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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
Rulings

ECJ 10 February 2022, case C-219/20 (Bezirkshauptmannschaft Hartberg-Fürstenfeld), Posting of Workers and Expatriates

LM – v – Bezirkshauptmannschaft Hartberg-Fürstenfeld, Austrian case

Journal European Employment Law Cases, Issue 1 2022
Keywords Posting of Workers and Expatriates
Abstract

    Member States are allowed to impose sanctions for breaches of the Posting of Workers Directive (96/71/EC) even after five years.

    This study explores the spread of disinformation relating to the Covid-19 pandemic on the internet, dubbed by some as the pandemic’s accompanying “infodemic”, and the societal reactions to this development across different countries and platforms. The study’s focus is on the role of states and platforms in combatting online disinformation.
    Through synthesizing answers to questions submitted by more than 40 researchers from 20 countries within the GDHR Network, this exploratory study provides a first overview of how states and platforms have dealt with Corona-related disinformation. This can also provide incentives for further rigorous studies of disinformation governance standards and their impact across different socio-cultural environments.
    Regarding the platforms’ willingness and efficacy in removing (presumed) disinformation, a majority of submissions identifies a shift towards more intervention in pandemic times. Most submitters assess that this shift is widely welcomed in their respective countries and more often considered as taking place too slowly (rather than being perceived as entailing dangers for unjustified restrictions of freedom of expression). The picture is less clear when it comes to enforcing non-speech related infection prevention measures.
    While the dominant platforms have been able to defend, or even solidify, their position during the pandemic, communicative practices on those platforms are changing. For officials, this includes an increasing reliance on platforms, especially social networks, for communicating infection prevention rules and recommendations. For civil society, the pandemic has brought an increasing readiness – and perceived need – to intervene against disinformation, especially through fact-checking initiatives.
    National and local contexts show great variance at whether platform-driven disinformation is conceived as a societal problem. In countries where official sources are distrusted and/or seen as disseminating disinformation criticism against private information governance by platforms remains muted. In countries where official sources are trusted disinformation present on platforms is seen more negatively.
    While Facebook, Twitter, and Instagram play important roles in the pandemic communication environment, some replies point towards an increasing importance of messaging apps for the circulation of Covid-19-related disinformation. These apps, like Telegram or WhatsApp, tend to fall under the radar of researchers, because visibility of content is limited and scraping is difficult, and because they are not covered by Network Enforcement Act-type laws that usually exclude one-to-one communication platforms (even if they offer one-to-many channels).
    Vis-à-vis widespread calls for a (re)territorialization of their content governance standards and processes amid the pandemic, platform companies have maintained, by and large, global standards. Standardized, featured sections for national (health) authorities to distribute official information via platforms are exceptions thereto.


Matthias C. Kettemann
Prof. dr. Matthias C. Kettemann, LL.M. (Harvard) is head of the research programme “Regulatory Structures and the Emergence of Rules in Online Spaces” at the Leibniz Institute for Media Research | Hans-Bredow-Institut.

Martin Fertmann
Martin Fertmann is a PhD student at the Leibniz-Institut für Medienforschung | Hans-Bredow-Institut’s research programme “Regulatory Structures and the Emergence of Rules in Online Spaces”.
Developments in European Law

Whose Interests to Protect?

Judgments in the Annulment Cases Concerning the Amendment of the Posting Directive

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2021
Keywords posting of workers, freedom to provide services, posting directive, remuneration of posted workers, private international law
Authors Gábor Kártyás
AbstractAuthor's information

    The directive 96/71/EC on the posting of workers had been in force for over 20 years when its first amendment (Directive 2018/957) came into force on 30 July 2020. The Hungarian and Polish Governments initiated annulment proceedings against the new measure, primarily arguing that as the amendment extended the host state’s labor standards ó to posted workers, the directive is no longer compatible with the freedom to provide services (Cases C-620/18 and C-626/18). Although both claims were rejected, the actions contain a number of noteworthy legal arguments (from the perspective of home States), which highlight some of the long-known contradictions of EU legislation on postings. The article summarizes the CJEU’s key observations made in the judgments, which are important propositions for further discussion.


Gábor Kártyás
Gábor Kártyás: associate professor of law, Pázmány Péter Catholic University, Budapest.

    The German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) has ruled that the user of an online platform (‘crowdworker’) who takes on so-called ‘microjobs’ on the basis of a framework agreement concluded with the platform operator (‘crowdsourcer’) can be an employee of the crowdsourcer. This applies in a case where the framework agreement is aimed at a repeated acceptance of such microjobs. The decisive factor is whether the crowdworker performs work that is subject to instructions and is determined by third parties in the context of the actual performance of the contractual relationship. The name of the contract is irrelevant. One assumes an employment relationship if the crowdsourcer controls the collaboration via an online platform operated by them in such a way that the crowdworker cannot freely shape their activity in terms of place, time and content.


Katharina Gorontzi
Katharina Gorontzi, LLM, is a senior associate at Luther lawfirm in Dusseldorf, Germany.

Jana Voigt
Jana Voigt is a senior associate at Luther lawfirm in Dusseldorf, Germany.
Case Law

Access_open 2021/1 EELC’s review of the year 2020

Journal European Employment Law Cases, Issue 1 2021
Authors Ruben Houweling, Daiva Petrylaitė, Marianne Hrdlicka 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

Marianne Hrdlicka

Attila Kun

Luca Calcaterra

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Andrej Poruban

Anthony Kerr

Filip Dorssemont
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
Law Review

2019/1 EELC’s review of the year 2018

Journal European Employment Law Cases, Issue 1 2019
Authors Ruben Houweling, Catherine Barnard, Filip Dorssemont e.a.
Abstract

    For the second time, various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Catherine Barnard

Filip Dorssemont

Jean-Philippe Lhernould

Francesca Maffei

Niklas Bruun

Anthony Kerr

Jan-Pieter Vos

Luca Ratti

Daiva Petrylaite

Andrej Poruban

Stein Evju

Henriett Rab
Associate professor, University of Debrecen. Supported by the ÚNKP-17-4-III New National Excellence Program of the Ministry of Human Capacities.

Yseult Marique
Free University of Brussels (ULB), University of Essex and FÖV Speyer.

Kris Wauters
Free University of Brussels (ULB), University of Essex and FÖV Speyer, Catholic University of Louvain (UC Louvain) and attorney-at-law.
Law Review

Access_open 2018/1 EELC’s review of the year 2017

Journal European Employment Law Cases, Issue 1 2018
Authors Ruben Houweling, Catherine Barnard, Zef Even e.a.
Abstract

    This is the first time we have produced a review of employment law cases from the previous year, based on analysis by various of our academic board members. But before looking at their findings, we would first like to make some general remarks.


Ruben Houweling

Catherine Barnard

Zef Even

Amber Zwanenburg

Daiva Petrylaitė

Petr Hůrka

Jean-Philippe Lhernould

Erika Kovács

Jan-Pieter Vos

Andrej Poruban

Luca Ratti

Niklas Bruun

Francesca Maffei
Article

2017/11 Transposition of the ‘enforcement’ directive into Belgian law

Journal European Employment Law Cases, Issue 2 2017
Keywords Private international law, posting of workers and expatriates, Free movement, minimum wage/social dumping
Authors Gautier Busschaert
AbstractAuthor's information

    This article briefly describes the main measures adopted by Belgium in transposing the EU Directive 2014/67 of 15 May 2014 into national law.


Gautier Busschaert
Gautier Busschaert is a lawyer at Van Olmen & Wynant in Brussels.
Case Reports

2017/19 Sureties for alleged breaches of the Austrian Anti-Wage and Social Dumping Law (AT)

Journal European Employment Law Cases, Issue 2 2017
Keywords Minimum wage/social dumping, Posted Workers Directive
Authors Hans Georg Laimer and Lukas Wieser
AbstractAuthor's information

    A surety can be imposed on an Austrian contractor retaining the services of a foreign company, if the foreign company is accused of breaching the Austrian Anti-Wage and Social Dumping Law and if the enforcement of a penalty outside Austria would be extremely difficult or impossible. Any risk assessment of this should based on not only what law is in place but whether it is routinely being applied. The Austrian Supreme Administrative Court (Verwaltungsgerichtshof) ruled that a surety should be imposed on a domestic contractor in relation to violations by a Hungarian suspect, even though law enforcement regulations are in place between Austria and Hungary (but just not applied in practice).


Hans Georg Laimer

Lukas Wieser
Hans Georg Laimer and Lukas Wieser are respectively a partner and an attorney at Law at zeiler.partners Rechtsanwaelte GmbH in Vienna.
Case Reports

2016/45 Supreme Court rules on social security legislation applicable to temps posted abroad (PL)

Journal European Employment Law Cases, Issue 3 2016
Keywords Free movement, social security and temporary agency workers
Authors Marcin Wujczyk PhD
AbstractAuthor's information

    Temporary agency workers employed by a Polish agency and posted temporarily to France to work there under the direction of a French client are entitled to A1 certificates and, therefore, to remain governed by exclusively Polish social security legislation while working in France.


Marcin Wujczyk PhD
Marcin Wujczyk, PhD., is a partner with Ksiazek Bigaj Wujczyk in Krakow, www.ksiazeklegal.pl.
ECJ Court Watch

ECJ 17 November 2015, case C-115/14. (Regio Post), Social Dumping

RegioPost GmbH & Co. KG –v– Stadt Landau in der Pfalz, German case

Journal European Employment Law Cases, Issue 1 2016
Keywords social dumping
Article

Access_open Tax Competition within the European Union – Is the CCCTB Directive a Solution?

Journal Erasmus Law Review, Issue 1 2014
Keywords tax competition, tax planning, European Union, Common Consolidated Corporate Tax Base, factor manipulation
Authors Maarten de Wilde LL.M
AbstractAuthor's information

    The author addresses the phenomenon of taxable profit-shifting operations undertaken by multinationals in response to countries competing for corporate tax bases within the European Union. The central question is whether this might be a relic of the past when the European Commission’s proposal for a Council Directive on a Common Consolidated Corporate Tax Base sees the light of day. Or would the EU-wide corporate tax system provide incentives for multinationals to pursue artificial tax base-shifting practices within the EU, potentially invigorating the risk of undue governmental tax competition responses? The author’s tentative answer on the potential for artificial base shifting and undue tax competition is in the affirmative. Today, the issue of harmful tax competition within the EU seems to have been pushed back as a result of the soft law approaches that were initiated in the late 1990s and early 2000s. But things might change if the CCCTB proposal as currently drafted enters into force. There may be a risk that substantial parts of the EU tax base would instantly become mobile as of that day. As the EU Member States at that time seem to have only a single tool available to respond to this – the tax rate – that may perhaps initiate an undesirable race for the EU tax base, at least theoretically.


Maarten de Wilde LL.M
LL.M, Researcher/lecturer, Erasmus University Rotterdam (<dewilde@law.eur.nl>), lecturer, University of Amsterdam, tax lawyer, Loyens & Loeff NV, Rotterdam, the Netherlands. This article was written as part of the Erasmus School of Law research programme on ‘Fiscal Autonomy and Its Boundaries’. The author wishes to thank the anonymous reviewers for their constructive comments on an earlier draft of this article.
Article

Access_open Better Access to Remedy in Company-Community Conflicts in the Field of CSR

A Model for Company-Based Grievance Mechanisms

Journal The Dovenschmidt Quarterly, Issue 4 2013
Keywords CSR, human rights, grievance mechanism, interest-based approach, rights-based approach
Authors Cristina Cedillo
AbstractAuthor's information

    The Special Representative to the UN Secretary-General on human rights and transnational corporations and other business enterprises, John Ruggie, establishes access to remedy as one of the three pillars of the UN ‘Protect, Respect, Remedy’ Framework. In this Framework, Ruggie prescribes that company-based grievance mechanisms can be one effective means of enabling remediation to those potentially being impacted by business enterprises’ activities. This report proposes a model for company-based grievance mechanisms that follow a combination of interest-based and rights-compatible approaches to conflict resolution of all corporate social responsibility issues in company–stakeholder relationships.


Cristina Cedillo
Cristina Cedillo (MA, LLM) participated in the master’s programme in International Business Law and Globalization at the Utrecht University School of Law, Economics and Governance, Utrecht (The Netherlands). The author is very grateful to Serge Bronkhorst and Tineke Lambooy for their guidance and helpful comments on earlier drafts.
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