Search result: 422 articles

x
Case Reports

2019/47 Transfer of undertakings does not include temporary agency workers (AT)

Journal European Employment Law Cases, Issue 4 2019
Keywords Transfer of undertakings, Transfer, Employees who transfer/refuse to transfer
Authors Thomas B. Pfalz
AbstractAuthor's information

    In a series of rulings the Austrian Supreme Court has made it clear that temporary agency workers are transferred to the transferee only if they are assigned to the transferor on a permanent basis. According to the Court, the facts of the cases at hand are not comparable to those of the ECJ ruling in Albron Catering BV (C-242/09). Hence the temporary agency workers remain with their original employer. However, some aspects of the Court’s reasoning seem unclear if not contradictory with regard to other recent judgments.


Thomas B. Pfalz
Thomas B. Pfalz is a Senior Scientist at the Institute for Law at the University of Klagenfurt.

    The Federal Labour Court (Bundesarbeitsgericht – BAG) has decided that the entitlement to paid annual leave only expires at the end of the calendar year or at the end of a carry-over period if the employer has previously put the employee in a position to take his leave and yet the employee has not taken the leave out of his own free will. The court held that the employer must cooperate in granting the leave. He has to encourage the employee to take his – concrete numbered - leave and inform him accurately and in good time, that the entitlement to paid leave would otherwise expire.


Daniel Zintl
Daniel Zintl is an attorney-at-law with Luther Rechtsanwaltsgesellschaft mbH.
Rulings

ECJ 18 September 2019, case C-366/18 (Ortiz Mesonero), Maternity and parental leave

José Manuel Ortiz Mesonero – v – UTE Luz Madrid Centro, Spanish case

Journal European Employment Law Cases, Issue 4 2019
Keywords Maternity and parental leave
Abstract

Pending Cases

Case C-644/19, Fixed-term work, Age discrimination

FT – v – Universitatea ‘Lucian Blaga’ Sibiu, GS and Others, and Ministerul Educației Naționale, reference lodged by the Curtea de Apel Alba Iulia (Romania) on 28 August 2019

Journal European Employment Law Cases, Issue 4 2019
Keywords Fixed-term work, Age discrimination
Article

Access_open Mercosur: Limits of Regional Integration

Journal Erasmus Law Review, Issue 3 2019
Keywords Mercosur, European Union, regionalism, integration, international organisation
Authors Ricardo Caichiolo
AbstractAuthor's information

    This study is focused on the evaluation of successes and failures of the Common Market of the South (Mercosur). This analysis of Mercosur’s integration seeks to identify the reasons why the bloc has stagnated in an incomplete customs union condition, although it was originally created to achieve a common market status. To understand the evolution of Mercosur, the study offers some thoughts about the role of the European Union (EU) as a model for regional integration. Although an EU-style integration has served as a model, it does not necessarily set the standards by which integration can be measured as we analyse other integration efforts. However, the case of Mercosur is emblematic: during its initial years, Mercosur specifically received EU technical assistance to promote integration according to EU-style integration. Its main original goal was to become a common market, but so far, almost thirty years after its creation, it remains an imperfect customs union.
    The article demonstrates the extent to which almost thirty years of integration in South America could be considered a failure, which would be one more in a list of previous attempts of integration in Latin America, since the 1960s. Whether it is a failure or not, it is impossible to envisage EU-style economic and political integration in South America in the foreseeable future. So far, member states, including Brazil, which could supposedly become the engine of economic and political integration in South America, have remained sceptical about the possibility of integrating further politically and economically. As member states suffer political and economic turmoil, they have concentrated on domestic recovery before being able to dedicate sufficient time and energy to being at the forefront of integration.


Ricardo Caichiolo
Ricardo Caichiolo, PhD (Université catholique de Louvain, Belgium) is legal and legislative adviser to the Brazilian Senate and professor and coordinator of the post graduate programs on Public Policy, Government Relations and Law at Ibmec (Instituto Brasileiro de Mercado de Capitais, Brazil).
Article

Snapshot of the EU Soft Law Research Landscape

Main Issues and Challenges

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords soft law, normativity, bindingness, directive-like recommendations, hybridity
Authors Petra Lea Láncos
AbstractAuthor's information

    Inspired by research into international soft law norms, the last two decades have seen an intensified investigation of the non-binding measures of the EU. With the proliferation of such norms at EU level, attempts at a taxonomy of EU soft law have been undertaken. The present paper tries to map the current status of EU soft law research, highlighting possible directions for future research.


Petra Lea Láncos
Researcher, Deutsches Forschungsinstitut für öffentliche Verwaltung, Speyer; associate professor, Pázmány Péter Catholic University, Budapest.
Article

Legal Challenges of the Retention of Worker Status as Reflected in Recent Case-Law of the CJEU

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords free movement of workers, EU citizens, right to move and reside freely, retention of EU worker status, equal treatment, welfare benefits
Authors Laura Gyeney
AbstractAuthor's information

    In recent years, a growing number of cases related to the retention of worker status have emerged in CJEU jurisprudence with reference to welfare benefits, requiring a much deeper analysis of the field treated earlier as peripheral. Such an analysis seems especially justified in light of the current political and legal discourse concerning the issue of free movement, focusing on the question of equal treatment in the field of welfare assistance for mobile citizens. The purpose of this study is to present and put into context the relevant case-law of recent years by analyzing the judgments of the CJEU in two cases that are benchmarks in this field: the Tarola and Saint Prix cases. Both cases highlight the key role that economically active status continues to play in integration law. These judgments also shed light on the challenges arising from the difficulties in distinguishing between the economically active and inactive EU citizen statuses. This issue emerged as an increasingly grave problem in the field of law of free movement, posing a serious dilemma for law enforcement.


Laura Gyeney
Associate professor, Pázmány Péter Catholic University, Budapest.
Article

Key Factors of the Development and Renewal of the Social Market Economy in the EU

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2019
Keywords Europe 2020 strategy, social market economy, eco-social market economy, social welfare systems, EU structural funds
Authors István Kőrösi
AbstractAuthor's information

    The purpose of this study is to present the principles, strategy and operation of the social market economy, based on legal, political and economic considerations. The first social market economy, West Germany – followed by Austria, the Netherlands, as well as other countries in Northern and Western Europe –, mustered a positive overall performance from the post-World War II years to the early 1970s. Since then, however, we have been witnessing the erosion, distortion and decline of efficiency of the social market economy. There are four main issues to be addressed: (i) What are the main theoretical and conceptual, ‘eternal’ elements of the social market economy? (ii) What economic policy was built on this theoretical foundation and why did the system work well in Western Europe after World War II? (iii) What factors eroded this system? (iv) Can social market economy be renewed in the second decade of the 21st century and, if it can, what are the preconditions of it? In my analysis, I highlight some key areas: EU policies, Lisbon Agenda and Europe 2020 strategy, growth, financial disequilibria and competitiveness, innovation and employment, the relation of state and market.


István Kőrösi
Associate professor, Pázmány Péter Catholic University, Budapest; senior research fellow, World Economic Institute of ERRC of the Hungarian Academy of Sciences.
Article

Access_open Levying VAT in the EU Customs Union: Towards a Single Indirect Tax Area? The Ordeal of Indirect Tax Harmonisation

Journal Erasmus Law Review, Issue 3 2019
Keywords single indirect tax area, VAT action plan, quick fixes, e-commerce package, definitive VAT system
Authors Ben Terra
AbstractAuthor's information

    This contribution deals with the latest proposals regarding levying VAT in the European Union (EU) Customs Union. The present system, which has been in place since 1993 and was supposed to be transitional, splits every cross-border transaction into an exempted cross-border supply and a taxable cross-border acquisition. It is like a customs system, but lacks equivalent controls and is therefore the root of cross-border fraud. After many years of unsuccessful attempts, the Commission abandoned the objective of implementing definitive VAT arrangements based on the principle of taxing all cross-border supplies of goods in the Member State of their origin, under the same conditions that apply to domestic trade including VAT rates. The European Parliament and the Council agreed that the definitive system should be based on the principle of taxation in the Member State of the destination of the goods. After a brief discussion of the VAT Action Plan of 2016 (Section 1), the e-commerce package in the form of Directive (EU) 2017/2455 is dealt with (Section 2), followed by the proposal to harmonise and simplify certain rules in the VAT system and introduce the definitive system, only partially adopted (Section 3). Section 4 deals with the proposal to introduce detailed measures of the definitive VAT system. The proposed harmonisation and simplification of certain rules were meant to become applicable on 1 January 2019, but will become only partially applicable on 2020. It is proposed to make the detailed measures of the definitive VAT system applicable in 2022. It remains to be seen whether the Member States are willing to accept the definitive VAT system at all; hence the subtitle ‘the ordeal of indirect tax harmonisation’.


Ben Terra
Prof. Dr. Dr. h.c. Ben Terra was a professor of tax law at the universities of Amsterdam and Lund and visiting professor at the Universidade Católica in Lisbon.
Article

Access_open The Foundations of the Internal Market: Free Trade Area and Customs Union under Articles 28-31 TFEU

Journal Erasmus Law Review, Issue 3 2019
Keywords free trade area, EU Customs Union, internal market, European Union, Brexit
Authors Stefan Enchelmaier
AbstractAuthor's information

    This contribution places the provisions of the Treaty creating a free trade area and customs union between the Member States (Articles 28-31 TFEU) in their wider context. It then focuses on the interpretation of Article 30 in the jurisprudence of the Court of Justice of the European Union (CJEU). Throughout, it casts sideways glances at corresponding provisions of General Agreement on Tariffs and Trade (GATT). As it turns out, the abolition of customs duties and charges having equivalent effect, and the establishment of a customs union between Member States, were important milestones in the development of European unification. They became overshadowed later by more spectacular developments in the case law on the free movement of goods, persons and services. As a consequence, the importance of the customs provisions is widely underrated. Brexit concentrates the minds in this respect, as an important economy is about to rearrange and even recreate the basic building blocks of its international trading relations.


Stefan Enchelmaier
Stefan Enchelmaier, Dr iur (Bonn) habil (Munich) LLM (Edinb) MA (Oxon) is Professor of European and Comparative Law at Lincoln College, University of Oxford.
Article

Access_open The Dutch International Responsible Business Conduct Agreements

Effective Initiatives?

Journal Erasmus Law Review, Issue 4 2019
Keywords IRBC Agreements, effectiveness, OECD due diligence, access to remedy
Authors Martijn Scheltema
AbstractAuthor's information

    This contribution analyses the effectiveness of the Dutch International Responsible Business Conduct (IRBC) agreements and suggests some avenues for improvement. Several challenges in connection with effectiveness have been identified in evaluations of the IRBC agreements, and these are used as a starting point for the analysis. The focus is on three themes: (i) uptake, leverage and collaboration; (ii) implementation of OECD due diligence including monitoring and (iii) access to remedy. This contribution shows that low uptake may not be a sign of ineffectiveness per se, although in terms of leverage a sufficient number of participants or collaboration between agreements seems important. In connection with due diligence, it is recommended to align the implementation of OECD due diligence. Furthermore, an effective monitoring mechanism by a secretariat, as is currently implemented in the Textile agreement only, is most likely to bring about material changes in business behaviour. Other types of supervision seem less effective. Access to remedy poses a challenge in all IRBC agreements. It is recommended that the expectations the agreements have on access to remedy be clarified, also in connection with the role of signatories to the agreements in cases where they are directly linked to human rights abuse. Furthermore, it is recommended that a dispute resolution mechanism be introduced that enables complaints for external stakeholders against business signatories, comparable to that of the Textile agreement. However, rather than implementing separate mechanisms in all agreements, an overarching mechanism for all agreements should be introduced.


Martijn Scheltema
Martijn Scheltema is Professor of Private law at Erasmus School of Law, Erasmus University Rotterdam.
Article

Access_open Consumer Social Responsibility in Dutch Law

A Case Study on the Role of Consumers in Energy Transition

Journal Erasmus Law Review, Issue 4 2019
Keywords consumer, energy transition, social responsibility, Dutch law, EU law
Authors Katalin Cseres
AbstractAuthor's information

    As our economies continue to focus on growth, competition and maximisation of consumer choice, the global increase in consumption takes vast environmental and social costs and cause irreversible harm to our climate and environment. The urgency of reducing human footprint and to diminish one of the root causes of a declining climate and environment is irrefutable. In the shift that globally has to take place, a decentralised energy system relying on more distributed generation, energy storage and a more active involvement of consumers form a crucial component of renewable energy solutions. The move from a highly centralised to a more decentralised power system involves an increasing amount of small-scale (intermittent) generation from renewable energy which is located closer to the point of final consumption. In order to steer consumption towards sustainability national governments and supranational organisations have adopted policies and corresponding legislation that address individual consumers as rational and active choice-makers who make socially responsible choices when they receive the ‘right’ amount of information. By relying on insights from modern consumption theories with contributions from sociology, this article questions the effectiveness and legitimacy of these ‘consumer-centred’ policies and laws. First, the article argues that the single focus on individual consumer behaviour as a rational and utility maximising market actor fails to take into account the complexity of consumption, which is fundamentally influenced by social norms and its broader institutional setting. Although consumers are willing to consume more sustainably, they are often ‘locked in by circumstances’ and unable to engage in more sustainable consumption practices even if they want to. Second, by relying on evidence from sociological studies the article argues that individual consumers are not the most salient actors in support of sustainable consumption. Even though the urgency of the energy transition and the critical role consumers play in (un)sustainable energy consumption is acknowledged in both the EU and its Member States, their laws and policies remain grounded on goals of economic growth with competitive economies, the sovereignty of consumer choice and wealth maximisation, instead of aiming at slower economic growth or even degrowth, reducing overall resource use and consumption levels and introducing radically different ways of consumption.
    Third, the role of law is underlined as a social institution both as a constraint on the autonomous acts of consumption, dictating the normative frameworks within which the role of consumer is defined, and as a facilitator which consumers might also employ, in order to determine for themselves particular normative parameters within which consumption can occur.
    The Netherlands, which serves as a case study in this article, has reached important milestones in its energy transition policy since 2013. Still, it remains strongly focused on economic rationality and market competitiveness. Even though various models of consumer participation exist and local consumer energy initiatives are flourishing and are recognised as key actors in the energy transition, they remain embedded in institutional, structural and behavioural settings where consumers still face challenging sociocultural barriers to sustainable practices.
    In light of these legal, political and social complexity of energy transition, the article offers a critical analysis of the current Dutch law in its broader legal context of EU law in order to answer the question what the role of (energy) law is in steering consumers towards sustainable energy consumption.


Katalin Cseres
Katalin Cseres is Associate Professor of Law, Amsterdam Centre for European Law & Governance (ACELG), University of Amsterdam.
Article

Delimiting Deportation, Unlawful Transfer, Forcible Transfer and Forcible Displacement in International Criminal Law

A Jurisprudential History

Journal African Journal of International Criminal Justice, Issue 1 2019
Keywords International criminal law, theory of international law, crimes against humanity, deportation, unlawful or forcible transfer
Authors Ken Roberts and James G. Stewart
AbstractAuthor's information

    The forced displacement of civilian populations is an issue of significant global concern and a subject of extensive legal debate. In international criminal law, forced displacement is criminalized by a complex network of distinct but overlapping offences. These include the Crimes Against Humanity of deportation, forcible transfer, persecution and other inhumane acts, and the grave breach of the Geneva Conventions of ‘unlawful deportation or transfer’. International courts and tribunals have been inconsistent in the adoption of these crimes in their statues and in their subsequent interpretation, making it all the more difficult to distinguish between them. The jurisprudential history of these crimes is lengthy and not without controversy, highlighted by inconsistent judicial approaches. In this article, we offer a critical jurisprudential history of these displacement crimes in international criminal law.
    In particular, we focus on the case law emanating from the International Criminal Tribunal for the former Yugoslavia, a court that comprehensively addressed crimes associated with ethnic cleansing, a characteristic feature of that conflict, with the result that displacement was a central focus of that court. We set out our jurisprudential history in chronological order, beginning with the earliest inceptions of displacement crimes at the ICTY and then tracing their development toward the establishment of a consensus. Our hope is that the article sheds light on the development of these offences, informs future debate, and acts as a useful template for those seeking to understand how these crimes may have a role to play in future international jurisprudence.


Ken Roberts
Ken Roberts is Senior Legal Officer, International, Impartial and Independent Mechanism (Syria).

James G. Stewart
James G. Stewart is Associate Professor, Allard School of Law, University of British Columbia.
Human Rights Practice Reviews

Ukraine

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Dr. Tetyana Antsupova
Author's information

Dr. Tetyana Antsupova
Dr. Habil, Judge of the Supreme Court Grand Chamber (Ukraine).

    The Polish Supreme Court has held that a criterion of discrimination may also be a relationship of a social or familial nature that exists in the workplace and whose existence or absence on the part of the employee results in different treatment by the employer.


Marcin Wujczyk
Marcin Wujczyk is an attorney at law at Wardyński & Partners, Poland (https://www.wardynski.com.pl).

    The author discusses the recent ECJ judgments in the cases Egenberger and IR on religious discrimination.


Andrzej Marian Świątkowski
Andrzej Marian Świątkowski, is a Jean Monet Professor of European Labour Law and Social Security, Jesuit University Ignatianum, Krakow, Poland and a member of the EELC Academic Board.

    The decision pronounced by the first instance court related to the right of professional foster parents to request payment in lieu of untaken annual leave based on ECJ case law has been overruled by the Court of Appeal by making reference to a different ECJ ruling.


Andreea Suciu
Andreea Suciu is the Managing Partner and Gabriela Ion is an associate at Suciu | The Employment Law Firm (https://www.suciu-employmentlaw.ro).

Gabriela Ion
Pending Cases

Case C-483/19, Fixed-term work

Ville de Verviers – v – J, reference lodged by the Cour du travail de Liège (Belgium) on 24 June 2019

Journal European Employment Law Cases, Issue 3 2019
Keywords Fixed-term work
Abstract

Pending Cases

Case C-326/19, Fixed-term work

EB – v – Presidenza del Consiglio dei Ministri and Others, reference lodged by the Tribunale Amministrativo Regionale per il Lazio (Italy) on 23 April 2019

Journal European Employment Law Cases, Issue 3 2019
Keywords Fixed-term work
Abstract

    In a recent judgment, the Danish Supreme Court has established that it does not constitute unlawful discrimination under the Anti-Discrimination Act when a disabled employee is dismissed. The employee had a publicly funded reduced-hours job, but reached the statutory retirement age for which reason the public funding lapsed, and that was the reason for the dismissal.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.
Showing 81 - 100 of 422 results
1 2 3 5 7 8 9 21 22
You can search full text for articles by entering your search term in the search field. If you click the search button the search results will be shown on a fresh page where the search results can be narrowed down by category or year.