bluuebunny/crossref_metadata_2025 huggingface dataset:
Interoperable Data Exchanges Within Different Data Protection Regimes: The Case of Europol and the European Border and Coast Guard Agency
Authors: Quintel Teresa
Published: April 2022

In recent years, the discourse surrounding migration, asylum and related security concerns have, in most EU Member States, become deeply contentious. Following the 2015 migration crisis, the shortcomings of the EU asylum system became strikingly evident. The subsequent terrorist attacks inaugurated the beginning of a series of revisions to databases used for border control, the registration of asylum seekers and visa applicants, or for alerts regarding criminals.

As a final step, the Commission issued two proposals to render all EU databases interoperable in order to provide authorities with better information to tackle identity fraud, prevent irregular migration and mitigate security risks. In May 2019, the Interoperability Regulations were adopted by the co-legislators.

Europol and Frontex, two EU Agencies that have been actively engaged in a wide range of operational activities at the external Schengen borders, will be authorized to consult and may subsequently request full access to the interoperable system.

This contribution will address some of the concerns that emerge with the connection of originally disconnected databases and seeks to analyse the discrepancies that may arise in the context of interoperability where systematic data exchanges take place between actors that apply different data protection regimes.

Interoperability, Europol, EBCGA, Eurosur, Data Protection, AFSJ, EU Databases, Border Control, Data Quality, Supervision
Detention Before Deportation: Merits Based Review, and the Need for More Oversight of Vulnerable Detainees
Authors: Akhtar Zia
Published: April 2022

Immigration Act 2016, Article 5 ECHR, detention: deportation, merits based judicial review, vulnerable persons, Shaw Report I, Shaw Report II.
‘Rectification’ and ‘Irrelevance’ in EU Direct Administrative Procedures: A Systematic and Comparative Analysis
Authors: Hering Laura
Published: April 2022

The field of EU direct administrative law is steadily growing in importance, and issues relating to the consequences of procedural irregularities on the outcome of the procedure are becoming increasingly relevant. The question of when such a violation remains inconsequential – i.e. does not lead to the act being quashed during judicial proceedings, either because the error was rectified or can be considered irrelevant – is particularly important, as it can have a significant impact on the legitimacy and acceptance of EU institutions as well as their efficiency and effectiveness and EU case law has developed a complex jurisprudence in this regard. The aim of this contribution is to systematize this case law with regard to the instruments of rectification and irrelevance of procedural irregularities. Moreover, it compares these legal instruments to their counterparts in Member States’ administrative systems. The focus is on the observation that the EU case law has developed a complex network of layers and components to decide what consequences violations of provisions relating to form and procedure entail. The comparison with the Member State administrative systems shows – despite differences in detail – that EU courts have not coopted a particular system currently in use in a Member State, but that they often use roughly similar criteria to decide whether an error leads to the annulment of the final decision. This analysis can be fruitful with regard to the recent interinstitutional as well as academic debate about the codification of administrative procedure of the EU direct administration, neither of which have yet discussed the possibility of rectification and irrelevance of procedural errors in a systematic and comprehensive way, even though the jurisprudence of the EU courts has reached a stage that makes this possible.

European direct administrative law, procedural errors, consequences of procedural and formal errors, rectification, irrelevance, codification of administrative procedure
Dignity, Exceptionality, Trust. EU, Me, Us
Authors: Petric Davor
Published: April 2022

The German Federal Constitutional Court (GFCC) in late 2015 delivered a decision on the European Arrest Warrant (EAW). With it, the GFCC further elaborated its trademark doctrine on the constitutional-identity review of EU law’s application in Germany, introducing human dignity as another yardstick. In this article, I critically reassess the merits and implications of this doctrinal development, in particular for the relationship between the GFCC and the Court of Justice of the European Union (CJEU) and for the EU law-national law dynamic in general.

Human dignity; German Federal Constitutional Court; European Arrest Warrant; constitutional-identity review; Court of Justice
East Nordic Model of Pre-Enactment Constitutional Review: Comparative Evidence from Finland and Sweden
Authors: Yolcu Serkan
Published: April 2022

For the last three decades, legal scholarship on the judicial review of legislation has dominated comparative constitutional studies. Moreover, one of the emerging interests in comparative constitutional law is pre-enactment (ex ante) control of constitutionality. Historically, legal thinking in the US has advanced judicial review, while British tradition has prioritized parliamentary sovereignty, in which parliament, not courts, is the ultimate decision maker related to constitutional disputes. The current scholarship, nevertheless, argues that a particular constitutional model has emerged in a number of Commonwealth countries in which courts and legislatures are not considered alternative to each other, contrary to the traditional paradigms that prioritize either courts or legislatures. One of the defining features of this model is the pre-enactment constitutional review of proposed legislation. In some of those countries, pre-enactment review of legislation is available only in the form of executive responsibility, while the legislature has a key role in the remaining countries, in addition to the commitment of the executive. This article investigates whether similar pre-enactment constitutional review mechanisms exist elsewhere. For this purpose, it will examine East Nordic constitutional practice and ask whether there is a particular type of pre-enactment constitutional review in Finland and Sweden. The function to review constitutionality of proposed legislation belongs to non-judicial mechanisms in both Finland and Sweden. However, pre-enactment constitutional review mechanisms in these two polities are hardly considered in comparative constitutional law. This article aims to fill this gap by drawing comparative scholars’ attention to the East Nordic constitutionalism.

judicial review, comparative constitutional law, pre-enactment constitutional review, Nordic constitutionalism, Finland & Sweden
‘Optional’ Exclusion from Public Tenders Grounded on Conflicts of Interests and Principle of Proportionality: Whose Choice?
Authors: Mirando Díaz Javier
Published: April 2022

Focusing on the current regulation of conflicts of interest in public procurement by Directive 2014/24/EU we try to answer two main questions: (1) what is the core content of its regulation and which implications does it have in daily public procurement activity; and (2) whether this core content and the way it is materialized in Directive 2014/24/EU leaves any leeway to Member States law to modify or create new conflict of interests provisions. The first part of the article is devoted to the analysis of the ‘conflict of interest’ concept under the procurement Directive, concluding that it rests on three fundamental pillars: (a) a broad and functional subjective application based on the objective nature of the phenomenon; (b) a transfer of power (and responsibility) to the contracting entities; and (c) the strong relevance of the principle of proportionality. This new concept of conflict of interest at EU level and the recent CJEU case law in the field suggest a reduction of Member States’ deference in the transposition of optional exclusion grounds. In the present article, the case of Spain is used as an example to illustrate how the interpretative implications of the current EU framework do not leave virtually any margin to Member States to adapt the conflict of interests provisions to national legal traditions.

public procurement law, administrative law, EU law, public law, conflicts of interests, causes of exclusion, integrity, anti-corruption
‘Loose’ Proportionality Review in the European Monetary Union’s ‘Law of the Crisis’: A Sign of Decline of the ‘Culture of Justification’?
Authors: Vosa Giuliano
Published: April 2022

In reviewing legal acts adopted in the context of the economic-financial crisis, proportionality finds frequent application. However, case-law at both national and Union’s level displays elements of a loose proportionality review, as Courts hardly dare to challenge the substance of the decisions negotiated by law-makers.

The article argues that loose proportionality is tied to a departure from the juridical roots of the referring concept, which lie in a ‘culture of justification’ as alternative to a ‘culture of authority’ in the exercise of public power. In this light, it provides analysis of the case-law concerned to show that the decisions taken at the political level do not seek their legitimacy in dialogical justification, but find it in the alleged assumption that they represent the optimal ‘reasonable solution’ for all Member States, despite the painful inequalities they entail. As they prove somehow alien to the cultural-juridical roots of the concept, they cannot undergo a fully-fledged proportionality scrutiny. Yet, this may signpost the gradual comeback of a ‘culture of authority’ requiring careful reflection, as it would touch upon the very conception of the human person as capable of self-determination – arguably, the cornerstone of contemporary constitutional arrangements.

Proportionality, Economic-Monetary Union, Judicial Review, Sovereignty, Crisis, Reasonableness, Fundamental Rights, Self-Determination.
Prisoner Complaints Mechanisms: Assessing Human Rights Requirements and the Role of a General Ombudsman
Authors: Van Der Valk Sophie , Rogan Mary
Published: April 2022

prison complaints mechanisms, grievance procedures, Mandela Rules, European Prison Rules, Ombuds institutions, prisons, human rights, administrative justice, Ireland, effective remedise
Minority Government: A Challenge for Belgian Constitutional Law
Authors: Lemmens Koen
Published: April 2022

Belgian Constitutional law, Minority Cabinet, Relation Parliament/Government, (Constructive) Motion of (no) confidence, Formalism
Redefining the Concept of Penalty in the Case-law of the European Court of Human Rights
Authors: Bahceci Baris
Published: April 2022

Since the European Court of Human Rights (Court/ECtHR) began to define an autonomous concept of penalty, its case law has been developing on the basis of the Engel criteria. This study aims to reveal the implementation of these criteria by the ECtHR and its consequences under the case law. Although the definition of penalty depends on the application of these criteria, the existence of a problem of consistency among them draws attention. As a matter of fact, one of the criteria, the nature of the sanction has undertaken a function to expand the Court’s ratione materiae through an objective assessment. However, the other Engel criteria, nature of the offence and degree of severity of the sanction are open to criticism in terms of objectivity, as well as narrowing the limits of the concept of penalty and consequently restricting the Court’s ratione materiae.

concept of penalty, criminal offence, European Court of Human Rights, Engel criteria, nature of sanction, nature of offence
Between Mimetism and Parasitism: Italian Populism in a Comparative Perspective
Authors: Martinico Giuseppe
Published: April 2022

This article explores the relationship between constitutionalism and populism with particular attention paid to the Italian case. This piece is divided into two parts. In Part I it will be argued that the relationship between populism and constitutionalism should not be seen in terms of mutual exclusion and perfect opposition. Indeed, it is possible to say that populism frequently relies on concepts and categories belonging to the language of constitutionalism (majority, democracy, people), trying to reshape them and offering in this way a sort of constitutional counter-narrative. In this sense, the populist approach to constitutional categories can be described in light of two concepts: mimetism and parasitism. In Part II, I shall focus on the referendum, which is an instrument frequently used by populists and currently object of a problematic constitutional reform proposal advanced by the MoVimento 5 Stelle. As we will see this reform risks affecting the constitutional balance between powers in Italy.

Populism, mimetism, parasitism, post – WWII constitutionalism, referendum
Judicial Review of the NCA’s Decisions: Some Problematic Aspects of the EU Damages Directive in the Context of Italian Law
Authors: Vese Donato
Published: April 2022

In the Italian legal system, the transposition of Directive 2014/104/EU into Legislative Decree No. 3 of 2017, with a view to improving the efficacy of both ‘follow-on’ and ‘stand-alone’ legal actions in private and public antitrust enforcement, has highlighted the problem of the judicial review of National Competition Authority (NCA) decisions. The Directive established its own ‘binding effect’ designed by the European Union order to increase the effectiveness and procedural efficiency of actions for damages in the Member States. According to the logic of the European Union, the binding effect seeks to ensure that an infringement of competition law, established by a final decision of the NCA or a court of judicial review, is deemed to be irrefutably acknowledged for the purpose of bringing an action for damages before the national courts under Article 101 or 102 Treaty on the Functioning of the European Union (TFEU) or under national competition law. However, in terms of accomplishing this objective, the prevision introduced into Italian law by Article 9(1) of the Directive becomes problematic when set against the current system of judicial review of NCA decisions in Italy, potentially undermining the effectiveness of the legal protection of the individual. The focus of the article is that the Italian system does not – in its current form – allow adequate judicial review of NCA decisions. Taking the interpretation of Articles 6(1) European Convention on Human Rights (ECHR) and 24 of the Italian Constitution as fundamental norms establishing the ‘right to a fair trial’ and the ‘right to a defence’ as its starting point, the article seeks to offer a solution to the problem arising in relation to full judicial review of NCA decisions within the Italian legal context based on the thesis that if there is no full revision of the facts and no full revision of the discretionary powers there can be no full judicial review.

EU Damages Directive, Private and public antitrust enforcement systems, The binding effect of the NCA’s decisions, Administrative and technical discretion, Judicial review of the NCA’s fact findings and technical assessments; European Court of Human Rights (ECtHR) case law, Articles 6(1) ECHR and 24 of the Italian Constitution, Intensity of review in Italy, Full jurisdiction of the Italian administrative courts
National Constitutional Identity and Its Regional Dimension Post-Lisbon as Part of aGeneral Trend Towards Multilevel Governance Within the EU
Authors: Fromage Diane
Published: April 2022

The Lisbon Treaty brought about a reform of the ‘identity clause’ now contained in Article 4(2) Treaty on European Union (TEU). Among other things, it introduced a specific reference to the local and regional dimension of Member States’ national identities. This article assesses what this new provision implies and how it was used by courts during the first decade following the entry into force of the Lisbon Treaty. This allows conducting a general reflection on the role and standing of regions within the EU under that Treaty. This article claims that, on the one hand, the specific mention of the local and regional dimension was already inherent to Member States’ national identity and that, therefore, it has not resulted in any dramatic change in the standing of sub-national entities, as is also visible in the case law to date. On the other hand, it underlines the EU’s ambivalent attitude towards sub-national entities, and national institutional structures generally, and calls for the implementation of pragmatic solutions to improve the functioning of the EU’s multilevel governance structure.

Constitutional identity, European Union, sub-national entities, regions, regional blindness
National Identity and European Integration Beyond ‘Limited Fields’
Authors: Bonelli Matteo
Published: April 2022

One of the concerns that led to the introduction of Article 4(2) TEU was the growing interference of EU law into areas traditionally reserved to the Member States. In particular, Article 4(2) TEU was seen as a way to better shield matters of ‘retained competences’, where EU institutions have not been conferred legislative competences, and to possibly create no-go areas for EU law. Yet, this article argues that in practice, the national identity clause has not worked as a limit to EU competences and the scope of EU law. The case law of the Court of Justice in the decade after the entry into force of the Lisbon Treaty, and in particular a set of recent decisions in sensitive areas such as religion, family and nationality analysed in this article, allow to conclude that reliance on Article 4(2) TEU does not limit the scope of application of EU law, though it may contribute to reach results that show deference to national preferences and leave room for national diversity. The article thus suggests a weaker reading of the national identity clause: not as a fully blown limit to EU competence, but as one of the many clauses that stand for, and guarantee, national diversity.

National identity, constitutional identity, Lisbon Treaty, EU competences, European integration
The Persistence of a Contested Concept: Reflections on Ten Years Constitutiona Identity in EU Law
Authors: Besselink Leonard F.M.
Published: April 2022

In this contribution I attempt to explain why so many fundamental controversies surrounding the provision on national identity have not been nearly resolved ten years after the entry into force of the Lisbon Treaty. Also, I indicate why these problems and controversies can be expected to linger on for at least the next ten years.

Constitutional identity, EU law, constitutional law, EU member states
Editorial
Authors: Schmidt Marlene , Rymkevich Olga
Published: April 2022

This issue aims to address recent developments in various countries both at the European Union and the national level. It begins by looking beyond the EU to ongoing processes of reform, particularly in Russia, one of the biggest EU commercial partners, where a new Labour Code has been adopted.
The Role of the ILO in the Adoption of the New Russian Labour Code
Authors: Lyutov Nikita
Published: April 2022

Abstract: On February 1, 2002 the new Labour Code (Trudovoy Kodeks, further – LC 2001), came into force in Russia. In August 2001 the Government of the Russian Federation made a request to the International Labour Office (further – ILO) to comment on the draft Code (further – Draft) adopted by the State Duma (the lower house of Parliament) of the Russian Federation in the first reading. In response to this request, the ILO experts prepared a Memorandum (further – Memorandum), addressed to the Government. The purpose of this article is to analyse the influence of international labour standards on the new Code both by virtue of the existence of the international binding instruments and by the implementation of the proposals in the Memorandum, together with the views expressed by the Committee of Experts on the Application of Conventions and Recommendations (further – CEACR).
Following the U.S. Example: European Employment Discrimination Law and the Impact of Council Directives 2000/43/EC and 2000/78/EC
Authors: Thüsing Gregor
Published: April 2022

Abstract: European employment discrimination law has made a major step forward recently: Council Directives 2000/43/EC and 2000/78/EC aim to prohibit the employer from discriminating because of race or ethnic origin, religion or belief, disability, age and sexual orientation. Similar anti-discrimination provisions were enacted many years ago in the United States. In the light of the experience of the U.S. courts with these statutes, this article intends to explore possible consequences of the new Directive for the Member States’ employment law.
The Reform of Apprenticeship Contracts in Argentina
Authors: Confalonieri Juan Ángel
Published: April 2022

Abstract: The author outlines the terms of work-training and apprenticeship contracts in Argentina, highlighting the differences between these contractual forms and the range of temporary contracts that have recently been introduced. Quantitative limits on the number of temporary training contracts in an enterprise are defined by an engagement parameter, i.e. the number of apprentices, and an occupational size parameter, i.e. the number of workers. Certain obligations on the part of the employer are laid down by law and further defined by collective bargaining. There is a need for collective bargaining to deal with the matter of how much of the trainees’ time should be given over to theoretical training, as this is currently not clearly stated. Other matters in need of further clarification include certification and the payment of wages. Employers failing to respect the terms of temporary training contracts face the sanction of conversion to permanent contracts.
Peter Hanau, Heinz-Dietrich Steinmeyer and Rolf Wank, Handbuch des Europäischen Arbeits- und Sozialrechts
Authors: Oetker Hartmut
Published: April 2022

It is well known that there is no shortage of comprehensive monographies on European labour law and social law in Germany; as examples dealing with European labour law, mention should be made of the monographies by Fuchs and Marhold, by Blanpain, Schmidt and Schweibert, and by Müller, as well as the comprehensive contribution of Birk to the Münchener Handbuch zum Arbeitsrecht. As far as European social law is concerned, the opus of Eichenhofer and the commentary edited by Fuchs provide considerable insight into the determinants of European law for the application of German law. While secondary European social law has alway focused in particular on the co-ordination of various social benefits, European labour law, determined by Directives, has fast gained importance in the last few years and increasingly influences the legal relationship between the parties to employment contracts. Evidence of the growing relevance of the Community framework is the recently published Handbuch by Hanau, Steinmeyer and Wank. In more than 1,300 pages the authors provide a comprehensive and impressive insight into European labour law and social law and, at the same time, overcome what, from a European point of view, is the dubious division into labour law on the one hand and social law on the other.
Editorial
Authors: Schmidt Marlene , Rymkevich Olga
Published: April 2022

This issue opens with a contribution by Maximilian Fuchs, who provides us with an interesting critical overview of the dynamics of European Labour Law developments, stressing the crucial role in this process of the European Court of Justice and of the social partners.

The difficulties which UK courts may face in their day-to-day practice are explored by Lucy Vickers, who analyses the highly topical problem of religious discrimination in the workplace, starting with a discussion on how these issues have been dealt with by the courts in Canada. Simon Deakin then deals with the judicial interpretation and control of employment relations, with a particular focus on atypical contracts.
13th World Congress of the International Industrial Relations Association (IIRA)
Authors: Rymkevich Olga
Published: April 2022

The 13th IIRA World Congress held in Berlin on 8-12 September 2003 attracted participants from all over the world. In the course of five days a wide range of topics relating to the changing profile of industrial relations was covered. Due to the large number of papers, we focus here only on the contributions presented during the plenary sessions. The conference was opened with a speech by Professor Manfred Weiss, president of the IIRA Association, who drew attention to the variety of challenges industrial relations face today, underlining the need for scientific and practical discussion that could be of a great use for the all the parties concerned. During pre-congress the problems of codetermination in Germany were addressed by Jörg Sydow (Chairman of the German Industrial Relations Association), Nikolaus Simon (Director of the Hans-Böckler Foundation), Otto Jacobi (Laboratorium Europa), Walther Müller-Jentsch (Ruhr-University Bochum, Germany), Hansjörg Weitbrecht (University of Heidelberg, Germany), Michael Fichter, (Organizing Committee, GIRA), followed by visits to leading German companies.
Editorial
Authors: Schmidt Marlene , Rymkevich Olga
Published: April 2022

The issue opens with the contributions by Matthew Finkin & Sanford Jakoby, Alan Neal, and Orsolya Farkas & Olga Rymkevitch presented at the annual colloquium of labour law journals held in Modena in April 2004 on the problems of labour mobility. The papers underline the complex and sometimes contradictory nature of policies in this field. Finkin & Jacoby explore the reasons for the differences between European and US mobility, whereas the paper by Alan Neal discusses the Nordic experience in regulating the free movement of individuals in a historical perspective, considering it a source of inspiration for the establishment of the European Union open labour market model. The paper by Farkas & Rymkevitch focuses on recent developments in European immigration policy and the choices made by the Member States relating to EU enlargement and the free movement of individuals from the new Member States.
Lessons from the Nordic Countries – ‘Basic Building Blocks’ for an Enlarged Common European Labour Market
Authors: Neal Alan C.
Published: April 2022

Abstract: This article presents experience with the first three decades of formalised common labour market arrangements in the Nordic countries. It traces the historical roots of Nordic co-operation, and examines how early initiatives were stimulated to develop free movement for workers and a more open Nordic labour market during the inter-war years. Post-war momentum towards the establishment of a common Nordic labour market is then considered, with a focus on the 1954 Agreement laying down the basic framework and the subsequent revised Agreement of 1982 which now underpins the modern Nordic labour market arrangements. Some observations are offered in relation to the creation of basic building blocks for free movement of workers and integrated labour market administration, set against the recent backdrop of ‘enlargement’ of the European Union.
The Bottom Line of European Labour Law (part 2)
Authors: Fuchs Maximilian
Published: April 2022

Abstract: Due to the dominance of the economic approach (see the first part of this paper) the Treaty of Rome provided for only a small body of provisions concerning labour relations, with the emphasis on guaranteeing the free movement of labour. In the absence of a sound legislative basis in the Treaty, it is not surprising that European labour legislation has been adopted on a piecemeal basis. This is to a certain extent the result of the competition between the (pure) economic model and the social policy approach of European integration. The former favours abstentionism by member states, the latter, especially in the formulation of social rights, seeks a high level of employment rights protection. Against this background nearly all areas of European Labour Law are characterised by the need to strike a balance between economic and social objectives. Some examples of this are the respect for the freedom of contract, limited only by the duty not to discriminate against workers on grounds of sex, ethnic origin, age and other factors, and the safeguarding of entrepreneurial decision-making, limited only by information and consultation rights for workers. In examining the Directives on atypical work (part-time, fixed-term employment) it is evident that considerable efforts have been made to strike a balance between employers’ and employees’ interests. Clearly, not all the legislation commands universal support, but this is only to be expected in view of the heterogeneity of the 15 Member States. However, it seems that European Labour Law has achieved a considerable degree of success in the search for social cohesion.
Editorial
Authors: Schmidt Marlene , Rymkevich Olga
Published: April 2022

The increasing internationalisation of the economy and major challenges arising from outsourcing and demographic trends are leading to a progressive interdependence of national economies, highlighting the differences in standards and values between one system and another. As a result benchmarking takes on a particular importance, as seen in a number of papers in this issue exploring institutions of labour law and industrial relations from the comparative point of view in the economic, social and legal context.
Comparing the Implied Covenant of Good Faith and Fair Dealing with the Implied Term of Mutual Trust and Confidence in the US and UK Employment Contexts
Authors: Cabrelli David
Published: April 2022

Abstract: The objective of this article is to examine the extent to which the common law systems of the US and the UK contain principles or rules which are principally designed to curb or eradicate the abuse of unfettered employer or employee power or discretion (actions and omissions) in the context of the contract of employment. This will be achieved by differentiating between the US concept of the implied covenant of good faith and fair dealing and the UK implied term of mutual trust and confidence which are applicable to the interpretation of US and UK employment contracts respectively. In compiling the results of such a comparative study, the recognised comparative law method will be employed. In addition, where possible, an attempt will be made to delimit briefly the historical, economic and social contexts surrounding the nature, content, source and application of the implied covenant and the implied term in a bid to facilitate a basic understanding of the development of these respective concepts. In analysing the results of the comparative exercise, an assumption will be made that the jurisdictions of the US and UK both acknowledge that there is considerable merit in encouraging and propagating a unitary, conciliatory approach towards modern employment relations in the 21st century. Adopting this presupposition as a basis for presenting the results of the comparative study, various conclusions will be drawn as to what both jurisdictions perhaps have to learn from the other as a means of strengthening both of the respective concepts.
A Tale of Two Projects: Emerging Tension between Public and Private Aspects of Employment Discrimination Law
Authors: Baker Aaron
Published: April 2022

Abstract: Zeal for curing the public ill of discrimination can lead to approaches that ignore the more private concerns of individual victims of discrimination. This article explains that the forward-looking project of changing society to eliminate inequality is quite a different project from that of providing accessible and effective individual remedies for discrimination victims. To that end, the nature and divergence of these two projects is described in abstract terms, and then concretely illustrated by reference to US employment discrimination law, where a clear conflict has evolved between the two. The article then traces the development of anti-discrimination law in Great Britain, and the subtly emerging tension between the two projects here. Finally, the article assesses the contemporary discourse on reform of equality law in Britain, and suggests how a new single equality act might drive for social change without eroding the benefits of the existing system for individual dispute resolution.
Implementing the Information and Consultation Directive in Great Britain: A New Voice at Work
Authors: Lorber Pascale
Published: April 2022

Abstract: The Information and Consultation Directive and its transposition in Great Britain through the Information and Consultation of Employees Regulations 2004 will add a new facet to collective employment law in this country. This paper analyses the characteristics of the new voice given to employees and how it will fit with the existing legal framework. It aims to demonstrate that the government has adapted to the new Directive by undertaking a thorough process of preparation for the final regulatory norms. Nevertheless, the resulting ?voice? will not be revolutionary as it will not be based on a set of minimum requirements and will also lack strength to influence decision-making. The regulatory choices have given priority to flexibility at the expense of the universal right to information and consultation. This paper explores further the ideas expressed in an earlier article on the potential impact of the Information and Consultation Directive in the United Kingdom, published in this journal in 2003.
Fundamental Social Rights in Pre- and Post-Constitutional Terms
Authors: Hendrickx Frank
Published: April 2022

Abstract. Fundamental social rights have come a long way in the history of the European Union. Until recently, with the currently contested EU Constitutional Treaty, the Union showed a willingness to adopt a binding instrument containing fundamental social rights. This article argues that the newly pledged fundamental rights would have a considerable impact on both EU as well as Member State policies. The paper also outlines the development of fundamental social rights in the European Union and shows a lack of a clear and uniform approach to the fundamental rights debate in Europe. It is argued that a more general ?constitutionally coloured? fundamental rights pathway must be distinguished from the social policy track, but that the two approaches have merged over the years, finding a synthesis in the Charter on Fundamental Rights incorporated into the Constitutional Treaty. The focus is therefore on a pre-constitutional and a post-constitutional understanding of fundamental social rights.
The Transfer of Undertakings and the Importance of Taking Over Personnel – A Vicious Circle
Authors: Beltzer Ronald M.
Published: April 2022

In this paper I contend that the EU Acquired Rights Directive, as interpreted by the European Court of Justice, has adverse effects on the market for outsourcing services. The Court should change its position on the decisive importance of either taking over personnel or taking over intangible assets, since the emphasis on those two factors is ‘counterintuitive’ to the social partners. The resulting legal uncertainty leads to legislation that is not in keeping with general notions of market competition, as the British TUPE Draft Revised Regulations prove. Instead of focusing on the sector in which a transfer takes place, more emphasis should be placed on the economic context in which transfers take place, especially those resulting from a mere change of service provider.
Exploring the Spectrum of Labour/Management Participation Within Safety Regimes: Occupational Health and Safety in Ontario (Canada), Sweden and the United States
Authors: Lakhan Jason
Published: April 2022

Increasingly, workers are demanding greater input into working conditions. Nowhere in the management/labour dynamic is this more evident than in the area of occupational health and safety, but standards vary significantly across the globe. The occupational health and safety regimes in Ontario, Canada, Sweden and the United States have been born out of radically different national, political and labour landscapes. This paper aims to describe how these competing visions have manifested themselves within their respective work environments and their effect upon the labour/management relationship. A unique feature of this paper is the utilization of the author’s personal professional experience within the occupational health and safety enforcement mechanism in Ontario, Canada. The personal anecdotal information informs the discussion of the competing enforcement mechanisms being employed in the comparator jurisdictions. Other areas of comparison include the varying degrees of responsibilities of workplace stakeholders, non-disciplinary mechanisms in the use and effects of organized labour upon the regimes. The unique external influence of European Union initiatives on Sweden’s regime is also discussed. Ultimately, the work is a discussion of workplace power dynamics within three very different safety regimes and was written with an eye to stimulating discussion in the ongoing dialogue on workplace safety.
Military Unions and the Right to Collective Bargaining: Insights from the South African Experience
Authors: Heinecken Lindy , Nel Michelle
Published: April 2022

With the convergence of civilian and military employment practices, the debate on whether ‘soldiers’ may be granted labour rights is highly controversial. In Europe, Euromil has made it their mission to have the right of freedom of association to join trade unions extended to military personnel. In South Africa, the Constitutional Court granted military personnel this right, as well as the right to collective bargaining (it appeared). As has been the case elsewhere, this has not been embraced by military leadership, who prefer to manage employee relations from a classically unitarist perspective. This article highlights why armed forces have such an issue with trade unions and collective bargaining. Specific reference is made to the unique South African experience and the various court cases over the right to collective bargaining. To place the level of discontent among soldiers in perspective, reference is made to some empirical findings of South African officers and to recent international examples. In the final section, the debate is placed in context and some lessons from the South African case are reflected upon.
Making (It) Work: Introduction to the Special Issue on the Future of the European Employment Strategy
Authors: Bekker Sonja , Klosse Saskia , Wilthagen Ton
Published: April 2022

This article introduces two of the core topics in the current debates concerning the European Employment Strategy (EES) that are likely to have a significant impact on the strategy’s future development. The first concerns the changing view of work and security, exemplified by the growing attention for ‘flexicurity’ and employment security. The second is the debate on the effectiveness of the EES in influencing Member State policies and performance. This article also serves as an introduction to this special issue, which approaches and discusses these two key debates in various ways.
Dismissal and Discrimination: Illegal Workers in England and Australia
Authors: Guthrie Robert , Taseff Rebecca
Published: April 2022

Abstract: This paper deals with various topical issues in relation to illegal workers. The legal rights of illegal workers have become an international concern. In this paper two common law countries are examined. The engagement of illegal workers raises a number of delicate employment law and policy issues. This article compares the attitude of the courts in England and Australia in relation to the question of the rights of workers who work contrary to immigration laws (illegal workers). In England, the courts have tended to adopt a traditional approach of not enforcing contracts which are tainted by illegality in relation to cases involving payment of wages and termination of employment. This has often meant that workers employed illegally have no rights to enforce agreements with employers who are a party to the illegal agreement. However, in relation to discrimination cases the English courts have used a number of devices to sidestep this harsh approach, and recently a number of workers who have been engaged illegally have been successful in establishing that their employer has discriminated unlawfully against them. Within the last decade in Australia the picture is even less clear with a mixture of outcomes in relation to cases by workers claiming wages when they have been working illegally. No discrimination cases have emerged in Australia, although this paper speculates that the Australian courts may be receptive to adopting the English approach.
Health and Safety Issues in New Forms of Employment and Work Organization
Authors: Barrett Brenda , Barrett Brenda
Published: April 2022

The EU has now embraced so many national states with such a wide range of economic structures that it cannot be supposed that health and safety arrangements will be the same in every Member State, even though all are required to implement the same EC directives relating to the health and safety of the workforce. This paper attempts to address the health and safety of those in new, and possibly precarious, forms of employment in the UK. It does so in the context of the situation in the EU as indicated by a number of research reports.
Young People and Training Contracts: The Spanish Experience
Authors: García Trascasas M. Ascensión
Published: April 2022

Two kinds of training contracts have co–existed in Spain for many years: work–placement contracts and job–training contracts, and their legislative development has brought to the forefront the tension between their training objective and their potential as instruments of employment policy. These contracts usually provide forms of employment designed for young people to facilitate access to the labour market and provide on–the–job training. However, they have not always been limited to young people, nor have they ensured training for workers, especially in the case of job–training contracts. This paper provides an overview of the transformations that training contracts have undergone in the Spanish system with special attention to the groups they are designed for.
Fundamental Social Rights in Community Law and in the German Constitution – Equivalent Rights?
Authors: Kocher Eva
Published: April 2022

Constitutions tend to be more than symbols; in the case of fundamental rights, they also have to provide the legal means for the balancing of conflicting interests. In Community law, it is up to the European Court of Justice to outline and define certain social rights, as a result of its role in protecting the fundamental freedoms, and even in the absence of a binding constitution or binding charter of human rights in Community law. This has become patent in recent years – and this is where the question of compatibility and equivalence of Community social rights and national social rights arises. The following paper will try to give an idea of the questions to be faced from a German comparatist’s perspective.
Would Europe Benefit from the Adoption of a Comprehensive Definition of the Term ‘Employee’ Applicable in all Relevant Legislative Modes?
Authors: Grandi Barbara
Published: April 2022

The paper considers whether it would be advantageous to adopt a comprehensive European definition of the term employee by framing the problem in terms of classification of the work relationship. After outlining the starting points of the analysis and briefly describing the contribution of the European legal framework to the classification of workers, various matters underlying such a classification are discussed, both in a labour law and an economic perspective. The paper concludes, also with reference to the UK experience, by arguing that a comprehensive definition of employee would not solve the problem of worker misclassification
A Global Approach to the Study of Workplace Law: Looking Across (Real) National Borders to Move Beyond (Artificial) Substantive Ones
Authors: Glynn Timothy P.
Published: April 2022

Because there is no dominant source of employment–law norms in the United States, the study and practice of the law of the workplace in this country is inherently transubstantive. Students must master contract, tort, and agency concepts, as well as various statutory mandates. And employment–law practitioners and policy makers know well the challenges created by the interplay between these disparate legal regimes. In other ways, however, the standard approach to employment law in this country is narrow. Although scholars offer more holistic critiques, the discussion often leaves out legal conceptions that frame the discussion elsewhere. One example is the extent to which workplace regulation is treated as a subject of human rights law; in the United States, unlike other parts of the world, worker protections rarely are viewed through this lens. Another example, which is the primary focus of this essay, is the fact that discussions of worker management or worker–firm relations rarely consider interplay with corporate law. This is peculiar, given that, as recognized abroad, employment and corporate law are the two principal bodies of legal norms governing corporate internal affairs. Thus, despite the disparate sources of workplace regulation in the United States, we have built ‘borders’ between employment law and other areas of legal inquiry. Such compartmentalization is reinforced by the standard law school curriculum. In this essay, I explore how the study of comparative and international employment law provides students with an opportunity not only to learn about other legal regimes, but also to bridge the divide between employment law and other areas of regulation at home. In the corporate context in particular, it challenges students to reconceptualize the legal relationships among the firm’s stakeholders – workers, managers, investors, and others. Thus, while there is obvious value in examining different approaches to regulating employment, the challenges of practice in a shrinking world, and the tensions between private ordering and public mandates in a globalized economy, the pedagogical significance of the study of the global workplace extends further. It helps us see and then move beyond the artificial substantive borders we have constructed.