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Article

On Lessons Learned and Yet to Be Learned

Reflections on the Lithuanian Cases in the Strasbourg Court’s Grand Chamber

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords human rights, European Convention on Human Rights, European Court of Human Rights, Lithuania
Authors Egidijus Kūris
Abstract

    During the two-and-a-half decades while Lithuania has been a party to the European Convention on Human Rights, the Grand Chamber of the European Court of Human Rights has decided five Lithuanian cases. They all (perhaps but one) raised controversial issues not only of law but also of those pertaining to matters non-legal: psychology, politics, history and so on. There had been follow-ups to most of them, allowing for consideration as to the merits and disadvantages of the respective judgments. These cases are narrated on in their wider-than-legal context and reflected upon from the perspective of their bearing on these issues and of the lessons they taught both to Lithuania, as a respondent State, and to the Court itself.


Egidijus Kūris
Article

Reasoning in Domestic Judgments in New Democracies

A View from Strasbourg

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords European Court of Human Rights, Article 6, new democracies, reasoning in domestic judgments
Authors Dragoljub Popović
AbstractAuthor's information

    One of the shortcomings in the functioning of the justice systems in new democracies consists of insufficient reasoning in judgments. The European Court of Human Rights (Court) had to deal with the issue in cases in which applicants invoked Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). The Court’s case law developments concerning the issue are analysed in this article. The general rule emerged in leading cases and was subsequently followed. It says there is an obligation incumbent on national courts to provide reasons for their judgments. Therefore, insufficient reasoning in a judgment given at the domestic level of jurisdiction provides grounds for finding a violation of Article 6 of the Convention. The problem of lack of adequate reasoning in domestic judgments has been given attention among scholars, judges and practising lawyers in new democracies. The Court’s jurisprudence provides guidance to solutions aimed at improvement of the administration of justice in those countries, which are Member States of the Convention.


Dragoljub Popović
Former judge of the ECtHR, attorney-at-law at the Belgrade Bar, professor of law at Union University (Belgrade, Serbia) and a visiting professor at Creighton University (Omaha, NE, USA).
Human Rights Practice Reviews

Albania

Journal East European Yearbook on Human Rights, Issue 1 2019
Authors Anisia Mandro LLM
Author's information

Anisia Mandro LLM
Anisia Mandro (European Union Law - LLM), Legal Researcher and Legal Adviser in the area of competition law, data protection, and human rights; Consultant in approximation of national legislation with EU acquis Communautaire.
Article

Primus Inter Pares? In Search of ‘Fundamental’ Human Rights

Journal East European Yearbook on Human Rights, Issue 1 2019
Keywords hierarchy, jus cogens, International Court of Justice, European Court of Human Rights, Inter-American Court of Human Rights
Authors Julia Kapelańska-Pręgowska
AbstractAuthor's information

    International human rights law is one of the most developed and codified regimes (branches) of public international law. Since 1948 and the adoption of the Universal Declaration of Human Rights, the number and scope of human rights standards evolved considerably. Prima facie this tendency reflects a generally positive phenomenon and is driven by the human rights approach in international law, but at the same time it may raise questions of the system’s efficiency, internal coherence, hierarchy of rights and mechanisms of protection and monitoring. Against the richness of human rights standards, designations such as ‘fundamental’, ‘essential’, ‘basic’, ‘crucial’ or ‘core’ are being used and ascribed to diverse concepts (inter alia, customary international human rights, erga omnes obligations, non-derogable rights, jus cogens or absolute rights). The article explores the provisions of general human rights instruments – the UDHR, the two Covenants and regional treaties, as well as relevant case-law of the ICJ, ECtHR and IACtHR in search of a definition and catalogue of fundamental human rights.


Julia Kapelańska-Pręgowska
Chair of Human Rights, Faculty of Law and Administration, Nicolaus Copernicus University in Toruń, Poland.

    This was a case alleging detrimental treatment for whistleblowing brought by an employee working outside the UK against two co-workers also working abroad in the same location. The Court of Appeal (CA) ruled that there was no jurisdiction for the Employment Tribunal (ET) to hear the claim in relation to personal liability of the co-workers because they were outside the scope of UK employment law. The CA’s judgment potentially has implications for other types of claim brought by UK employees posted abroad where similar personal liability provisions apply, such as discrimination and harassment.


Richard Lister
Richard Lister is a Managing Practice Development Lawyer at Lewis Silkin LLP.
Pending Cases

Case C-314/19, Transfer of undertakings

R.C.C. – v – M.O.L., reference lodged by the Tribunal Superior de Justicia de Castilla-La Mancha (Spain) on 16 April 2019

Journal European Employment Law Cases, Issue 3 2019
Keywords Transfer of undertakings
Abstract

Pending Cases

Case C-310/19 (P), Miscellaneous

Boudewijn Schokker – v – European Aviation Safety Agency (EASA), Appeal against the order of the General Court (Eighth Chamber) on 8 February 2019 in Case T-817/17

Journal European Employment Law Cases, Issue 3 2019
Keywords Miscellaneous
Abstract

    A number of collective labour agreements unjustifiably have excluded allowances from holiday pay. Recently, social partners have had difficulties in repairing these flaws. Two recent cases demonstrate this, both similar claims but with different outcomes. This leaves social partners with the problem of how to proceed.


Jan-Pieter Vos
Jan-Pieter Vos is a lecturer of Labour Law at the Erasmus University Rotterdam, the Netherlands and editor of EELC.

    In two appeal cases considered jointly, the Court of Appeal (CA) has ruled that it is not direct or indirect sex discrimination, nor a breach of equal pay rights, to provide enhanced pay for maternity leave and statutory pay only for shared parental leave (SPL).


Richard Lister
Richard Lister is a Managing Practice Development Lawyer at Lewis Silkin LLP.

    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.
Case Reports

2019/34 Reduction of annual leave during parental leave is lawful (GE)

Journal European Employment Law Cases, Issue 3 2019
Keywords Maternity and parental leave
Authors Nina Stephan and David Meyer
AbstractAuthor's information

    The Higher Labour Court of Berlin-Brandenburg (Landesarbeitsgericht (LAG)) has held that the pro rata reduction of annual leave depending on the period of parental leave is lawful. In general, statutory holiday entitlement also exists for the period of parental leave. However, the employer has the right to reduce leave pro rata for each full month of parental leave according to Section 17 paragraph 1 sentence 1 of the Federal Parental Allowances and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz (BEEG)). The proportional reduction is in line with European law.


Nina Stephan
Nina Stephan is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

David Meyer
David Meyer is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH.

    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

    The Luxembourg Court of Appeal (Cour d’appel de Luxembourg) confirmed that an employee dismissed with notice and exempted from performing their work during the notice period is no longer bound by the non-competition duties arising from their loyalty obligation and can therefore engage in an employment contract with a direct competitor of their former employer during that exempted notice period. However, the Court of Appeal decided that, even if the former employee is in principle entitled to use the know-how and knowledge they acquired with their former employer, the poaching of clients during the notice period must, due to the facts and circumstances and in the light of the rules applicable in the financial sector, be considered as an unfair competition act and therefore constitutes serious misconduct justifying the termination of the employment contract with immediate effect.


Michel Molitor
Michel Molitor is the managing partner of MOLITOR Avocats à la Cour SARL in Luxembourg, www.molitorlegal.lu.

Régis Muller
Régis Muller is partner within the Employment, Pension & Immigration department of MOLITOR Avocats à la Cour SARL in Luxembourg, www.molitorlegal.lu.
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

    Under a former Austrian law effective until February 2019, Good Friday was a public holiday only for a minority belonging to certain Christian Evangelical churches. In the case at hand, Austrian courts had to assess if this regulation and its legal consequences were valid under European Union law, or if they constituted discrimination.


Dr. Jana Eichmeyer LL.M
Dr. Jana Eichmeyer, LL.M is a lawyer at Eisenberger & Herzog in Vienna (www.ehlaw.at).

Dr. Karolin Andréewitch
Dr. Karolin Andréewitch is a lawyer at Eisenberger & Herzog in Vienna (www.ehlaw.at).

    Both the French Supreme Court and the Versailles Court of Appeal held that an employer, who must ensure that liberties and fundamental rights of each employee are respected in the working community, may lawfully prohibit the wearing of any visible sign of political, philosophical or religious beliefs in the workplace, provided that the rule contained in the company rules and regulations applies without distinction to employees in direct contact with the customers of the company only. But in the absence of such rules, sanctioning an employee who refuses to remove her Islamic veil based on the wish of a customer, which does not qualify as a genuine and determining occupational requirement, amounts to an unlawful direct discrimination and should consequently be held null and void.


Claire Toumieux
Claire Toumieux is partner and Thomas Robert is an attorney at Allen & Overy LLP in Paris, France.

Thomas Robert

    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.
Article

Access_open Commercial Litigation in Europe in Transformation: The Case of the Netherlands Commercial Court

Journal Erasmus Law Review, Issue 1 2019
Keywords international business courts, Netherlands Commercial Court, choice of court, recognition and enforcements of judgements
Authors Eddy Bauw
AbstractAuthor's information

    The judicial landscape in Europe for commercial litigation is changing rapidly. Many EU countries are establishing international business courts or have done so recently. Unmistakably, the approaching Brexit has had an effect on this development. In the last decades England and Wales – more precise, the Commercial Court in London - has built up a leading position as the most popular jurisdiction for resolving commercial disputes. The central question for the coming years will be what effect the new commercial courts in practice will have on the current dominance of English law and the leading position of the London court. In this article I address this question by focusing on the development of a new commercial court in the Netherlands: the Netherlands Commercial Court (NCC).


Eddy Bauw
Professor of Private Law and Administration of Justice at Molengraaff Institute for Private Law and Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University. Substitute judge at the Court of Appeal of Arnhem-Leeuwarden and the Court of Appeal of The Hague.
Article

Access_open The Brussels International Business Court: Initial Overview and Analysis

Journal Erasmus Law Review, Issue 1 2019
Keywords international jurisdiction, English, court language, Belgium, business court
Authors Erik Peetermans and Philippe Lambrecht
AbstractAuthor's information

    In establishing the Brussels International Business Court (BIBC), Belgium is following an international trend to attract international business disputes to English-speaking state courts. The BIBC will be an autonomous business court with the competence to settle, in English, disputes between companies throughout Belgium. This article focuses on the BIBC’s constitutionality, composition, competence, proceedings and funding, providing a brief analysis and critical assessment of each of these points. At the time of writing, the Belgian Federal Parliament has not yet definitively passed the Bill establishing the BIBC, meaning that amendments are still possible.


Erik Peetermans
Erik Peetermans is a legal adviser at the Federation of Enterprises in Belgium (FEB).

Philippe Lambrecht
Philippe Lambrecht is the Director-Secretary General at the Federation of Enterprises in Belgium (FEB).
Article

Access_open The Singapore International Commercial Court: The Future of Litigation?

Journal Erasmus Law Review, Issue 1 2019
Keywords international commercial court, Singapore, dispute resolution, litigation
Authors Man Yip
AbstractAuthor's information

    The Singapore International Commercial Court (‘SICC’) was launched on 5 January 2015, at the Opening of Legal Year held at the Singapore Supreme Court. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC’s track record and what does it tell us about its future? This article seeks to answer these questions at greater depth than existing literature. Importantly, it examines these questions from the angle of reimagining access of justice for litigants embroiled in international commercial disputes. It argues that the SICC’s enduring contribution to improving access to justice is that it helps to change our frame of reference for international commercial litigation. Hybridisation, internationalisation, and party autonomy, the underpinning values of the SICC, are likely to be the values of the future of dispute resolution. International commercial dispute resolution frameworks – typically litigation frameworks – that unduly emphasise national boundaries and formalities need not and should not be the norm. Crucially, the SICC co-opts a refreshing public-private perspective to the resolution of international commercial disputes. It illuminates on the public interest element of the resolution of such disputes which have for some time fallen into the domain of international commercial arbitration; at the same time, it introduces greater scope for self-determination in international commercial litigation.


Man Yip
BCL (Oxon).
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