2004. évi 2. szám - Jura - Pécsi Tudományegyetem

István Horváth: Light and shadow
tion in the directive. According to the practice of the
European Court, the establishment of a transfer is not
affected by the fact that the operators are not owners
but only lessors of the transferred assets, whether
they be real estate or other assets.
Apropos of this directive, I would like to mention
another aspect of the harmonization tasks, namely the
proceedings of the Commission examining whether
the candidate member state’s laws are in line with all
the provisions of the respective directives. This was
a work requiring special expertise and was – for the
candidate countries – a high intensity work, since a
report in a form of tables of concordance had to be
completed in a very short period of time!
The provisions challenged by the experts of the
European Commission were negotiated last summer
in Brussels. We could not agree with respect to
Paragraph 3 Article 4 of the directive. According to
this rule, if the employment relationship is terminated
because the transfer significantly changes the
working conditions to the employee’s disadvantage,
the employer is obliged to terminate the employment
agreement or the employment relationship.
According to a decision made during the adopting
of the directive the said provision is implemented
and separate itemized regulations are not necessary.
On the one hand the legal successor is entitled to
modify the employment contract only on the basis
of mutual consent and the conditions of the employment
can be modified only where it was the case
that the predecessor had the same opportunity. On
the other hand, in the case that the abovementioned
general rules are violated, the employee is entitled to
terminate the employment relationship by extraordinary
notice and the employer has to pay the appropriate
allowances relating to ordinary dismissal.
For the first time the European committee monitoring
the legal harmonization did not accept the arguments
listed above. They gave us the following examples:
where the transfer of a gazette changes the former
view of the editorial office and it is not in line with
the journalist’s view. The other example was where
in a hospital the legal successor facilitates abortion
and the doctor does not agree with it. However this
legislative hardship was solved by time, as later on
in autumn 2003 in Dublin the European committee
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did not query the mentioned problem. Had they
subsequently accepted our arguments, or had they
forgotten the problem?
In my opinion, recently the most sensitive question
is the revision of the working time directive – and
the ten new Member States may have the opportunity
to influence the revision.
Probably it is the inadequately precise and the
unequivocal normative content of the directive which
has led to different European committee and judicial
interpretations relating to the most sensitive institution
of labor law, the working time. Article 2 of the
Council Directive 93/104/EC on the organization of
working time qualifies the period of availability as
working time. The definition contains two cohesive
elements: the obligation of availability and the obligation
of work performance. Consequently, if the employer
instructs the employee to be available outside
of his/her working time schedule it does not qualify
as working time, it is not included in the limited 48
hours. Presumably the European Committee interpreted
the definition of the directive in a similar way
as the interpretation of the Hungarian legislation. It
can be underlined by the fact that Bruxelles did not
question the „extraction” of the period of availability
from the limited 48 hours. Nevertheless, two judgments
of the European Court of Justice are absolutely
contradictory to the aforementioned interpretation.
Both cases referred to the working time of doctors.
In the SIMAP-case the court – contrary to the local
regulations – qualified the period of availability,
which is when the doctor is on call in a health center,
as working time, consequently meaning that that
period should be included in the 48 hours. The other
judgment refers to a German doctor – the Jager-case.
The European Court of Justice qualified the period
of availability as working time, with special respect
to the fact that the employee is obliged to spend the
period of availability at his/her place of work.
The court held that the fact that during this period
the employee may do anything, even rest or sleep,
is irrelevant.
The consequences of these two court rulings do
not only effect labor law. It is mainly the finances
and the number of physicians and nurses available
which determines whether a member state is in a
JURA 2004/2.