bluuebunny/crossref_metadata_2025 huggingface dataset:
The Sufficiently Serious Breach Test in Action. Damages in Procurement Law and a Tale of Three Courts: the CJEU, the UK Supreme Court and the EFTA Court
Authors: Vornicu Roxana
Published: April 2022

This article reflects on the conditions to trigger liability of contracting authorities for breach of public procurement rules and examines whether public procurement damages should be categorized as a particularization of the principle ofMember State liability or as a special remedy for breach of procurement rules. The article focuses on two controversial decisions, one rendered by the UK Supreme Court and the other by the EFTA Court which reached opposite conclusions as regards the nature of this remedy and the conditions to trigger liability, the controversy being whether the Francovich condition of a ‘sufficiently serious breach’ should be satisfied when triggering liability for illegal award decisions or not. The article reflects on the reasons that led to this opposing interpretation of the remedy of damages, describe theCourt of Justice of the European Union’s case law on damages and discuss why, in the procurement law arena, the ‘sufficiently serious breach’ was seen as incompatible with strict liability. After demonstrating that there is no such incompatibility, I argue that the lack of clarity regarding the conditions for making good procurement damages are not related to the subjective factor, but rather to the effectiveness benchmark for the remedy and its position within the architecture of the Remedies Directive.

EU law, public procurement law, damages, Member States Liability comparative law, comparative public liability, sufficiently serious breach.
Statutory Interpretation and the Role of the Courts after Brexit
Authors: Brenncke Martin
Published: April 2022

This article evaluates the impact of the European Union (Withdrawal) Act 2018 on statutory interpretation and on the role of the courts in the United Kingdom. The Act’s new interpretative obligations create a myriad of issues that will occupy litigants and courts in the future. I explain how the complexities of the Act should be disentangled and how courts should exercise their policy choices under the terms of the Act. I show that the assumption that Brexit is a clear break from EU law is in several respects contradicted by the detail of the legislative scheme. The European Union (Withdrawal) Act 2018 (EUWA)’s strong theme of legal continuity has the consequence that domestic law will remain considerably intertwined and aligned with EU law after exit day. I also demonstrate that the 2018 Act adjusts the relationship between the courts and Parliament in a way that is not foreseen. EU membership has shaped this relationship and Brexit does not mean that it is profoundly restructured. The Act has the potential to strengthen rather than weaken the institutional and constitutional position of the courts.

European Union (Withdrawal) Act 2018, Brexit, Supreme Court, retained EU law, judicial law-making, statutory interpretation, parliamentary sovereignty.
Europol’s International Exchanges of Data and Interoperability of AFSJ Databases
Authors: Coman-Kund Florin
Published: April 2022

Data sharing and interoperability aspects of Europol’s information systems outside the EU are particularly problematic because of the difficulty of ensuring that adequate legal safeguards are complied with in partner third countries and international organizations. At the same time, the way in which the ongoing interoperability initiatives regarding the Area of Freedom, Security and Justice (AFSJ) databases may influence Europol’s international cooperation raises arguably a set of new legal and practical questions that require urgent consideration. This article examines these issues by connecting the Europol-specific legal framework and international practice to the recently adopted AFSJ interoperability regulations as well as to the EU broader data protection framework. It looks more specifically at the balance between data protection/fundamental rights and operational effectiveness throughout Europol’s legal framework and practice of international cooperation and examines the implications of interoperability of AFSJ databases on this. On the one hand, interoperability of AFSJ databases is likely to boost Europol as an information hub through extended personal data collection and data processing possibilities, thereby making the Agency more attractive to international partners. On the other hand, the possibility to transfer such data outside the EU requires strong and effective safeguards from a data protection perspective. The article tentatively concludes that Europol’s current legal and practical framework for international cooperation seems to tilt the balance on the side of operational effectiveness to the detriment of data protection and fundamental rights, and that the new possibilities offered by the interoperability of AFSJ databases will further enhance this trend.

Europol, international cooperation, interoperability, AFSJ databases, data protection, fundamental rights, effective police cooperation
Putting the Fox in Charge? Political Parties and the GDPR: An Irish Perspective
Authors: McDonagh Maeve
Published: April 2022

In the wake of Cambridge Analytica, the use of personal data by political parties has been subject to increased scrutiny. Given the specific policy challenges which such use poses, this article examines the conditions for the lawful processing of personal data under the General Data Protection Regulation (GDPR), as it applies to political parties. It identifies the extensive flexibilities afforded by the GDPR to Member States and argues that granular Member State analysis is required if the GDPR regime is to be meaningfully evaluated in this context. Using Ireland as a detailed case study and referencing the equivalent provisions of the UK Data Protection Act 2018 (DPA UK) for comparison, the article examines the different ways in which these Member States responded to the flexibility afforded by the GDPR. Based on this, the article argues that closer engagement with the issue of political parties by the European Data Protection Board is needed in order to provide a more fine-grained response which bridges the space between the ‘one size fits all’ approach in the GDPR and the wide-ranging discretion of the flexibilities afforded to Member States.

GDPR, political parties, lawful processing, freedom of expression, public interest, European Data Protection Board
From Legal Mobilization to Effective Migrants’ Rights: The Italian Case
Authors: Protopapa Venera
Published: April 2022

The article analyses the process of legal mobilization for migrants’ rights and investigates how and with what effects, measured in terms of obtaining general policy response and ensuring implementation, legal actors and in particular civil society organizations have mobilized EU, international and domestic legislation on discrimination to promote migrants’ rights in Italy. It focuses in particular on two issues: access to employment in the public sector and access to welfare. Both issues have generated significant levels of litigation in domestic courts, with increasing involvement of civil society organizations. In relation to both, national legislation has been amended, in accordance with EU law, allowing access to employment in the public sector and extending the area of those that have the right to access to social welfare under equal conditions to categories of migrants protected under EU law. The article outlines the EU, International and domestic legislation on non-discrimination and equality for migrants, provides an overview of how litigation has been used to challenge in court the exclusion of migrants from employment in the public sector and welfare, tracks the process that brought to the reform and litigation in the aftermath highlighting the effects of litigation as a means for policy response and implementation.

Discrimination, multilevel protection, migrants, welfare, employment, legal mobilization, policy response, implementation, civil society, courts.
The Principle of Proportionality and the European Central Bank
Authors: Chiti Mario P. , Macchia Marco , Magliari Andrea
Published: April 2022

The principle of proportionality is a general principle of EU law which applies to the European Central Bank (ECB) in the fields both of monetary policy and banking supervision. In recent years, the issue of the proportionality of the ECB’s action has been at the centre of extensive debate in European legal doctrine and jurisprudence. This article aims to contribute to this debate by providing a comprehensive analysis of the meaning and implications of the principle of proportionality in the field of banking supervision and monetary policy.

The article is divided into four parts. Parts I gives a general overview of the origin of the principle and its subsequent developments in light of the case-law of the European Court of Justice. It also reflects on the different meanings of proportionality as a flexible and multi-faceted principle. Part II investigates the principle of proportionality according to an ex ante perspective, i.e. as a principle capable of governing and orienting legislative and administrative action. Under this perspective, the article analyses the way proportionality impacts banking regulation, banking supervision and monetary policy.

Part III deals with the ex post perspective, i.e. the way proportionality is assessed and scrutinized by EU courts. Part IV concludes. Part III and IV will be published in the next issue.

National courts, Court of Justice of the European Union, Preliminary reference procedure, national procedural autonomy, Appeals, Appellate courts
The Principle of Proportionality and the European Central Bank
Authors: Chiti Mario P. , Macchia Marco , Magliari Andrea
Published: April 2022

The article is divided into four parts. Parts I gives a general overview of the origin of the principle and its subsequent developments in light of the case-law of the European Court of Justice. It also reflects on the different meanings of proportionality as a flexible and multi-faceted principle. Part II investigates the principle of proportionality according to an ex ante perspective, i.e. as a principle capable of governing and orienting legislative and administrative action. Under this perspective, the article analyses the way proportionality impacts banking regulation, banking supervision and monetary policy.

Part III deals with the ex post perspective, i.e. the way proportionality is assessed and scrutinized by EU courts. Part IV concludes. Parts I and II were published in the previous issue.

Proportionality, EU General Principles, ECB, Banking supervision, Monetary policy, Judicial review
The Role of the Constitutional Courts in the European Judicial Network
Authors: Huber Peter M. , Grabenwarter Christoph , Knez Rajko , Ziemele Ineta
Published: April 2022

The constitutional courts play a paramount role within the European judicial area and form a specific branch of the judicial network, including the Court of Justice of the European Union (CJEU) and the European Court of Human Rights. Within the European Union (EU) with its specific compound structure, in which national legal orders and Union law reciprocally influence, complement, determine and affect each other, national constitutional courts and the CJEU are not only assigned with the common task to enforce EU law, but also to preserve its limits, first and foremost the principle of conferral and the constitutional identities of the Member States. The respect for these limits is an essential prerequisite for the Member State’s participation in the EU and repeatedly enshrined in the Treaties. In order to be able to fulfil this common tasks all sides need to engage in sincere cooperation and a dialectic process, the potential of which must not be curtailed by hierarchical perceptions.Whereas the national (constitutional) courts are obliged to respect the CJEU’s authority to ultimately decide on the interpretation of EU law in principle, it is the CJEU’s obligation to take their referrals seriously and thoroughly adress concerns brought forward. The constitutional courts of the Member States are assigned with the constitutional responsibility to accompany the process of European integration in order to ensure that sovereign rights are only transferred in line with the respective provisions as well as that the excercise of competences respects the limits laid down in the Treaties and does not interfere with the constitutional identities of theMember States. It is of course again for the CJEU to review whether EU institutions, bodies, offices, and agencies act within their mandate in the first place including a quite large tolerance for different interpretations. To the extend the CJEU, however, fails to assume this responsibility, it is for the constitutional courts of the Member States to step in. The desirable success of the European integration largely depends on an orderly, sustainable and generally accepted process in the long run to which the network of constitutional courts can make a decisive contribution, provided it is designed and lived as a true cooperation among equals. In this regard it is not only necessary to intensify the joint efforts, but also to evaluate possibilities to enhance the involvement of the national courts, in particular the establishment of a reverse preliminary ruling procedure.

duty to give reasons, administrative measure, participation, administrative procedure
Ambivalence of Obviousness: Remarks on the Decision of the Federal Constitutional Court of Germany of 5 May 2021
Authors: M. Bender Philip
Published: April 2022

Inspired by the recent activation of the ultra vires review of the Federal Constitutional Court of Germany, the article analyses one of its restrictive elements: the concept of obviousness and its concretization through objective arbitrariness. These concepts are used with good intentions insofar as the ultra vires review requires some conceptualization of deference. But they are incapable of fulfilling this purpose: they disregard the expressive function of law, grant either too much or no deference, and are incompatible with each other. Instead, the substantive standards of structural significance and openness, combined with the procedural rule of unanimity, could serve the purpose of deference in a better and less conflictual way.

Deference, Ultra Vires Review, Unanimity, Expressive Function of Law, Arbitrariness, Obviousness, Structural Significance, Openness, Control of Integration, Decision of the Federal Constitutional Court of Germany of 5 May 2020
The Fog of Identity and Judicial Contestation: Preventive and Defensive Constitutional Identity Review in Germany
Authors: Wendel Mattias
Published: April 2022

This article deals with constitutional identity review by the German Federal Constitutional Court (FCC). While identity review is often discussed merely as an instrument of judicial contestation by which the FCC challenges the European Court of Justice and its stance on the primacy of EU law, this article shows that both the aim and the effect of identity review go far beyond judicial conflict. In fact, identity review produces significant preventive and deterrent effects on (national) EU policies, which come into play well before any judicial conflict. By means of preventive identity review, the FCC has created a fog of identity, a dark field of potential unconstitutionality, which considerably limits the scope of policy choices in advance and even irrespective of whether or not these policies would ultimately be judged to be unconstitutional. As for the defensive dimension of identity review, the article addresses the complexity of the (too often simplified) conceptual relationship of identity review to other modes of review such as ultra vires review and the Solange case law. It shows that identity review has gradually become the conceptual heart of the FCC’s defensive triad.

Identity review, constitutional identity, fog of identity, German Federal Constitutional Court, preventive and defensive identity review, eternity clause, principle of democracy, NGEU, European Arrest Warrant III, PSPP, Unified Patent Court, Right to be forgotten I and II, Banking Union, Egenberger
Towards a New Community Strategy on Health and Safety at Work? Caught in the Institutional Web of Soft Procedures
Authors: Smismans Stijn
Published: April 2022

Abstract: During the 1990s, Community occupational health and safety policy shifted from a strong regulatory approach to more persuasive policy-making. However, while it is entirely justified to stress the importance of good implementation of occupational health and safety standards, the Community’s post ‘regulatory boom’ in policy in this area still looks largely like a ‘testing out’ of various soft procedures, the effectiveness of which still needs to be proven. The new occupational health and safety strategy proposed by the Commission in March 2002 does not manage to provide a coherent and efficient institutional framework. As long as the Member States do not consider occupational health and safety a political priority, the small occupational health and safety division of the Commission – which lacks the instruments and power to ensure inspection of implementation, and which has seen a good part of its resources disappearing into an Agency over which it has little control – will have a hard time to respond to the challenges of the sector.
Editorial
Authors: Schmidt Marlene , Rymkevich Olga
Published: April 2022

European labour law is becoming increasingly complex, though there has been little harmonisation of collective labour law so far, and legal systems continue to differ significantly from each other. The terms ‘collective agreement’, ‘industrial action’, ‘workers’ representation’ and ‘workers’ participation’ refer to different legal concepts in the various EU Member States. In his comprehensive analysis, Robert Rebhahn explains and compares these concepts, their differences and similarities, and contrasts them with the respective concepts in the US.

The only field of European collective labour law where harmonisation has taken place so far is information and consultation of workers. Besides a number of specific information and consultation rights laid down in several directives, Directive 2002/14/EC establishes a general framework for informing and consulting employees. It may be assumed that its implementation will bring about fundamental changes in employment relations of those Member States that do not as yet provide a general system of information and consultation, i.e. the United Kingdom and Ireland. In her article Pascale Lorber discusses this assumption in relation to the UK.
The State of Representative Participation in Australia: Where to Next?
Authors: Markey Raymond
Published: April 2022

Abstract: The article first examines the rationale for representative participation, and the circumstances under which it has spread internationally. It then surveys the existing data for representative participation in Australia, and presents a case for legislation to introduce a generalised system of German-style works councils. The paper concludes that the first step towards this end should be the instigation of a major research agenda to discover more regarding the elements of historical and contemporary practice which have accounted for success and failure in representative participation in Australia.
The Right to Request Flexible Working in Britain: the Law and Organisational Realities
Authors: Kelliher Clare , Croucher Richard
Published: April 2022

Abstract: In April 2003 the UK Government introduced the right for working parents to request flexible working arrangements under the provisions of the Employment Act 2002. This legislation has been widely criticised as providing only weak rights for employees, as neo-institutionalist business systems theory would lead one to expect in Britain?s ?Liberal Market Economy?. However, criticism of the law has to be tempered by understanding how it relates to practice in large companies and this paper investigates these practices. It finds that large companies have gone beyond the terms of the legislation, in order to establish themselves as ?employers of choice?. It is therefore argued that British practice, in reality, only partly conforms to the expectations generated by neo-institutionalist business systems theory.
The Directive on Employee Involvement in the European Company: Its Role in European Corporate Governance and Industrial Relations
Authors: Villiers Charlotte
Published: April 2022

Abstract: This paper assesses the likely contribution of the European Company Statute (ECS) and accompanying Directive on employee involvement to the development of participatory workplaces in the European Union. The argument advanced is that the Directive has economic aspirations that outweigh its social objectives and that the prospects for employee participation are cosmetic rather than real. An improved mutual understanding between commercial actors and labour relations actors is required in order to appreciate more fully the interaction between corporate structures and employment rights. More effective dialogue between participants in the two fields is necessary, without which employee representatives have little choice but to pursue a stronger adversarial approach to industrial relations.
Stroking the Nettle: New Zealand Legislators and the Issues of Redundancy
Authors: Edgar Fiona , Geare Alan
Published: April 2022

Abstract: As a consequence of recession and also of major restructuring of the economy, New Zealand has experienced considerable redundancies over the last 20 years. During this time, successive legislators have been reluctant to pass specific redundancy legislation guaranteeing compensation to workers being made redundant. Legislation does, however, give any dismissed worker the right to take a personal grievance. The failure of legislators to make crystal clear what is the situation with redundancy has allowed, if not encouraged, a considerable degree of judicial activism on the part of the Courts, thereby creating a high level of uncertainty as to the outcome of any redundancy situation.
The Core Principle and Fundamental Theorem of Industrial Relations
Authors: Kaufman Bruce E.
Published: April 2022

This paper describes the original paradigm of industrial relations, as developed in the United States in the early part of the twentieth century. The original paradigm had three faces: science-building, problem-solving, and ethical/ideological. It is argued that the core principle that spans and unites these three faces is rejection of the orthodox economic model of a competitive labour market. This proposition may also be stated as a rejection of the proposition that labour is a commodity. Building on this core principle is the fundamental theorem of industrial relations. It states that a free-market capitalist economic system cannot survive and efficiently perform without the practices and institutions of industrial relations that humanize, stabilize, professionalize, democratize and balance the employment relationship.
De-Skilled and Devalued: The Labour Market Experience of Polish Migrants in the UK Following EU Enlargement
Authors: Currie Samantha
Published: April 2022

The UK is one of a minority of older European Union Member States that chose not to restrict the ability of nationals from the eight Central and Eastern European countries, which acceded to the EU in 2004, from accessing its labour market. Relying on extracts from qualitative interviews with Polish migrants, this article reflects on the experience of post-accession EU8 migrant workers in the UK. In particular, it examines how UK law on the registration of migrant workers from the accession countries, and EU law on the recognition of qualifications, may be contributing to the initial occurrence of de-skilling whereby migrants’ skills and education are devalued in the host society. It seems that the emphasis in the UK placed on the ‘usefulness’ of such EU8 workers may be diverting attention from the occurrence of ‘brain waste’.
In Defence of (Efficiently Administered) ‘Just Cause’ Dismissal Laws
Authors: Davidov Guy
Published: April 2022

This article provides justifications for ‘just cause’ laws that are constantly under attack in many European countries, while arguing that in some cases amendments might be necessary to ensure the possibility of swift, inexpensive dismissals when a just cause indeed exists. The security provided to employees by ‘just cause’ laws is justified on two main grounds: preventing unnecessary harm to the social/psychological well-being of workers who depend on a particular relationship for such purposes; and ensuring a fair ‘price’ in terms of security in return for workers’ submission to a democratically deficient regime. A number of considerations to the contrary – the impact on ‘outsiders’, potential inefficiencies and the infringement on employers’ autonomy – are discussed but shown to be rather insignificant in magnitude (with the exception of small employers who are indeed usually excluded from the scope of ‘just cause’ laws).
Social Dialogue – The Specific Case of the European Union
Authors: Keller Berndt
Published: April 2022

This paper deals with social dialogue at interprofessional (or macro) and sectoral (or meso) level, outlining their specific problems in the European Union. The first part focuses on the macro level, differentiating between three stages of development, the (lack of) results, and problems of implementation. The second part concentrates on the sectoral level, analysing the earlier version as well as the consequences of institutional reform (among others, qualitative developments, output, problems of the social partners, questions of transposition and implementation). The final part draws some tentative conclusions.
A Restatement of the Law with Respect to Labour Law
Authors: Waas Bernd
Published: April 2022

The European Private Law community in Europe has been on its way towards a common frame of reference for some time. The same, however, cannot be said about labour law. Only relatively recently a group was formed with the aim to arrive at a ‘Restatement’ of labour law in Europe. The following article, written by one of the initiators of the group, tries to answer the question how come that it seems so difficult for labour lawyers to flesh out common rules and principles.
Blood, Toil, Tears and Sweat? Achieving Proficiency in Academic Writing
Authors: Bromwich William
Published: April 2022

This paper provides an overview of key aspects of proficiency in academic writing, by examining a corpus of 40 double–blind referee reports in the field of comparative labour law and industrial relations. It is argued that the principles of academic writing identifi ed in the analysis have significant pedagogic implications, enabling both junior and senior researchers to identify aspects of their research that require further refinement. Reports by peer reviewers are shown to perform more than just a gatekeeping function, since many reviewers provide suggestions, references, and advice about legislation and case law, enabling authors submitting manuscripts to improve their work in the light of the expectations of scholars within the disciplinary domain. Through the peer review process, the unwritten rules of academic discourse in a given domain become more explicit, and the collaborative nature of much academic writing is highlighted, as a recursive and interactive process consisting of a number of stages with critical input at each stage from members of the discourse community.
European Flexicurity and Globalization: A Critical Perspective
Authors: De Vos Marc
Published: April 2022

This paper places the European agenda of ‘flexicurity’ in a broader context. It explains how flexicurity connects to fundamental and historical characteristics of European Union labour market organization. It shows how flexicurity and the European Employment Strategy (EES) manifest a fundamental shift from EU law to EU policy. It explores the connection between flexicurity and the European Union’s agenda vis-à-vis globalization, particularly in light of the Lisbon Strategy. A broad and critical overview is given of the European Globalization Adjustment Fund (EGAF), the EU’s own and pioneering flexicurity tool in facing the labour market challenges of globalization.
Labour Law without ‘Rights’ in Indonesia: The Making of Undang Undang Kerdja 1948
Authors: Suryomenggolo Jafar
Published: April 2022

This paper describes the political context that shaped the formation of independent Indonesia’s first major piece of labour legislation – Undang Undang Kerdja 1948 (Labour Act 1948). The Act is often conceived of as a highly progressive piece of labour legislation, introducing provisions that granted Indonesian workers extensive legal protection. Despite its significance, existing literature has only focused on the Act’s normative content and not its formulation; its drafting process has attracted little attention on the part of labour historians and legal scholars. This article is the first to explore these facets of the Act. Within the framework of the state-labour relationship, it examines the drafting process of the Act by means of a critical analysis of the historical data obtained from the documents of Badan Pekerdja Komite Nasional Indonesia Pusat (Working Committee of Central Indonesian National Committee, BP-KNIP). It is argued that the Act was a product of the identification, construction and regulation of labour at a time when the revolutionary Indonesian state was consolidating its power over society.
European Labour Law in Transition from 1985 to 2010
Authors: Weiss Manfred
Published: April 2022

This paper examines the growth and development of European labour law over the past twenty-five years, starting from a European Economic Community (EEC) of just twelve Member States in which the focus was on the construction of the single market, and leading, by means of three successive enlargements, to a European Union of twenty-seven Member States. The paper tracks the rise of social Europe to an equal footing with economic Europe, one sign of which is the adoption of the fundamental social rights in the Charter of the Fundamental Rights of the EU. The landmark developments in individual and collective labour law are charted, and the recent emphasis on soft law is subject to critical analysis. The author suggests that the twenty-five years in which the Journal has been in existence may be described as the golden age of European labour law, and underlines the need for continuing critical scrutiny of European labour law developments.
Extending Protection to Atypical Workers, Including Workers in the Informal Economy, in Developing Countries
Authors: Fourie Elmarie
Published: April 2022

This paper takes as its starting point the fact that atypical employment and work in informal sector is a growing rather than a passing phenomenon, especially in developing countries. In countries such as South Africa, ‘atypical’ employment is in fact typical for sectors such as domestic labour, the construction industry and agriculture. With union coverage for atypical workers at extremely low levels, unions need to focus not just on wage negotiations with employers, but also on social and political bargaining in favour of legislation to promote labour and social protection, such as the Unorganised Workers’ Social Security of 2008 in India. The paper also highlights the role of mutual aid associations, such as the Self-Employed Women’s Association (SEWA) in India, and the unsuccessful attempt to replicate this experience with the Self-Employed Women’s Union (SEWU) in South Africa. In addition to India and South Africa, the paper casts light on recent developments in Namibia and Tanzania, and points to the low level of ratification of International Labour Organization (ILO) Conventions in developing countries. The authors argue in their conclusions that labour law must be adapted and extended to protect all those in need of protection, meaning that labour law (including international labour law) must reinvent itself to remain relevant.
Deterrence and Enforcement of Occupational Health and Safety Law
Authors: Dorrian Jillian , Purse Kevin
Published: April 2022

Deterrence is a central consideration in the regulation of occupational health and safety (OHS) and has been the focus of increased empirical attention by regulators and researchers in recent decades. This article provides an evaluation of quantitative and qualitative studies that have sought to determine the deterrent effect of OHS enforcement on employer behaviour. The main findings are that enforcement does result in deterrence where sanctions are involved but not in the manner presumed by traditional deterrence theory, that the certainty of enforcement appears to be the most important component of deterrence, and that specific deterrence is greater than general deterrence. It is also apparent that there are many gaps in the understanding of the role played by enforcement in promoting compliance with OHS obligations and in reducing work-related injury. Apart from their implications for enforcement activity, these findings highlight the necessity for a fundamental re-conceptualization of deterrence theory.
Labour Market Flexibility, Migration, and Inflexible Social Protection in the SADC Region
Authors: Fourie Elmarie
Published: April 2022

This article considers the international and regional framework and the (in)flexibility of labour and social regulation, the lack of coordination, and the limited nature of exportability and portability arrangements in the Southern African Development Community (SADC). The focus is the social protection available to categories of non-citizen migrant workers in certain countries within the region. The development of a comprehensive social security system in SADC is challenging. Existing social protection measures are limited and unable to address the extreme poverty in the region. High unemployment and ineffective labour laws increase the difficulties in providing adequate protection and decent work to all. Multilateral and bilateral agreements are not commonly utilized. The article will also attempt to consider the way forward for researchers and policy makers alike.
Working Time, Work-Life Balance, and the Persistence of Inequality
Authors: Blyton Paul
Published: April 2022

Work-life balance provisions are recognized as playing an important role in increasing labour market participation rates in Europe. At the same time, changes in the collective regulation of working time over the past generation have substantially increased management's scope to shape working time patterns. One effect has been the increased use of individualized and variable work hours' arrangements. As a consequence, while many at higher levels within work organizations enjoy significant discretion over their work time and the positive benefit to work-life balance that this brings, many at lower levels have little control over a frequently variable and often unpredictable working pattern. Mitigating this differentiated experience of working time will be an important objective if work-life balance provisions are to play a major role in facilitating increased labour market participation rates in coming years.
The Medusa Stare: Surveillance and Monitoring of Employees and the Right to Privacy
Authors: Wallach Shelley
Published: April 2022

The nature and scope of modern technology poses a growing threat to employee privacy in the workplace and, as a result, presents new challenges and a greater need for clearer rules and boundaries for both actors in the workplace: the employer and the employee. This article focuses on various aspects of surveillance and monitoring of employees regarding the internet, e-mail, phone calls and location data. It examines the problems and conflict of interests that arise and outlines various legal responses in hard law and soft law, including legal rulings. Different approaches to these topics are presented, mainly the approach of the American legal system versus the European ones, and some examples of cases in various countries are considered. It is argued that by learning from each other and the various solutions adopted, we should strive to preserve, as far as possible, the employee's right to privacy.
Regulatory Challenges of Domestic Work: The Case of Brazil
Authors: Gomes Ana Virgínia Moreira
Published: April 2022

The aim of this article is to undertake a critical analysis of Brazilian policy responses to domestic work. Our principal argument is that regulatory responses to the problems of domestic workers so far have not adequately addressed the realities of domestic work, such as those related to domestic work itself and those linked to the profile of domestic workers. Even though the current approach of harmonizing domestic workers' rights with other workers is seen by many as the strongest possible response, we argue that more innovative responses are needed in order to effectively address their specific problems.
Mandatory Retirement and Age Discrimination under EU Law
Authors: Schlachter Monika
Published: April 2022

In what direction has the prohibition of age discrimination been heading since the European Court of Justice (ECJ) ruled in Rosenbladt that there are almost no limits to the discretion of Member States in adopting mandatory retirement rules? This article argues that the general labour market policy of Member States will probably continue to be exempt from strict judicial scrutiny when long-standing features of employment law that are shared by many States are concerned. However, in the case of rules for specific occupations or specific age-related entitlements, the margin of discretion left to the Member States is narrowed down considerably. This article argues that there is a need to bridge the gap between the different control standards. Especially since the entry into force of the European Union (EU) Charter of Fundamental Rights, the interest of some employees to continue in employment and to pursue their chosen occupation needs to be balanced more evenly against the labour market policy of Member States. A suggestion about how to reconcile these interests is put forward.
Towards a Functioning Framework for Individual Labour Law Rights: Challenges for China in a Changing World of Work
Authors: Neal Alan C.
Published: April 2022

This presentation considers progress towards establishment of a modern legislative framework for individual employment relations in China. A background of current labour market statistics and trends is provided, together with comment on perceived impacts for China of the global financial crisis since 2008. Recent enactments dealing with employment promotion, labour contracts, and labour dispute resolution are then considered. These are seen as a new phase in regulatory activity for the world of work since the foundation of the People's Republic in 1949. Particular challenges are identified in relation to effective delivery of employment rights, the administrative monitoring of enterprise compliance with labour regulations, and judicial efficiency in dealing with a rising volume of labour disputes throughout China. The influence of international standard-setting bodies upon the new enactments is noted, as are lessons drawn by the Chinese authorities from examination of experiences in other national systems. It is suggested that, without dramatic departure from the framework established by the 'umbrella' Labour Law of 1994, recent Chinese legislation reflects some sophisticated and innovative draughtsmanship, as well as sensitivity to the delicate balance between the economic interests of enterprises and the (generally protective) 'social dimension' of the world of work. Concern is expressed, however, as to whether China's available enforcement and sanctioning mechanisms will suffice to ensure that the new regulatory arrangements become effective in practice. Notably, there is a pressing need for capacity building in order to provide the administrative and judicial institutions necessary to ensure effective labour market regulation within a framework of rule of law. The need for a stable, well-regulated, yet flexible, labour market is seen as crucial to the continued success of the Chinese economy at a time of dramatic global flux. Cautious optimism is expressed as to the prospects of achieving those goals.
Discrimination against Mothers Is the Strongest Form of Workplace Gender Discrimination: Lessons from US Caregiver Discrimination Law
Authors: Painter Genevieve R. , Bornstein Stephanie , Williams Joan C.
Published: April 2022

Work-family reconciliation is an integral part of labour law as the result of two major demographic changes. The first is the rise of the two-earner family. The second is that, as Baby Boomers age, caring for elders has become a pressing concern for men as well as women. Despite these changes, most European and American workplaces still assume that the committed worker has a family life secured so that family responsibilities do not distract him from work obligations. This way of organizing employment around a breadwinner husband and a caregiver housewife, which arose in the late eighteenth century, is severely outdated today. The result is workplace-workforce mismatch: Many employers still have workplaces perfectly designed for the workforce of 1960.

Labour lawyers in both Europe and the United States have developed legal strategies to reduce the work-family conflicts that arise from this mismatch. Yet the legal strategies developed in Europe are different from those used in the United States. The Europeans' focus is on public policy, based on a European political tradition of communal social supports - a tradition the United States lacks. Advocates in the United States, faced with the most family-hostile public policy in the developed world, have developed legal remedies based on the American political tradition of individualism, using anti-discrimination law to eliminate employment discrimination against mothers and other adults with caregiving responsibilities. This article explores both the social science documenting that motherhood is the strongest trigger for gender bias in the work place and the American cases addressing 'family responsibilities discrimination' (FRD).
Forced Labour and Migrant Berry Pickers in Sweden
Authors: Thörnqvist Christer , Woolfson Charles
Published: April 2022

Groups of migrant berry pickers arriving annually in Sweden from both Asia and the newer European Union Member States have been subject to exploitation over the years. The problem appears to persist in spite of public and international concern and successive regulatory reforms. An examination of this problem from a forced labour perspective suggests inadequate implementation and application of international norms in Swedish law, as well as deficiencies in the application of criminal-law and in regulatory oversight. Policy recommendations regarding the labour conditions for seasonal migrant workers in Sweden are put forward.

Lars Riberth, deputy rector, Bräcke, has tired of seeing how the berry pickers are mistreated, and started a financial collection. 'This is a form of modern slavery,' says Lars Riberth. (Kyrkans Tidning, 26 August 2010)
International Labour Standards: A Complex Public-Private Policy Mix
Authors: Weiss Manfred
Published: April 2022

Starting from the assumption that international labour standards are more needed than ever before, the article outlines the achievements as well as the weaknesses of the International Labour Organization (ILO) and discusses reforms within this international body in order to increase its efficiency. But even if the ILO might reach its optimum it is only one element in a combined strategy. The ILO's efforts are to be supplemented by private actors. In this context, the codes of conduct of Multi-National Enterprises (MNEs) and in particular the International Framework Agreements (IFA) concluded between Global Union Federations (GUF) and MNE play a crucial role. The article attempts to assess the impact of these instruments and concludes by emphasizing the synergic effects of this public-private-policy mix.
Fundamental Social Rights, Market Regulation and EU External Action
Authors: Perulli Adalberto
Published: April 2022

This article examines fundamental social rights in the era of globalization, focusing on the EU's strategy to promote respect for social rights in its external actions. A new feature of the Lisbon Treaty is the 'horizontal social clause' (Article 9 TFEU), stipulating that EU policies must take social requirements into account to ensure consistency between various policies and social objectives. This clause will be explored also in its external dimension, pursuant to Articles 2 and 3 of the Treaty. Finally, other social provisions of EU external action will be dealt with, including the promotion of International Labour Organization (ILO) labour standards in free trade agreements (such as the CARIFORUM), Corporate Social Responsibility and the Generalized System of Preferences (GSP), in particular the GSP Plus scheme.
Employee Participation and Quality of Work Environment: Denmark and New Zealand
Authors: Markey Raymond , Knudsen Herman
Published: April 2022

Traditionally it has been held that employee participation impacts positively upon the quality of the work environment (QWE). However, recent research suggests that certain forms of participation such as job autonomy in high-performance workplaces may be associated with work intensification and stress. This article analyses the impact on QWE of different types and intensities of employee participation through sixteen case studies in four sectors in New Zealand and Denmark: hotels, schools, health facilities and food processing plants. The studies show that although participation is not the only factor that influences employee QWE, it is important, especially where direct and representative forms co-exist and interact. There is some evidence that participation based on a democratic model is associated with the best QWE performance, that direct participation alongside weak representative participation impacts negatively on QWE, and that a greater depth and scope of representative participation in Denmark impacts positively on QWE. However, sectoral as well as workplace characteristics qualify these general trends.
Making the CAP Fit: Responding to the Exploitation of Migrant Agricultural Workers in the EU
Authors: Hunt Jo
Published: April 2022

Much work in primary agricultural production is low-skill, temporary and seasonal in nature, and in the EU it attracts a large proportion of migrant workers, both from within and outside the Union. Work is often precarious, and cases of rights infringements, exploitation and forced labour have been reported across the Union. A recent step by the EU has been to confront these problems through immigration law, with the adoption in February 2014 of the Seasonal Workers Directive, which creates narrowly drawn possibilities for a legal right to work and reside for third-country nationals undertaking seasonal work. Reflecting on the tendency in practice for immigration status to trump employment rights, this article argues that a more effective response could be found within the EU's longstanding Common Agricultural Policy (CAP). Farm subsidies are conditional on compliance with a body of existing EU legislation, in respect to environmental protection, public health and animal welfare. While highlighting the limited engagement with social concerns to date under the CAP, it is argued that space should be made for social conditionality in the CAP, with subsidies made conditional on respect for employment rights for all workers.