Brexit looming, it is perhaps worth reviewing the impact which European legislation and case law has had on our domestic law.

After the signature of the Maastricht (1993) and Amsterdam (1999) treaties, the progress in the Union and in the common policies was more obvious, so that harmonization of legislation began to cause settled issues in domestic law to be questioned with the winds of change from Europe.

In 1995, the Court of Justice of the European Union issued one of its judgments in relation to employment which attracted greatest media attention, although really more due to its sporting dimension than from a technical legal perspective: the Bosman judgment, which under the protection of free movement of workers allowed clubs throughout Europe to include in their teams sportspersons from any country of the Union, without their taking up a foreigner’s place.

That high-profile judgment, which marked a milestone in the domestic labor law of each country, caused a new awareness that European case law and legislation were not mere fantasies, or of international treaties that were signed in Brussels and which only had a practical application in each Member State after lengthy periods of negotiation and legislative implementation. The practical effectiveness of that legislation and the courts that interpreted it were and are a practical reality to be increasingly taken into account.

24 years after the Bosman case, we find numerous examples of cases in which Europe has qualified, moderated or even changed the criterion of our domestic courts when interpreting rules in the light of Community law. It is the case of timetable organization in cases of reduction of working hours due to legal guardianship, vacation after a lengthy temporary incapacity process, the phenomenon of transfer of undertaking in cases of insolvency, the consequences of dismissal during lengthy temporary incapacity and equating it with disability, the most recent cases of recording of working hours or the European Data Protection Regulation.

The above-mentioned examples prove that the Court of Justice of the Union is called upon more and more to review whether the criteria of interpretation of our courts, or our legislation, are in keeping with the case law or legislation of the Union. To the extent that the Supreme Court has often been forced to correct its rulings, or our legislative bodies have had to introduce legislative reforms following the recommendations from Europe.

Let us consider for a moment the two examples mentioned in relation to temporary incapacity. In the case of vacation, the European influence ended up leading to a reform of the Workers’ Statute which deviated from the traditional criterion in our case law according to which the right to take vacation expired when the calendar year elapsed.

The second example is more striking. According to our constitutional court a dismissal while subject to temporary incapacity, as a general rule, should not be considered void due to a violation of a fundamental right. However, this view was questioned at the end of 2016 when Labor Court no. 33 of Barcelona, pursuant to a preliminary ruling made by the Court of Justice of the European Union, equated long-term temporary incapacity with disability and such dismissal was considered discriminatory and therefore void.

Although that judgment was later revoked by the Superior Court of Justice of Catalonia, and others have been subsequently issued confirming the traditional case-law principle, the fact is that, at present, any judgment which is issued or any matter the subject of legal analysis must be reviewed in the light of Community law and although this seems so obvious in the majority of cases, it is not so simple, since there is a lot of scattered legislation and other legislation pending transposition.

For this reason, Spanish courts increasingly resort to seeking a preliminary ruling from the Court of Justice of the European Union, since it is not always easy to determine whether a Spanish rule or criterion is in conflict with new (or sometimes old but unknown) European trends.

Thus, before applying a Spanish rule… perhaps one must ask Europe.

Juan Argente

 Labor and Employment Department of Garrigues