The Federal Labour Court of Germany (Bundesarbeitsgericht, ‘BAG’) has decided that a social plan that distinguished between employees who were born in 1960 or later and employees who were born before 1960 for the calculation of severance payment did not constitute unjustified age discrimination. However, a regulation in a social plan which referred to the “earliest possible” entitlement to a statutory pension when calculating the severance payment constituted unjustified indirect discrimination against disabled persons. |
Search result: 5190 articles
Case Reports |
2020/15 Discrimination against severely disabled persons by the calculation of social plan compensation (GE) |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Disability Discrimination, Age Discrimination |
Authors | Iness Gutt |
AbstractAuthor's information |
Pending Cases |
Case C-194/20, Work and Residence PermitBY and others – v – City of Duisburg, reference lodged by the Verwaltungsgericht Düsseldorf (Germany) on 7 May 2020 |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Work and Residence Permit |
Rulings |
ECJ 4 June 2020, case C-828/18 (Trendsetteuse), MiscellaneousTrendsetteuse SARL – v – DCA SARL, French case |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Miscellaneous |
Abstract |
A person does not necessarily need to have the power to change prices of goods which he sells as an agent for his principal, to be classified as commercial agent within the meaning of Article 1(2) of Directive 86/653/EEC. |
Pending Cases |
Case C-71/20, Work and residence permitAnklagemyndigheden – v – VAS Shipping ApS, reference lodged by the Østre Landsret (Denmark) on 12 February 2020 |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Work and residence permit |
Rulings |
ECJ 25 June 2020, case C-570/18 P (HF – v – Parliament), Health and SafetyHF- v – European Parliament, EU Case |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Health and Safety |
Abstract |
Within the context of a claim of psychological harassment, based on Article 41 of the Charter of Fundamental Rights of the European Union, the EP’s Director-General for Personnel should have provided claimant at the least with a summary of the records of witness hearings drafted by the Advisory Committee. The annulment of the decision at issue constitutes appropriate compensation for any non-material damage which the appellant may have suffered in the present case. |
Case Reports |
2020/22 Works council’s right to inspect remuneration lists (GE) |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Information and Consultation, Privacy |
Authors | Robert Pacholski |
AbstractAuthor's information |
The Federal Labour Court (Bundesarbeitsgericht, “BAG”) has held that a works council must be provided with the documents necessary for carrying out its duties at any time on request. A works committee or another committee of the works council formed in accordance with the provisions of the Works Constitution Act (Betriebsverfassungsgesetz, “BetrVG”) is entitled to inspect the lists of gross wages. This right to inspect is not limited to anonymized gross pay lists. Data protection considerations do not dictate that the right is limited to anonymized gross payrolls. The processing of personal data associated with the right of inspection is permitted under the European General Data Protection Regulation (“GDPR”) and the German Federal Data Protection Act (Bundesdatenschutzgesetz, “BDSG”). |
Rulings |
ECJ 23 April 2020, case C-710/18 (Land Niedersachsen (Périodes antérieures d’activité pertinente)), Other Forms of Free Movement, Terms of EmploymentWN – v – Land Niedersachsen, German case |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Other Forms of Free Movement, Terms of Employment |
Abstract |
A limitation of taking into account relevant work experience gained in a Member State other than the home Member State for the purpose of determining the level of remuneration is contrary to Article 45 TFEU. |
Rulings |
ECJ 30 April 2020, case C-211/19 (UO – v – Készenléti Rendőrség), Working timeUO – v – Készenléti Rendőrség, Hungarian case |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Working Time |
Abstract |
The referring court must verify whether Article 2(1) and (2) of Directive 2003/88/EC apply to members of the law enforcement agencies who guard the external border of a Member State in the event of an influx of third-party nationals at those borders. |
Rulings |
ECJ 14 May 2020, case C-17/19 (Bouygues travaux publics and Others), Social InsuranceBouygues travaux publics, Elco construct Bucarest, Welbond armatures – criminal proceedings, French case |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Social Insurance |
Abstract |
In case C-17/19 (Bouygues travaux publics and Others), the ECJ found that an E-101 Certificate, issued by the competent institution of a Member State, to workers employed in the territory of another Member State, and an A-1 Certificate, issued by that institution to such workers, are binding on the courts or tribunals of the latter Member State solely in the area of social security. |
Pending Cases |
Case C-942/19, Fixed-term WorkServicio Aragonés de la Salud – v – LB, reference lodged by the Tribunal Superior de Justicia de Aragón (Spain) on 31 December 2019 |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Fixed-term Work |
Article |
The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against HumanityIncitement/Conspiracy as Missing Modes of Liability |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | modes of liability, International Law Commission, crimes against humanity, incitement, conspiracy |
Authors | Joseph Rikhof |
AbstractAuthor's information |
The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity does not include the inchoate crimes of conspiracy or incitement. However, this choice has generated a great deal of academic commentary. This article critically assesses the choice of the drafters to exclude conspiracy and incitement liability, arguing that their decision was flawed. It examines the comments made by academics, as well as participants in the work of the Commission on this draft convention. Additionally, it scrutinizes the methodology employed by the Commission in reaching this conclusion. Finally, it presents a conceptual analysis of the desirability for the inclusion of these two inchoate crimes, arguing that their inclusion would assist in meeting the policy of preventing crimes against humanity. |
Article |
A Civil Society Perspective on the ILC Draft Convention on Crimes Against Humanity |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | crimes against humanity, impunity, aut dedere aut judicare, amnesties, reservations |
Authors | Hugo Relva |
AbstractAuthor's information |
In a relatively short period of time, the International Law Commission has accomplished the impressive task of drafting and adopting the text of the Draft Articles on Prevention and Punishment of Crimes against Humanity. The Draft Articles circulated to states are promising. However, a number of substantive amendments appear to be necessary if the Draft Convention is to become a powerful tool “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”, as stated in the Preamble. Moreover, in order to avoid the rapid ossification of the new potential treaty, it is advisable for the articles to reflect the most significant developments in international law, and also allow for future progressive developments in the law, instead of reflecting a lowest common denominator acceptable to all states. This article suggests some revisions to existing provisions, new provisions which may make the text much stronger and finally identifies some important omissions which should be fixed by states at the time of adopting the Draft Convention. |
Article |
The ILC Draft Articles on Crimes Against HumanityAn African Perspective |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | Africa, norm creation, crimes against humanity, colonial crimes, official immunity |
Authors | Alhagi B.M. Marong |
AbstractAuthor's information |
Africa’s contribution towards the development of the International Law Commission (ILC) Draft Articles should not be assessed exclusively on the basis of the limited engagement of African States or individuals in the discursive processes within the ILC, but from a historical perspective. When analysed from that perspective, it becomes clear that Africa has had a long connection to atrocity crimes due to the mass victimization of its civilian populations during the colonial and postcolonial periods and apartheid in South Africa. Following independence in the 1960s, African States played a leading role in the elaboration of legal regimes to deal with international crimes such as apartheid, or in the development of accountability mechanisms to respond to such crimes. Although some of these efforts proved unsuccessful in the end, the normative consensus that was generated went a long way in laying the foundations for the Rome Statute of the International Criminal Court, which, in turn, influenced the conceptual framework of the ILC Draft Articles. This article proposes that given this historical nexus, the substantive provisions and international cooperation framework provided for in the future crimes against humanity convention, Africa has more reasons to support than to oppose it when negotiations begin at the United Nations General Assembly or an international diplomatic conference. |
Article |
Time to DeliverDefining a Process Towards the Negotiation of a Convention on the Prevention and Punishment of Crimes Against Humanity |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | Sixth Committee, International Law Commission, intergovernmental negotiations, multilateral treaties, treaty-making process |
Authors | Pablo Arrocha Olabuenaga |
AbstractAuthor's information |
In 2019, the International Law Commission (ILC) adopted its articles on the prevention and punishment of crimes against humanity and referred them to the UN General Assembly with the recommendation of adopting a multilateral treaty based on them. The General Assembly’s Sixth Committee was unable to take a decision on this matter and deferred its consideration to 2020. This article focuses on how, in resuming its discussion, the Sixth Committee will have a unique opportunity to define the process towards intergovernmental negotiations. This will close a gap in international criminal law, while generating a new dynamic in its relationship with the ILC on codification, breaking its current cyclical inertia of inaction. |
Article |
Crimes Against Humanity in the “Western European & Other” Group of StatesA Continuing Tradition |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | crimes against humanity, Western Europe and Other Group of States, WEOG, Draft Articles on the Prevention and Punishment of Crimes Against Humanity |
Authors | Beth Van Schaack |
AbstractAuthor's information |
The Western Europe and Other Group of states have a long history with crimes against humanity. They were pivotal in the juridical creation of this concept, in launching prosecutions in both international and national courts, and in formulating the modern definition of the crime. However, some members have expressed concerns around the International Law Commissions Draft Articles on the Prevention and Punishment of Crimes Against Humanity. This article provides a summary of the history of crimes against humanity in the Western Europe and Other Group of states, as well as the current status of crimes against humanity in their legal systems. It argues that although these states have successfully incorporated crimes against humanity into their legal frameworks, it would be beneficial for them to embrace the proposed Crimes Against Humanity Convention. |
Article |
Defining Crimes Against HumanityPracticality and Value Balancing |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | crimes against humanity, Rome Statute, Draft Articles, state sovereignty |
Authors | Margaret M. deGuzman |
AbstractAuthor's information |
Since crimes against humanity were first defined in the Charters of the International Military Tribunals at Nuremberg and for the Far East, various international, hybrid and national institutions have adopted definitions that differ in important respects. The International Law Commission’s draft articles are the latest definition, using language that is almost identical to the definition in the Rome Statute of the International Criminal Court. This article explains that decision, as well as the few divergences between the draft articles and the Statute. Defining crimes against humanity involves balancing the value of respecting state sovereignty against that of protecting human rights, and the values of consistency and clarity against those of breadth and flexibility. It argues that in adopting the draft articles, states will affirm the balance among these values that was struck in Rome, but that both definitions contain sufficient flexibility to permit new balances to be found as global values evolve. |
Article |
Relating to ‘The Other’The ILC Draft Convention on Crimes Against Humanity and the Mutual Legal Assistance Initiative |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | International Law Commission (ILC), Draft Convention on Crimes Against Humanity, Mutual Legal Assistance (MLA) initiative, crimes against humanity, international criminal law |
Authors | Larissa van den Herik |
AbstractAuthor's information |
The International Law Commission (ILC) Draft Convention on Crimes Against Humanity and the Mutual Legal Assistance (MLA) Initiative have largely run in tandem throughout their development. Both projects are motivated by similar gap-filling desires and both projects aim to expand the international criminal justice toolkit; however, these similarities have led to questions if both projects are necessary. This article addresses that question, looking at how different actors have answered this question during the respective processes of maturation of both projects and where both projects stand today. It argues that, while there is significant overlap between the projects, both instruments have merits which the other is lacking, and the optimal solution would be to bring both projects to fruition. |
Article |
Unlocking the Sixth Committee’s Potential to Act for Crimes Against Humanity as It Did for Genocide |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | crimes against humanity, General Assembly, International Law Commission, Sixth Committee, United Nations |
Authors | Michael Imran Kanu |
AbstractAuthor's information |
The International Law Commission, on completion of its work on the draft articles on prevention and punishment of crimes against humanity, recommended to the General Assembly the elaboration of a convention by the said Assembly or by an international conference of plenipotentiaries based on the said draft articles. The Sixth Committee of the United Nations General Assembly at the first opportunity only took note of the draft articles and postponed consideration of the recommendation to its next session. The resolution of the General Assembly, as recommended by the Sixth Committee, does not readily disclose the full extent of the debate, proposals and concerns expressed in the Sixth Committee that prevented the General Assembly from acting on the Commission’s recommendation. This article, in considering the cornucopia of views expressed by States, outlines a path to unlock the Sixth Committee’s potential to act, by proposing a separation of the organizational and substantive matters and future-proofing the further consideration of elaborating a convention through the adoption of a structured approach. |
Editorial |
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Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Authors | Sean D. Murphy |
Author's information |