Pub Date : 2022-06-09DOI: 10.1177/20319525221104166
Anja Eleveld
One of the main goals of the Dutch Act on the Employment Contract of 1907 was to offer protection to day labourers who sold their labour on a daily basis as ‘entrepreneurs of themselves’. Under the Act, these workers were classified as ‘employees’, which made them less dependent on market forces and the whims of their employer. One may wonder, however, whether the (lack of) employment protection of the 19th century day labourer differed much from that of todays’ employees performing zero-hours work who, like those day labourers, have to cope with unpredictable working days and hours. This article seeks to answer this question through detailed analysis of the regulation of the zero-hours employment contract under Dutch labour law. In this context it will also address the impact of EU labour law on the regulation of zero-hours work arrangements. Starting with a historical perspective, it is shown how the Dutch legislator’s aim to create a new balance between ‘flexibility and security’ has strengthened the employment protection of zerohours workers, which to some extent gives them advantages over dependent self-employed workers. On the other hand, however, the article reveals how subsequent legislative reforms have legally authorised zero-hours employment contracts and, as such, have legitimised zero-hours workers’ insecure employment conditions. In addition, while both the Dutch and the EU legislator have recognised that the balance between flexibility and security has tipped too much in favour of flexibility, this article argues that new instruments, among which is the EU Directive on Transparent and Predictable Working Conditions (2019/1152/EU), fail to restore this balance sufficiently. It is concluded that instead of achieving the EU policy objective of flexicurity, current employment relations in the Netherlands seem to reflect a state of flexi-insecurity. Before I continue, it should be noted that zero-hours work is a type of work which is not defined in Dutch labour law. It is usually considered a sub-category of on-demand work in that zero-hours workers unlike, for example, workers on a min-max contract, lack guaranteed working hours.
{"title":"Flexi-insecurity and the regulation of zero-hours work in the Netherlands","authors":"Anja Eleveld","doi":"10.1177/20319525221104166","DOIUrl":"https://doi.org/10.1177/20319525221104166","url":null,"abstract":"One of the main goals of the Dutch Act on the Employment Contract of 1907 was to offer protection to day labourers who sold their labour on a daily basis as ‘entrepreneurs of themselves’. Under the Act, these workers were classified as ‘employees’, which made them less dependent on market forces and the whims of their employer. One may wonder, however, whether the (lack of) employment protection of the 19th century day labourer differed much from that of todays’ employees performing zero-hours work who, like those day labourers, have to cope with unpredictable working days and hours. This article seeks to answer this question through detailed analysis of the regulation of the zero-hours employment contract under Dutch labour law. In this context it will also address the impact of EU labour law on the regulation of zero-hours work arrangements. Starting with a historical perspective, it is shown how the Dutch legislator’s aim to create a new balance between ‘flexibility and security’ has strengthened the employment protection of zerohours workers, which to some extent gives them advantages over dependent self-employed workers. On the other hand, however, the article reveals how subsequent legislative reforms have legally authorised zero-hours employment contracts and, as such, have legitimised zero-hours workers’ insecure employment conditions. In addition, while both the Dutch and the EU legislator have recognised that the balance between flexibility and security has tipped too much in favour of flexibility, this article argues that new instruments, among which is the EU Directive on Transparent and Predictable Working Conditions (2019/1152/EU), fail to restore this balance sufficiently. It is concluded that instead of achieving the EU policy objective of flexicurity, current employment relations in the Netherlands seem to reflect a state of flexi-insecurity. Before I continue, it should be noted that zero-hours work is a type of work which is not defined in Dutch labour law. It is usually considered a sub-category of on-demand work in that zero-hours workers unlike, for example, workers on a min-max contract, lack guaranteed working hours.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"13 1","pages":"375 - 399"},"PeriodicalIF":0.7,"publicationDate":"2022-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42661911","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-09DOI: 10.1177/20319525221104167
E. Dermine, Amaury Mechelynck
The development of on-demand work is one of the recent trends in the organisation of work in industrialised economies. On-demand work is a generic term that includes various work arrangements that ‘involve a continuous employment relationship maintained between an employer and an employee’, but whereby ‘the employer does not continuously provide work for the employee’. Rather, ‘the employer has the option of calling the employee in as and when needed’. This range of work arrangements is meant to meet the flexibility needs of companies that face peaks in work that are irregular and unpredictable. However, there is a risk that employers may misuse this form of work organisation to avoid the application of protective labour law provisions. Moreover, on-demand work raises two major issues regarding the protection of workers. First, the unpredictability of the number of working hours leaves workers in financial insecurity and instability. Second, workers may face difficulties in balancing work with personal life due to the potentially high variability of work schedules. Some on-demand employment contracts indicate the minimum and the maximum number of working hours, but this article focuses on employment relationships in which no minimum number of working hours (and remuneration) is guaranteed: the so-called ‘zero-hours contracts’ (on this notion, see the introduction to this special issue). More precisely, it examines the regulation of zero-hours contracts in Belgium. As in the United Kingdom and unlike the Netherlands, there is no reference in Belgian legislation to the notions of on-demand work or zero-hours contracts. These are not legal terms under
{"title":"Regulating zero-hour contracts in Belgium: From a defensive to a (too?) supportive approach","authors":"E. Dermine, Amaury Mechelynck","doi":"10.1177/20319525221104167","DOIUrl":"https://doi.org/10.1177/20319525221104167","url":null,"abstract":"The development of on-demand work is one of the recent trends in the organisation of work in industrialised economies. On-demand work is a generic term that includes various work arrangements that ‘involve a continuous employment relationship maintained between an employer and an employee’, but whereby ‘the employer does not continuously provide work for the employee’. Rather, ‘the employer has the option of calling the employee in as and when needed’. This range of work arrangements is meant to meet the flexibility needs of companies that face peaks in work that are irregular and unpredictable. However, there is a risk that employers may misuse this form of work organisation to avoid the application of protective labour law provisions. Moreover, on-demand work raises two major issues regarding the protection of workers. First, the unpredictability of the number of working hours leaves workers in financial insecurity and instability. Second, workers may face difficulties in balancing work with personal life due to the potentially high variability of work schedules. Some on-demand employment contracts indicate the minimum and the maximum number of working hours, but this article focuses on employment relationships in which no minimum number of working hours (and remuneration) is guaranteed: the so-called ‘zero-hours contracts’ (on this notion, see the introduction to this special issue). More precisely, it examines the regulation of zero-hours contracts in Belgium. As in the United Kingdom and unlike the Netherlands, there is no reference in Belgian legislation to the notions of on-demand work or zero-hours contracts. These are not legal terms under","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"13 1","pages":"400 - 430"},"PeriodicalIF":0.7,"publicationDate":"2022-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47951193","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-06DOI: 10.1177/20319525221105101
M. Kullmann
Case C-16/19 VL/Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie ECLI:EU:C:2021:64. Provisions: Art 2(1), 2(2)(a) and (b) Directive 2000/78/EC
{"title":"Broadening the comparator group in the context of discrimination based on disability","authors":"M. Kullmann","doi":"10.1177/20319525221105101","DOIUrl":"https://doi.org/10.1177/20319525221105101","url":null,"abstract":"Case C-16/19 VL/Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie ECLI:EU:C:2021:64. Provisions: Art 2(1), 2(2)(a) and (b) Directive 2000/78/EC","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"13 1","pages":"466 - 468"},"PeriodicalIF":0.7,"publicationDate":"2022-06-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45395139","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-03DOI: 10.1177/20319525221104165
J. Atkinson
The UK has seen a dramatic growth in precarious work over recent decades, including the amorphous category of ‘zero-hours contracts’ which are often regarded as a paradigm example of an exploitative and insecure form of work. Although somewhat overshadowed by litigation and debates surrounding the gig-economy, the regulation of zero hours work continues to be a pressing issue in the UK, and important questions as to the rights that are, and should be, available to individuals with these contracts remain unanswered. This article sets out the detrimental effects that zero hours working arrangements have in the absence of adequate regulatory safeguards and argues that the orthodox treatment of zero hours contracts under English law, and the standard tools of employment law, fail to protect against these economic and social harms. The article then assesses the extent to which recent legislative and common law developments improve the position of zero hours workers, and whether existing legislation might be creatively applied to better protect these individuals. While current statutory frameworks, including reforms and legislation aimed at regulating atypical work, fall short of adequately protecting zero hours workers, the ‘purposive approach’ to employment status developed by the Supreme Court in Uber makes it considerably easier for zero hours contracts to be brought within the protective scope of employment law. It is argued that under this approach many individuals with supposedly ‘zero hours’ working arrangements should in fact now be regarded as employees with overarching contracts of employment. Despite the significance of this, however, it is ultimately concluded that further statutory intervention is necessary to effectively regulate zero hours work in the UK.
{"title":"Zero-hours contracts and english employment law: Developments and possibilities","authors":"J. Atkinson","doi":"10.1177/20319525221104165","DOIUrl":"https://doi.org/10.1177/20319525221104165","url":null,"abstract":"The UK has seen a dramatic growth in precarious work over recent decades, including the amorphous category of ‘zero-hours contracts’ which are often regarded as a paradigm example of an exploitative and insecure form of work. Although somewhat overshadowed by litigation and debates surrounding the gig-economy, the regulation of zero hours work continues to be a pressing issue in the UK, and important questions as to the rights that are, and should be, available to individuals with these contracts remain unanswered. This article sets out the detrimental effects that zero hours working arrangements have in the absence of adequate regulatory safeguards and argues that the orthodox treatment of zero hours contracts under English law, and the standard tools of employment law, fail to protect against these economic and social harms. The article then assesses the extent to which recent legislative and common law developments improve the position of zero hours workers, and whether existing legislation might be creatively applied to better protect these individuals. While current statutory frameworks, including reforms and legislation aimed at regulating atypical work, fall short of adequately protecting zero hours workers, the ‘purposive approach’ to employment status developed by the Supreme Court in Uber makes it considerably easier for zero hours contracts to be brought within the protective scope of employment law. It is argued that under this approach many individuals with supposedly ‘zero hours’ working arrangements should in fact now be regarded as employees with overarching contracts of employment. Despite the significance of this, however, it is ultimately concluded that further statutory intervention is necessary to effectively regulate zero hours work in the UK.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"13 1","pages":"347 - 374"},"PeriodicalIF":0.7,"publicationDate":"2022-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48284358","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-25DOI: 10.1177/20319525221093815
Henni Parviainen
Algorithmic recruitment systems are emerging in the EU job market. Such systems could technically rely on AI and automated decision-making, but it is unclear whether it is lawful. In addition to other rules, the ambiguously worded GDPR Article 22 regulates automated decision-making. It remains unresolved whether the main rule in GDPR Article 22(1) grants applicants a right not to be subject to automated decisions or prohibits employers from making automated decisions. Further, it appears undetermined as to what counts as automated decision-making under GDPR Article 22(1) and whether the GDPR Article 22(2) exceptions to the main rule apply in a recruitment context. This article examines the legal boundaries set by GDPR Article 22(1) and (2) on the use of automated decision-making in algorithmic recruitment systems. The aim is to clarify whether employers in the EU are allowed to use algorithmic recruitment systems with automated decision-making capabilities. The examination indicates that, even if deemed a prohibition, GDPR Article 22 does not completely disallow such systems. Instead, the analysis suggests that automated decision-making could be allowed for recruitment under the contractual necessity exception of Article 22(2)(a), for instance, in a case where it would be impossible to go through the abundance of applications by hand in a reasonable time and manner. However, the explicit consent exception of Article 22(2)(c) would only apply in an extremely limited number of recruitment cases, if ever. Consequently, it seems that regardless of the rather strict legal boundaries, algorithmic recruitment systems could utilise automated decision-making in certain limited cases and after diligent assessments. Automated decision-making could be worthwhile, for example, in mass scale recruitment processes which could not reasonably be handled without automation.
{"title":"Can algorithmic recruitment systems lawfully utilise automated decision-making in the EU?","authors":"Henni Parviainen","doi":"10.1177/20319525221093815","DOIUrl":"https://doi.org/10.1177/20319525221093815","url":null,"abstract":"Algorithmic recruitment systems are emerging in the EU job market. Such systems could technically rely on AI and automated decision-making, but it is unclear whether it is lawful. In addition to other rules, the ambiguously worded GDPR Article 22 regulates automated decision-making. It remains unresolved whether the main rule in GDPR Article 22(1) grants applicants a right not to be subject to automated decisions or prohibits employers from making automated decisions. Further, it appears undetermined as to what counts as automated decision-making under GDPR Article 22(1) and whether the GDPR Article 22(2) exceptions to the main rule apply in a recruitment context. This article examines the legal boundaries set by GDPR Article 22(1) and (2) on the use of automated decision-making in algorithmic recruitment systems. The aim is to clarify whether employers in the EU are allowed to use algorithmic recruitment systems with automated decision-making capabilities. The examination indicates that, even if deemed a prohibition, GDPR Article 22 does not completely disallow such systems. Instead, the analysis suggests that automated decision-making could be allowed for recruitment under the contractual necessity exception of Article 22(2)(a), for instance, in a case where it would be impossible to go through the abundance of applications by hand in a reasonable time and manner. However, the explicit consent exception of Article 22(2)(c) would only apply in an extremely limited number of recruitment cases, if ever. Consequently, it seems that regardless of the rather strict legal boundaries, algorithmic recruitment systems could utilise automated decision-making in certain limited cases and after diligent assessments. Automated decision-making could be worthwhile, for example, in mass scale recruitment processes which could not reasonably be handled without automation.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"13 1","pages":"225 - 248"},"PeriodicalIF":0.7,"publicationDate":"2022-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42664957","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-24DOI: 10.1177/20319525221093505
C. Carvalho, A. Ribeiro
This article discusses the main changes introduced to the Portuguese labour market following the adoption of the Memorandum of Understanding of 2011. The intent behind the Memorandum's demands was to reduce the costs related to employment contracts, to expand both internal and external flexibility, and to relaunch collective bargaining under a new and more decentralised framework. However, several measures ended up being at odds not only with the Portuguese Constitution, but also with ILO Conventions and the (Revised) European Social Charter. We address the changes to wage policies, working time, employment protection legislation, and collective bargaining, which gave way to a new ‘flexibility-oriented’ labour relations model, characterised by a global reduction of labour protection levels. We argue that not only were these measures unable to fix the problems of the Portuguese labour market, but they also had crippling effects on social rights in general and, most particularly, on workers’ rights. Moreover, despite the overcoming of the economic crisis, as well as the changes to the political scene, the most significant alterations were maintained. This demonstrates that bailout reforms leave their mark, particularly when they correspond to measures previously under discussion and when their implementation is supported by external pressures.
{"title":"The impact of the EU economic governance in Portugal","authors":"C. Carvalho, A. Ribeiro","doi":"10.1177/20319525221093505","DOIUrl":"https://doi.org/10.1177/20319525221093505","url":null,"abstract":"This article discusses the main changes introduced to the Portuguese labour market following the adoption of the Memorandum of Understanding of 2011. The intent behind the Memorandum's demands was to reduce the costs related to employment contracts, to expand both internal and external flexibility, and to relaunch collective bargaining under a new and more decentralised framework. However, several measures ended up being at odds not only with the Portuguese Constitution, but also with ILO Conventions and the (Revised) European Social Charter. We address the changes to wage policies, working time, employment protection legislation, and collective bargaining, which gave way to a new ‘flexibility-oriented’ labour relations model, characterised by a global reduction of labour protection levels. We argue that not only were these measures unable to fix the problems of the Portuguese labour market, but they also had crippling effects on social rights in general and, most particularly, on workers’ rights. Moreover, despite the overcoming of the economic crisis, as well as the changes to the political scene, the most significant alterations were maintained. This demonstrates that bailout reforms leave their mark, particularly when they correspond to measures previously under discussion and when their implementation is supported by external pressures.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"13 1","pages":"193 - 213"},"PeriodicalIF":0.7,"publicationDate":"2022-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45362280","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-18DOI: 10.1177/20319525221093487
Marco Rocca
The new economic governance of the European Union emerged as an important legacy of the Eurozone crisis. Although its suspension during the COVID-19 pandemic has somewhat reduced its visibility, the process of the European Semester remains as central as ever in coordinating socio-economic policies of Member States, notably through its link with the Recovery and Resilience Facility. Two of the most relevant tools of the EU Economic Governance, notably Memoranda of Understanding and Country Specific Recommendations, focus, to an important degree, on labour law reforms. As such, it is important to question the role which these instruments have played, and will potentially play in the future, for national systems of labour law as well as for the evolution of EU labour law itself. To do so, it is necessary to go beyond quantitative or macro approaches to the content of the prescriptions of these tools, in order to analyse their impact on specific labour law systems and national contexts. This will generate a better understating of the relevance of the EU economic governance for the field of labour law.
{"title":"Introduction: The EU new economic governance, labour law and labour lawyers","authors":"Marco Rocca","doi":"10.1177/20319525221093487","DOIUrl":"https://doi.org/10.1177/20319525221093487","url":null,"abstract":"The new economic governance of the European Union emerged as an important legacy of the Eurozone crisis. Although its suspension during the COVID-19 pandemic has somewhat reduced its visibility, the process of the European Semester remains as central as ever in coordinating socio-economic policies of Member States, notably through its link with the Recovery and Resilience Facility. Two of the most relevant tools of the EU Economic Governance, notably Memoranda of Understanding and Country Specific Recommendations, focus, to an important degree, on labour law reforms. As such, it is important to question the role which these instruments have played, and will potentially play in the future, for national systems of labour law as well as for the evolution of EU labour law itself. To do so, it is necessary to go beyond quantitative or macro approaches to the content of the prescriptions of these tools, in order to analyse their impact on specific labour law systems and national contexts. This will generate a better understating of the relevance of the EU economic governance for the field of labour law.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"13 1","pages":"141 - 155"},"PeriodicalIF":0.7,"publicationDate":"2022-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42264973","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-18DOI: 10.1177/20319525221093488
Filip Dorssemont
Wage setting can be defined as the procedures which determine the remuneration which needs to be paid to employees as the counterpart of their work. The ancillary relationship between wage moderation and the new economic governance has never been expressed as clearly as in the Europlus Pact. The new economic governance (NEG) of the European Union has fostered wage moderation. This approach to wage setting and wage moderation is analysed from the perspective of the freedom of collective bargaining as a fundamental right, and on the basis of a national case study (Belgium). In order to carry out this analysis, the national wage moderation policies adopted in Belgium prior to the era of the NEG need to be examined first. The recommendations addressed to Belgium to reform the wage-setting system will then be analysed, as well as the impact they had both in confirming the existing system of wage moderation and the attempts to strengthen the restrictions imposed on collective autonomy. In light of these findings, these restrictions of collective autonomy are assessed on the basis of the freedom of collective bargaining, understood as a fundamental right.
{"title":"Wage setting and wage moderation in Belgium: A never-ending and already-old story in the wake of the ‘new European economic governance’","authors":"Filip Dorssemont","doi":"10.1177/20319525221093488","DOIUrl":"https://doi.org/10.1177/20319525221093488","url":null,"abstract":"Wage setting can be defined as the procedures which determine the remuneration which needs to be paid to employees as the counterpart of their work. The ancillary relationship between wage moderation and the new economic governance has never been expressed as clearly as in the Europlus Pact. The new economic governance (NEG) of the European Union has fostered wage moderation. This approach to wage setting and wage moderation is analysed from the perspective of the freedom of collective bargaining as a fundamental right, and on the basis of a national case study (Belgium). In order to carry out this analysis, the national wage moderation policies adopted in Belgium prior to the era of the NEG need to be examined first. The recommendations addressed to Belgium to reform the wage-setting system will then be analysed, as well as the impact they had both in confirming the existing system of wage moderation and the attempts to strengthen the restrictions imposed on collective autonomy. In light of these findings, these restrictions of collective autonomy are assessed on the basis of the freedom of collective bargaining, understood as a fundamental right.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"13 1","pages":"156 - 169"},"PeriodicalIF":0.7,"publicationDate":"2022-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42558449","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-13DOI: 10.1177/20319525221093716
Pierluigi Digennaro
This article aims to identify continuity between the main neoliberal schools that had a role in the making the European legal order and the conception of labour and 'work activity' embedded in the European legal framework. The consequences of this contiguity are also discussed. In particular, the concepts of 'working activity' and 'undertaking' elaborated by the Court of Justice are used as a driver of the analysis to detect signs of these influences. A two-phase approach is adopted to develop the research. First, a review is undertaken of relevant ECJ judgments that testify to the Court's position on the topics discussed in the article. Second, the cultural common ground between the interpretation of the legal framework found in case law and specific neoliberal theories is highlighted. The meta-principles that are identified through the analysis are then compared with those derived from the rights recognised in the constitutions proclaimed in the second half of the 20th century to show the significant discontinuity that endangers the very existence of the European Union as a political project and has destabilised the constitutional order of many European countries. As the founding principles of the EU legal order kickstarted a containment of labour and social rights, the call for change at the roots of European constitutional law is becoming increasingly urgent. The formal proclamation of the Charters of Fundamental Rights at the European level (not least because of the way in which rights are recognised) has not in itself proved to be capable per se of transcending the original matrix of the European order.
{"title":"The effects of neoliberalism in European labour law: The meaning of labour and the need for a different constitutional compromise","authors":"Pierluigi Digennaro","doi":"10.1177/20319525221093716","DOIUrl":"https://doi.org/10.1177/20319525221093716","url":null,"abstract":"This article aims to identify continuity between the main neoliberal schools that had a role in the making the European legal order and the conception of labour and 'work activity' embedded in the European legal framework. The consequences of this contiguity are also discussed. In particular, the concepts of 'working activity' and 'undertaking' elaborated by the Court of Justice are used as a driver of the analysis to detect signs of these influences. A two-phase approach is adopted to develop the research. First, a review is undertaken of relevant ECJ judgments that testify to the Court's position on the topics discussed in the article. Second, the cultural common ground between the interpretation of the legal framework found in case law and specific neoliberal theories is highlighted. The meta-principles that are identified through the analysis are then compared with those derived from the rights recognised in the constitutions proclaimed in the second half of the 20th century to show the significant discontinuity that endangers the very existence of the European Union as a political project and has destabilised the constitutional order of many European countries. As the founding principles of the EU legal order kickstarted a containment of labour and social rights, the call for change at the roots of European constitutional law is becoming increasingly urgent. The formal proclamation of the Charters of Fundamental Rights at the European level (not least because of the way in which rights are recognised) has not in itself proved to be capable per se of transcending the original matrix of the European order.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"13 1","pages":"249 - 272"},"PeriodicalIF":0.7,"publicationDate":"2022-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48793078","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-13DOI: 10.1177/20319525221093510
Mélanie Schmitt, Marco Rocca
Looking at the instruments of the EU economic governance (Memoranda of Understanding; Country Specific Recommendations) from the perspective of national labour law systems reveals wide differences in their impact. If it is possible to draw a direct link between the demands of a Memorandum and national labour law reforms, the picture is less clear for Country Specific Recommendations. Notably, different Member States show a different degree of ability to ‘resist’ these Recommendations, which appears to be based more on their coherence (or lack thereof) with national political preferences than on the specific situation of the given Member State when it comes to the corrective mechanisms of the EU economic governance. From the perspective of labour law, these instruments still show little in the way of a more ‘social’ approach. Taken together, these conclusions suggest that the instruments of the EU economic governance could hardly provide a productive contribution to the development and enforcement of EU labour law, risking, on the contrary, leading to its fragmentation due to their uneven impact across Member States.
{"title":"A new source for (EU) labour law?","authors":"Mélanie Schmitt, Marco Rocca","doi":"10.1177/20319525221093510","DOIUrl":"https://doi.org/10.1177/20319525221093510","url":null,"abstract":"Looking at the instruments of the EU economic governance (Memoranda of Understanding; Country Specific Recommendations) from the perspective of national labour law systems reveals wide differences in their impact. If it is possible to draw a direct link between the demands of a Memorandum and national labour law reforms, the picture is less clear for Country Specific Recommendations. Notably, different Member States show a different degree of ability to ‘resist’ these Recommendations, which appears to be based more on their coherence (or lack thereof) with national political preferences than on the specific situation of the given Member State when it comes to the corrective mechanisms of the EU economic governance. From the perspective of labour law, these instruments still show little in the way of a more ‘social’ approach. Taken together, these conclusions suggest that the instruments of the EU economic governance could hardly provide a productive contribution to the development and enforcement of EU labour law, risking, on the contrary, leading to its fragmentation due to their uneven impact across Member States.","PeriodicalId":41157,"journal":{"name":"European Labour Law Journal","volume":"13 1","pages":"214 - 224"},"PeriodicalIF":0.7,"publicationDate":"2022-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46381321","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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