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Search result: 52 articles
Year 2020 xCase Reports |
2020/52 An employer cannot compel an employee, without notice, to take deferred annual leave (FR) |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Paid Leave |
Authors | Claire Toumieux and Susan Ekrami |
AbstractAuthor's information |
Rulings |
ECJ 8 October 2020, Case C-644/19 (Universitatea „Lucian Blaga” Sibiu and Others), Age Discrimination, Fixed-Term WorkFT – v – Universitatea « Lucian Blaga » Sibiu and Others, Romanian case |
Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Age Discrimination, Fixed-Term Work |
Abstract |
Difference in treatment of teaching staff not found to be age discriminatory, but may be in breach of the fixed-term work directive. |
Article |
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Journal | European Employment Law Cases, Issue 4 2020 |
Keywords | Applicable Law, Posting of Workers |
Authors | Gautier Busschaert and Pieter Pecinovsky |
AbstractAuthor's information |
This article focuses on the posting of workers in the aviation industry. The main problem is that it is not clear in which situations the Posting of Workers Directive should be applied to aircrew (i.e. cabin crew and pilots). The aviation sector is characterised by a very mobile workforce in which it is possible for employees to provide services from different countries in a very short timeframe. This makes it, to a certain extent, easier for employers to choose the applicable social legislation, which can lead to detrimental working conditions for their aircrew. This article looks into how the Posting of Workers Directive can prevent some air carriers from unilaterally determining the applicable social legislation and makes some suggestions to end unfair social competition in the sector. This article is based on a research report which the authors drafted in 2019 with funding from the European Commission (hereafter the ‘Report’) |
Human Rights Practice Review |
The Czech Republic |
Journal | East European Yearbook on Human Rights, Issue 1 2020 |
Authors | Viktor Kundrák and Maroš Matiaško |
Author's information |
Article |
The Question of JurisdictionThe Impact of Ultra Vires Decisions on the ECJ’s Normative Power and Potential Effects for the Field of Data Protection |
Journal | East European Yearbook on Human Rights, Issue 1 2020 |
Keywords | ECJ, German Constitutional Court, principle of proportionality, primacy of EU law, data protection, principle of conferral, ultra vires judgments |
Authors | Carsten M. Wulff |
AbstractAuthor's information |
The ultra vires judgment of the German Constitutional Court on the debt security purchasing of the ECB system sent shockwaves throughout Europe. Some scholars see the legal framework, specifically the principle of the supremacy of the European Union in danger. This article argues that the judgment is a challenge for Luxembourg; however, there have been warning signs from the Czech Republic and Denmark that constitutional courts will not shy away from criticizing, when the ECJ oversteps its jurisdiction. The author argues that the judgment may weaken the overall normative power of the court and will assess whether a similar judgment could occur in the field of data protection and national security exceptions. The only way back to normality will be for the court to ensure it does not overstep its jurisdiction and the European Institutions unconditionally backing the ECJ in the expected upcoming conflict with the constitutional courts of Member States. |
Article |
Digital Equals PublicAssembly Meetings Under a Lockdown Regime |
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | COVID-19 regulation, temporary legislation, sunset clauses, digitalization, digital democracy, local democracy, experimental legislation |
Authors | Lianne van Kalken and Evert Stamhuis |
AbstractAuthor's information |
In this article we examine the Dutch emergency legislation for local democracy. In response to the COVID-19 pandemic in the Netherlands, the Temporary Act for digital meetings for local/regional government tiers was enacted. The legislature introduced a system of digital debate and decision-making for municipal and provincial councils, the democratically elected assemblies at the local and regional levels. At the same time the Ministry of the Interior and Kingdom Relations set up an evaluation committee to monitor and evaluate the working of the local and provincial governments with this temporary legislation. |
Article |
Patience, LadiesGender-Sensitive Parliamentary Responses in a Time of Crisis |
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | gender sensitivity, parliament, responsiveness, COVID-19, democracy, women |
Authors | Sonia Palmieri and Sarah Childs |
AbstractAuthor's information |
In early 2020, in the face of the Covid-19 pandemic, numerous parliaments played their rightful democratic role by following the advice of health and economic experts and swiftly passing emergency legislation and relief packages. This was, in many countries, an attempt to reach an equilibrium between saving lives and saving economic livelihoods, on the understanding that both were in serious jeopardy. In the face of public health measures many parliaments also found themselves having to reform their own rules, procedures and practices. In both cases – policy interventions and institutional redesign – it appears that parliamentary responses to the Covid-19 situation were less commonly based on the advice of gender experts or informed by considerations of gender inequalities. Few, if any, emergency packages were designed following a systematic consideration of existing, deeply entrenched gender inequalities, despite continuous public analysis and commentary about the disproportionate gender impacts of the pandemic and the resulting lockdowns; and no parliaments instituted (temporary) rule changes that prioritized the voices of women parliamentarians or constituents. In this article, which draws on our work drafting the UN Women Covid-19 Parliamentary Primer & Checklist, we revisit the democratic case for gender-sensitive parliaments, highlighting their particular relevance to the 2020 pandemic. We introduce our model for gender-sensitive crisis responses across four key stages of the parliamentary process presented in the Primer – representation, deliberation, legislation and scrutiny – and offer an initial assessment of what transpired in the world’s parliaments based on an IPU survey. We suggest that if parliaments are to be gender-sensitive institutions in times of crisis, they must not only change how they do politics but also develop and sustain a robust political culture that values gender equality and an ethic of caring that supports new rules, procedures and practices that better redress institutional gender deficiencies. |
Article |
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Journal | Erasmus Law Review, Issue 4 2020 |
Keywords | wrongful conviction, revision, extraordinary appeal, rescission of final judgment, res judicata |
Authors | Luca Lupária Donati and Marco Pittiruti |
AbstractAuthor's information |
The Italian Constitution expressly contemplates the possibility of a wrongful conviction, by stating that the law shall determine the conditions and forms regulating damages in case of judicial error. Therefore, it should come as no surprise that many provisions of the Italian Code of Criminal Procedure (CCP) deal with the topic. The aim of this article is to provide an overview of the post-conviction remedies in the Italian legal system by considering the current provisions of the CCP, on the one hand, and by exploring their practical implementation, on the other. |
Article |
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Journal | International Journal of Online Dispute Resolution, Issue 2 2020 |
Keywords | European legislation, Alternative Dispute Resolution, civil procedure |
Authors | Rebecca Berto |
AbstractAuthor's information |
Alternative Dispute Resolution (=ADR) is a generic reference to consensus-based processes that provide an alternative to litigation and to binding arbitration procedures. Analysing European provisions, the European legislator pushes Alternative Dispute Resolution methods as a means of resolving not only consumer-to-business disputes but also business-to-business. This may determine over the long term a sort of ‘dejurisdictionalization’ process, moving disputes from tribunals to Alternative Dispute Resolution methods. Procedural rights, however, such as raising interpretative questions to the European Court of Justice, may only be exercised before a court. |
Article |
EU Integrative Approach to Space and Telecommunications Areas |
Journal | International Institute of Space Law, Issue 6 2020 |
Authors | Mahulena Hofmann |
AbstractAuthor's information |
The European Union has turned into a significant player in the area of space activities and this has been accompanied by legislative steps. In 2018, it formulated a Proposal for a Regulation Establishing the Space Programme of the Union and the European Union Agency for the Space Programme which seeks to regulate the governance of the key components of the EU space activities. In parallel, the Union adopted also the Directive No 2018/1972 establishing the European Communications Code, which represents the recent developments in the approach to frequency spectrum applicable also to space communication. It is interesting to see that from the legislative point of view European Union is approaching the regulation of space activities and telecommunication differently. Whereas telecommunication, including space communication, is regulated as a part of the European internal market and the respective procedures are substantially harmonised, space activities are based on the provision of the Lisbon Treaty which expressly prohibits any harmonization of national space laws. The common denominator for both areas is the method to codify a whole package of new and older activities in a single document. |
Article |
An International Trust Model to Deal with the New Space EraFrom the “De Iure Condito” Regime to a “De Iure Condendo” System for Outer Space |
Journal | International Institute of Space Law, Issue 7 2020 |
Authors | Ivan Fino |
AbstractAuthor's information |
Considering the acceleration of climate change, in the future outer space might be our last Noah’s Ark. Humans must now look to space as an opportunity to support growing resource requirements. Unfortunately, the existing international legal framework discourages investments in the space economy. Once an enterprise invests in developing a mining site, it cannot claim any ownership because of the non-appropriation principle of Article 2, Outer Space Treaty (OST); thus, other entities could legally access and exploit the same resource without any participation in the initial financial investment. Taking this into consideration, the question arises, which legal regime could ensure effective allocation of resources? The aim of this research is to develop a new legal model for outer space, considering the weak points of the current regime and the needs of the new space economy. Food for thought will be drawn from the hypothetical adoption of various international environments’ legal framework. The proposed model would take the best features of these legal regimes and its structure would be based on a mix between a classical legal trust model and a public trust model. |
Article |
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Journal | Erasmus Law Review, Issue 2 2020 |
Keywords | Migration, EU migration law, time |
Authors | Gerrie Lodder |
AbstractAuthor's information |
States apply different material conditions to attract or restrict residence of certain types of migrants. But states can also make use of time as an instrument to design more welcoming or more restrictive policies. States can apply faster application procedures for desired migrants. Furthermore, time can be used in a more favourable way to attract desired migrants in regard to duration of residence, access to a form of permanent residence and protection against loss of residence. This contribution makes an analysis of how time is used as an instrument in shaping migration policy by the European Union (EU) legislator in the context of making migration more or less attractive. This analysis shows that two groups are treated more favourably in regard to the use of time in several aspects: EU citizens and economic- and knowledge-related third-country nationals. However, when it comes to the acquisition of permanent residence after a certain period of time, the welcoming policy towards economic- and knowledge-related migrants is no longer obvious. |
Article |
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Journal | Erasmus Law Review, Issue 3 2020 |
Keywords | Transformative pedagogy, equality legislation, promotion of equality, law reform, using law to change hearts and minds |
Authors | Anton Kok, Lwando Xaso, Annalize Steenekamp e.a. |
AbstractAuthor's information |
In this article, we focus on how the education system can be used to promote equality in the context of changing people’s hearts and minds – values, morals and mindsets. The duties contained in the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (‘Equality Act’) bind private and public schools, educators, learners, governing bodies and the state. The Equality Act calls on the state and all persons to promote substantive equality, but the relevant sections in the Equality Act have not been given effect yet, and are therefore currently not enforceable. We set out how the duty to promote equality should be concretised in the Equality Act to inter alia use the education system to promote equality in schools; in other words, how should an enforceable duty to promote equality in schools be fashioned in terms of the Equality Act. Should the relevant sections relating to the promotion of equality come into effect in their current form, enforcement of the promotion of equality will take the form of obliging schools to draft action plans and submit these to the South African Human Rights Commission. We deem this approach inadequate and therefore propose certain amendments to the Equality Act to allow for a more sensible monitoring of schools’ duty to promote equality. We explain how the duty to promote equality should then play out practically in the classroom to facilitate a change in learners’ hearts and minds. |
Article |
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Journal | European Journal of Law Reform, Issue 3 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 on Contracts 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. |
Case Reports |
2020/18 Prohibition of dismissal of pregnant employee (RO) |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Gender discrimination |
Authors | Andreea Suciu and Teodora Mănăilă |
AbstractAuthor's information |
Analysing the national legal framework in relation to the protection of pregnant employees and employees who have recently given birth or are breastfeeding, provisions which transposed the regulations of Directive 92/85/EEC and of the conclusions in case C-103/16, Jessica Porras Guisado – v – Bankia S.A. and Others, the Constitutional Court of Romania ascertained that the dismissal prohibition of a pregnant employee is strictly restricted to reasons that have a direct connection with the employee’s pregnancy status. As for other cases where the termination of the employment contract is the result of disciplinary misconduct, unexcused absence from work, non-observance of labour discipline, or termination of employment for economic reasons or collective redundancies, the employer must submit in writing well-reasoned grounds for dismissal. |
Pending Cases |
Case C-40/20, Fixed-term WorkAQ, BO, CP – v – Presidenza del Consiglio dei Ministri, Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR, Università degli studi di Perugia, reference lodged by the Consiglio di Stato (Italy) on 27 January 2020 |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Fixed-term Work |
Pending Cases |
Case C-44/20, Fixed-term WorkAutorità di Regolazione per Energia Reti e Ambiente (ARERA) – v – PC, RE, reference lodged by the Consiglio di Stato (Italy) on 27 January 2020 |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Fixed-term Work |
Pending Cases |
Case C-135/20, Fixed-term WorkJS – v – Câmara Municipal de Gondomar, reference lodged by the Supremo Tribunal Administrativo (Portugal) on 12 March 2020 |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Fixed-term Work |
Landmark Rulings |
ECJ 22 April 2020, case C-692/19 (Yodel Delivery Network), Working Time, Employment StatusB – v – Yodel Delivery Network Ltd, UK case |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Working Time, Employment Status |
Abstract |
Directive 2003/88/EC precludes a self-employed independent contractor from being classified as a ‘worker’ under the Directive, if they are afforded discretion on the use of subcontractors, acceptance of tasks, providing services to third parties and fixing their own hours of work, provided that the independence does not appear to be fictitious and no relationship of subordination between them and their putative employer can be established. |
Pending Cases |
Case C-942/19, Fixed-term WorkServicio Aragonés de la Salud – v – LB, reference lodged by the Tribunal Superior de Justicia de Aragón (Spain) on 31 December 2019 |
Journal | European Employment Law Cases, Issue 2 2020 |
Keywords | Fixed-term Work |