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European social law Cases

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C1: The answer is yes The answer is based on article 15 subsection 1 sentence 1 TEU According to this rule the following applies: According to article 15 subsection 1 sentence I TEU. The European Council shall not exercise legislative functions. So, the European Council was not allowed to make a legislative proposal for the Parliament and the Council. C2: The answer Is yes The answer is based on article 288 Subsection 2&3 TFEU According to article 288, subsection 2 TFEU a regulation is directly applicable in all member states without any need for national legislation. According to article 288 subsection 3 TFEU a directive is not directly applicable. The directive must first be implemented into national law. In our case, Italy has violated the TFEU because it treated a regulation as a directive by implementing the regulation into national law. C3: The answer is Yes The answer is based on the principle of limited powers and the article 153,subsection 5 TFEU According to these rules the following applies: The principle of limited powers means that, before the European Union may take action, it must ensure that it has been provided with the authority to do so by the Treaties. According to 153 sub 5 TFEU in the field of labor law the EU has no authority to regulate the “pay”. : The answer is NO The answer is based on the principle of equality and the principle of supremacy. According to these rules the following applies:

The principle of equality prohibits any discrimination on grounds of sex. This principle is violated by German Constitution that does not allow women to join the army. This principle means that in cases, where EU law and national law conflict, the EU law will take precedence with the consequence that the national law is not applicable in these cases. The German constitution is not legible for the German Army, in so far, as the constitution prohibits female workers to join the army. C5: The answer is NO. The answer is based on the right of the employer to issue directives to the employee and the article 4 subsection 1 BL B is right insofar as he thinks that he has the right to issue directives to his employee. This right belongs to the legal sources of labor law. But this right must respect the regulations coming from other legal sources that are higher ranked. According to article 4 subsection 1 BL the freedom of conscience shall be inviolable. That means that B has no right to force A to do a job that would violate his conscience. C6: The answer is NO. The article is based on article 9 subsection 3 sentences 1 and 2 BL According to article 9 subsection 3 sentence 1 BL everyone has the right to form association to improve the working conditions. A trade union is such an association. According to sentence 2, an agreement that restricts this right shall be null and void. So the clause pre-formulated by B is invalid. C7: The answer is No The article is based on section 4 subsection 1 sentence 1 and section 3 subsection 1 CBAA

According to section 4 subsection 1 sentence 1 CBAA a collective bargaining agreement applies with mandatory effect if both parties are bound by the agreement According to section 3 subsection 1 CBAA that means that the employee is a member of the same trade union that concluded the agreement with the employer According to the section 3 subsection 1 CBAA that means that the employee is a member of the same trade union that concluded the agreement with the employer. In our case we know about B that he concluded the agreement with the trade union IG Metall. About A we only know that he is a member of a trade union in Germany, but we cannot say that this union is the IG Metall. So A is not entitled in every case to 28 days of holiday according to the collective bargaining agreement. C8: The answer is No. The answer is based on section 4 subsection 1 sentence 1 and section 3 subsection 1 CBAA According to section 4 subsection 1 sentence 1 the CBAA a collective bargaining agreement applies with mandatory effect if both parties are bound by the agreement. A is entitled to 28 days of holiday The answer is based on the employment contract and section 3 subsection 1 FVA According to these rules the following applies: According to section 3 subsection 1 FVA the vacation amounts to at least day annually. That fits with the employment contract that gives A more than 24 days of holiday. (原文蓝色)B is entitled to 24 days of holiday The answer is based on section3 subsection 2 FVA According to this rule the following applies: According to section 3 subsection 1 FVA the vacation amounts to at least 24 days annually.

(原文黄色)C is entitled 32 days of holiday The answer is based on the employment contract, section 3 subsection 1 and section 4 subsection 1 sentence 1 and subsection 3 CBAA According to these rules the following applies: According to the section 4 subsection 1 sentence 1 CBAA the a collective bargaining agreement applies with mandatory effect if both parties are bound by the agreement. According to section 3 subsection 1 CBAA that means that the employee is a member of the same trade union that conclude the agreement with the employer. C is a member of the trade union that concluded the agreement with D. but in our case the employment contract gives C 32 days of holidays. Because this is more beneficial for C the employment contract applies according to section 4 subsection 3 CBAA. C9: The answer is Yes The answer is based on section 77 subsection 3 sentence 1 WCA According to section 77 subsection 3 sentence 1 WCA working conditions which are regaled by a collective agreement may not be the subject of a works agreement. As we know D is bound by a collective bargaining agreement that regulates the days of holiday. So a works agreement is not possible. C10: The employee is entitled to 22 days of holiday (in a five – day week) The answer is based on the employment contract and section 3 FVA According to section 3 subsection 2 FVA the statutory law is based on a sixday (Monday to Saturday). So, a worker who has 24 days of holiday according to section 3 subsection 1 FVA is entitled to four weeks of holiday annually In our case, the employment contract gives 22 days of holiday based on five-day week. That means that the employee is entitled to four weeks and two days of holiday according to the contract. So, this rule applies.

C11: The answer is Yes The answer is based on article 9 subsection 3 sentences 1 and 2 BL and section 306 subsection 1 CC According to article 9 subsection 3 sentence 1 BL everyone has the right Because B is using standard contracts with pre-formulated clauses the general rules regarding the review of standard business terms according to the Civil Law apply. In our case the rule according to section 306 subsection 1 CC applies: if a standard business term is ineffective, the remainder of the contract remains in effect. So, the employment contract between A and B is valid. C12: The answer is No. The answer is based on section 307 subsection 1 sentence 1 CC According to section 307 subsection 1sentence 1 CC a standard business term is ineffective if it unreasonably disadvantages the other party. In our case a penalty of 12 months’ salary is much too high for a violation of an employment contract with the legal consequence that the penalty clause is invalid. Based on an invalid clause B has no right to sue A for a contractual penalty. C13: The answer is No. The answer is based on section 306 subsection 2 CC According to this rule the following applies; If a standard business term is ineffective, section 306 subsection 2 CC has the following rules. Where a provision is ineffective, the content of the contract shall be determined by the statutory law. But, as we know, there is no statutory provision about a contractual penalty in German Law. So, B gets nothing. C14: The answer is Yes

The answer is based on the legal source of company practice. According to this rule the following applies: The so called company practice is one of the legal sources of labor law. The company practice offers employees a basis for asserting claims which are not explicitly set forth in the employment contract. Employees’ right based on a company practice can be created, if the employer repeats a certain action at least 3 times and the employee can conclude that the employer tends to continue such actions in the future. That’s the case here. So A is entitled to demand the bonus for 2017, too C15: Grounds Race Ethnic origin Gender religion Belief age Disability Sexual identity Indications Photo “German native speaker” “He”, photo Photo “young team”, photo “Mobile” - -------------------------------------------------GETA----------------------------------------------

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