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Book Review

Access_open Marc Hertogh, Nobody’s Law, Legal Consciousness and Legal Alienation in Everyday Life

Journal Netherlands Journal of Legal Philosophy, Issue 1 2020
Keywords Vervreemding, Naleving van wetten, Legitimiteit, Rule of Law
Authors Irawan Sewandono
Author's information

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.
Article

Access_open Het classicistische politieke denken van Van Hogendorp

Journal Netherlands Journal of Legal Philosophy, Issue Pre-publications 2020
Keywords classicistisch politiek denken, constitutie, Van Hogendorp, Grondwet, politieke filosofie
Authors Alban Mik
AbstractAuthor's information

    Gijsbert Karel van Hogendorp is the auctor intellectualis of the 1818 Dutch constitution. It was his sketch for a new constitution that was used as a starting point for the deliberations of its original drafting committee. Van Hogendorp justifies his constitution as a restoration of the Burgundian constitution that applied before the Dutch Republic. In recent literature Van Hogendorp’s restorational argument is presented as an invention of tradition. In this article an alternative explanation is presented, namely that it is part of a form of classicist political thought that was common during the ancien régime. Van Hogendorp describes his constitution as a moderate monarchy, in which the three principles of monarchy, aristocracy and democracy are properly balanced. And he mainly defends this mixed regime by pointing out that it is a restoration of the old Burgundian constitution of the Netherlands. This way of reasoning is, as will be shown, typically classicistic.


Alban Mik
Alban Mik is onderzoeker aan de Afdeling Metajuridica, vakgroep Rechtsfilosofie van de Universiteit Leiden.
Rulings

ECJ 19 December 2019, case C-168/18 (Pensions-Sicherungs-Verein VVaG), Insolvency, pension

Pensions-Sicherungs-Verein VVaG – v – Günther Bauer, German case

Journal European Employment Law Cases, Issue 1 2020
Keywords Insolvency, Pension
Abstract

    A reduction of old-age pensions under Directive 2008/94 is manifestly disproportionate if the former employee lives or would have to leave below Eurostat’s at-risk-of-poverty threshold, even if s/he receives at least half of the amounts of the benefits from his/her acquired rights.

    In a surprise decision, with potentially wide-ranging ramifications, an Employment Tribunal (ET) has found that ‘workers’ as well as traditional ‘employees’ are covered by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).


Colin Leckey
Colin Leckey is a Partner at Lewis Silkin LLP.
Rulings

ECJ 19 December 2019, case C-16/18 (Dobersberger), Private international law, posting of workers

Michael Dobersberger – v – Magistrat der Stadt Wien, Austrian case

Journal European Employment Law Cases, Issue 1 2020
Keywords Private international law, Posting of workers
Abstract

    On-board services on international trains do not fall under the scope of Directive 96/71/EC concerning the posting of workers if most of the work is performed in one Member State.

Case Reports

2020/6 Supreme Court judgment on the concept of comparable permanent employees (DK)

Journal European Employment Law Cases, Issue 1 2020
Keywords Fixed-term work, Other forms of discrimination
Authors Christian K. Clasen
AbstractAuthor's information

    In a recent case on fixed-term employment, the Danish Supreme Court addressed the question of what constitutes a comparable permanent employee. The Supreme Court ruled that four employees, who worked in a government agency, were not comparable with the agency’s permanent employees and for this reason they had not been discriminated against on the grounds of their fixed-term contracts.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.
Pending Cases

Case C-726/19, Fixed-term work

Instituto Madrileño de Investigación y Desarrollo Agrario y Alimentario – v – JN, reference lodged by the Tribunal Superior de Justicia de Madrid (Spain) on 1 October 2019

Journal European Employment Law Cases, Issue 1 2020
Keywords Fixed-term work
Case Reports

2020/7 Successive fixed-term employment contracts (RO)

Journal European Employment Law Cases, Issue 1 2020
Keywords Fixed-term work
Authors Andreea Suciu and Teodora Manaila
AbstractAuthor's information

    The Craiova Court of Appeal has ruled that the continuous extensions of a fixed-term employment based on national provisions is not in accordance with the European jurisprudence. Relying on the findings of ECJ case C-614/15, the Craiova Court of Appeal made an exhaustive analysis of the relying arguments for subsequent extensions of fixed-term employments agreements for long periods of time and the objective reasons behind such use of contracts.


Andreea Suciu
Andreea Suciu is managing partner at Suciu I The Employment Law Firm, Bucharest, Romania.

Teodora Manaila
Teodora Manaila is an attorney-at-law at Suciu I The Employment Law Firm, Bucharest, Romania.
Rulings

ECJ 22 January 2020, case C-177/18 (Baldonedo Martín), Fixed-term work, other forms of discrimination

Almudena Baldonedo Martín – v – Ayuntamiento de Madrid, Spanish case

Journal European Employment Law Cases, Issue 1 2020
Keywords Fixed-term work, Other forms of discrimination
Abstract

    The absence of severance compensation for interim civil servants is not contrary to Directive 1999/70.

Rulings

ECJ 26 March 2020, Case C-344/18 (ISS Facility Services), Transfer of undertakings, transfer, employment terms

ISS Facility Services NV – v – Sonia Govaerts and Atalian NV (formerly Euroclean NV), Belgian case

Journal European Employment Law Cases, Issue 1 2020
Keywords Transfer of undertakings, Employment terms, Transfer
Abstract

    In case of a transfer of undertaking involving multiple transferees, the rights and obligations arising from an employment contract may be divided between various transferees, if this is possible. If not (or if it is to the detriment of the employee), the transferees would be regarded as being responsible for any consequent termination under Article 4 of Directive 2001/23, even if this were to be initiated by the worker.

Noten


Thomas Dullinger
Univ.-Ass. Mag. Thomas Dullinger is associated with Institut für Arbeits- und Sozialrecht, Universität Wien.
Case Law

2020/1 EELC’s review of the year 2019

Journal European Employment Law Cases, Issue 1 2020
Authors Ruben Houweling, Daiva Petrylaitė, Peter Schöffmann e.a.
Abstract

    Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Daiva Petrylaitė

Peter Schöffmann

Attila Kun

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Anthony Kerr

Petr Hůrka

Michal Vrajík

    On 3 October 2019, in case C-274/18 (Schuch-Ghannadan), the ECJ held that a national regulation, which provides for different maximum total durations of successive fixed-term employment contracts for part-time workers on the one hand and full-time workers on the other, could result in a discrimination of part-time workers and an indirect discrimination of women.


Ines Kager
Mag. Ines Kager is teaching and research assistant at WU Vienna University of Economics and Business.

    While it is not strictly necessary to actually work in order to acquire leave entitlement under German law, the Federal Labour Court (Bundesarbeitsgericht – BAG) has ruled that during a sabbatical (unpaid special leave) the employee does not gain any entitlement to paid annual leave.


Fabian Huber
Fabian Huber is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbh
Rulings

ECJ 27 February 2020, case C-298/18 (Grafe and Pohle), Transfer of Undertakings

Reiner Grafe and Jürgen Pohle – v – Südbrandenburger Nahverkehrs GmbH and OSL Bus GmbH, German case

Journal European Employment Law Cases, Issue 1 2020
Keywords Transfer of undertakings
Abstract

    In the context of a takeover of an activity which requires substantial operating resources, not transferring the substantial operating resources cannot necessarily preclude the classification as a transfer of an undertaking, since other factual circumstances make it possible to establish that the identity of the economic entity has been retained.

Case Reports

2020/8 Right of temporary workers to the same pay for the same work (LT)

Journal European Employment Law Cases, Issue 1 2020
Keywords Temporary agency work, Other forms of discrimination
Authors Vida Petrylaitė
AbstractAuthor's information

    On 20 June 2019, Vilnius Regional Court in Lithuania (instance of appeal) delivered a decision in a case where the applicants claimed that a temporary employment agency, UAB Manpower Lit (the ‘Agency’), which recruited temporary workers (‘claimants’) for the European Institute for Gender Equality (‘EIGE’), paid them lower salaries than permanent staff. It was ruled that the Agency had discriminated against these workers by paying them lower salaries than they would have received if they had been recruited directly by EIGE. The Court also ordered the payment of pay arrears for a certain period to the temporary staff.


Vida Petrylaitė
Vida Petrylaitė is an associate professor at Vilnius University.

    Failure to reinstate an employee upon her return from parental leave in her initial position or a similar position with equivalent remuneration can constitute indirect gender discrimination.


Claire Toumieux

Susan Ekrami
Claire Toumieux and Susan Ekrami are a partner and a senior associate with Allen & Overy LLP in Paris, www.allenovery.com.
Rulings

ECJ 19 December 2019, case C-465/18 (Comune di Bernareggio), Miscellaneous

AV, BU – v – Comune di Bernareggio (intervener: CT), Italian case

Journal European Employment Law Cases, Issue 1 2020
Keywords Miscellaneous
Abstract

    An unconditional right of pre-emption to pharmacists employed by the municipal pharmacy in a tendering procedure is contrary to the freedom of establishment.

Article

New Sales and Contract Law in Argentina and France:

Models for Reform Inspired by the CISG and the PICC?

Journal European Journal of Law Reform, Issue 2 2020
Keywords contracts, sales, law reform, CISG, UNIDROIT Principles, Argentina, France, comparative law
Authors Edgardo Muñoz and Inés Morfín Kroepfly
AbstractAuthor's information

    The Argentine and the French civil codes have recently undergone substantial modifications to their contract law provisions. These novel statutes could serve as models for future B2B contract law reforms in Latin American jurisdictions and beyond, as former Argentine and French laws have done in the past. The authors offer a contribution that paves the way in that direction with a systematic comparative analysis. As a starting point, this article unveils the influence that the modern unified laws on contracts (UNIDROIT Principles on International Commercial Contracts (PICC) and United Nations Convention for the International Sale of Goods of 1980 (CISG)) have in Argentina’s and France’s new contract law. It also highlights the most obvious similarities and differences in both sets of rules. This contribution goes beyond simple tertium comparisons; the authors analyse which of the two laws offers better, or more effective, rules to achieve the desired contract law functions in various matters. Readers are provided with the best rule or solution to address the problem in question and, as the authors hope, they should conclude that both models provide for a range of complementary solutions for modern contract law reforms.


Edgardo Muñoz
Professor of Law, Universidad Panamericana. School of Law. Calzada Álvaro del Portillo 49, Zapopan, Jalisco, 45010, Mexico. Ph.D. (Basel), LL.M. (UC Berkeley), LL.M. (Liverpool), LL.B. (UIA Mexico), DEUF (Lyon), emunoz@up.edu.mx.

Inés Morfín Kroepfly
J.D., Universidad Panamericana, Guadalajara.
Article

Access_open On the Eve of Web-Harvesting and Web-Archiving for Libraries in Greece

Journal Erasmus Law Review, Issue 2 2019
Keywords web harvesting, data analysis, text & data mining, TDM: Proposal EU Copyright Directive
Authors Maria Bottis, Marinos Papadopoulos, Christos Zampakolas e.a.
AbstractAuthor's information

    This conference paper submitted on the occasion of the 8th International Conference on Information Law and Ethics (University of Antwerp, December 13-14, 2018) that focused on modern intellectual property governance and openness in Europe elaborates upon the Text and Data Mining (TDM) issue in the field of scientific research, which is still-by the time of composition of this paper-in the process of discussion and forthcoming voting before the European Parliament in the form of provision(s) included in a new Directive on Copyright in the Digital Single Market. TDM is included in the proposal for a Directive of the European parliament and of the Council on copyright in the Digital Single Market-Proposal COM(2016)593 final 2016/0280(COD) that was submitted to the European Parliament.


Maria Bottis
Associate Professor, Department of Archives, Library Science and Museology, Ionian University, Corfu, Greece.

Marinos Papadopoulos
Attorney-at-Law, Independent Researcher, PhD, MSc, JD, Athens, Greece.

Christos Zampakolas
Archivist/Librarian, Independent Researcher, PhD, MA, BA, Ioannina, Greece.

Paraskevi Ganatsiou
Educator, MA, BA, Prefecture of Ionian Islands, Corfu, Greece.
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