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20 November 2014

EU Employment Protection Rights for Irregularly Present Migrants

C-311/13 Tümer 5 November 2014

A most welcome judgment from the Court of Justice of the European Union has extended EU employment protection law to all employees irrespective of the regularity (or irregularly) of their residence status.

Finding: Directive 80/987 [on the protection of employees in the event of the insolvency of their employers] must be interpreted as precluding national legislation on the protection of employees in the event of the insolvency of their employer, such as that at issue in the main proceedings, under which a third-country national who is not legally resident in the Member State concerned is not to be regarded as an employee with the right to an insolvency benefit — on the basis, in particular, of claims relating to unpaid wages — in the event of his employer’s insolvency, even though that third-country national is recognised under the civil law of the Member State as having the status of an ‘employee’ with an entitlement to pay which could be the subject of an action against his employer before the national courts.

Facts: Mr Tümer, a Turkish national resident in the Netherlands since 1988, applied for insolvency benefit under Dutch law implementing the EU directive on the basis of his right to payment by Halfmoon Cosmetics (his former employer now insolvent). The ground was that the company had not paid him between August 2007 until Mr Tümer’s dismissal (26 January 2008 when the company went into insolvent liquidation), that is to say, a period during which he did not hold a residence permit. That application was refused on the ground that Mr Tümer was not an ‘employee’ within the meaning of national law since he was not legally resident in the Netherlands. He appealed and the national court asked the opinion of the CJEU.

The Court’s reasoning

The Court stated that the competence of the EU to adopt minimum requirements to improve the living and working conditions includes third country nationals (not only EU citizens) (para 32). The fact that the EU legislator has adopted measures on residence and work for third country nationals does not have the effect of excluding them from the scope of EU law intended to achieve other objectives (para 33). As third country nationals, including irregularly present third country nationals are not excluded from the EU directive, they are then by necessity included and Member States may not, by their national law exclude irregularly present third country nationals from the protection (para 36).

So long as the individual is a worker or employee under national law national law which seeks to exclude the person from the scope of EU labour law cannot be applied. It would seem likely that the same would apply to any argument as in the UK case where although the individual is an employee the contract is deemed illegal and so unenforceable.

The Court based its decision also on the social objective of the legislation which is to guarantee a minimum protection for workers (para 42). It concludes that national legislation on the protection of employees in the event of the insolvency of their under which a third-country national which states that the person has no right to an insolvency benefit because he is not lawfully resident is unlawful itself. The fact that ‘illegally staying third-country nationals’ do not have the right to work in the Netherlands does not invalidate that conclusion (para 47). 


This judgment does not only apply to the EU insolvency protection legislation but potentially to all EU legislation which is adopted under the (former) Social Charter provisions adopted to achieve the objective of Article 151 TFEU: “The Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion. To this end the Union and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy. They believe that such a development will ensue not only from the functioning of the internal market, which will favour the harmonisation of social systems, but also from the procedures be provided for in the Treaties and from the approximation of provisions laid down by law, regulation or administrative action.”

For more on this active and well developed aspect of EU law see the Commission’s website: https://osha.europa.eu/en/legislation/directives/directives-intro which sets out the framework directive and the area specific directives which have been adopted.


20 November 2014

Elspeth Guild, Kingsley Napley LLP, London