Search result: 18 articles

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    A decision taken by an employer based on gender which respects the national legislation was considered discriminatory based on EU legislation.


Andreea Suciu
Andreea Suciu is the Managing Partner Suciu I The Employment Law Firm (https://suciu-employmentlaw.ro/).

Gabriela Ion
Gabriela Ion is an associate at Suciu I The Employment Law Firm (https://suciu-employmentlaw.ro/).
Article

Post-Legislative Scrutiny in a Decentralized Setting

Opportunities from Alcoholic Drinks Regulation in Kenya

Journal European Journal of Law Reform, Issue 2 2019
Keywords affordability, alcohol, availability, enforcement, licensing, marketing, post-legislative scrutiny, regulation, regulatory impact, taxation
Authors Francis A. Aywa and Gabriel K. Ndung’u
AbstractAuthor's information

    Irresponsible alcohol consumption is a complicated regulatory issue globally. Governments’ regulatory regimes for the alcoholic drinks sector are primarily concerned with issues such as control of the production, sale, and use of alcoholic drinks for purposes of safeguarding the health of the individual in view of the dangers of excessive consumption of alcoholic drinks. This article is intended to offer insights on post-legislative scrutiny by drawing on lessons from alcoholic drinks regulation in Kenya. Post-legislative scrutiny as a methodology largely reviews government action or inaction and consequently proposes measures to be undertaken for purposes of managing the effective implementation of its policies and abiding by legal obligations in relation to regulatory frameworks and actions. The intention is to highlight the failures and insufficiencies of the different approaches on alcohol regulation and the manner in which they have been utilized to regulate and control abuse of alcoholic drinks. By comparing regulatory outcomes with the intended policy outcomes and design of regulatory regimes the authors make the case for the primacy of post-regulatory scrutiny and to provide suggestions on how it can be improved in settings such as Kenya’s.


Francis A. Aywa
Francis A. Aywa is Team Leader of DAI’s Deepening Democracy Programme and former Chief of Party of SUNY’s Kenya Parliamentary Strengthening Programme.

Gabriel K. Ndung’u
Gabriel K. Ndung’u is a Legislative Development Specialist and former Deputy Chief of Party of SUNY’s Kenya Parliamentary Programme.
Article

Access_open Empirical Legal Research in Europe: Prevalence, Obstacles, and Interventions

Journal Erasmus Law Review, Issue 2 2018
Keywords empirical legal research, Europe, popularity, increase, journals
Authors Gijs van Dijck, Shahar Sverdlov and Gabriela Buck
AbstractAuthor's information

    Empirical Legal research (ELR) has become well established in the United States, whereas its popularity in Europe is debatable. This article explores the popularity of ELR in Europe. The authors carried out an empirical analysis of 78 European-based law journals, encompassing issues from 2008-2017. The findings demonstrate that a supposed increase of ELR is questionable (at best).
    Moreover, additional findings highlight:

    • An increase for a few journals, with a small number of other journals showing a decrease over time;

    • A higher percentage of empirical articles for extra-legal journals than for legal journals (average proportion per journal is 4.6 percent for legal journals, 18.9 percent for extra-legal journals);

    • Criminal justice journals, environmental journals, and economically oriented journals being more likely to publish empirical articles than other journals;

    • More prestigious journals being more likely to publish empirical articles than less-prestigious journals;

    • Older journals being more likely to publish empirical work than younger journals, but not at an increasing rate;

    • Journals being legal/extra-legal, journals in a specific field, journal ranking, or the age of the journal not making it more (or less) likely that the journal will publish empirical articles at an increasing (or decreasing) rate.
      Considering the lack of convincing evidence indicating an increase of ELR, we identify reasons for why ELR is seemingly becoming more popular but not resulting in more empirical research in Europe. Additionally, we explore interventions for overcoming the obstacles ELR currently faces.


Gijs van Dijck
Professor of Private Law at Maastricht University, the Netherlands.

Shahar Sverdlov
Law student at the Vrije Universiteit Amsterdam, the Netherlands.

Gabriela Buck
Law student at Maastricht University, the Netherlands.
Case Reports

2018/6 Dismissals anticipating a transfer of undertaking validated (HU)

Journal European Employment Law Cases, Issue 1 2018
Keywords Dismissal/severance payment, Transfer of undertaking
Authors Gabriella Ormai
AbstractAuthor's information

    The Hungarian Supreme Court has held that within the context of the transfer of an undertaking, the transferee can terminate employment relationships immediately after the transfer for operational reasons and can commence preparations to that effect before the transfer.


Gabriella Ormai
Gabriella Ormai is a managing partner with Ormai és Társai CMS Cameron McKenna Nabarro Olswang LLP Ügyvédi Iroda in Budapest, https://cms.law/en/HUN/Office/Budapest.
Case Reports

2017/21 Legal rules for employers for monitoring employees in Slovakia (SK)

Journal European Employment Law Cases, Issue 2 2017
Keywords Privacy, Unfair dismissal
Authors Gabriel Havrilla and Richard Sanák
AbstractAuthor's information

    An employer can monitor an employee’s emails provided it has made it clear beforehand that it might do so. It is permissible for the employer to prohibit employees from using its electronical equipment for private use, but if the employer is going to check whether this rule was being complied with, it needs to have a significant reason to do so and must respect the principles of legality legitimacy and proportionality.


Gabriel Havrilla

Richard Sanák
Gabriel Havrilla and Richard Sanák are respectively managing partner and junior associate with law firm Legal Counsels s.r.o., www.legalcounsels.sk.

    The Curia (Hungarian Supreme Court) stated in its ruling that length of service is not a protected characteristic under discrimination law. Length of employment cannot be considered as a core feature of the individual based on which he or she would belong to a specific group, as it is a result of his or her own actions. It therefore cannot be treated as a ‘miscellaneous’ ground for the purposes of the Hungarian Equal Treatment Act. Further, length of service cannot be linked to age discrimination. The length of service of an employee is not directly connected to age, therefore treatment of an employee based on length of service with a specific organisation cannot be considered age discriminatory.
    A claim based on discrimination must be supported by a comparator. Employees with different educational backgrounds and jobs with different the educational requirements, are not comparable for the purposes of equal treatment law.


Gabriella Ormai
Gabriella Ormai is the managing partner of the Budapest office of CMS Cameron McKenna LLP (www.cms-cmck.com).
Article

New Space Activities and Legislation

A General Overview with a Specific Reference to the Ongoing Debate in Italy

Journal International Institute of Space Law, Issue 2 2017
Authors Marina Gagliardi, Nicoletta Bini, Cristina Marabottini e.a.
Author's information

Marina Gagliardi
Marina Gagliardi, Legal Affairs Unit, Italian Space Agency, Rome, Italy.

Nicoletta Bini
Nicoletta Bini, Legal Affairs Unit, Italian Space Agency, Rome, Italy.

Cristina Marabottini
Cristina Marabottini, Legal Affairs Unit, Italian Space Agency, Rome, Italy.

Gianfranco Gabriele Nucera
Gianfranco Gabriele Nucera, Department of Political Sciences, Sapienza University of Rome.
Case Reports

2016/48 Establishment of the European Work Council (SK)

Journal European Employment Law Cases, Issue 3 2016
Keywords Work Council, establishment of the European Work Council
Authors Gabriel Havrilla and Dominika Šlesárová
AbstractAuthor's information

    Council Directive 94/45/EC (the ‘Directive’) determines the conditions for setting up a European Works Council or other means of providing information to employees in relation to employers that operate in more than one EU Member State. The aim of the Directive is to ensure employees are properly informed about their own employer and the company group operating in the EU, under their right to transnational information. In the case at hand, the courts needed to determine what conditions had to be met to set up a European Work Council and when a European Work Council would be established by operation of law.


Gabriel Havrilla
Gabriel Havrilla is a partner with Legal Counsels s.r.o., www.legalcounsels.sk.

Dominika Šlesárová
Dominika Šlesárová is a junior associate with Legal Counsels s.r.o., www.legalcounsels.sk.
Case Reports

2016/44 Is there a genuine remedy for the employer’s failure to consult? (HU)

Journal European Employment Law Cases, Issue 3 2016
Keywords Employee representatives/collective bargaining, obligation to consult
Authors Gabriella Ormai and Peter Ban
AbstractAuthor's information

    During negotiations for a collective bargaining agreement, the employer stopped consulting the employee representatives because a sectorial collective bargaining agreement had entered into force that also applied to the employer. After this, the trade union requested an appointment with the employer on a specific date and proposed an agenda for the meeting, including consultation on the impact of the sectorial collective bargaining agreement on the employees. The employer refused to meet on the requested date. The trade union challenged this via the Labour Court. The first and second instance courts turned down the trade union’s claim and confirmed the employer had acted lawfully. The Curia (the Supreme Court) established that the employer had breached its obligation to consult – an obligation deriving from the Labour Code which implemented Directive 2002/14 establishing a general framework for informing and consulting employees – but at the same time it refused to order the employer to proceed with the consultations, leaving the trade union without an effective remedy.


Gabriella Ormai

Peter Ban
Gabriella Ormai is the managing partner of the Budapest office, Peter Ban is a senior counsel of CMS Cameron McKenna LLP, www.cms-cmck.com.

Carlos Gabriel Argüelles Arredondo
Instituto de Estudios Internacionales, Universidad del Mar, Mexico, Facultad de Economía y Relaciones Internacionales, Universidad Autónoma de Baja California, Mexico, Email: carlosarguellesarr@hotmail.com.

    In accordance with EU law, the prohibition against gender-based discrimination (in this case: dismissal relating to pregnancy) cannot be limited to employment relationships as defined in national law: it must also apply to other types of legal relationship, where one party provides services to another party for consideration, for an open-ended period of time under the supervision of a principal.


Gabriella Ormai
Gabriella Ormai is a partner and

Péter Bán
Péter Bán is senior counsel with CMS Cameron McKenna LLP, www.cms-cmck.com.

Gabriella Catalano Sgrosso
University of Rome, Italy, sgrossogabriella@gmail.com.

    Those who talk can be heard. Those who are allowed to talk may be listened to. This study is an attempt to give legal voice to those who cannot talk or are usually not listened to: children. This study is about the attention given to their interests, the best interests of the child. When these interests are immersed in a minority context, children may be overlooked for different reasons, including discriminatory attitudes or prejudice regarding their families. Law and its interpretation must be changed in order to include the difference. This study discusses the best interests of the child principle with special attention to its legal relevance in cases where lesbians, gays, bisexual and transgender (LGBT) are, or want to be, parents. The authoritative source for the interpretation of the principle is the United Nations (UN) Convention on the Rights of the Child (CRC). The analysis focuses on the European Court of Human Rights (ECtHR) and its case law. The study aims to explore the Court’s approach to the best interest of the child and identify whether the principle is being consistently applied in cases involving LGBT families, given the fact that sexual orientation and gender identity are still sensitive issues in Europe. This is done by comparing these cases to cases lodged by applicants who were not identified as an LGBT person. The margin of appreciation doctrine and the lack of European consensus on sexual minorities’ rights are confronted with the urgent paramount consideration that has to be given to children’s best interests. The analysis explores whether there is room for detecting a possible Court’s biased approach towards the concept of the best interests of the child. This study challenges the Court’s decisions in the sense that the focus should not only be at the LGBT parents’ rights to private and family life, but also at the interests of their daughters and sons. This is an attempt to call upon the ECtHR and all states not only to actively fight discrimination against LGBT persons, but, ultimately, to stop interpreting the concept of the best interests of the child in an arguably biased way, and to consider the principle’s legal value in any decision, regardless of their parents’ sexual orientation, gender identity or any other distinction.


Mr. Gabriel Alves de Faria
Gabriel Alves de Faria is a Brazilian lawyer, LGBTI activist and human rights specialist who holds a Law degree from the Federal University of Espirito Santo and a European Master’s Degree in Human Rights and Democratisation (E. MA/EIUC - Utrecht University). Among other legal and social experiences in the human rights field, Gabriel has worked as a researcher in comparative sexual orientation Law at Leiden University and most recently as a Fellow and consultant lawyer at the LGBTI Rapporteurship of the Inter-American Commission on Human Rights in Washington, DC. His latest project is a documentary on the situation of LGBTI persons in Southeast Asia.

Gabriella Catalano Sgrosso
University of Rome, Italy

Prof. Gabriella Catalano Sgrosso
University of Rome, Italy, gab.sgrosso@alice.it.

Jürg Martin Gabriel
Professor (em.), Swiss Federal Institute of Technology, Zürich, Switzerland.

Gabriël Oosthuizen
Gabriël Oosthuizen is executive director of International Criminal Law Services Foundation (ICLS), a Hague-based NGO (www.icls-foundation.org).

Robert Schaeffer
Robert Schaeffer is an ICLS assistant. The views expressed in this article are their own, and do not refl ect the views of ICLS.

Gabriella Venturini
Gabriella Venturini is Professor of International Law at the Faculty of Political Sciences at the University of Milan.
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