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Article

Legislative Reform in Post-Conflict Settings

A Practitioner’s View

Journal European Journal of Law Reform, Issue 1 2019
Keywords post-conflict, rule of law, law reform, legislative reform
Authors Nathalia Berkowitz
AbstractAuthor's information

    Following conflict, considerable effort is often dedicated to legislative reform. This effort includes not only domestic actors but also international actors frequently acting with the aim of establishing the rule of law. This article seeks, first, to provide some context for legislative reform in post-conflict settings and outline some of the criticisms that have been made. Drawing on the work of legislative experts, the article then identifies some of the simple questions that those involved in legislative reform ask and discusses some of the key challenges in answering them. The article suggests that establishing the rule of law is more than putting laws ‘on the books’ and that the way in which legislation is created may itself contribute to developing the rule of law. It suggests that as the rule-of-law community develops new approaches, it might find it useful to draw on the approach of legislative experts and their concern with how effective legislation is created.


Nathalia Berkowitz
Nathalia Berkowitz is a former Barrister and legislative drafter working as an independent consultant focusing on rule of law reform. Nathalia has over 10 years’ experience supporting legislative reform and judicial process in countries around the world. She is a UK [Government] deployable civilian expert and faculty member of the University of Salamanca’s Global and International Studies Program. She can be contacted at nathaliapendo@gmail.com.
Article

Judging Reformers and Reforming Judges

Journal European Journal of Law Reform, Issue 1 2019
Keywords law reform, common law, judges, United Kingdom Supreme Court, legal reasoning
Authors James Lee
AbstractAuthor's information

    This article examines the practice and limits of judicial law reform. In particular, I consider the question of when initiation of a reform is appropriate for the judiciary as opposed to the legislature, an issue which has been a matter of controversy amongst the Justices of the United Kingdom Supreme Court. This question is assessed in the light of the institutional and constitutional competences of the courts, particularly with respect to the structure of common law reasoning. It is also argued that it is important to have regard to perspectives of the relevant judges, in understanding the individual and collective approaches to the judicial development of the law.


James Lee
James Lee is Reader in English Law and PC Woo Research Fellow 2016-2017 at The Dickson Poon School of Law, King’s College London, and Associate Academic Fellow of the Honourable Society of the Inner Temple; Senior Visiting Fellow, Gilbert + Tobin Centre of Public Law, University of New South Wales; and Visiting Professor, Hong Kong University. I am grateful to Enrico Albanesi, Mark Lunney, Jonathan Teasdale and all those who attended the Law Reform Workshop at the Institute of Advanced Legal Studies in November 2017 and a Kirby Seminar at the School of Law at the University of New England at which drafts of this article were presented. I thank both PC Woo & Co and the Faculty of Law at UNSW for the generous support for the project of which this article forms part. All views, and any errors, are my own.
Article

Law Reform in a Federal System

The Australian Example

Journal European Journal of Law Reform, Issue 1 2019
Keywords customary law, federal system, Australia
Authors Kathryn Cronin
AbstractAuthor's information

    The Australian law reform arrangements comprise a ‘crowded field’ of law reformers. These include permanent, semi-permanent and ad hoc commissions, committees and inquiries charged with examining and recommending reform of Commonwealth/federal and state laws. These are supplemented by citizen-led deliberative forums on law reform. The author’s experience in her roles as a commissioner and deputy president of the Australian Law Reform Commission (ALRC) and also as counsel assigned to advise the Joint Standing Committee on Migration in the Australian Federal Parliament highlighted facets of Australian law reform – the particular role of a law commission working in a federal system and the co-option of legal expertise to scrutinize law reforms proposed within the parliamentary committee system.


Kathryn Cronin
Kathryn Cronin is former Deputy President Australian Law Reform Commissioner and now barrister at Garden Court Chambers.
Article

Is There a Law Commission in France?

About the Commission Supérieure de Codification

Journal European Journal of Law Reform, Issue 1 2019
Keywords High Commission on Codification, France, Law Commission, codification, law reform
Authors Bertrand-Léo Combrade
AbstractAuthor's information

    The ‘Commission Supérieure de Codification (‘High Commission on Codification’) is a body that was created with the aim of providing support for the process of codifying the texts of positive law. Analysis of both its place in France’s institutional architecture and its working methods highlights certain particularities in the body’s functioning and raises questions as to its degree of proximity to the Law Commissions.


Bertrand-Léo Combrade
Lecturer in public law, Researcher at CURAPP-ESS (University of Picardy-Jules Verne), Associate researcher at ISJPS (Sorbonne Law School).

    If a religious organisation relies on an exception to the principle of equal treatment to draft rules that differ according to the religion of the employees, this must be subject to judicial review and will be acceptable only if the religion or belief constitutes a genuine and legitimate occupational requirement, justified by the ethos of the organisation concerned and the application of the exception is proportionate. If there are contrary provisions in national law, these must be disapplied.

    According to German law, every employee is entitled to paid annual leave. The amount of pay is generally calculated based on the current salary (known as the “principle of loss of pay”) but a reduction of working hours during the year does not lead to a reduction of entitlement to holiday pay for previously acquired holiday entitlements. If the entitlement was already acquired before the reduction of working time (which can happen because in Germany holiday entitlement is acquired at the beginning of the calendar year), pay during leave will be based on the salary agreed between the employer and employee when the holiday entitlement was acquired and thus, based on the ‘old’ salary.


Nina Stephan
Nina-Stephan is an attorney-at-law at Luther Rechtsanwaltsgesellschaft mbH in Essen, www.luther-lawfirm.com.

Paul Schreiner
Paul Schreiner is an attorney-at-law and partner with Luther Rechtsanwaltsgesellschaft mbH in Essen, www.luther-lawfirm.com.

    The Czech Supreme Court has ruled that the concept of good moral conduct must be taken into account when assessing whether an employee has breached his or her non-compete obligation and thus whether it is fair to demand that the employee pay a contractual penalty for the breach. The Court annulled the penalty.


Anna Diblíková
Anna Diblíková is an attorney at Noerr in Prague, www.noerr.com.

    A ‘false’ works agreement, which reduces the standard weekly working hours for permanent staff, also applies to leased employees. However, the pay of leased employees remains governed by the applicable collective bargaining agreement, rather than by the ‘false’ works agreement. Therefore, leased (part-time) employees benefitted from the reduced working hours by the ‘false’ works agreement, but received full pay based on the collective bargaining agreement.


Sarah Lurf
Sarah Lurf is an associate with Schima Mayer Starlinger Rechtsanwälte GmbH in Vienna, sms.law.
Pending cases

Case C-37/18, Miscellaneous

Vueling Airlines SA – v – Jean-Luc Poignan, reference lodged by the the Cour de cassation (France) on 19 January 2018

Journal European Employment Law Cases, Issue 4 2018

    A provision of Dutch law, according to which employees who lose their jobs upon retirement are excluded from the right to statutory severance compensation, is not in breach of the Framework Directive.


Peter C. Vas Nunes
Peter Vas Nunes is Of Counsel at BarentsKrans N.V., The Hague, the Netherlands.
Pending cases

Case C-161/18, Equal treatment, Pension

Violeta Villar Láiz – v – Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS), reference lodged by the Tribunal Superior de Justicia de Castilla y León (Spain) on 27 February 2018

Journal European Employment Law Cases, Issue 4 2018
Landmark Rulings

ECJ 6 November 2018, case C-684/16 (Max-Planck-Gesellschaft), Paid leave

Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V. – v – Tetsuji Shimizu, German case

Journal European Employment Law Cases, Issue 4 2018
Keywords Paid leave
Abstract

    A worker does not automatically lose the right to annual leave because s/he did not apply for it. The employer must have informed the employee about the opportunity to take the leave adequately and in a timely way, and must be able to prove it. Based on the EU Charter of Fundamental Rights, this applies between individuals as well.

Pending cases

Case C-429/18, Fixed-term work

Berta Fernández Álvarez, BMM, TGV, Natalia Fernández Olmos, María Claudia Téllez Barragán –‍ v – Consejería de Sanidad de la Comunidad de Madrid, reference lodged by the Juzgado de lo Contencioso-Administrativo de Madrid (Spain) on 28 June 2018

Journal European Employment Law Cases, Issue 4 2018

    The Danish Supreme Court has held there was no discrimination against four part-time teachers at a university in that they did not receive pension contributions. Their positions could not be compared to those of full-time teachers, who were entitled to pension contributions. However, it did constitute a violation of the Danish rules on fixed-term work that the teachers had, for a number of years, been employed on several fixed-term contracts, as they had, in effect, been continuously employed in the same position. Consequently, the teachers were awarded compensation.


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

ECJ 21 November 2018, case C-245/17 (Viejobueno Ibáñez and De la Vara González), Fixed-term work, Paid leave

Pedro Viejobueno Ibáñez, Emilia de la Vara González – v – Consejería de Educación de Castilla-La Mancha, Spanish case

Journal European Employment Law Cases, Issue 4 2018
Keywords Fixed-term work, Paid leave
Abstract

    The sole fact that fixed-term employment relationships terminate, whereas permanent relationships do not, does not constitute discrimination. Nevertheless, fixed-term teachers should receive an allowance in lieu of untaken leave.

Rulings

ECJ 25 October 2018, case C-331/17 (Sciotto), Fixed-term work

Martina Sciotto – v – Fondazione Teatro dell’Opera di Roma, Italian case

Journal European Employment Law Cases, Issue 4 2018
Keywords Fixed-term work
Abstract

    The Framework Agreement to protect the misuse of successive fixed-term employment contracts or relationships precludes legislation, which disapplies rules aimed against such misuse, when there is no other effective penalty.

Landmark Rulings

ECJ 6 November 2018, joined cases C-569/16 (Bauer) and C-570/16 (Willmeroth), Paid leave

Stadt Wuppertal – v – Maria Elisabeth Bauer and Volker Willmeroth – v – Martina Broßonn, German case

Journal European Employment Law Cases, Issue 4 2018
Keywords Paid leave
Abstract

    Heirs of a deceased worker are entitled to an allowance in lieu of untaken paid annual leave. Based on the EU Charter of Fundamental Rights, this applies between individuals as well.

    Following the ECJ’s decision in Somoza Hermo – v – Ilunion Seguridad, C-60/17 (Somoza Hermo) of 11 July 2018, all eyes were on the Spanish Supreme Court. Since 2016, the Court has ruled a number of times that limitations to the liability of the new contractor established in a collective bargaining agreement (‘CBA’) in the context of a CBA-led transfer were valid (see e.g. EELC 2018/21). Somoza Hermo established that a CBA-led transfer that entails a non-asset-based transfer is a transfer within the meaning of the Acquired Rights Directive. Now the Supreme Court (in a decision dated 27 September 2018 taken with one dissenting opinion) is clear that its doctrine must be reviewed and has therefore held that limitations on pre-transfer liability for a new contractor under a CBA-led transfer that trigger a non-asset-based transfer, are not valid.


Luis Aguilar
Luis Aguilar is an attorney-at-law at Eversheds Sutherland in Madrid, Spain and associate professor of Employment Law at IE University in Madrid, Spain.

    The Austrian Supreme Court has held that the employer must notify the Employment Service (AMS) when it is contemplating collective redundancies, even if they are carried by mutual agreement. The duty of notification is triggered if the employer proposes a mutual termination agreement to a relevant number of employees, provided the offer is binding and can be accepted by the employees within 30 days. If the employer fails to notify the AMS, any subsequent redundancies (or mutual terminations of employment occurring on the employer’s initiative) are void, even if effected after 30 days.


Andreas Tinhofer
Andreas Tinhofer is a partner at MOSATI Rechtsanwälte, www.mosati.at.
Rulings

ECJ 7 August 2018, case C-61/17 (Bichat), Collective redundancies

Miriam Bichat – v – Aviation Passage Service Berlin GmbH & Co. KG, German case

Journal European Employment Law Cases, Issue 4 2018
Keywords Collective redundancies
Abstract

    The obligations regarding collective redundancies also apply to all undertakings linked to an employer by shareholdings or by other links in law which allow for decisive influence in decision-making bodies and compel it to contemplate or to plan for collective redundancies.

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