bluuebunny/crossref_metadata_2025 huggingface dataset:
Better Regulation through Experimental Legislation
Authors: van Dijck Gijs , van Gestel Rob
Published: April 2022

Since the 2002 White Paper on Governance, European Union (EU) law and policymaking is aiming for a more evidence-based approach towards regulation. Until today, most Better Regulation (BR) tools, such as consultations, expert advice, and Impact Assessments (IAs), usually produce rather soft evidence, at least from a methodological perspective. A possibility to change this would be to rely more on experimental legislation and try out new laws and regulations first on a small scale and for a limited period before enacting more permanent laws. This may not only prevent negative (side) effects and filter out implementation and enforcement problems but is also a way to deal with situations of great uncertainty where major risks are involved. The question, however, is to what extent principles of equal treatment and legal certainty stand in the way of adopting experimental legislation in the EU's legislative policy.

The experimental method will not solve all difficulties. It is, after all, only a subsidiary method. The course to be followed is to give experimentation its place as a means of obtaining data for deductions, not to base political action wholly upon experiment and nothing else, for this would be to make the conclusions derived from it merely empirical laws.
Governance and Better Regulation: Dealing with the Legitimacy Paradox
Authors: Popelier Patricia
Published: April 2022

The European Commission adds a rationale of legitimacy to the Better Regulation (BR) programme, which is linked to a governance concept of democratic lawmaking in the context of multilevel government. Nevertheless, BR instruments have been criticized in literature for displaying legitimacy deficiencies. This paper will argue that under certain conditions, BR is a useful strategy to compensate for democratic deficit problems of traditional lawmaking. These conditions relate to quality control in the course of the decision-making process as well as judicial review ex post. The latter implies that the courts act as regulatory watchdogs over the legitimacy of regulatory instruments.
Europeanization of the Supervision of Competitive Markets
Authors: Ottow Annetje
Published: April 2022

Over the past two decades, the Member States have seen many different market regulators being set up under the influence of European law. Market liberalization has resulted in regulatory authorities being created for the purposes of monitoring the liberalization process and promoting competition. These play a key role in implementing and enforcing European rules. Although the work of these national regulatory authorities is based on the principles of institutional and procedural autonomy, European law has a major impact on their activities and how they operate. This 'Europeanization' is multifaceted and does not always manifest itself in the same way in the various regulatory authorities. In addition to the influence of European law at a national level (level 1), various European networks of national regulators (level 2) have also been set up over the years, and these are playing a role in the further harmonization, implementation, and enforcement of European law. A recent development has been the establishment of European regulatory authorities (level 3) alongside the national regulatory authorities and to which are being assigned European powers. These three different levels make the European regulatory landscape highly complex. An institutional structure for coordination has been created, as a result of which a mixed administration, with national and European elements, is now in operation. This article analyses this three-layered legal order in the area of market supervision.
Redefining the Outer Boundaries of EU Law: The Zambrano, McCarthy and Dereci trilogy
Authors: Tryfonidou Alina
Published: April 2022

In its three recent rulings in the cases of Zambrano, McCarthy, and Dereci, the Court appears to have been determined to redefine the external boundaries of EU law, in cases involving the family reunification rights of Union citizens. These three judgments can be read as an indication that for Article 20 TFEU to apply, there is no longer a requirement of a cross-border element on the facts of the case, and that it is sufficient if the contested national measure has the effect of 'depriving citizens of the Union of the genuine enjoyment of the substance' of their rights (the 'Zambrano principle').The cases can, at the same time, also be read as a confirmation that the free movement provisions do - still - require a cross-border element and, in particular, the exercise of inter-State movement, in order to apply. Though the result in these cases has not been entirely unexpected, especially in the aftermath of the Rottmann ruling, it is rather problematic in that, although it is obvious that the Court wishes to redraw the line dividing the national and EU spheres of competence, it does not make it entirely clear where this line now lies and leaves many essential questions unanswered, which will obviously require some time to be resolved. EU lawyers are consequently, once more, left with having to decipher as best as they can the real intentions of the Court in this new line of case-law, which has been further complicated by the fact that what the Court seems to have given with one hand in Zambrano (and before that in Rottmann), has taken it back to a large extent through its rulings in McCarthy and Dereci, which appear to confine the former two cases to their own exceptional facts. Moreover, the 'reverse discrimination Pandora's box', the opening of which appears to have been the real target of these references, remains untouched: instead of providing a direct solution to this problem, the Court has chosen to - once again - broaden the scope of the Treaty provisions in order to include within it as many situations as possible and, thus, prevent the emergence of this type of differential treatment on a case-by-case basis. As will be explained, nonetheless, this is by no means an appropriate solution to the reverse discrimination conundrum.
A Right to Cultural Identity in a UK Bill of Rights?
Authors: Craig Elizabeth
Published: April 2022

This article considers the possible inclusion of a right to cultural identity in a UK Bill of Rights, highlighting the centrality of culture to debates about the accommodation of diversity in the UK as well as the increased recognition of the importance of cultural rights under international human rights law. The article argues that the inclusion of a minimal minority rights guarantee based on Article 27 of the International Covenant on Civil and Political Rights 1966 would be an innocuous step that would provide the impetus needed for greater cultural sensitivity in decision-making processes in a way that acknowledges the centrality of culture to people's identities and everyday lives. It claims that the inclusion of such a right alongside a freestanding right to equality would provide a useful addition to the rights currently recognized as 'Convention rights' under the UK Human Rights Act 1998. This is argued on the basis of both international and domestic case law, including opinions of the UN Human Rights Committee, developments in European human rights law and experiences in other jurisdictions.
Poland: Current Debates on the Supervision over the Administrative Activity of the Common Courts
Authors: Mikuli Piotr
Published: April 2022

This article examines the institution of the supervision over the administrative activity of the courts of general jurisdiction (the so-called common courts) in Poland. This kind of supervision is performed in Poland by the Minister of Justice, judges seconded to the Ministry, as well as the presidents of the courts. The author considers the basic constitutional principles referring to the status of the judiciary and draws the reader's attention to the discussion on the current regulations concerning such supervision. The problem, first of all, lies in the ambiguous wording of the statutory regulations, which makes it difficult to clearly distinguish administrative tasks in a strict sense from duties connected with the dispensation of justice. Despite the friendly attitude of the Constitutional Tribunal towards the supervisory competences of the Minister of Justice, the author argues, like many scholars and judges in Poland, that the administrative activity of the common courts should instead be controlled by judicial organs (i.e., the First President of the Supreme Court on his own or with the cooperation of the Judicial Council of the Judiciary). At the same time, the author is convinced on the necessity of pending general debates concerning the competence of executive power towards the judiciary in future.
Impact Assessment in France: U.S. Models and French Legal Traditions
Authors: Perroud Thomas , Rose-Ackerman Susan
Published: April 2022

Impact assessment (IA)in France highlights the tensions between traditional administrative law and modern trends. The expertise of the bureaucracy and its insulation from politics sought to further republican views of the public interest. In principle, IA could be a modern route to that goal. However, faith in the civil service has eroded, and the state now also faces demands for more openness and public participation. These demands for rulemaking accountability support French traditions if one acknowledges that officials need input from outsiders to further the public welfare-not only technical experts, but also ordinary citizens, businesses, and civil society.
The Erosion of the Meroni Doctrine: The Case of the European Aviation Safety Agency
Authors: Simoncini Marta
Published: April 2022

The non-delegation doctrine developed since the Meroni case has been the main constraint to the full development of EU agencies' powers. In recent years, however, the doctrine is showing its permeability to administrative innovation in the area of internal market regulation.

This article aims to contribute to the debate about the sustainability of the Meroni doctrine, by focusing on the European Aviation Safety Agency (EASA)'s rule-making powers as an illustrative case study. In doing so, the article addresses the main issues of the Meroni doctrine and contextualizes these in the specific domain of EASA, with a view to apply, mutatis mutandis, the inferences to other policy domains.
Life on the Edge: EFTA and the EEA as a Future for the UK in Europe
Authors: Bangsund Kristin , Burke Ciarán , Hannesson Ólafur Ísberg
Published: April 2022

The present article discusses the options open to the UK in the event that the proposed referendum on EU membership results in an ‘out’ vote. The case is presented that the preservation of established markets represents a desideratum, both for the UK, and for its EU partners, and that such a goal could be achieved – while removing the UK from many less popular areas of EU competence – by the UK immediately joining EFTA and the European Economic Area (EEA) upon its exit from the EU. The authors argue that the EEA model would represent a best-case scenario for the UK in the event of a ‘Brexit’, coupling the benefits garnered from the maintenance of the UK’s position within the Internal Market with a looser regulatory structure, while preserving established market relationships and economic stability, and allowing for greater freedom of action on the part of the UK government in areas not covered by the material scope of the EEA Agreement. The non-identical nature of EU law and EEA law is explained, with the absence of the twin doctrines of supremacy and direct effect presented as a means to restore the doctrine of parliamentary sovereignty in Britain. The EEA legislative and enforcement mechanisms are also discussed, while the EEA model is favourably compared with the looser – yet vastly more complicated – bilateral arrangement governing Swiss-EU relations.
EU Withdrawal: Good Business for British Business?
Authors: Lazowski Adam
Published: April 2022

In this article Adam Łazowski argues that withdrawal of the UK from the EU is not good business for British business. It analyses two available modalities of EU withdrawal: a unilateral exit and a consensual divorce. Arguably neither of the two will free the UK from EU law. For that to happen, the British authorities would have to engage in the time consuming and resource thirsty exercise of clearing the UK legal orders from EU law. This, combined with uncertainty as to future relations with the EU, is destined to affect the UK business community and unlikely to bring desired efficiencies.
Towards Process-Oriented Proportionality Review In The European Union
Authors: Harvey Darren
Published: April 2022

This article provides an analysis of contemporary case law and subsequent academic commentary which suggests that a more process-oriented approach to proportionality review has recently been taken by the Court of Justice of the European Union. It argues that the manner in which process-oriented review has been utilized gives rise to a fundamental reconceptualization of the nature of the proportionality test at the EU level; moving away from a substantive, merits based concept of review towards something more akin to a procedural obligation to state the reasons which underpin a contested measure. The article highlights some of the problems that have arisen from this shift in approach from both a doctrinal and a theoretical perspective, whilst demonstrating the inconsistent way in which the Court has formulated and applied process-oriented proportionality review to date.
The Constitutional Implications of Brexit
Authors: Young Alison L.
Published: April 2022

This Article investigates the constitutional implications of Brexit, focusing on the extent to which Brexit challenges the classification of the UK constitution as a self-correcting unitary democracy, upholding parliamentary sovereignty. It argues that, Brexit removes some of the European layer from the UK’s emerging multi-layered constitution, but in doing so it threatens to undermine the delicate relationship between England, Scotland, Wales and Northern Ireland on which the Union is based, particularly in the light of recent political events. In addition, it argues that Brexit may not restore the sovereignty of the Westminster Parliament and may also mark a further moment in the constitutionalization of the UK, modifying the balance of power between Parliament and the courts by placing more decision-making power in the hands of the courts.
Regulatory Substitution Between Labour and Public Procurement Law: The EUs Shifting Approach to Enforcing Labour Standards in Public Contracts
Authors: Graells Albert Sanchez
Published: April 2022

In this article, I reflect about a recent regulatory trend concerning the enforcement of labour standards through contract compliance clauses and other requirements of public contracts tendered under European Union public procurement law. On the back of recent developments in the case law of the European Court of Justice regarding cross-border situations of procurement-based enforcement of labour standards, notably in the re-examination of the Rüffert case in both the Bundesdruckerei and RegioPost cases, I reflect on this phenomenon from the perspective of regulatory substitution. In setting out a basic framework to assess regulatory substitution, I hypothesize that most of the difficulties evidenced by the case law stem from the transfer of labour regulation goals to the public procurement sphere. I then aim to test this hypothesis by means of an analysis of labour policy-oriented mechanisms included in the 2014 revision of the EU public procurement rules. I then go on to critically assess the fitness for purpose of the procurement mechanisms from the perspective of contributing to the enforcement of labour standards. I ultimately conclude that, even though the 2014 Public Procurement Package has galvanized the trend of regulatory substitution whereby employment and social goals have now become part and parcel of public procurement strategy in the EU, a close examination of the legal mechanisms created by Directive 2014/24/EU shows that this regulatory substitution is both limited and highly dependent on the implementation (and investment of significant administrative resources) at Member State level.
The Conflict Between European Law and National Constitutional Law Using the Example of the European Arrest Warrant
Authors: Röß Simon
Published: April 2022

European Arrest Warrant; Mutual Trust; Inhuman Prison Conditions; European Charta of Fundamental Rights; European Convention of Human Rights; German Constitution; Constitutional Identity Review; Referral to the Court of Justice of the EU
The Relationship Between European Consensus, the Margin of Appreciation and the Legitimacy of the Strasbourg Court
Authors: Vogiatzis Nikos
Published: April 2022

When determining whether a state should be granted the margin of appreciation, often the European Court of Human Rights (ECtHR, the Strasbourg Court or the Court) resorts to the method of European consensus. However, important issues remain unclarified concerning the relationship between the two notions, and how such relationship in linked to the legitimacy of the Strasbourg Court. This article firstly shows that the two notions are often, but not always, inter-dependent: there have been cases where the decision on the margin of appreciation points in a different direction than the outcome of the comparative exercise; and in further cases, consensus was not the crucial factor to be taken into consideration by the Strasbourg Court. Thus, consensus is one of the methods used by the Court in its application of the proportionality test, in order to decide on the scope of the margin of appreciation that the contracting parties enjoy. Next, the article explains why clarifying the relationship between consensus and the margin of appreciation will have implications for the Court’s interpretative practice once Protocols 15 and 16 ECHR enter into force. The multi-dimensional legitimacy of the Strasbourg Court is considered afterwards. The article then submits that the way European consensus is generally being used (i.e. as a factor which is obviously not irrelevant but also not always decisive for the outcome on the margin of appreciation) supports the multidimensional legitimacy of the Court. Nonetheless, it concludes by identifying inconsistency in the formulation of the relationship between the two notions in the ECtHR’s jurisprudence, and encourages the Court to codify in a more coherent way that relationship.
Large-Scale Databases and Interoperability in Migration and Border Policies: The Non- Discriminatory Approach of Data Protection
Authors: Brouwer Evelien
Published: April 2022

In the EU, different measures have been adopted with regard to the storage and exchange of personal data of third-country nationals for external border controls. Large-scale databases and risk assessment are used to facilitate the entry of those considered as ‘bona fide travelers’ and to identify those considered as a risk of irregular migration or security threat. The purposes of existing databases have been gradually extended, blurring the line between the objectives of immigration control and security and law enforcement. Emphasizing the non-discriminatory approach of data protection and applying criteria from the case-law of the Court of Justice of the European Union (CJEU), this contribution questions the legitimacy of these measures from the perspective of the principles of necessity and proportionality, purpose limitation, and the prohibition of automated-decision making.

large-scale databases, interoperability, biometrics, third-country nationals, non-discrimination, data protection, necessity and proportionality, purpose limitation, automated decision-making
The Cooperation Between Frontex and Third Countries in Information Sharing: Practices, Law and Challenges in Externalizing Border Control Functions
Authors: Marin Luisa
Published: April 2022

The aim of this article is to investigate whether the cooperation of Frontex with third countries in information sharing is in compliance with EU’s constitutional normative rules and values.

Since more than a decade, border control and surveillance have been developed as policies instrumental to migration control. The shift towards risk management in many areas of public governance has implied that EU’s action at the external borders is built upon a combination of policies of securitization of migration and externalization of border management.

Against this theoretical background, the article focuses on the external competences or powers of Frontex, mapping in particular practices of information sharing with third country authorities, which are functional to risk analysis, one of the core tasks of Frontex. It analyses working arrangements, intelligence sharing communities and cooperation taking place within the context of technical assistance.

The article further discusses the legal challenges these types of cooperation brings to the EU, as a governance system based on the rule of law. These are indicated in transparency and accountability, respect for fundamental rights and privacy challenges.

Frontex, external relations, information-sharing, cooperation with third countries, transparency and accountability, fundamental rights, data protection
Taming National Identity: A Systematic Understanding of Article 4.2 TEU
Authors: Martinico Giuseppe
Published: April 2022

This article explores the parable of national identity under Article 4.2 Treaty on European Union (TEU), a provision which has received great attention by scholars, and which has recently been seen as a ‘troublemaker’ due to its problematic (ab)use by some national courts. This piece also tries to advance some proposals to redeem this concept in EU constitutional law. This is in line with recent suggestions that have been made to revitalise Article 4.2 TEU.

national identity, constitutional courts, Court of Justice of the European Union, Article 4.2 TEU
Article 4(2) TEU as a Protection of the Institutional Diversity of the Member States
Authors: De Witte Bruno
Published: April 2022

The main argument of this article is that the meaning of the national identity clause of Article 4 (2) TEU should be limited to what its text actually states, namely to a guarantee for the constitutional structures of the European Union (EU) Member States. The article rejects the broader meaning often given to this Treaty provision, namely that it offers a kind of generic protection for national diversity and national constitutional values. Such a broader meaning is not needed, since primary EU law contains many other provisions that protect national diversity, all of which have a specific meaning and role in the EU legal order. Giving Article 4(2) the broader meaning is harmful, as it opens the door to abusive and superficial uses of identity as a justification for non-compliance with EU law obligations from the side of the Member States.

national constitutions, institutional diversity, cultural diversity, regional autonomy, judicial organization, national languages
Collective Labour Law in Europe in a Comparative Perspective (Part II)
Authors: Rebhahn Robert
Published: April 2022

Abstract: Collective agreements and industrial action, workers’ representation at plant and enterprise level, and participation in management boards are often at the centre of political debate. They play an important role whenever labour law is considered as a factor for making a country an attractive business location. It is therefore of interest to compare the legal situations in the EU Member States. This article focuses on legal structures rather than on industrial relations, revealing a wide variation. With regard to collective agreements there is a common core of European law, though countries differ considerably. There is wide variation in terms of industrial action, and in terms of strikes for better working conditions. There are also great differences in employees’ representation and participation beyond information and consultation on general matters. A detailed examination of the legal situations seems to be a prerequisite for any reflection on the harmonisation of labour law.
Challenges of European Enlargement: Regulation of Health and Safety in Hungary and Poland
Authors: Howes Victoria
Published: April 2022

Abstract: One of the essential requirements in the Copenhagen criteria for the 10 acceding countries is full alignment with the Community acquis communautaire. A large number of EC laws, especially in the form of directives, in the area of social policy, and in particular in the field of health and safety, have been adopted by the Community and need to be implemented by the date of accession. Full and correct transposition of the EC directives into the national laws is the first vital stage towards correct implementation. This article concentrates in particular on Framework Directive 89/391 and examines the approaches of Hungary and Poland to meeting the criteria and adapting to Community requirements in the area of health and safety. It is argued that there are still deficiencies in meeting the true requirements of the Directive in both countries and that these must be resolved before accession.
Immigration and the Free Movement of Workers after Enlargement: Contrasting Choices
Authors: Rymkevich Olga , Farkas Orsolya
Published: April 2022

Abstract: The article examines recent developments in the fields of Community immigration policy and the free movement of workers from the new Member States during the transition period. It is argued that policy choices have been dominated by narrow economic considerations rather than by a comprehensive vision of the issue. Reading between the lines of legal norms and policy initiatives, what emerges is a division based not so much on citizenship, but rather on whether one has already been admitted to the European labour market or not.

The article also reviews some recent cases of the ECJ, arguing that access to social benefits for those who exercise the right to free movement of workers between the Member States is not a subjective right, although the restrictions are more limited than they were before the introduction of the concept of European citizenship. This should have the effect of allaying fears of ‘benefit tourism’ from the new Member States.
Employers’ Liability for Bullying and Harassment
Authors: Quill Eoin
Published: April 2022

Abstract: This article examines the application of tort principles to the question of an employer?s liability for the psychological effects of bullying and harassment in the workplace in Ireland, comparing the position in the UK. It notes the difference in approach taken in these countries to the duty to avoid negligently inflicted psychiatric harm. It then goes on to examine the limited jurisprudence on intentionally inflicted emotional distress, looking briefly at US jurisprudence in respect of potential development of the law in Ireland and the UK. Finally it examines vicarious liability, including recent Canadian developments, that are proving to be instructive.
Why is Modern Work Organisation Lacking from Southern European Public Policies? The Case of Greece
Authors: Ioannou Christos A.
Published: April 2022

Abstract: This paper examines the effectiveness of ?top-down? EU policies and processes with regard to new forms of work organisation in Greece. It argues that, at the EU level, work organisation has lacked a stable policy framework and work organisation has been a contested terrain. On national policy-making and implementation the analysis of the European Employment Strategy (EES), the Open Method of Coordination (OMC) in relation to the Greek National Action Plans (NAPs), and the weak coordination of the EES and the European Social Fund, explains why work organisation issues continue to be neglected. The reciprocal influence of the national social partners in work organisation in Greece is also considered. In spite of the supposed benefits arising from new forms of work organisation, and successive national legislation initiatives, traditional work organisation persists. In the context of weak and conflicting interaction between the EU and national policymakers and the social partners, modern work organisation continues to be lacking from convergence policies in Greece.
Industrial Relocation and Labour Relations: The Case of Central and Eastern Europe
Authors: Pastore Jose
Published: April 2022

Industrial relocation is one of the main concerns of industrial relations practitioners, policy-makers, union leaders and researchers in general. For many companies the critical choice is no longer between producing at home or abroad, but rather between cutting costs or losing market share. One of the ways to increase competitiveness is to move east. By facilitating company relocation, the Central and Eastern European countries are guaranteeing the future of companies facing competition in Germany, France, Italy, and other European countries. But relocation often involves the loss of jobs in the country of origin and job creation in the countries of destination as well as many changes in industrial relations practice of both sides. This paper focuses on the impact of the integration of eight former communist countries in the European Union in 2004. Data for 2004-2006 show that differences in terms of salaries and working conditions are related to changes in the industrial relations systems of Western Europe on the one hand, and Central and Eastern Europe on the other. The eastern countries are growing fast, but a high rate of unemployment has led to frustration and dissatisfaction in most of the new Member States. In the Western countries, to avoid further company relocation to the eastern countries, pressure has been exerted on employees to make deep concessions in terms of salaries, bonuses, working time and other labour conditions. The paper explores the future prospects for these developments, as well as their repercussions for other emerging nations.
Fixed-Term-at-Will: The New Regulation of Fixed-term Work in Sweden
Authors: Engblom Samuel
Published: April 2022

Abstract: Since 1 July 2007, Swedish employers have no longer been required to provide an objective reason, such as the special nature of the work or a temporary peak in their business, when they hire someone on a fixed-term rather than an open-ended contract. The long list of different types of fixed-term contracts in the Employment Protection Act has been shortened, and a radical new type – fixed-term-at-will – has been introduced. Fixed-term-at-will marks a departure from earlier attempts to rein in fixed-term work by only allowing it when justified by some inherent characteristic of the work itself. Instead, the abuse of consecutive fixed-term contracts is to be prevented by time limits. An employee can work on fixed-term-at-will contracts for the same employer for up to two years during a five-year period. Through generous possibilities to combine fixed-term-at-will with the other remaining types of temporary contracts, substitute work and seasonal work, Sweden will have virtually no statutory protection against the abuse of successive temporary contracts. In the light of the ECJ’s Adeneler judgment, it must therefore be questioned whether the Swedish regulation complies with directive 1999/70/EC.
Labour Disputes and their Settlement in China: A Systematic Review of the Post–Reform Research
Authors: Shen Jie
Published: April 2022

This study systematically reviews the literature on labour disputes and their management in China. It reveals that there have been widespread labour disputes, especially collective disputes, resulting from the violation of workers’ rights in every aspect of employment relations. While labour disputes in state–owned enterprises (SOEs) are mainly caused by workforce reduction and non–payment of wages and insurance contributions due to insolvency and bankruptcy, those in foreign–invested enterprises (FIEs), particularly the East Asian–owned FIEs, and privately–owned enterprises (POEs), are caused by nonpayment of wages and insurance and increasing industrial accidents resulting from profit–oriented management strategies. China has developed a third labour dispute management system with distinctively Chinese characteristics, and it is different from the old systems whereby labour disputes were resolved via the state administration or by Western practices such as collective bargaining. The third way is characterized by reliance on labour arbitration and judicial channels and management–state bipartism for resolving disputes. Contributions to theory and implications for practitioners and research are discussed.
Off–shoring and Decent Work: Worlds Apart?
Authors: Penfold Carolyn
Published: April 2022

Developments in technology have combined with economic globalization to allow and encourage the ‘off–shore’ movement of IT–enabled services work. However, in the rush to exploit financial benefits, the effects on labour may easily be forgotten. This paper evaluates work in the off–shored services sector in India according to the ILO’s decent work criteria, examining the employment opportunities provided, the social protection offered by such employment, the rights accorded to off–shored services workers, and the social dialogue occurring in or with this sector. Finally, the paper draws conclusions regarding the contribution of off–shored services to the creation of ‘decent work’ in India, and makes suggestions for furthering this contribution.
Footprints Through the Courts: Comparing Judicial Responses to Affirmative Action Litigation in South Africa and the United States
Authors: Naff Katherine C.
Published: April 2022

In South Africa and the United States, affirmative action has been used as a means for achieving equality following decades of discrimination and segregation. It has also served as a means for achieving a representative bureaucracy reflecting the demographics of the nation. In both countries, such measures have been the subject of considerable litigation, with the highest court ultimately ruling on what is permissible under the Constitution. This paper addresses similarities and differences in terms of how the courts in the two countries have approached that jurisprudence. It further discusses the implications of the two lines of litigation for employing affirmative action as a means for achieving a representative bureaucracy.
Employee Protection: An Outmoded Notion in Australian Labour Law?
Authors: Vranken Martin
Published: April 2022

This article examines the Australian approach to flexicurity. The focus is on an analysis of the Fair Work Act 2009 (Cth), in force since 1 July 2009. This article demonstrates how the legislature seeks to walk a fine line between economic flexibility for business and social protection for employees. It is argued that, on balance, the incoming Labour government of Prime Minister Kevin Rudd has chosen to err on the side of caution by favouring flexibility for the sake of protecting an export-driven national economy. In the result, the raison d’être of labour law as employee protection law risks being compromised. It would seem that the demands of a globalized economy and the associated need for national economies to be internationally competitive affect the shape of labour law reform in Australia regardless of the political party in office.
Recent Advancements in European Employment Law: Towards a Transformative Legal Formula for Preventing Workplace Ageism
Authors: Shaw Julia J.A. , Shaw Hillary J.
Published: April 2022

The transformative influence of globalization, the driving force of late modernity, has created a new kind of economy. The replacement of the manufacturing base with the service industry and the proliferation of sophisticated communication and information technologies are just two characteristics which have produced a dramatic change in the labour market, irrevocably reshaping the traditional employment relationship. Work which is repetitive and poorly remunerated has increased and recent evidence suggests there is a disproportionate representation of older workers in such jobs. As the labour force ages (constituting the anticipated silver Tsunami) and the availability of younger workers decreases, international agencies and national governments have sought to implement various strategies in order to accommodate this demographic phenomenon. New laws have been promulgated in a wide range of countries, designed to confront ageist attitudes and challenge unfair workplace practices which discriminate against older workers exclusively on the grounds of age. This article analyses recent statistics and assesses the extent of age discrimination, the economic implications, and the success of various legal initiatives designed to combat workplace ageism.
Chilean Labour Law 1990–2010: Twenty Years of Both Flexibility and Protection
Authors: Gamonal Sergio
Published: April 2022

This article analyses the evolution of Chilean labour law in the twenty years since the return to democracy. It studies the principal amendments to the individual right to work and to labour procedures as well as the permanence of the collective ultra neoliberal rights inherited from the dictatorship, presenting a labour panorama characterized at the same time by protection and flexibility and reflecting the divisions in Chilean society.
Trade Unions and New Member State Workers in Germany and the United Kingdom
Authors: Zahn Rebecca
Published: April 2022

This article compares German and British trade union responses in a European context following the European enlargements in 2004 and 2007 that are unprecedented in the history of the European Union (EU). In particular, this article examines two case studies to explore how trade unions have responded to increased migration following the enlargements. Increased migration has created a number of problems for trade unions that are examined in the case studies. The findings of the case studies are used to undertake a contextualized comparison of trade union behaviour in responding to the changing regulatory and opportunity structures that present themselves following the enlargements. Account is taken of the role that trade unions adopt within their national legal systems, as well as of the effects of the EU's policy of Europeanization on national trade unions. This article concludes by elaborating a number of recommendations based on the analysis.
Balancing Fundamental Social Rights and Economic Freedoms: Can the Monti II Initiative Solve the EU Dilemma?
Authors: Bruun Niklas , Bücker Andreas
Published: April 2022

This article evaluates the recent (March 2012) legislative initiative by the European Commission for a regulation (known as Monti II) on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services. The authors put forward a critique of the legal basis, content and form of the proposal, which has already been challenged by Parliaments in twelve Member States. The authors propose the adoption of a revised initiative that would make a clear commitment to international law and labour standards. It should recognize the autonomy of the social partners and a margin of manoeuvre for trade union action, foreseeing only limited judicial review in accordance with international practice. The proposed articles on dispute resolution and an alert mechanism should be deleted, and the appropriate form of the revised proposal could be based on guidelines adopted on the basis of Article 26(3) TFEU.
EU Citizenship: Access to Social Benefits in Other EU Member States
Authors: Pennings Frans
Published: April 2022

As the result of the case law of the Court of Justice of the European Union on EU citizenship provisions, even citizens who are not economically active have access to social benefits in a country other than that of origin. Is it justified to connect such effects to EU citizenship, even though EU citizenship does not yet have an identity of its own?

In this contribution the case law is analysed and it is argued that because of the objective justification that Member States can still offer for limiting access to their systems, more precisely by the link they may require between the claimant and their community, the case law fits well in the system for achieving the free movement of persons. This 'link approach' is a better explanation for the consistency of the case law than an explanation based on cross-border solidarity or a special identity relating to EU citizenship.
Regulating Working Time in Times of Crisis: Flexibility, Gender and the Case of Long Hours in Poland
Authors: Zbyszewska Ania
Published: April 2022

On 1 July 2009, the Anti-Crisis Act temporarily amended the working-time provisions of the Polish Labour Code to allow for more flexibility and more efficient deployment of labour during the economic downturn. Following a long-term trend in Polish labour law reform and taking its cue from the European Union (EU) Working Time Directive, one of the key changes the Act introduced was a provision allowing the extension of reference periods for the calculation of average weekly hours to a maximum of twelve months. Long reference periods have become a common feature of many European working-time regimes. As this paper argues, however, Polish specificities make this form of flexibility particularly problematic. In the context of Poland's entrenched overtime culture, insecure, competitive, and unequal labour market, and high level of employment law violations (mainly in connection with working time), the extension of working hours threatens to strain the already difficult working conditions for many Poles. With the existing gender dynamics, insufficient measures for work-family reconciliation, and scarce state provision for care of dependants, what effects will the extension of working time have on the conditions of women workers? This paper examines the post-transition trajectory of Polish working-time reform and questions the sustainability of the working-time regime it attempts to create.
The Decent Work Agenda and the Advancement of Gender Equality: For Emerging Economies Only?
Authors: Macdonald Fiona , Charlesworth Sara
Published: April 2022

The International Labour Organization's Decent Work Agenda offers a valuable alternative to the traditional framing of most contemporary employment regulation. It moves beyond the standard employment relationship to include workers in non-standard employment and the attainment of gender equality has a central place, illustrated in the ILO's 2009 campaign around 'gender equality at the heart of decent work'. While most OECD countries have endorsed the Decent Work Agenda (DWA), few have taken it up at the domestic level, apparently seeing it as something of benefit to emerging economies only. Our article draws on interviews with key government, employer, union and civil society stakeholders in Australia, Canada, the Netherlands and the United Kingdom, and an analysis of relevant policy documents to tease out this 'othering' of the DWA and how different understandings of gender (in)equality relate to views about its utility in the national context. We argue that assumptions that the DWA has little to offer developed economies represent a missed opportunity to rethink the gendered policy underpinnings of domestic employment regulation that are shaped by and contribute directly to gender inequality.
The Legal Construction of Hyper-Dependence and Hyper-Precarity in Migrant Work Relations
Authors: Zou Mimi
Published: April 2022

The two key concepts developed in this article, 'hyper-dependence' and 'hyper-precarity', are aimed at drawing attention to the constitutive role of immigration law in shaping certain vulnerabilities in migrants' work relations. Immigration law is not merely concerned with controlling the entry and exit of migrants, but also creates personal legal statuses - some highly precarious - that shape their employment and residence in the host state. The two 'hyper' concepts seek to elucidate the most problematic features of Temporary Migrant Worker Programmes (TMWPs) currently found in a number of advanced industrialized, liberal democratic countries. Hyper-dependence refers to a particular tie of migrant workers to their employers as a requirement of their legal status. Hyper-precarity refers to the tenuous nature, in law and practice, of these workers' entitlements to employment protection, social rights, and transition to more secure residence status. In some circumstances both hyper-dependence and hyper-precarity can combine to give rise to extremely exploitative situations for migrants at work. This article explores possible normative constraints on states' design and implementation of TMWPs. It identifies two genres of normative interventions that may respond to the legal construction of hyper-precarity and hyper-dependence: first, the international human rights framework, and second, the discourse against forms of exploitation that could be regarded as 'unfree labour'. However, it is argued that neither of the discourses poses a fundamental challenge to host states' powers to create the precarious statuses of non-citizens admitted into their territory, nor do they tackle the complex realities of migrants' work relations on a continuum of exploitation.
A Little Less Conversation: The EU and the (Non) Application of Labour Conditionality in the Generalized System of Preferences (GSP)
Authors: Vogt Jeffrey
Published: April 2022

This article argues that despite recent reforms to the labour conditionality of the EU GSP programme, many countries in which the government either commits serious violations of fundamental labour rights or fails to protect against such violations by private actors (by adopting appropriate laws and enforcing them when breached) continue to benefit. This includes the special incentive arrangement (GSP ), which is meant for countries with exemplary records with respect to international human rights standards, including labour rights. This is in part due to the European Commission’s clear preference that enforcement actions under the GSP programme should be avoided, even long after dialogue and cooperative mechanisms have failed to produce concrete results. Further, the European Commission’s peculiar interpretation of the GSP Regulation, which is based on what I argue is a misunderstanding of the International Labour Organization (ILO) supervisory system, is also responsible for past and likely future inaction.
Trade Embedded Development Models
Authors: Ulmer Karin
Published: April 2022

The EU has been ambivalent regarding improvements to development objectives. Its main concern has been meeting trade policy goals, laid down in trade negotiations. Increasingly, the EU is choosing to define and defend the development-and-trade nexus within the trade liberalization paradigm, as development objectives are embedded in enforceable free trade agreements. While this could boost the role of social clauses or human rights provisions, the EU restrains itself from using its direct power on matters relating to social, environmental and human rights, resulting in subservient and vaguely defined development objectives.