Category: Employment Law

Neues aus dem Elfenbeinturm: October 2016

Conference « New Instruments to Promote the Correct Application of the EU Charter of Fundamental Rights »

Florence, 28 October 2016. Deadline for (free) registration : 18 October 2016.

Colloquium « Les religions et le droit du travail »

Université de Rouen, 20-21 Octobre 2016. Free access.

Conference « Computers, Privacy & Data Protection : The Age of Intelligent Machines »

Brussels, 25-27 January 2017. Deadline for submissions : 22 October 2016.

Call for Papers: ESIL Conference “The Role of the European Parliament in the Conclusion and Implementation of International Agreements on International Economic Law Issues

European Parliament, Brussels, 9 December 2016. Deadline for abstract submissions: 7 November 2016.

Call for papers : One Day Symposium on Transnational and International Environmental Crime – Synergies, Priorities and Challenges

University of Lincoln, 15 February 2017. Deadline for abstract submissions : 18 November 2016.

Call for submissions Comparative Constitutional Law and Comparative Law Quarterly

Deadline for submissions : 27 November 2016.

Housing Law Research Network 3rd Annual Housing Law Symposium: Human Rights, Housing and Dispute Resolution

Malmö University, 23-24 March 2017. Deadline for abstract submissions : 1 January 2017.

 

 

Could it all have been avoided? Brexit and Treaty-permitted restrictions on movement of workers

By Gareth Davies

Of course, it wasn’t all about immigration. But that claimed flood of Eastern Europeans was certainly at the heart of the leave campaign, and, unusually for an immigration debate, it was their right to work in the UK that was the political issue: there were too many of them, they were pushing down wages, they were keeping the low-skilled native out of work, they were costing the government a fortune in in-work benefits, they were making towns and villages unrecognisable and alienating the more established inhabitants.

Whether or not they were true, a lot of these claims seemed to be shared by both sides. Cameron didn’t so much deny them, as offer counter-claims (but they do add to the economy) and promises of change (if you vote remain, we’ll have a new deal and be able to do something about it!).

So the question is this: if the government thought that free movement of workers was causing such terrible problems, why didn’t it impose restrictions years ago when the post-Enlargement flood was at its high point and the issue first became prominent? Continue reading

After the referendum and before Brexit… Where now for workers’ rights in the EU?

By Rebecca Zahn

The British referendum on the country’s continued membership of the EU has dominated the political and media landscape both in the UK and abroad for the last few months. There has been a plethora of academic commentary on the possible consequences of a British exit (‘Brexit’). On 23 June, based on a turnout of 72%, 52% of the electorate voted for Leave, while 48% supported Remain. This narrow majority disguises dramatic differences between different regions: Scotland, Northern Ireland and large parts of London voted to Remain whereas substantial sections of Wales and most of England voted to Leave.

In the run-up to referendum day, workers’ rights were invoked repeatedly by both sides of the campaign as either a reason to back or oppose Brexit. Leave campaigners, such as Patrick Minford, Professor of Economics at Cardiff Business School, argued that the UK needed to reset its relationship with the EU to ‘jettison excessive protection and over-regulation, notably in the labour market’. Domestic employment laws originating from the EU legislature, such as the much vilified Working Time Directive, have often been described as a burden on business, inflexible, uncompetitive and inefficient. On the other hand, Remain campaigners such as Frances O’Grady, General Secretary of the British Trades Union Congress (TUC), warned repeatedly that ‘working people have a huge stake in the referendum because workers’ rights are on the line’ and the link between the UK’s membership of the EU and better protection of workers’ rights featured heavily in campaign material opposing Brexit. Continue reading

Short-term Residence, Social Benefits and the Family; an Analysis of Case C-299/14 (García-Nieto and others)

By Dion Kramer

Following its strict findings in the Dano and Alimovic judgments, the Court of Justice of the European Union could not but state the obvious in case C-299/14 (García-Nieto and others): Member States may exclude economically inactive EU citizens from social assistance who are residing in the host Member State for a period shorter than three months. Again, the Court opts for legal certainty in rigorous and explicit terms and emphasises the objective of preventing the foreign EU citizen from becoming an unreasonable burden on the host Member State’s social assistance system. However, just like with Dano and Alimanovic, this comes with a human cost. This time the Court neglected the possibility to give a more substantial meaning to the unity of the family, allowing discrimination towards the migrant worker. Continue reading

POMFR: Reviewing Protecting Vulnerable Groups – what about Hector Salamanca and Donald Gately?

By Thomas Burri

Francesca Ippolito/Sara Iglesias Sánchez (eds.), Protecting Vulnerable Groups – The European Human Rights Framework, Hart Publishing 2015

Hector Salamanca was vulnerable. The Mexican was old and, after having suffered a stroke, tied to the wheel chair. He had no means of communication save a tiny bell he barely managed to ring. After most of his family was dead, he lived the life of a lonesome vegetable in a nursing home.

Donald Gately is vulnerable. His sense of honour and duty as a staffer at Enfield House Drug and Alcohol Recovery House had practically compelled him to defend a drug addict who had got involved in a fight. In the fight, Don G. was shot in the shoulder. Now, he is tied to the hospital bed, suffering from inhuman pain, pain from which only opioids could bring relief – though not for him, for opioids had been the focus of his long history of substance abuse and now he is desperately abstinent.

Protecting Vulnerable Groups is a great book. It made me see all of the above (and more) in a new light. To be sure, Protecting Vulnerable Groups is not a book about Breaking Bad or Infinite Jest. It is not an economic, sociological, or socialist book either, despite the appearance the title creates. No, Protecting Vulnerable Groups is a rock solid book on the law, in particular case law. It explains how the European Court of Human Rights and the European Court of Justice attend to the vulnerable. Sometimes, the courts explicitly find persons vulnerable, as in MSS v Belgium and Greece when an asylum-seeker was declared “particularly vulnerable” (Protecting Vulnerable Groups, p. 249); sometimes the idea of vulnerability is merely inherent in the courts’ case law. Both occurrences are discussed extensively in the book. Continue reading

Top ten most read posts of 2015

By the editors

As is becoming a tradition with our blog (albeit a bit late this year), we present to you our top 10 most read posts of the last year. We have had another good year of blogging behind us: more readers contributing to the content of the blog with 33 posters coming from approximately 14 different countries this year. Equally important is that readership is steadily increasing according to Google Analytics (plus: we now have almost 1600 email subscribers and 2400 followers on twitter). Most of you are from the UK, followed by the Netherlands, Belgium, Germany, the United States, Italy, Sweden, France, Ireland and Poland, respectively.

Keeping in mind that there is a certain bias in favour of older posts which have had more time to become popular, this is the 2015 list of most read posts of the year: Continue reading

Neues aus dem Elfenbeinturm: December 2015

Workshop „The Age of Austerity: A New Challenge for State Powers“

University of Edinburgh, 30 March 2016. Deadline for abstract submissions: 20 December 2015.

CJICL Conference „Public and Private Power“

University of Cambridge, 8-9 April 2016. Deadline for abstract submissions: 10 January 2016.

Workshop „The preliminary reference procedure as a compliance mechanism of EU environmental law“

Brussels, 17 June 2016. Deadline for abstract submissions: 15 January 2016.

Conference „Building Consensus on European Consensus“

European University Institute, Florence, 1-2 June 2016. Deadline for abstract submissions: 31 January 2016.

Doctoral Colloquium „Responsibility in International and European Law, Philosophy and History“

University of Fribourg, 11-12 November 2016. Deadline for abstract submissions: 1 March 2016.

EELF Conference „Procedural Environmental Rights: Principle X in Theory and Practice“

Wrocław University, 14-16 September 2016. Deadline for abstract submissions: 15 March 2016.

Conference „Intra-EU BITs and Intra-EU Disputes“

University of Vienna, 7 March 2016. (Paid) registration needed.

Had they only worked one month longer! An Analysis of the Alimanovic Case [2015] C-67/14

By Dion Kramer

In November 2014 the Dano judgment attracted unusual public attention, not least because of its importance for UK Prime-Minister David Cameron’s campaign against the phenomenon of ‘welfare tourism’. Although political and administrative attention has been redirected towards the mounting refugee crisis, scholars, administrators and some politicians have been eagerly awaiting the CJEU’s Alimanovic judgment in the sensitive field of EU citizens’ right to equal treatment as regards access to national welfare benefits. Dano made clear that Member States may reject claims to social assistance by EU citizens who have no intention to work and cannot support themselves. Alimanovic gave the Court the opportunity to clarify the application of this principle in the more complicated factual situation of an EU citizen who applies for social benefits after having worked for 11 months. In its bid to contribute to ‘legal certainty’ and ‘transparency’, Member States will for sure welcome the Court’s judgment, but the legacy of Brey still complicates the desired carte blanche for national authorities to refuse any claim to social assistance by indigent EU citizens. Continue reading

POMFR: Viking, Laval and the Question if Anybody Cares

By Christopher Unseld

Viking, Laval and Beyond”, edited by Mark Freedland and Jeremias Prassl, constitutes the first volume of Hart’s new series on “EU Law in the Member States”. In the series’ foreword Sacha Prechal lays out how crucial it is to understand the “genuine life of EU law in the Member States” since EU law – of course – is generally transposed, applied and enforced at the domestic level. But that is easier said than done. One needs good knowledge of EU law, domestic and comparative (EU) law to come close to some understanding of what Prechal calls EU law’s genuine life. And, let’s be honest, it is often hard enough to keep up with the current developments in EU law while not losing touch with domestic legal issues. Continue reading

Case C-354/13 Kaltoft v Municipality of Billund –Can obesity be a disability under EU equality law?

By Sara Benedi Lahuerta

According to 2012 OECD data, 52% of EU adults are overweight or obese. It is thus not surprising that the recent decision of the Court of Justice of the European Union (CJEU) in Kaltoft (Case C-354/13), on whether obesity discrimination can amount to disability discrimination, has created quite a stir in the press. Following Advocate General (AG) Jääskinen’s Opinion, some media suggested that ‘Severe obesity is a disability’. As will be discussed in this post, the CJEU did not quite go as far as to accept that obesity is a disability, but it did recognise that, in some cases, differential treatment on the basis of obesity can amount to disability discrimination. Hence, this judgment marks another step forward towards clarifying the scope of EU equality law and bringing about a consistent application at national level.

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Albany revisited: the Court directs NCA to carry a more social tune

By Laurens Ankersmit

In C-413/13 FNV Kunsten Informatie en Media, the Court decided that competition law does not apply to arrangements among freelance substitute orchestra musicians that aim to improving their working conditions if they can be qualifed as ‘workers’. In so doing, the Court significantly expanded the scope for taking social interests into account within competition law analysis and rejected the more narrow and liberal approach taken by the Dutch National Competition Authority (NCA), the Dutch government and—not surprisingly—the European Commission. This is a significant case, not only because the Court for the first time had to deal with the increasingly more common phenomenon of the ‘false self-employed’ when interpreting competition law, but also because the Court once again demonstrated its willingness to take public interests other than economic efficiency into account when applying competition law (a holistic approach that, I argue, is fundamentally more in line with the EU treaties).

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C-176/12 AMS: Charter principles, subjective rights and the lack of horizontal direct effect of directives

Yesterday, the Court handed down its decision in the much anticipated Association de Médiation Sociale case. The case concerns the question of potential horizontal effect of the workers’ right to information and consultation enshrined in Article 27 of the Charter of Fundamental Rights and implemented through Directive 2002/14 establishing a framework for informing and consulting employees in the Union. We have already covered the opinion handed down by Advocate General Cruz Villalón (see here), who suggested that the Court should allow Article 27 of the Charter in combination with the Directive to be applicable and to exclude thus the application of the national norm that was contrary to EU law despite the setting of proceedings between private parties. In contrast to the Advocate General, the Court did not grant Article 27 and the Directive such effect. Rather, it decided to follow its previous case law, with the unfortunate consequence of leaving quite some questions unanswered. Continue reading

AG Cruz Villalón in C-176/12 AMS: Rights vs. principles and the horizontal effect of Charter provisions Ante Portas

On July 18th, Advocate General Cruz Villalón delivered a fascinating opinion in a case that could very well keep quite a number of scholars interested in EU fundamental rights law busy for a while. In Association de Médiation Sociale  not yet available in English as far as I can see) the Court is confronted with a set of fundamental questions. First, whether the workers’ right to information and consultation within the undertaking as enshrined in Article 27 of the Charter and implemented through Directive 2002/14 establishing a framework for informing and consulting employees in the Union can be applied in a legal dispute between two private parties, i.e. on its potential horizontal effect. Second, this also implies discussing – for the first time explicitly – the difference between rights and principles enshrined in Articles 51 (1) and 52 (5) of the EU Charter of Fundamental Rights. In particular, this requires shedding light on the notion of implementation of principles, as Article 52 (5) speaks of principles being ‘judicially cognisable’ only in the interpretation of their implementing acts and the ruling on their legality. Third, the act with which the Union implemented the principle in the present context is a directive, which again raises the question as to the limits to the effect of directives in a legal dispute between private parties, as has already caused problems in well-known cases like Mangold  and Kücükdeveci. As the opinion is already quite comprehensive, I’ll keep my comments to the minimum to not try our readers’ patience.

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