Zoekresultaat: 293 artikelen

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Artikel

Protection against dismissal in Poland

Tijdschrift Tijdschrift voor Ontslagrecht, Aflevering 2 2022
Trefwoorden Termination with and without notice periods, Dismissal prohibitions, Remedy of defective dismissals, Dismissal protection of civil servants, Summary dismissal
Auteurs dr.hab. Michał Raczkowski en mr. dr. Beryl ter Haar
SamenvattingAuteursinformatie

    In this article we introduce the main principles of the Polish dismissal protection regulation. Issues addressed include the underlying principles for the system of dismissal protection, notice periods, justifiable reasons for dismissal, consultation of trade unions and how to remedy unfair or defective dismissals. We also very briefly touch upon dismissal protection of civil servants.


dr.hab. Michał Raczkowski
Michal Raczkowski is Assistant Professor at the Department of Labour Law and Social Policy, University of Warsaw and attorney-at-law.

mr. dr. Beryl ter Haar
Beryl ter Haar is UW Professor and Head of the Centre for International and European Labour Law Studies (CIELLS) at the University of Warsaw and Endowed Professor European and Comparative Labour Law at the University of Groningen.

    Deze bijdrage bevat de tekst van de auteur van de op 18 juni 2021 uitgesproken afscheidsrede als hoogleraar aan de Radboud Universiteit met de leeropdracht sociaal recht. De indertijd uitgesproken versie is voorzien van een notenapparaat.


Prof. mr. L.G. Verburg
Prof. mr. L.G. (Leonard) Verburg is emeritus hoogleraar Arbeidsrecht.
Artikel

Access_open Naar een werkbaar en realistisch model voor stakeholder governance en de rol van aandeelhouders daarin

Oratie van prof. mr. B. Kemp

Tijdschrift Maandblad voor Ondernemingsrecht, Aflevering 1-2 2022
Trefwoorden bestuur, vennootschappelijk belang, bevoegdheidsverdeling, Rijnlands model, algemene vergadering
Auteurs Prof. mr. B. Kemp
SamenvattingAuteursinformatie

    In zijn oratie gaat Kemp in op de spanning die binnen de vennootschap bestaat tussen de vennootschapsleiding die het belang van de vennootschap moet behartigen en de aandeelhouders die – volgens de heersende leer – hun eigen belang mogen behartigen. Mede op grond van rechtseconomische gedachten doet hij een aanzet tot hoe de bevoegdheidsverdeling binnen de vennootschap verder kan worden vormgegeven.


Prof. mr. B. Kemp
Prof. mr. B. Kemp is advocaat te Amsterdam en hoogleraar Corporate Governance and Corporate Regulation aan Maastricht University.
Artikel

Access_open Welcoming the Other in a Pandemic Society

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2021
Trefwoorden Discourse, Solidarity, Poststructuralism, Levinas, Derrida
Auteurs Thomas Jacobus de Jong en Carina van de Wetering
SamenvattingAuteursinformatie

    This contribution explores the meaning and scope of solidarity with the emergence of the coronavirus discourse as formulated by politicians in order to make sense of the virus. It offers a poststructuralist account drawing on discourse theory together with insights from Levinas and Derrida. This leads to a critical reflection on the prevailing view of solidarity as secondary and derivative to corona policies, because solidarity is often subjugated to hegemonic meanings of efficiency. Instead, the argument is made that solidarity refers to the unique responsibility to which the other as wholly other commands me. This appeal for responsibility, that is presented in the face of the other, is to be assumed in the distance between the rules and the singularity of the situation. Accordingly, solidarity is described as a paradox of dependence (calculability) and independence (beyond calculation), that appears in a moment of undecidability, for it can never be overcome.


Thomas Jacobus de Jong
Thomas Jacobus de Jong is senior parketsecretaris at the Netherlands Public Prosecution Service (OM).

Carina van de Wetering
Carina van de Wetering is Lecturer in International Relations at the Institute of Political Science at Leiden University.
Artikel

Access_open Solidarity and Community

From the Politics of the Clan to Constituent Power

Tijdschrift Netherlands Journal of Legal Philosophy, Aflevering 2 2021
Trefwoorden Solidarity, Community, COVID-19 pandemic, Humanity, Ethnocentrism
Auteurs Luigi Corrias
SamenvattingAuteursinformatie

    What is at stake in invoking solidarity in legal-political contexts? The guiding hypothesis of this article is that solidarity is always and necessarily linked to the concept of community. A plea for solidarity will, in other words, directly lead one to the question: solidarity with whom? On the one hand, solidarity may be understood as extending only to those who belong to the same community as us. In this reading, solidarity builds upon an already existing community and applies to members only. On the other hand, invoked by those who aim to question the status quo, solidarity also plays a key role in practices of contestation. In these contexts, it focuses on collective action and the reimagination of political community. The article ends by articulating how this second interpretation of solidarity might prove helpful in making sense of our current predicament of a global pandemic.


Luigi Corrias
Luigi Corrias is Assistant Professor of Legal Philosophy, Vrije Universiteit Amsterdam.

    The Irish High Court has determined that, pursuant to the definitions of ‘employment contract’ and ‘fixed-term employee’ in the Protection of Employees (Fixed-Term Work) Act 2003 (the ‘2003 Act’), a permanent employee temporarily upgrading to a more senior role on a fixed-term basis, was entitled to protection under the 2003 Act as a fixed-term employee despite the fact that he had the right to revert to his substantive terms and conditions as a permanent employee. The Court held that Council Directive 1999/70/EC on fixed-term work (the ‘Directive’) was not only concerned with an employee’s entitlement to continued employment, but also the nature, quality and terms and conditions of that employment. While Member States have the discretion to provide more favourable treatment to a broader category of employees than the Directive required, they could not define terms left undefined in the Directive or framework agreement on fixed-term contracts so as to arbitrarily exclude certain categories of workers from protection as ‘fixed-term workers’.


Sarah O’Mahoney
Sarah O’Mahoney is a General Knowledge Lawyer at Mason Hayes & Curran.
Article

Access_open Victim-Offender Contact in Forensic Mental Health

Resocialisation and Victim Acknowledgement During the Execution of the Dutch TBS Order

Tijdschrift Erasmus Law Review, Aflevering 3 2021
Trefwoorden victim-offender contact, resocialisation, victim acknowledgement, forensic psychiatry, mentally disordered offenders
Auteurs Lydia Dalhuisen en Alice Kirsten Bosma
SamenvattingAuteursinformatie

    Crime victims have gained a stronger position in all phases of the criminal procedure, including the post-sentencing phase. It is in this phase specifically that victims’ needs and interests relating to acknowledgement interplay with the offenders’ needs and interests relating to resocialisation. In the Netherlands, offenders who suffer from a mental disorder at the time of the offence limiting their criminal accountability and pose a significant safety threat, can be given a TBS order. This means that they are placed in a forensic psychiatric hospital to prevent further crimes and receive treatment aimed at resocialisation. As resocialisation requires the offender to return to society, contact with the victim might be a necessary step. This article focuses on victim-offender contact during the execution of this TBS order, and looks at risks and opportunities of victim-offender contact in this context, given the particular offender population. Offenders are divided into three groups: those with primarily psychotic disorders, those suffering from personality disorders and those with comorbidity, especially substance abuse disorders. The TBS population is atypical compared to offenders without a mental disorder. Their disorders can heighten the risks of unsuccessful or even counterproductive victim-offender contact. Yet, carefully executed victim-offender contact which includes thorough preparation, managing expectations and choosing the right type of contact can contribute to both successful resocialisation as well as victim acknowledgement.


Lydia Dalhuisen
Lydia Dalhuisen, PhD, is Assistant Professor at the Utrecht University, the Netherlands.

Alice Kirsten Bosma
Alice Kirsten Bosma is Assistant Professor at the Faculty of Law of Tilburg University, the Netherlands.
Artikel

Dismissal protection in Denmark

Tijdschrift Tijdschrift voor Ontslagrecht, Aflevering 4 2021
Trefwoorden protection against dismissal, flexicurity, industrial relations, social security, dynamic and adjustable labour market
Auteurs mr. dr. Natalie Munkholm
SamenvattingAuteursinformatie

    The article gives an overview of the protection against dismissal according to Danish statutory acts and collective agreements.


mr. dr. Natalie Munkholm
Natalie Munkholm is werkzaam als associate professor Labour Law aan de Aarhus Universiteit, Denemarken.
Article

Access_open Hardship and Force Majeure as Grounds for Adaptation and Renegotiation of Investment Contracts

What Is the Extent of the Powers of Arbitral Tribunals?

Tijdschrift Erasmus Law Review, Aflevering 2 2021
Trefwoorden contract adaptation, hardship, force majeure, investment contracts, arbitration
Auteurs Agata Zwolankiewicz
SamenvattingAuteursinformatie

    The change of circumstances impacting the performance of the contracts has been a widely commented issue. However, there seems to be a gap in legal jurisprudence with regard to resorting to such a remedy in the investment contracts setting, especially from the procedural perspective. It has not been finally settled whether arbitral tribunals are empowered to adapt investment contracts should circumstances change and, if they were, what the grounds for such a remedy would be. In this article, the author presents the current debates regarding this issue, potential grounds for application of such a measure and several proposals which would facilitate resolution of this procedural uncertainty.


Agata Zwolankiewicz
Agata Zwolankiewicz is an advocate trainee, graduated from the University of Silesia in Katowice (M.A. in law), and the University of Ottawa (LL.M. with concentration in international trade and foreign investment).
Pending Cases

Case C-450/21, Fixed-Term Work

UC – v – Ministero dell’Istruzione, reference lodged by the Tribunale ordinario di Vercelli (Italy) on 20 July 2021

Tijdschrift European Employment Law Cases, Aflevering 3 2021
Trefwoorden Fixed-Term Work

    The Employment Appeal Tribunal (EAT) has ruled that ‘gender critical’ beliefs are protected philosophical beliefs for equality law purposes, while confirming that a belief in ‘gender identity’ is also a protected characteristic. This means that it is unlawful to discriminate against someone because they do or do not hold either of those beliefs.


Bethan Carney
Bethan Carney is a Managing Practice Development Lawyer, Lewis Silkin LLP.
Article

Access_open Big Data Ethics: A Life Cycle Perspective

Tijdschrift Erasmus Law Review, Aflevering 1 2021
Trefwoorden big data, big data analysis, data life cycle, ethics, AI
Auteurs Simon Vydra, Andrei Poama, Sarah Giest e.a.
SamenvattingAuteursinformatie

    The adoption of big data analysis in the legal domain is a recent but growing trend that highlights ethical concerns not just with big data analysis, as such, but also with its deployment in the legal domain. This article systematically analyses five big data use cases from the legal domain utilising a pluralistic and pragmatic mode of ethical reasoning. In each case we analyse what happens with data from its creation to its eventual archival or deletion, for which we utilise the concept of ‘data life cycle’. Despite the exploratory nature of this article and some limitations of our approach, the systematic summary we deliver depicts the five cases in detail, reinforces the idea that ethically significant issues exist across the entire big data life cycle, and facilitates understanding of how various ethical considerations interact with one another throughout the big data life cycle. Furthermore, owing to its pragmatic and pluralist nature, the approach is potentially useful for practitioners aiming to interrogate big data use cases.


Simon Vydra
Simon Vydra is a Researcher at the Institute for Public Administration, Leiden University, the Netherlands.

Andrei Poama
Andrei Poama is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Sarah Giest
Sarah Giest is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Alex Ingrams
Alex Ingrams is Assistant Professor at the Institute for Public Administration, Leiden University, the Netherlands.

Bram Klievink
Bram Klievink is Professor of Digitization and Public Policy at the Institute for Public Administration, Leiden University, the Netherlands.
Artikel

Access_open GMO Regulation in Crisis – The Experimental Potential of Regulation (EU) 2020/1043 on Covid-19 in Addressing Both a Crisis and a ­Pandemic

Special Issue Experimental Legislation in Times of Crisis Sofia Ranchordás & Bart van Klink (eds.)

Tijdschrift Law and Method, september 2021
Trefwoorden experimental legislation, regulatory knowledge, GMO regulation, evaluation
Auteurs Lonneke Poort en Willem-Jan Kortleven
SamenvattingAuteursinformatie

    In this article, we analyse Regulation (EU) 2020/1043 on Covid-19 against the backdrop of the current deadlock in EU-regulation of genetically modified organisms (GMOs). We build on temporary and experimental legislation scholarship and employ a normative framework of regulatory knowledge. The Covid-19 Regulation aims at speeding up the development of GMO-based Covid-19 treatments or vaccines by temporarily suspending requirements that otherwise would have made for time-consuming and burdensome authorization processes. Although the Regulation lacks an explicit experimental purpose, we hypothesize that experiences with its functioning may be utilized in evaluation processes serving attempts to change the GMO legal framework. As such, it may fulfil a latent experimental function. We reflect on the types of knowledge that are relevant when evaluating experimental legislation and developing regulation more generally and argue that the inclusion of social knowledge is pertinent in dealing with complex issues such as GMO regulation. Experimental law literature focuses on gathering evidence-based knowledge about the functioning of legislation but virtually neglects knowledge about different experiences and value appreciations of various societal actors and social-contextual mechanisms. We propose that such social knowledge be included in the design of experimental legislation and that evaluation be approached bottom-up instead of top-down.


Lonneke Poort
Lonneke Poort is Associate Professor at the department of Sociology, Theory and Methodology of Law at Erasmus School of Law.

Willem-Jan Kortleven
Willem-Jan Kortleven is Assistant Professor at the department of Sociology, Theory and Methodology of Law at Erasmus School of Law, Rotterdam.
Artikel

Access_open Time and Law in the Post-COVID-19 Era: The Usefulness of Experimental Law

Special Issue Experimental Legislation in Times of Crisis, Sofia Ranchordas & Bart van Klink (eds.)

Tijdschrift Law and Method, september 2021
Trefwoorden COVID-19, time and law, law-making, parliament, government, legal certainty
Auteurs Erik Longo
SamenvattingAuteursinformatie

    The COVID-19 pandemic swept the world in 2020 impelling us to reconsider the basic principles of constitutional law like the separation of power, the rule of law, human rights protection, etc. The two most pressing legal issues that have attracted the attention of legal scholars so far are, on the one hand, the different regulatory policies implemented by governments and, on the other, the balance among the branches of government in deciding matters of the emergency. The pandemic has determined a further and violent acceleration of the legislature’s temporal dimension and the acknowledgement that, to make legislation quicker, parliament must permanently displace its legislative power in favour of government. Measures adopted to tackle the outbreak and recover from the interruption of economic and industrial businesses powerfully confirm that today our societies are more dependent on the executives than on parliaments and, from a temporal perspective, that the language of the law is substantially the present instead of the future. Against this background, this article discusses how the prevalence of governments’ legislative power leads to the use of temporary and experimental legislation in a time, like the pandemic, when the issue of ‘surviving’ becomes dominant.


Erik Longo
Prof. Dr. Erik Longo is associate professor of Constitutional Law at the University of Florence.
Artikel

Access_open Law Schools and Ethics of Democracy

Special Issue on Pragmatism and Legal Education Sanne Taekema & Thomas Riesthuis (eds.)

Tijdschrift Law and Method, augustus 2021
Trefwoorden legal education, democracy, pragmatism
Auteurs Michal Stambulski
SamenvattingAuteursinformatie

    Contemporary critical analyses of legal education indicate that legal education is undemocratic as it is based on a discipline that produces subjects who obey hierarchies, are free from the habit of criticism and are ready to self-sacrifice for promotion in the social hierarchy. At the same time, critical analyses offer the very passive vision of the law student as merely ‘being processed’ through the educational grinder. Paradoxically, in doing so they confirm the vision they criticize. This article argues that, by adopting a pragmatic philosophical perspective, it is possible to go beyond this one-sided picture. Over the past few decades, there has been an increase in ‘practical’ attitudes in legal education. Socrates’ model of didactics, clinical education and moot courts are giving rise to institutionalized ideas as structural elements of legal education, owing to which a purely disciplinary pedagogy may be superseded. All these practices allow students to accept and confront the viewpoints of others. Education completed in harmony with these ideas promotes an active, critical member of community, who is ready to advance justified moral judgements, and as such is compliant with pragmatic ethics of democracy.


Michal Stambulski
Dr. Michal Stambulski is postdoctoral researcher at the Erasmus University Rotterdam and assistant professor at the University of Zielona Gora.

    In its decision rendered on 28 February 2019, the Luxembourg Court of Appeal (Cour d’appel de Luxembourg) examined under which circumstances on-call duty performed at the workplace qualifies as actual working time.
    The issue raised was whether the time spent at night by an employee (i.e. the presence of an employee at the workplace) performing the work of a live-in carer was to be considered as ‘actual working time’.
    The Court expressly referred to EU case law and decided that the concept of actual working time is defined by two criteria, namely (i) whether the employee during such a period must be at the employer’s disposal, and (ii) the interference with the employee’s freedom to choose their activities.
    In view of the working hours provided for in the employment contract and in the absence of evidence proving that the employee would not have been at the employer’s home during her working hours, the Court found that the employee stayed at the employer’s home at night and at the employer’s request. It was irrelevant in this respect whether it was for convenience or not. It was further established that the employee could not leave during the night and return to her home and go about her personal business, so that the hours she worked at night were to be considered as actual working time.
    Given that the employee’s objections regarding her salary were justified (as the conditions of her remuneration violated statutory provisions), the Court decided that the dismissal was unfair.


Michel Molitor
Michel Molitor is the managing partner of MOLITOR Avocats à la Cour SARL in Luxembourg, www.molitorlegal.lu.

    On 22 May 2020, fifty-two members of the Hungarian parliament petitioned the Constitutional Court which was requested to establish the unconstitutionality of Section 6(4) of Government Decree no. 47/2020 (III. 18), its conflict with an international treaty and to annul it with retroactive effect to the date of its entry into force. According to Section 6(4) of the Decree “in a separate agreement, the employee and the employer may depart from the provisions of the Labour Code” (i.e. ‘absolute dispositivity’). The petition, among other things, alleged the violation of equal treatment and the right to rest and leisure. The Constitutional Court rejected the motion to establish the unconstitutionality of Section 6(4) and its annulment, since it was repealed on 18 June 2020. The Constitutional Court may, as a general rule, examine the unconstitutionality of the legislation in force, however it was no longer possible to examine the challenged piece of legislation in the framework of a posterior abstract norm control.


Kristof Toth
Kristof Toth is PhD student at the Karoli Gaspar University in Hungary.
Case Reports

Access_open 2021/13 Equal Treatment Authority’s decision does not bind the court (HU)

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Race, Nationality Discrimination, Discrimination General
Auteurs Zsofia Olah
SamenvattingAuteursinformatie

    This case involved an employee who claimed that her two consecutive employers breached the principle of equal treatment during their employment relationships in relation to her belonging to the Roma minority. The employee built her case on the decision of the Equal Treatment Authority, which declared that her employers discriminated against her. The Curia (the highest judicial authority in Hungary) found that the decision of another authority has no binding effect on a court according to Act III of 1952 on Civil Procedure and that in cases concerning equal treatment, the burden of proof lies on the defendant (employer) to prove that there is no link between the disadvantage suffered by the plaintiff (employee) and her protected characteristic. The Curia and regional courts also found that the employer fulfils this obligation if it successfully proves that it assessed the applicant’s qualifications, professional suitability and attitude towards work when it decided on the question of whom to employ.


Zsofia Olah
Zsofia Olah is a partner at OPL Law Firm.
Pending Cases

Case C-133/21, Fixed-term Work

VP, CX, RG, TR and Others – v – Elliniko Dimosio, reference lodged by the Efeteio Athinon (Greece) on 3 March 2021

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Fixed-term Work
Rulings

ECJ 3 June 2021, case C-326/19 (Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR e.a. (Chercheurs universitaires)), Fixed-Term Work

EB – v – Presidenza dei Consiglio dei Ministri, Ministero dell’Istruzione, dell’Università e della Ricerca – MIUR and Università degli Studi ‘Roma Tre’, Italian case

Tijdschrift European Employment Law Cases, Aflevering 2 2021
Trefwoorden Fixed-Term Work
Samenvatting

    It is allowed to limit both the duration and number of fixed-term contracts without an objective justification being necessary, provided that there is no abuse of the rules.

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