bluuebunny/crossref_metadata_2025_split huggingface dataset:
Just Say No! Appeals Against Orders for a Preliminary Reference
Authors: Butler Graham , Cotter John 
Published: April 2022

Can an order for a preliminary reference to the Court of Justice of the European Union (the Court), made by a lower instance national court, be subject to an appeal to a higher instance national court? To date, the Court has not been sufficiently clear on an answer to this exact question. The Court’s Cartesio judgment mandated that national law could not permit a higher instance national court from varying an order for reference, setting aside an order for reference, or ordering the resumption of national proceedings whilst awaiting the return of the preliminary reference. However, the Court did not say that appeals against an order for reference, more generally, were incompatible, per se, with Union law. This article contends that such breadth given to higher instance national courts is contrary to the intent of Article 267 TFEU, which aims to ensure effective judicial dialogue between all national courts and the Court, uninterrupted by national law and practice. This article makes the case for ending this regime of undue deference to national procedural autonomy on this question, which is problematic in circumstances where the rule of law and judicial independence in all Member States cannot be assumed.
National courts, Court of Justice of the European Union, Preliminary reference procedure, national procedural autonomy, Appeals, Appellate courts
Shrinking Space for Civil Society: A Case Study of Poland
Authors: Ploszka Adam 
Published: April 2022

This article discusses the phenomenon of shrinking space for civil society organizations in Poland, a Member States of the European Union and Council of Europe. It describes the tools used by Polish public authorities to restrict the operational capacity of civil society and compares these tools with the applicable constitutional and human rights standards. The article’s summary presents recommendations concerning the methods of addressing this phenomenon in Poland, which are capable of being applied in a broader context of other countries of Central and Eastern Europe.
human rights, ECHR, shrinking space, civil society
Brexit and the Trade and Cooperation Agreement: Endgame or Prolegomenon?
Authors: Birkinshaw Patrick 
Published: April 2022

On 31 December 2020 at 11.00pm after forty-eight years the United Kingdom and European Union concluded the UK departure from the EU when the Transition Period (TP) following the Withdrawal Agreement (WA) came to an end and the Trade and Cooperation Agreement (TCA) between the UK and the EU was signed. From 11pm 31 December 2020, Britain was no longer bound by EU law and the jurisdiction of the EU Court of Justice (CJEU). It had left the single market and the customs union. The UK was set loose to find its way in the world. It is quite clear that while the treaty opens a new phase in relations between ourselves and Europe there is deep uncertainty as to what the future holds in our relations with the Union. Although the relationship had frequently been turbulent it was almost unthinkable until shortly over five years ago that the UK would depart from the Union. The purpose of this article is not to revisit past reflections on the indelible influence of EU law on UK law and its legacy (See P. Birkinshaw, European Public Law: The Achievement and the Brexit Challenge (3rd ed. 2020)). It will offer an account of the TCA and its provisions, future difficulties that the TCA is likely to present as it unfolds; what returning sovereignty, and sovereignty, mean; and to offer some thoughts on the future relationship and influence of EU law on our domestic law.
Path to the Trade and Cooperation Agreement (TCA), the TCA, Contents, Consequences, Sovereignty, Future influence of EU law in UK
The Future EU-UK Relationship: The EU Ambitions for a Comprehensive Partnership
Authors: Zaccaroni Giovanni , Fabbrini Federico 
Published: April 2022

The purpose of this article is to examine the objectives pursued by the European Union (EU) in crafting its future relationship with the United Kingdom (UK) after Brexit. As the article argues, the withdrawal of the UK from the EU created an unprecedented situation – namely that of a former Member State. In response to this unique state of affairs, the EU has deliberately and consistently endeavoured to develop with the UK as a new third country an ambitious partnership, going beyond trade to encompass many other areas of cooperation, spanning from internal and external security to sectoral themes such as the fight against climate change and health. As the article suggests, the EU’s approach vis-à-vis the UK emerges already in the negotiating guidelines, adopted in the aftermath of the UK notification of its intention to leave the EU; is codified in the non-binding Political Declaration outlining the framework of future EU-UK relations, attached to the Withdrawal Agreement; and is ultimately reflected to some extent in the EU-UK Trade and Cooperation Agreement reached between the parties on Christmas Eve 2020. Although this thin deal does not fully achieve the objectives of the EU, as some areas are not covered by the new EU-UK treaty, its scope, which goes beyond trade, confirms the ambition of the EU to lock-in relationship with a close, special neighbour like the UK.
Brexit, Future Partnership, EU, UK, Negotiation Guidelines, Political Declaration, Trade and Cooperation Agreement
On the Identity Clause and Its Abuses: ‘Back to the Treaty’
Authors: Faraguna Pietro 
Published: April 2022

Identity is a key, but vague, ambiguous and polysemic concept of public law. In EU law, the concept underwent a process of legalization: it emerged as a political clause in the Treaty of Maastricht and gained constitutional meaning after the Treaty of Lisbon. The article traces this process of legalization, arguing that even though the constitutionalization of the identity clause in EU law was primarily addressed to the Court of Justice of the EU, a major role in this process has been played by national courts. The article, however, claims that the process of transformation of the identity clause is not over, and that currently the concept is being subject to abusive and dangerous manipulations. The article supports a comprehensive reading of the identity clause in EU law within the broader context of EU fundamental principles. In particular, the article claims that a tight connection of the identity clause should be kept with the democratic mandate of the EU. This connection emerged very clearly in the Maastricht formulation of the Treaty on the European Union but is still now a viable remedy to reject Member States’ appeals to protect unconstitutional constitutional identities.
constitutional identity, primacy, ultra vires, identity clause, abuse
Towards Corporate Health Responsibility? An Analysis of Workplace Health Promotion Through the Prism of CSR and Transnational New Governance
Authors: Olsen Céline Brassart 
Published: April 2022

In 2018, the Global Reporting Initiative (GRI) adopted a new standard, requiring companies to report on their initiatives for the promotion of workers’ health. These initiatives range from the provision of smoking cessation programmes to free health screenings in the workplace, going beyond ‘traditional’ occupational health and safety (OHS) requirements. The new standard is the first transnational instrument to specify express requirements for employers in workplace health promotion. It provides an interesting example of transnational new governance, whereby private actors adopt voluntary norms to regulate business in areas traditionally pertaining to public regulators (here, public health). This article analyses the extent to which private actors have acted as norm entrepreneurs in workplace health promotion, and whether the new standard could mark the emergence of ‘corporate health responsibility’ in the workplace. The article starts by analysing existing intergovernmental instruments in workplace health promotion. After highlighting a regulatory gap in traditional governance, the article examines the contribution of private regulators in workplace health promotion. To this end, it analyses the new standard, as well as the recent reporting practice of transnational corporations (TNCs) in workplace health promotion. Although the new standard is a welcome private, regulatory initiative, it also illustrates the orchestration deficit often found in transnational new governance. The article concludes that the road to ‘corporate health responsibility’ is likely to be a long one.
Corporate Social Responsibility, Global Health, Global Reporting Initiative (GRI), Transnational New Governance, Occupational Health And Safety, Standards, Workers’ Health, Workplace Health Promotion
Collective Bargaining for Working Parents in Sweden and Its Interaction with the Statutory Benefit System
Authors: Votinius Jenny Julén 
Published: April 2022

In recent decades, the use of collectively bargained payments to cover parental leave has become increasingly important in Sweden. As part of a general trend, supplementary payments from collectively bargained schemes for risks covered by the social security system have taken on a major role. In the literature, this development has been partly explained by an overall decline in the Swedish welfare state, starting in the early 1990s. This article explores the interaction between collectively bargained provisions on supplements for working parents in Sweden, and their interaction with the statutory system of parental leave benefits. The long-standing emphasis on work-life balance in Swedish public policy is well known, but the significance of collective bargaining and the involvement of the social partners in this area has received less attention. Starting from national legislation and policies on work-family reconciliation, this article explores a number of effects of the collectively bargained supplements: with respect to the interests that come into play, with respect to the finances of working parents, and with respect to gender equality and the division of parental leave between men and women. It is argued that one effect of a development in which collective bargaining provides for an increasing share of income during parental leave is that key public policy ideas on the design of parental leave regulation are tweaked to the benefit of other ideas promoted by the social partners. Moreover, as access to collectively bargained supplements is not the same for all employees, another effect is that the supplements come into conflict with the principle of universality that underpins the social security system. A third effect, however, is that collectively bargained supplements provide an important but not widely recognized incentive for parents to move away from a gendered division of parental leave.
Parental Rights, Parental Leave, Industrial Relations, Occupational Parental Leave Benefit, Sweden, Interaction Between Labour Legislation And Collective Bargaining
Effective Representation: Whereto for Workers on Fruit and Wine Farms in South Africa?
Authors: Fergus Emma , Godfrey Shane 
Published: April 2022

This article draws on empirical research that reveals the role played by farmworkers’ committees in the fruit and wine farming sectors in the Western Cape of South Africa, where trade union density is extremely low. It examines the legitimacy of these committees as a form of worker representation, with reference to relevant domestic labour legislation, common law, International Labour Organization (ILO) instruments and key private social codes, including the international Fairtrade Standard for Hired Labour. In the process, the relationship between the public and private governance instruments in the sector is considered. Farmworkers’ committees are found to fall through a regulatory gap between the different governance systems, highlighting their lack of integration and legal recognition. This is notwithstanding their potential to fill the representation gap which exists for many workers on farms. The article concludes by proposing a new approach to regulating these committees, primarily with a view to promoting more effective but still legitimate organizing and collective bargaining for all farmworkers, in the absence of representative trade unions.
Freedom of Association, Collective Bargaining, Representation Gap, Low Union Density, Good Practice Farms, Western Cape Farmworkers, Fairtrade Standard for Hired Labour, South Africa
Negotiating Compliance When Employment Law Is Ambitious: The Case of the Duty to Employ after Maternity Leave
Authors: Mundlak Guy , Lyabock Inbar Borenshtein 
Published: April 2022

A simple discussion of compliance suggests that organizations either comply with or disobey the prescript of the legal norm, on the basis of a cost-benefit calculation. The literature on compliance has already demonstrated that this simple model of compliance does not fully capture the gamut of incentives for compliance, or the continuum of behaviours that ranges from defiance to compliance. Drawing on a case study of an Israeli legal norm that requires employers to reinstate workers after postpartum parental leave for sixty days, we seek to further unpack the notion of compliance along two axes. First, the duty to reinstate is ‘ambitious’ because it seeks to affect managerial bias and educate for virtue within organizations. Second, the study of compliance must open the fictitious black box of organizations, and reveal internal negotiations over the extent and form of compliance. Based on a qualitative study, we demonstrate that even a seemingly strict norm is applied and perceived differently, between and within the same organization. Findings identify the strengths as well as the shortcomings of the legal ambition to induce an educational experience in organizations.
Labour Law, Compliance, Enforcement, Parental Leave, Organizational Theory
Filling the Void? A Critical Analysis of Competition Regulation of Collective Bargaining Amongst Non-employees
Authors: McCrystal Shae , Hardy Tess 
Published: April 2022

The rise of the gig economy, and the expansion of self-employment more generally, have magnified pre-existing concerns about how to address the risk of exploitation of non-employees, including franchisees, freelance journalists and owner-driver transport workers, amongst others. In a bid to fill relevant regulatory gaps, and correct destructive power imbalances, many are turning their attention to the power and potential of collective bargaining.
At the same time, there is growing appreciation of how competition prohibitions against price-fixing may curb workers’ capacity to organize for decent wages and working conditions. There has been much discussion and debate about the need to expand existing labour exemptions from competition law in order to allow gig workers, and other vulnerable categories of selfemployed workers, to engage in lawful collective bargaining. Rather than fixating on questions of misclassification, however, this article considers a novel proposal emanating from the sphere of competition regulation in Australia.
After extensive consultation and prolonged Parliamentary debate, the Australian Competition and Consumer Commission (ACCC) has adopted a class exemption which provides a broad legal immunity to eligible small businesses, including self-employed workers, wishing to engage in collective bargaining. The ACCC’s Determination to extend collective bargaining rights to small businesses – with effect from 3 June 2021 – represents a highly progressive approach and one worthy of greater attention and deeper analysis.
To assess the regulatory value of this unique approach, we draw upon the International Labour Organization (ILO) standards relating to collective bargaining and freedom of association. In doing so, we critically assess the extent to which the ACCC’s approach offers a potential solution to resolving the tension between labour law and competition law when it comes to the regulation of self-employed workers. Somewhat surprisingly, we find that the class exemption largely complies with relevant ILO principles, despite the fact that it does little in terms of actively promoting or encouraging effective collective bargaining. For example, in line with ILO conceptions of voluntariness, the class exemption places virtually no restrictions on the scope, level or subject matter of the bargaining.
Ultimately, however, we argue that if collective bargaining is to have any chance of filling the regulatory void which exists between labour law and competition law, it is critical that basic structures and supports are in place to facilitate meaningful bargaining: where collective activity is supported by trade union autonomy and the right to engage in strikes in support of bargaining demands and concluded agreements.
Mercosur, Socio-Labour Declaration, Argentina, Brazil, Uruguay, Paraguay, Venezuela, Regional Integration, Labour Rights, Regional Trade Blocs, Latin America, Global South
Sustainable Development of Chinas Rare Earth Industry within and without the WTO
Authors: Gavin Brigid 
Published: April 2022

China's rise to become the dominant global producer of rare earth minerals has caused severe environmental damage and rapid depletion of its natural resources. To rectify these problems and achieve sustainable development of the industry, the Chinese government has adopted a policy of export restrictions which has led to conflict with its trade partners. A World Trade Organization (WTO) panel has judged China's policy to be in violation of its trade obligations which has been upheld in appeal. This article presents a broad analysis of sustainable development relating to the rare earth industry. In recognizing growing global demand for these minerals, which provide essential inputs for the new green technologies, it explores how a more complementary relationship between economic development and conservation of natural capital can be achieved. Improving resource efficiency throughout the whole production chain is of key importance for resource conservation. The use of adequate environmental technologies and effective environmental policies are key to minimizing the risks for environmental damage and human health. The new initiative for liberalization of Environmental Goods and Services (EGS) in the WTO can make leading environmental technologies available at a lower cost for China. But green trade liberalization alone cannot achieve sustainable development. A new form of international cooperation in the form of networked governance must operate alongside the WTO to combine governance of global economic and ecological integration. Since the publication of the Brundtland Report, the concept of sustainable development has been generally understood as the requirement to meet the needs of the current generation without compromising the ability of future generations to meet theirs.1 But this is a vague concept which has proved difficult to implement in practice. There is no internationally agreed method for measuring sustainable development and no internationally accepted indicators to monitor its progress in practice.2 In particular, there is no satisfactory indicator for 'natural capital' which is central to achieving sustainable development. Natural capital is defined as the stock of natural resources or environmental assets that yields a flow of useful goods and services into the future.3 This concept creates a new synthesis integrating two previously opposing world views. On the one hand, man-made capital which comprises physical, financial and human capital, has well-established roots in economic theory. On the other hand, natural capital, comprising natural resources and the environment has been developed more recently by ecological economics. Whereas, man-made capital has been traditionally treated as a scarce good which is priced accordingly in the market, natural capital has for long been considered as part of the 'global commons' and so largely treated as a free good.4 But this dichotomy is no longer tenable today.
Regulating Trade in Forest-Risk Commodities
Authors: Partiti Enrico 
Published: April 2022

There is considerable urgency in addressing the impact from the production of certain agricultural commodities on ecosystems and local communities. Forest-risk commodities (FRCs) such as cocoa, coffee, palm oil, rubber, soy, maize and beef generate negative impacts on deforestation, ecosystem destruction and human rights of the communities affected. In light of the international obligations entered into by the European Union (EU) and its Member States, this article proposes a possible measure regulating the entry into the EU market of FRCs via due diligence requirements for traders. It subsequently assesses its compliance with international trade law obligations under Articles I:1, III:4 and XX of the General Agreement on Tariffs and Trade (GATT). The article illustrates that it is possible to design World Trade Organization (WTO) compliant legislation addressing trade in FRCs. In assessing compatibility of the proposed measure, the article suggests possible approaches to implement sustainability criteria for FRCs.
WTO law, deforestation, forest-risk commodities, human rights due diligence, nondiscrimination, trade and environment, EU value chain regulation
The Sustainability of the WTO Dispute Settlement System: Does It Work for Developing Countries?
Authors: Wood Jacob , Wu Jie 
Published: April 2022

Our study provides an econometric analysis of whether developing countries are disadvantaged by theWorld Trade Organization’s (WTO’s) dispute settlement procedure. Despite the many successes of the Dispute Settlement Board (DSB), there is a need to better understand the overall effectiveness of the dispute mechanism. Using bilateral data of WTO members from 1995 to 2017, this article describes the influencing factors for developing countries’ participation in the dispute settlement process. By conducting a rare events logistic regression analysis, the results from this study show that the key factors that determine the ability for a developing country to initiate a dispute against another country include the export intensity, retaliation capability, economic power, and economic threat from potential defendant countries. This means that not all developing countries can participate in trade dispute settlement mechanisms, so the WTO dispute settlement system has relative legitimacy. In addition, we further compare and analyse the influence of these four dimensions over different time periods and in different target countries through seemingly unrelated estimations.
WTO, dispute settlement system, developing country