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Pending Cases

Case C-57/22, Work and Residence Permint

European Commission – v – Czech Republic, action brought on 4 February 2022

Journal European Employment Law Cases, Issue 2 2022
Keywords Work and Residence Permit

    An employer has been held liable for not preventing and tackling an employee’s sexual harassment of another employee contrary to the employer’s obligations under the Danish Equal Treatment Act. Furthermore, the employer had breached the Equal Treatment Act by dismissing the employee when she informed the employer of the sexual harassment.


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

ECJ 30 June 2022, case C-625/20 (INSS (Cumul de pensions d’invalidité professionnelle totale)), Social Insurance, Gender Discrimination

KM – v – Instituto Nacional de la Seguridad Social (INSS), Spanish case

Journal European Employment Law Cases, Issue 2 2022
Keywords Social Insurance, Gender Discrimination
Abstract

    A Spanish anti cumulation provision for occupational invalidity pensions from the same scheme favours male workers without any objective justification and hence constitutes gender discrimination.

Pending Cases

Case C-113/22, Gender Discrimination, Social Insurance

DX, Instituto Nacional de la Seguridad Social (INSS) – v – Tesorería General de la Seguridad Social, reference lodged by the Tribunal Superior de Justicia de Galicia (Spain) on 17 February 2022

Journal European Employment Law Cases, Issue 2 2022
Keywords Gender Discrimination, Social Insurance
Article

Access_open Mapping the Parameters of Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 1 2022
Keywords ODR, ethics, online dispute resolution, alternative dispute resolution, technology, artificial intelligence
Authors Leah Wing
AbstractAuthor's information

    The definition of online dispute resolution (ODR) has become increasingly contested, particularly fueled by the recent explosion in the use of technology during the pandemic by courts and alternative dispute resolution practitioners. The recent expansion of stakeholders has contributed productively to the on-going discussion of the parameters of ODR that have implications for ethical practice. Does the use of video conferencing constitute ODR? What new procedural and substantive justice concerns arise with the use of technology in dispute handling and how should they be addressed? Since technology not only alters the role of third parties and disputants but also serves as a fourth party, what are the ethical implications for example, of employing artificial intelligence? How can explorations of the boundaries of ODR foster a re-imaging of 21st Century justice systems?
    This article explores the importance of the parameters of ODR for the ethical practice of dispute resolution and introduces a paper, Framing the Parameters of Online Dispute Resolution (National Center for Technology and Dispute Resolution, 2022) that offers a descriptive ODR Framework; one that encompasses the broad range of views on the boundaries of ODR along an axis of increasing reliance on technology through various functions and stages of dispute handling. The article discusses the implications of this ODR Framework for enhancing ethical guidance and regulation for whatever definition of ODR is utilized.


Leah Wing
Leah Wing is Director, National Center for Technology and Dispute Resolution; Co-Founder and President-elect, Board of Directors, International Council for Online Dispute Resolution; and Senior Lecturer II, Legal Studies Program, Department of Political Science, University of Massachusetts, Amherst (USA).
Article

Europe’s Coordinated Approach to ODR

Journal International Journal of Online Dispute Resolution, Issue 1 2022
Keywords Online Dispute Resolution (ODR), AI, lawtech, justice systems, human rights, Council of Europe, access to justice, European Cyberjustice Network, European Commission for the Efficiency of Justice
Authors Graham Ross
AbstractAuthor's information

    While court administrations/justice departments were not among the early adopters of online dispute resolution (ODR) they can clearly, as gatekeepers to the majority of civil disputes, have an enormous influence on ODR and, in particular, the speed at which ODR is adopted as a widely accepted practice in dispute resolution.
    Systems being rolled out by or for courts have been piecemeal as individual administrations pursue research into their own future. Early systems tend to be in either case management and/or e-filing but little in the way of e-negotiation or aids to resolution. What is shared is the existing challenges to the courts from rising costs, process delay and growth in the numbers of citizens unable, owing to cost, to pursue or defend litigation.
    In Europe what is bringing court administrations together in their development of ODR has been the issue of human rights and access to justice, which explains why an overall influence in the sharing of knowledge and experience in ODR has been the Council of Europe. This was a body set up in the immediate aftermath of World War II with a view to encouraging European states to work together in advancing and protecting human rights. Its greatest creation has been the European Convention on Human Rights and, of particular relevance, Article 6, which secures the right to a “public hearing within a reasonable time by an independent and impartial tribunal established by law”.
    This article tracks various developments from bodies within the structure of the Council of Europe with regard to the application of ODR to the judicial system. These developments extend from research and debate on whether the overall impact on human rights and, in particular, access to justice, of ODR could be seen as a threat, and thus something to be protected against, or in a more positive light and, therefore, to be encouraged. This article tracks the formation of various bodies within the Council of Europe, such as the European Commission for the Efficiency of Justice , The Working Group on Cyberjustice and Artificial Intelligence and, most recently, the European Cyberjustice Network. This article also notes outcomes such as the Report on the impact of ODR on Human Rights produced by the Committee of Legal Affairs and Human Rights of the Council of Europe and the European Ethical Guidelines on the use of AI in judicial systems produced by The Working Group on Cyberjustice and Artificial Intelligence of the European Commission for the Efficiency of Justice.


Graham Ross
Graham Ross is a UK lawyer and mediator with over 20 years of experience in IT and the law. Graham is the author of lthe original QUILL egal application software (accounts and time recording) and the founder of LAWTEL, the popular webbased legal information update service. Graham co-founded the first ODR service in the UK, WeCanSettle, designing the blind bidding software at the heart of the system. Graham subsequently founded TheMediationRoom.com, for whom he designed their online mediation platform. Graham speaks regularly at international conferences on the application of technology to ADR. Graham was host of the 5th International Conference on Online Dispute Resolution held in Liverpool, UK, in 2007 and has organised two other ODR conferences. Graham was a member of the EMCOD project which created a tool for the European Union for the measurement of justice through ODR. Graham was a member of the UK Civil Justice Council’s Advisory Group on Online Dispute Resolution, whose recommendations led to the creation of an online court for small claims. Graham is a Board Member of ICODR. Graham is also a leading trainer in ODR having created the accredited distance training course at www.ODRtraining.com.
Article

ODR Readiness of Portuguese-Speaking Countries

Journal International Journal of Online Dispute Resolution, Issue 1 2022
Keywords PALOP, ODR, ICT, Portuguese-speaking, dispute resolution
Authors Ana Maria Maia Gonçalves, Andrea Maia, Nuno Albuquerque e.a.
AbstractAuthor's information

    In this article, we investigate whether the conditions for the emergence of an online dispute resolution (ODR) market in Portuguese-speaking countries have been met. The size of the Portuguese-speaking population and the internet penetration in Portuguese-speaking countries may look promising, but what is called networked readiness as well as the legal context needs to be factored in before any conclusion may be drawn.


Ana Maria Maia Gonçalves
Ana Maria Maia Gonçalves, Instituto de Formação e Certificação de Mediadores Lusófonos (ICFML)

Andrea Maia
Andrea Maia, Instituto de Formação e Certificação de Mediadores Lusófonos (ICFML)

Nuno Albuquerque
Nuno Albuquerque, Instituto de Formação e Certificação de Mediadores Lusófonos (ICFML)

François Bogacz
François Bogacz, Instituto de Formação e Certificação de Mediadores Lusófonos (ICFML). Correspondence should be addressed to ana@icfml.org and fb@icfml.org.
Article

The Brazilian Law System and Some Reflections on the Use of Technology

Journal International Journal of Online Dispute Resolution, Issue 1 2022
Keywords Brazilian, ODR, democracy, citizenship, judicial system, digital inclusion
Authors Beatriz Arruda and Renata Porto Adri
AbstractAuthor's information

    This contribution has emerged in response to the provocations of the editor, Daniel Rainey, about the interest in knowing the status and use of technology by the Brazilian judicial system. It is based on the premise that the COVID-19 pandemic accelerated the adoption of technological tools, even in complex legal systems such as that in Brazil. There is still much to be built on it, and there are many opportunities for adopting online solutions as a means of accessing justice.


Beatriz Arruda
Beatrice Gabriel Arruda, specialist in Corporate Social Responsibility at PUC/MG, Certified Mediator ICFML-IMI, Platform Operations and Training Manager MOL – Online Mediation.

Renata Porto Adri
Renata Porto Adri, Master and PhD in State Law from PUC/SP, Legal Analyst of the Federal Public Prosecutor’s Office, Mediator graduated by ESMP-SP and Certified Advanced by ICFML-IMI, Postgraduate in Mediation, Negotiation and Conflict Resolutions by UCP-Porto.
Article

ODR and Online Courts in the COVID-19 Pandemic

Is It Correct to Affirm That Courts Are a Mere Service?

Journal International Journal of Online Dispute Resolution, Issue 1 2022
Keywords procedural law, dispute resolution, online dispute resolution, online courts, jurisdiction, online court hearings
Authors Dierle Nunes and Hugo Malone
AbstractAuthor's information

    Starting from the premise that the pandemic caused by the new coronavirus forced the growth of dispute resolution technologies in Brazil and around the world, this article presents a critique of one of the central arguments for the deployment of online dispute resolution techniques in the courts: that courts are a mere service. It proposes, therefore, the thesis that the term courts, as a synonym of the jurisdictional function, can be understood neither as a public service nor as a mere place but rather as a condition of possibility for fundamental rights, be it in physical or digital environments. In order to guarantee that the execution of procedural acts in digital environments conforms to the democratic constitutional procedure, this article proposes to create a seal of recognition to be granted by the Brazilian Bar Association (OAB) to the platforms that operate according to the due constitutional process. It is also suggested that minimal guidelines be formulated that are capable of offering a reference for the discussions, development, use and integration of online conflict resolution platforms, as well as that institutional protocols be adopted as a means of democratizing the application of technology in law.


Dierle Nunes
Dierle Nunes, PhD in Procedural Law from Pontifícia Universidade Católica de Minas Gerais (PUC Minas) / Universitá degli Studi di Roma ‘La Sapienza’. Tenure Professor at PUC Minas PPGD (Law Graduate Program) and collaborator at UFMG. Member of the Commission of Jurists that advised on the 2015 Brazilian Civil Procedure Code at the Chamber of Deputies. Lawyer. dierle@cron.adv.br.

Hugo Malone
Hugo Malone, PhD. Student. Master in Procedural Law from Pontifícia Universidade Católica de Minas Gerais (PUC Minas). Researcher in the research group ‘Processualismo Constitucional democrático e reformas processuais’ (Democratic Constitutional Proceduralism and Procedural Reforms). Legal Adviser at the Law Court of Minas Gerais. hugomalone@yahoo.com.br. This article results from the research group ‘Processualismo Constitucional democrático e reformas processuais’ (‘Democratic Constitutional Processualism and Procedural Reforms’), linked to Pontifícia Universidade Católica de Minas Gerais and to Universidade Federal de Minas Gerais and registered at CNPQ’s National Directory of Research Groups http://dgp.cnpq.br/dgp/espelhogrupo/3844899706730420. The group is a founding member of ‘ProcNet – International Research Network on Civil Justice and Contemporary Procedure’ (http://laprocon.ufes.br/grupos-de-pesquisa-integrantes-da-rede). This study was financed in part by the Coordenação de Aperfeiçoamento de Pessoal de Nível Superior - Brasil (CAPES) - Finance Code 001.
Case Law

2022/1 EELC’s review of the year 2021

Journal European Employment Law Cases, Issue 1 2022
Authors Niklas Bruun, Filip Dorssemont, Zef Even e.a.
Abstract

    Various of our academic board analysed employment law cases from last year.


Niklas Bruun

Filip Dorssemont

Zef Even

Ruben Houweling

Marianne Hrdlicka

Anthony Kerr

Attila Kun

Jean-Philippe Lhernould

Daiva Petrylaitė

Luca Ratti

Jan-Pieter Vos

    In a case arising from the sudden collapse of a construction company, the Employment Appeal Tribunal has confirmed the limited scope of the ‘special circumstances’ defence for not consulting on collective redundancies.


David Hopper
David Hopper is a partner at Lewis Silkin LLP.

Kerry Salisbury
Kerry Salisbury is an associate at Lewis Silkin LLP.
Rulings

ECJ 18 January 2022, case C-261/20 (Thelen Technopark Berlin), Other Forms of Free Movement

Thelen Technopark Berlin GmbH – v – MN, German case

Journal European Employment Law Cases, Issue 1 2022
Keywords Other Forms of Free Movement
Abstract

    It does not follow from EU law that a national court must disapply national provisions on minimum tariffs for architects and engineers which are contrary to Directive 2006/123, although this can follow from other national provisions. Moreover, the disadvantaged party can claim compensation based on state liability as the German implementation legislation is not in conformity with EU law.

    The Federal Labour Court of Germany has continued to specify the requirements for the legality of age limits in employer-funded pension plans under German law. In this case, according to the Court, the employer could impose a maximum age of 55 as a requirement of entry to the company pension plan.


Othmar K. Traber
Othmar Traber is a partner at Ahlers & Vogel, Bremen.

    The Danish Ministry of Employment has been held liable for a protracted legislative process following the ECJ’s ruling in the Ole Andersen case (C-499/08), which concluded that the Salaried Employees Act was not compliant with Directive 2000/78/EC concerning equal treatment in employment and occupation (prohibition of discrimination on grounds of age).


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

ECJ 24 February 2022, case C-283/20 (EULEX-KOSOVO), Miscellaneous

CO and Others – v – MJ, European Commission, European External Action Service (EEAS), Council of the European Union and Eulex Kosovo, EU case

Journal European Employment Law Cases, Issue 1 2022
Keywords Miscellaneous
Abstract

    Eulex Kosovo qualifies as employer and therefore as defendant in any action regarding the mission in Kosovo.

    The Iaşi Court of Appeal in Romania has upheld a decision issued by the Vaslui Tribunal which found that an employee cannot be the subject of disciplinary action for the refusal to perform work during their weekly rest notwithstanding that a working time schedule imposed by the employer was based on the applicability of an internal company policy.


Andreea Suciu
Andreea is Managing Partner of Suciu | The Employment Law Firm

Andreea Oprea
Andreea is an attorney-at-law at Suciu | The Employment Law Firm.

    Working as a rider for the Deliveroo platform is a professional activity that can be performed as a self-employed worker, the Labour Tribunal of Brussels has decided, which also ruled out the possibility of Deliveroo riders enjoying the fiscally beneficial status available for workers active on electronic platforms of the collaborative economy (or ‘sharing economy’).


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant, Brussels.
Article

Morality in the Populist Radical Right

A Computer-Assisted Morality Frame Analysis of a Prototype

Journal Politics of the Low Countries, Issue 1 2022
Keywords Populist radical right, morality, frame analysis, word2vec, crimmigration
Authors Job P.H. Vossen
AbstractAuthor's information

    This article provides a computer-assisted morality framing analysis of Vlaams Belang’s 2019 manifesto. The VB is regarded in the literature as a prototypical example of the Populist Radical Right (PRR). We first concisely review what PRR politics is and what it consists of, tentatively distinguishing four elements that we hypothesise will materialise in corresponding subframes running throughout the manifesto. We point to a mismatch between the omnipresent role of morality in all PRR subframes and the little attention devoted to the concept in the PRR literature. We introduce a useful theory from social psychology into framing literature to create a novel methodological approach to frame analysis that builds a bridge between a qualitative content and a quantitative context approach. The results support our hypothesis that populism, nationalism, nativism and authoritarianism can be distinguished from one another. Additionally, we detect a fifth PRR subframe, crimmigration, by its unique role of morality.


Job P.H. Vossen
Job Vossen is a PhD candidate at the University of Antwerp. His research investigates (im)morality in political discoursing and its interacting with fear, solidarity and gender and sexuality. The corresponding author states that there is no conflict of interest.
Article

Restorative justice training for judges and public prosecutors in the European Union: what is on offer and where are the gaps?

Journal The International Journal of Restorative Justice, Issue Online First 2022
Keywords restorative justice, judicial training, judges, public prosecutors
Authors Ana Catarina Pereira, Britt De Craen and Ivo Aertsen
AbstractAuthor's information

    Judges and public prosecutors across Europe continue to be the main source of referral of cases to restorative justice programmes organised in the context of the criminal justice system. As a result, the training of these two groups of legal professionals regarding what restorative justice is and what it can offer to victims, offenders and the community has for many years been identified as a priority for the development of restorative justice in the European Union (EU). However, little information is available about what actually exists in terms of judicial training on restorative justice within the national judicial training institutions responsible for the initial and/or continuous training of judges and/or public prosecutors. Therefore, we developed an online survey on judicial training on restorative justice and invited 38 judicial training institutions operating in the (then) 28 EU Member States to participate in our study. We were able to make relevant observations regarding the reasons for the non-existence of restorative justice training in most of the judicial training institutions studied and identify important elements of the architecture of the restorative justice training offered by the judicial training institution of Czech Republic.


Ana Catarina Pereira
Ana Pereira is a PhD researcher in Criminology at the Leuven Institute of Criminology at KU Leuven, Belgium. She received a PhD grant from the Portuguese Foundation for Science and Technology (Fundação para a Ciência e a Tecnologia, FCT).

Britt De Craen
Britt De Craen is a master’s student in Criminology at the Leuven Institute of Criminology at KU Leuven, Belgium.

Ivo Aertsen
Ivo Aertsen is Professor Emeritus of the Leuven Institute of Criminology at KU Leuven, Belgium. Corresponding author: Ana Pereira, anacatarina.alvespereira@kuleuven.be.

    Evaluations of restorative justice frequently report that only a minority of schools succeed in adopting a whole-school approach. More common are a consortium of practices necessitating the evaluation of schools not implementing the whole-school model but still achieving positive results. Previous research established that unconventional models have successful outcomes, yet little is known about the contextual factors and the causal mechanisms of different practices. This study finds that models of restorative justice facilitating student voice and consequently procedural justice have promising outcomes. Importantly, alternative models may be less resource-intensive, making them more feasible to fully implement.


Heather Norris
Heather Norris is a Lecturer in the Department of Psychology at Aberystwyth University, Wales, UK. Corresponding author: Heather Norris at hnn1@aber.ac.uk.
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