10 April 2024

Disapplying National Law: Case Summary

GVZH Advocates


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When national legislation undermines the fundamental right to an effective remedy prescribed by European Union standards, the national court must disapply the relative legislation, in so far as necessary.
Malta Employment and HR
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When national legislation undermines the fundamental right to an effective remedy prescribed by European Union standards, the national court must disapply the relative legislation, in so far as necessary. This is because any national court cannot interpret national legislation which is inconsistent with EU law.

In the recent case C-715/20 (X (Absence de motifs de résiliation)), decided on the 20th of February 2024, the European Court of Justice (the "ECJ") ruled that any national legislation which allows for the reasons for employment termination to be solely provided to permanent employees, undermines the fundamental right to an effective remedy for part-time employees. Therefore, a fixed-term, part-time employee, who is in a comparable situation to another permanent, whole-time employee,1 must also always be informed of the reasons for the termination of their employment contract.

Facts of the Case

K.L. and X sp. Z o.o., a limited liability company governed by Polish law, entered into a fixed-term2 part-time employment contract from the 1st of November, 2019 until the 31st of July, 2022. Yet, on the 15th of July, 2020, K.L. was notified of his termination of his employment contract, by means of a statement and respected the one-month notice period. Accordingly, that termination took effect on the 31st of August 2020; however, K.L. was not informed of the reasons for that termination.

Following his dismissal, K.L. brought an action before the District Court for Kraków-Nowa Huta, seeking compensation for unlawful dismissal. He submitted that the Polish Labour Code did not require employers to state the reasons for termination of fixed-term employment contracts. The absence to such information infringed the principle of non-discrimination enshrined in EU law and in Polish law, since this obligation existed for termination of indefinite employment contracts. In this context, the Krakow District Court referred its questions on the matter to the ECJ for a preliminary ruling.

The Principle of Non-discrimination

The law aims to improve the quality of life of a fixed-term employee, by ensuring the application of the principle of non-discrimination. This is in accordance with clause 1(a) of the Framework Agreement3 and is similarly included in the third paragraph in the preamble to the agreement which reads that this principle "illustrates the willingness of the Social Partners to establish a general framework for ensuring equal treatment for fixed-term workers by protecting them against discrimination". This is also stated in Recital 14 of Directive 1999/70. In particular, the Framework Agreement aims to apply the principle of non-discrimination to fixed-term employees, to prevent an employer using such an employment relationship to deny those employees rights which are instead recognised for permanent employees. The prohibition of discrimination is directly a specific expression of one of the fundamental principles of EU law, namely the general principle of equality, and cannot be ignored.

With the objective of eliminating discrimination between fixed-term employees, part-time employees and permanent employees, the law essentially prohibits fixed-term employees from being treated less favourably than comparable permanent employees, simply because they are employed for a fixed term, unless different treatment is justified on 'objective grounds'.

i. Fixed-term employees and comparable whole-time employees

Firstly, to assess and examine whether the fixed-term employees and permanent employees concerned were engaged in the same or similar work for the purposes of the Framework Agreement, the ECJ had to determine, whether those persons could be regarded as being in a comparable situation. This determination considers a number of factors, such as the nature of the work, training requirements and working conditions of the employees. From the facts of the case, it emerged that the Polish Labour legislation did indeed apply to employees employed under a fixed-term contract, who could be compared to employees employed under a contract of an indefinite duration.

ii. Justified on 'Objective Grounds'

The second factor considered by the ECJ was whether such a difference in treatment could be justified on 'objective grounds'.

According to case-law on the matter, the concept of 'objective grounds' and the difference in treatment is normally justified:

  1. by the presence of precise and specific factors;
  2. which characterise the employment condition to which they relate;
  3. in the specific context in which it occurs; and
  4. based on objective and transparent criteria.

This list aids any Court to ascertain that that difference in treatment is based on a genuine need, is appropriate for achieving the objective pursued and is necessary.

After thorough analysis of the facts, the ECJ noted a difference in treatment which emerged between the two categories of employees. Under local Polish Labour law, during the termination of a fixed-term employment contract with a notice period, the employer was not required to inform the employee in writing at the outset of the reason/s justifying that termination. However, that same employer was required to inform the employee in the event of termination of an employment contract of indefinite duration with a notice period. This led to a clear breach of fairness since:

  1. on the one hand; a fixed-term employee whose employment contract was terminated with a notice period, need not be informed of the reasons for why they were terminated;
  2. on the other hand; a permanent employee whose employment contract was terminated, would unfairly receive the reason/s for their dismissal.

The ECJ confirmed that the Polish Labour law portrayed a clear deprivation of equality since important information which was being provided to a permanent employee, was for the same reason, not being provided to the fixed-term employee. This restriction prohibited fixed-term employees from assessing whether their dismissal was in fact justified or otherwise. Such a situation would in turn give rise to unfavourable consequences for a fixed-term employee since that employee was not provided, beforehand, with information which may have been decisive for them to know whether or not to bring legal proceedings against their employer for the termination of their employment contract.

Hence, if the employee concerned had doubts regarding the validity of the reason for their dismissal, they would be left with no choice other than to bring an action seeking to challenge that dismissal before the competent labour Court. It would only be through that action that the employee may possibly obtain that requested information from their employer, of the reason/s for dismissal, through a court order.

The Preliminary ruling: Apply EU law

The ECJ emphasised that where it is apparent that the national legislation concerned is contrary to EU law, it is the responsibility of the national courts to provide the legal protection which individuals derive from the rules of EU law and to ensure that those rules are fully effective. Essentially, where it is not possible for a provision of national law to be interpreted in a consistent way with the requirements of EU law, the principle of primacy of EU law requires a national Court to apply provisions of EU law, and to disapply any provision of national law which is contrary to provisions of EU law.

Consequently, the ECJ ruled that to guarantee the full effectiveness of Article 47 of the Charter of Fundamental Human Rights, Article 30(4) of the Polish Labour Code had to be disapplied.


1. In this context, a "comparable permanent employee" means a employee with an employment contract or relationship of indefinite duration, in the same establishment, engaged in the same or similar work/occupation, due regard being given to qualifications/skills;

2. Note that "fixed-term employee" means a person having an employment contract or relationship entered into directly between an employer and a employee where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event;

3. Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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