Introduction

The Czech Republic has traditionally been lagging behind in transposing directives. The late transposition of Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union (“the Directive”) is thus far from being an isolated phenomenon. 

The transposition deadline for the Directive expired on 1 August 2022 already, but the Parliament has not yet even been discussing adoption of the relevant amendment to Act No. 262/2006 Coll., the Labour Code, as amended (“the Labour Code”)  .

An EU member state has the obligation to implement directives; if a country fails to do so, the EU Commission can initiate an infringement proceeding against the country under Section 258(2) of the Treaty on the Functioning of the European Union. 

At the end of 2021, there were 42 such proceedings being conducted against the Czech Republic , while, there were only 13 such proceedings against Denmark, for example. 

The Directive is applicable to all workers in the Union, whether they have an employment contract or an employment relationship based on an agreement to perform work or to complete a job (or otherwise).

The purpose of the Directive is to improve working conditions by making employment relationships more predictable and transparent. 

Direct effect of the Directive

Since the Directive was not transposed into Czech law on time, the Directive has a vertical direct effect against the “State”, because the Directive is clear and precise .

It follows from the settled case law of the CJEU that the direct vertical effect of the Directive can be invoked not only directly against a Member State, but also against entities or bodies governed by public law (e.g. municipalities, regions, the Czech Bar Association, the Czech Medical Chamber), which are part of the State in a broader sense, and entities or bodies that are subject to the authority or supervision by the State (e.g. Budějovický Budvar, a national enterprise), or against entities or bodies endowed with exceptional powers, which perform a task in the public interest (e.g. insurance companies) . 

All of these entities are referred to by the CJEU as a “State”, although in Czech law the term “state” is interpreted much more restrictively. 

It is a matter for the national court (unless a preliminary question is submitted to the CJEU) to determine, if the entity in question can be included under the term “State” and if the Directive thus has direct vertical effect. 

The employee can thus invoke the Directive, or rather those provisions of the Directive, which are clear and certain and not conditional in any way, directly against the “State”.

Changes that the legislator should have transposed into the legal system 

Section 4(2)(m) and Section 10(1) and (2) of the Directive oblige the employer to inform the employee, if he or she does not have foreseeable working hours (this situation can only arise in the case of persons with an agreement to work or to complete a job , as here the employer is not obliged to schedule working hours ), about the number of guaranteed paid hours, about the so-called reference hours and days (the period during which the employer has the right to require the employee to perform work) and about the minimum period for the notification or cancellation of a work assignment. 

Without timely notification of the work assignment by the employer to the employee, the employee has the right to refuse the work assignment without any penalty. 

The Directive also slightly expands the employer’s information obligation towards the employee by providing information on stipulations about overtime, the right to vocational preparation (training), the duration and conditions of any probationary period. 

Article 12 of the Directive introduces an obligation for the employer to respond in writing within one month to an employee’s request for transfer to another job (with more predictable and more certain conditions). An employee can only apply for a transfer after having been working for the employer for six months and after the probationary period has ended. 

Article 18 of the Directive enshrines the employee’s right to a proper written justification for dismissal or measures having equivalent effect (e.g. the employee has not been given any work assignment for a long time).

However, it should be noted that some of the requirements of the Directive are already met by the Labour Code (e.g. the maximum length of the probationary period does not exceed 6 months).

Conclusion 

The Directive has not been transposed and the Czech Republic is therefore at risk of the Commission initiating further infringement proceedings. 

Although the Directive already has a horizontal direct effect on the “State”, it does not change Czech labour law in any fundamental way. Rather, the Directive introduces minor changes to improve the position of employees. 

However, these changes can now be invoked directly by employees of the “State” (i.e. those stipulations of the Directive that are clear and precise). 

The Directive will strengthen the position of persons working under an agreement for work outside an employment relationship (agreement to perform work or to complete a job), in particular through the obligation to provide prior information on reference hours. On the other hand, it will significantly limit the employer’s flexibility, which is the main motive for the use of agreements to perform work or to complete a job. 

Currently, a draft amendment to the Labour Code, which, among other things, should transpose the Directive, is already in the inter-ministerial comment procedure, so a remedy will hopefully be made in the foreseeable future. 

Author: Petr Berdych, Veronika Odrobinová