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    In February 2017, a female worker was served notice of termination of her employment contract for economic reasons (odpoved pogodbe o zaposlitvi iz poslovnih razlogov). The reasons for the termination were: (i) a substantial decrease in orders, (ii) reduced realisation and (iii) reduced demand for particular products. In particular, the company had lost one of its clients in the automotive industry. The worker brought an action claiming that (i) the reason for the termination was not logical (this included challenging the arguments made in the termination letter because the business results in 2012, when the notice was served, were better than in 2011); (ii) the employer continuously requested employees to work overtime (but note that the overtime was within the statutory limits); and (iii) she had been discriminated against and the working conditions were poor in various respects. The first and second instance courts denied her claim and found the termination lawful.


Petra Smolnikar
Petra Smolnikar is the founder and managing partner of PETRA SMOLNIKAR LAW, in Ljubljana, Slovenia: http://petrasmolnikarlaw.eu.

    The highest administrative court in the Netherlands has delivered a razor-sharp ruling on the intra-community service provision set out in Articles 56 and 57 of the Treaty on the Functioning of the European Union). This concerns ‘new’ EU-nationals who are still under transitional measures with regard to access to the labour markets of ‘old’ EU Member States. The judgment was preceded by a request from the Chairman to a State Councillor Advocate General to deliver his opinion on various aspects of punitive administrative law practice in the Netherlands. Both the opinion and the judgment are a welcome clarification and addition (or even correction) on the practice.


Bart J. Maes
Bart J. Maes is a partner at Maes Staudt Advocaten N.V. in Eindhoven, the Netherlands (www.maes-staudt.nl).

    The Agreement on Transboundary Haze Pollution (“ATHP”), which has been signed by ASEAN member states, aims to overcome the annual haze problem in the region. Since the treaty came into force on 25 November 2003, the signatory nations urged Indonesia, the dominant contributor to the haze pollution, to ratify the agreement. After taking more than a decade to consider, Indonesia finally ratified the agreement in 2014, evincing its serious effort to prevent future forest fires. This study analyzes important issues of state responsibility and effective legal recourse to cope with the unresolved haze problem. Due to the ineffectiveness of ATHP, this study presents two effective legal measures: utilizing another relevant international treaty that offers an effective dispute settlement mechanism and building international awareness to stop using products from endangered forests.


Dodik Setiawan Nur Heriyanto
Lecturer at Faculty of Law, Islamic University of Indonesia.
Article

Non-Legal Considerations in the Reasoning of the European Court of Human Rights

Journal European Journal of Law Reform, Issue 3 2017
Keywords ECHR, Convention, human rights, subsidiarity, pretence
Authors Kacper Zajac
AbstractAuthor's information

    This article discusses the role of non-legal considerations in the judgments of the European Court of Human Rights. First, it considers what legal instruments are available to the Court in interpreting the Convention Rights and why such instruments came to being in the first place. Second, the article identifies what types of non-legal considerations are taken into account by the Court and what impact they have on the Court’s decision-making process. The article argues that the Court pays considerable attention to such considerations and, in certain circumstances, it deploys available legal instruments, such as the margin of appreciation doctrine or fair balance test, to give those non-legal considerations a legal pretence. The article concludes that the importance of the non-legal factors in the decision-making process can be attributed to the vulnerable position of the European Court of Human Rights vis-à-vis the contracting states.


Kacper Zajac
Kacper Zajac is a LLM student at the London School of Economics and Political Science (LSE) specializing in European Human Rights. He graduated from Aberystwyth University with First Class Honours in 2015. Kacper has published in the area of international law and British constitutional law. He has also worked as a Researcher for the Society of Conservative Lawyers on the pamphlet ‘A Conservative Narrative on International Law: Past, Present and Future’.

    Under the Latvian Labour Law an employee has the right to terminate an employment contract with immediate effect, i.e. without complying with the statutory notice period of one month, if the employee has ‘good cause’. Under the Labour Law, ‘good cause’ is any situation, which, based on considerations of morality and fairness, would not allow for the employment to continue. If an employee terminates their employment contract for good cause the employer must pay severance to the employee based on the employee’s years of service with the employer and amounting to between one and four months’ average earnings. If the employee gives notice for good cause, this terminates the employment contract with immediate effect.
    Even if the employer disagrees with the reasons given in the termination notice, the employer cannot terminate the employment contract on any other ground and does not have the right to challenge the validity of the notice in court. However, if the employer suffers loss as a result of the immediate termination; its reputation is damaged based on the reasons given in the notice; or it has faced some other adverse consequence; the employer can bring a claim arguing that what is stated in the notice is untrue.


Andis Burkevics
Andis Burkevics is a senior associate with the Latvian office of law firm SORAINEN (www.sorainen.com).

    The OECD BEPS Action 6 report contains a principal purpose test rule (PPT rule) for the purpose of combating abuse of tax treaties. This PPT rule is also included in the OECD Multilateral Instrument.
    The PPT rule is (amongst others) applicable when ‘it is reasonable to conclude’ that a benefit (granted by a tax treaty) was one of the principal purposes of any arrangement/transaction. This requirement contains two elements: the reasonableness test and the principal purpose test.
    In literature it is observed that (i) the reasonableness test of the PPT rule could be contrary to the European Union’s principle of legal certainty; (ii) that the OECD PPT rule gives the tax authorities too much discretion and, therefore, is not in line with EU law and (iii) there is doubt whether the OECD PPT rule contains a genuine economic activity test and therefore is in contravention of the abuse of law case law of the CJEU.
    In this contribution, I defend that none of the above-mentioned reasons the OECD PPT rule is contrary to EU law. The only potential problem I see is that the OECD PPT rule is broader (no artificiality required) compared to the GAARs in Anti-Tax Avoidance Directive and the Parent–Subsidiary Directive.


Dennis Weber
Dennis Weber is a professor of European corporate tax law at the University of Amsterdam and director and founder of the Amsterdam Centre for Tax Law (ACTL).
Case Reports

2017/12 Court of Appeal rejects argument that Christmas strikes are unlawful under EU law (UK)

Journal European Employment Law Cases, Issue 2 2017
Keywords Collective labour law, industrial actions, unions
Authors Vince Toman and David Hopper
AbstractAuthor's information

    The Court of Appeal has confirmed that industrial action called with the object or purpose of infringing the cross-border freedom to establish and receive services would be unlawful. It rejected the argument that industrial action would be unlawful if it made it unattractive for foreign companies to operate in the UK or if cross-border services might potentially be disrupted. These wider tests would be inconsistent with European case law on the Treaty on the Functioning of the European Union (‘TFEU’) and would be incompatible with proper protection of the right to strike.


Vince Toman

David Hopper
Vince Toman and David Hopper are respectively Head of the Trade Union and Collective Employment Law Group and Senior Associate at Lewis Silkin LLP.

    In a much publicised case, Uber drivers have won a first instance employment tribunal finding that they are ‘workers’ and not self-employed contractors. This decision means that they are entitled to basic protections, such as the national minimum wage, paid holiday (under the Working Time Directive) and protection against detriment for ‘blowing the whistle’ on wrong doing. The decision could have substantial financial consequences for Uber, which has around 40,000 drivers in the UK but Uber has already confirmed that it will appeal the decision, so we are unlikely to have a final determination on this question for some time.


Bethan Carney
Bethan Carney is a lawyer at Lewis Silkin LLP: www.lewissilkin.com.
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