What Implications for the ‘European Social Model’?
Edited by Marie-Ange Moreau
Chapter 10: The Principle of Non-Discrimination within the Fixed-Term Work Directive
157 Justice has repeatedly recognised that this is one of the general principles of EC law. In this context, equality is highly malleable and it amounts to little more than a test of rationality.9 The general principle of equality can be applied as a constraint on arbitrary rules within labour law. An illustration is provided in Cordero Alonso v Fondo de Garantía Salarial.10 This case concerned the recovery of payments where the employer was insolvent. Following his dismissal, compensation of EUR 5,540 for Mr Cordero Alonso was agreed under a judicially-supervised conciliation settlement. When his employer became insolvent, he requested the sum from the Spanish guarantee authority. Full payment was refused on the basis that this was a conciliation settlement; full payment was only provided for compensation awarded in a court judgment. The Court of Justice held that the Spanish courts had to ensure: ‘observance of fundamental rights, which include inter alia the general principle of equality and nondiscrimination . . . That principle precludes comparable situations from being treated in a different manner unless the difference of treatment is objectively justified.’11 On the facts, the Court deemed that Mr Cordero Alonso’s situation was comparable to that of workers awarded compensation via a court judgment and there were no grounds for treating him differently in relation to his entitlement to receive the payment. Equality, in this manifestation, is an instrument for promoting fairness between all workers. At the other end of the spectrum, equality can be interpreted with more rigour, typically...
You are not authenticated to view the full text of this chapter or article.