Employment Law in Hungary Problem Question

Employment Law in Hungary Problem QuestionThe difficulties that Andreas and Luka face in this circumstance relate to the fact that where Treaty articles1 and Regulations2 are channelizely relevant in home(a) courts. directionals are only binding as to the result to be achieved, with it being necessary for the Member fix to adopt the national police force in such a way as to implement the guidings terms.3 This means that whilst Andreas and Luka would have been commensurate to commit directly on a Treaty Article or Regulations to enforce their EU rights in the Hungarian courts, they moldiness depone on some(a) alternative method of enforcement in respect of the Directive. It is these alternative methods of enforcement that fabrication at the crux of the copes here.Although the direct effect for Treaty Articles was non instant, it was developed over a period of time, and Van Gend was the first judgment to expressly claim that Treaty Articles could be directly impressive.4 On the other hand, Article 288 TFEU5 specifically says that Regulations are directly effective. This was confirmed in Leonesio 6 and held that Directives are only directly effective in respect of the aims to be achieved and that the Member States are given discretion as to how these aims are introduced into national law.On the face of it, it could be suggested that because Directives are not directly enforceable in the national courts, Member States would be able to disregard the requirements of the Directive. If as it has happened in this circumstance, it does not suit the current national requirements. This would, of course, subscribe to Directives largely irrelevant. This was the view that was taken by the European Court of Justice (ECJ) in Van Duyn v Home Office.7 In this judgment, it would be held that, if the Directive was clear, minute and unconditional (the same requirements as exist for the direct effect of Treaty Articles and Regulations)8, and had a direct effect on t he relations between individuals and the Member States. Therefore, the Directive ought to be given direct effect in the national courts.The above position was further clarified in Pubblico Ministero v Ratti.9 Mr. Ratti was a manufacturer of solvents in Italy, was charged failure to comply with the stricter Italian law. The ECJ made clear that the proper purpose of direct effect for Directives was to prevent a Member State from gaining an reinforcement by ignoring the requirements of a Directive. In essence, a Member State is estopped from denying an individuals rights based on the contents of a Directive once the period for implementing the Directive has passed.establish on the above, it seems that Andreas and Lukas position is a relatively strong one, but unfortunately, the issue is slightly more complicated. These complications are initially lie in the fact that a failure to implement a Directive into national law is entirely caused by the fault of a Member State. In Marshal,10 i t was recognized that allowing an individual to rely on the provisions of a Directive directly against another individual could have unfair results. This is because the individual expected to comply with the Directives may have no idea of its existence. On this basis, it was further held in Faccini Dori v Recreb11 that the Directives could only have a direct effect on the Member State itself. This is known as a vertical direct effect. This is clearly a limiting factor and therefore it is essential that it is possible to identify what kind of organization fits within this requirement.The issue of identifying against whom the direct of a Directive could be relied upon was addressed in Foster v British Gas.12Here, it was held that an organization would be part of the Member State if it was accede to the authority or control of the State, or had powers that went beyond those that ordinarily exist between individuals. There are two separate approaches that are followed in this respect. In Sozialhifeverband,13 it was held that private companies owned by a local authority would be considered sufficiently linked to the State stringently based on the nature of their ownership. In Vassallo, 14 it was stated that the nature of the role of the organization could also impact on whether it was considered part of the State. In this case, a privately-run hospital was considered part of the State. This is because some of its activities were publicly funded and partially also because it was serving a public function.It can be seen from the above, the fact that Directives can only have a vertical direct effect impart have a significant impact upon Andreas and Lukas ability to rely on the Directive. It seems probable that even though Andreass employer receives some of its funding from private contributions, the fact that it is partly funded by the State, and it will be considered to serve a public function. It will mean that it will be considered part of the State and that, A ndreas will be able to rely on the provisions of the Directive directly against it. The effect of this will ensure that prior to his dismissal, Andreas will be considered to have held a permanent rationalize. Therefore, he will presumably be able to rely on Hungarian employment law, at the very least, attempt to assert that he should receive some compensation for his dismissal. However, Andreas will not be able to assert that the Directive means that he should not have been pink-slipped. This is because the only relevant purpose of the Directive is to ensure that a permanent concentrate is granted after two temporary ones have elapsed.The position is very different for Luka. This is because the company for which she is working with is purely privately owned and funded. This is unlikely to be considered to serve as a public function. Therefore, she will not be able to rely on the direct effect of the Directive. However, this is not the end of the matter, because there are further possibilities that may assist her.The first of these possibilities lies in what is known as an indirect effect. In Von Colson Kamann,15 it was held that national courts have a duty to interpret national legislation in line with EU provisions if this was possible. The approach in Von Colson Kamann16 was quite limiting in that it only applied to national legislation that was implementing the Directive in question. This approach would not assist Luka, this is because there is no indication that the Hungarian government has taken any implementing steps at all with the regards to this Directive. The position was expanded somewhat in Marleasing17, that to require national courts to interpret all national legislation in line with EU provisions where possible.It is not possible to comment on the impact of an indirect effect on Lukas position specifically. This is because this will entirely enumerate on whether there is already in existence any Hungarian legislation that could be interpre ted in line with the provisions of the Directive. If this is possible, Luka will be able to rely on the existing national legislation and the Hungarian courts will be required to interpret accordingly. Clearly, if there is no relevant Hungarian legislation exists, of if the existing legislation is written in such a way that an alternative interpretation is not possible, the indirect effect will be of no assistance to Luka.The second possible solution for Luka can be found in the judgment in Francovich.18 In this judgment, it was held that where a Member State has failed to implement a Directive and if certain other requirements are satisfied, an individual would be able to hold the Member State liable for their losses. In tack together for State liability to arise, three conditions must be met. Firstly, the Directive must grant rights to the individual. Secondly, it must be possible to identify these rights from the content of the Directive. Finally, there must a direct causative link between the Member States failure to implement the Directive and the loss suffered by the individual.There seems little difficulty in applying the above three conditions to Lukas position. On the fact given, it appears that the very purpose of the Directive was to grant individuals with the right to be placed on a permanent contract and the subsequent employment security that such a contract provides. It is also clear that the nature of the Directive makes its purpose clear. The position in respect of the causal link between the failure to implement the terms of the Directive and the loss sustained by Luka is an interesting one. This is because, taken at a simple level, the non-renewal of Lukas contract would not have occurred if the Directive had been properly implemented. Luka would already have been working under a permanent contract. However, the failure to implement is not necessarily the former for Lukas loss. This is the downturn in piano manufacture and the subsequent loss of her job. In this respect, Luka may have lost her job even if she had a permanent contract. In order to address this, it would be necessary to consider the steps taken by Kende Pianos in deciding whom to dismiss. However, it seems that even if it is possible to demonstrate that Luka would have been dismissed anyway, even if she would be on a permanent contract. Therefore, on the fact that she will not receive this payment is directly caused by the failure in implementation of the Directive and Luka should be able to claim damages from the State in order to compensate for this loss.In conclusion, Andreas will be able to rely on the Directive directly in the Hungarian courts to ensure that he receives the same employment rights as an individual on a permanent contract. On the other hand, Luka will not be able to rely on the direct effect of the Directive, but she may be able to rely on its indirect effect, or she may be able to seek damages from the Hungarian State.CASESFaccini Dori v Recreb (case 91/92) 1994 ECR I-3325Foster v British Gas (case C-188/89) 1990 ECR I-3313Francovich and Bonifaci v Italy (joined cases C-6/90 and C-9/90) 1991 ECR I-5357Leonesio v Italian Ministry of Agriculture (case 93/71) 1972 ECR 293Marleasing SA v La Comercial Internacionale de Alimentacion SA (case C-106/89) 1990 ECT I-4135Marshall v Southampton and South-West Hampshire Area Health Authority (case 152/84) 1986 ECR 723Pubblico Ministero v Ratti (case 148/78) 1979 ECT 1629Sozialhifeverband Rohrbach v Arbeiterkammer Oberosterreich (case C-297/03) 2005 ECR I-4305Van Duyn v Home Office (case 41/74) 1974 ECT 1337Van Gen en Loos v Nederlandse Administratie der Belastingen (case 26/62) 1963 ECR 1Vassallo v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate (case C-180/04) 2006 ECT I-7251Von Colson Kamann v Land Nordrhein-Westfalen (case 14/83) 1984 ECR 1891TREATIESTreaty of the Functioning of the European Union 2012BOOKSChalmers, D Davies, G Monti, G European Union Law (3rd edn Cambridge University squash 2014)Craig, P De Burca, G EU Law Text, Cases, and Materials (6th edn Oxford University Press 2015)Schutze, R European Union Law (Cambridge University Press 2015)1 Van Gen en Loos v Nederlandse Administratie der Belastingen (case 26/62) 1963 ECR 12 Treaty on the Functioning of the European Union (TFEU), Article 2883 Ibid4 Van Gen (n1)5 Treaty on the Functioning of the European Union (TFEU), Article 2886 Leonesio v Italian Ministry of Agriculture (case 93/71) 1972 ECR 2937 (case 41/74) 1974 ECT 13378 The van Gend Criteria (van Gen en Loos)9 (case 148/78) 1979 ECT 162910 Marshall v Southampton and South-West Hampshire Area Health Authority (case 152/84) 1986 ECR 72311 (case 91/92) 1994 ECR I-332512 (case C-188/89) 1990 ECR I-331313 Sozialhifeverband Rohrbach v Arbeiterkammer Oberosterreich (case C-297/03) 2005 ECR I-430514 Vassallo v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenz ionate (case C-180/04) 2006 ECT I-725115 Von Colson Kamann v Land Nordrhein-Westfalen (case 14/83) 1984 ECR 189116 Ibid17 Marleasing SA v La Comercial Internacionale de Alimentacion SA (case C-106/89) 1990 ECT I-413518 Francovich and Bonifaci v Italy (joined cases C-6/90 and C-9/90) 1991 ECR I-5357