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ISSUE 64 page 6

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Most charges upheld as asbestos appeal increases sentence

Last year (issue 58) we reported on the trial in Italy of two bosses at asbestos manufacturer Eternit SpA. as they received prison sentences of 16 years each and were ordered to pay millions of euros in damages. The environmental disaster caused by their negligence was held to have caused over 3,000 deaths. We consider their appeal below.
 In Italy, sentences are only considered final after two levels of appeals are exhausted so one year after the original trial the appeal court in Turin re-examined the case. One of the defendants, Baron Louis de Cartier de Marchienne, having died in the intervening period the case against him was formally dismissed and only that against Stephan Schmidheiny reconsidered. Although the judgement struck out damages payable by de Cartier and quashed charges that claimed Mr. Schmidheiny had taken no health and safety measures, it increased his sentence to 18 years in prison and valued damages against him at €88 million. The town of Casale Monferrato where the biggest Eternit factory was located will receive €30.9 million; it is still seriously contaminated and
suffers an average of 50 asbestos-related deaths per year. The three main union confederations CGIL, CISL and UIL get €100,000 each while individual claimants will be paid €30,000. The losers are the state accident insurance and social security funds INAIL, and INPS, who will now not receive compensation. Fabrizio Solari, Confederal Secretary of CGIL expressedsatisfaction with the sentence but was unhappy that INAIL would not have the money ‘to promote actions in favour of workers exposed to asbestos and in favour of research’. Campaigners from France, Belgium, Spain and Latin America met after the trial with a view to bringing similar prosecutions.

An asbestos widow from Casale Monferrato keeps vigil at the trial



Recent decisions from the European Court of Justice

Dutch-only contracts infringe freedom of movement

UK TUPE decision reversed by full court

A law which reflects Belgium’s split into different language groups has been found to be incompatible with the EU’s fundamental principle of freedom of movement of labour. In the Flemish-speaking region only employment contracts in Dutch are legally valid, even if the worker or company involved comes from outside Belgium. In this way Anton Las, a citizen of the Netherlands working for a Singapore-based company, had his employment with an Antwerp firm terminated when it was found that his contract was written in English. While the Flemish government said that the law was justified to ‘protect and promote the Dutch language’ the court asserted that parties to a cross-border agreement must be able to understand the contract in order to give their consent.
In issue 62 we reported on the Advocate General’s opinion of a case originating from the U.K. concerning the ability of the TUPE regulations to protect the pay of workers transferred from the public to the private sector. The opinion, which is nearly always followed by the court, stated that Parkwood Leisure were wrong to refuse pay rises to employees transferred from the London Borough of Lewisham when these were negotiated by the relevant Local Government committee. Unusually, however, the decision of the full ECJ has contradicted its officer’s opinion. Only the pay rates at the time of the transfer are protected, say the court, otherwise the company receiving the workers would find its ‘contractual freedom is seriously reduced to the point that … the very essence of its freedom to conduct a business’ is affected. Once again, as in the Viking and Vaxholm cases, the ECJ has re—interpreted a directive as protecting employers rather than workers.

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