Zoekresultaat: 24 artikelen

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    In the case of a ‘service provision change’ under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), where a service is outsourced or re-tendered, the Employment Appeal Tribunal (EAT) has ruled that an employee’s contract can be split so they go from working full-time for one employer to working part-time for two or more employers.


Amy Cooper
Amy Cooper is an associate at Lewis Silkin LLP.

    This article collects publications in this journal about the emergence and effects of legislation. It covers the developments and results of research of the last four decades. First it is concluded that there has been considerable attention to the subject. Second a clear broadening and (theoretical) deepening from different perspectives can be observed. Social-legal research of legislation also appears to have specific characteristics. Subsequently, various points of attention are pointed out, such as more attention to the relationship between legal characteristics and effects, more variation in research methods and more systematic theory-driven research. Finally, attention is drawn to the relationship between (the working of) legislation and social transformations such as globalization, digitization and the increasing and profound influence of social media in society.


Bert Niemeijer
Bert Niemeijer is rector van de Academies voor Wetgeving en Overheidsjuristen in Den Haag en bijzonder hoogleraar Empirische Rechtssociologie aan de Vrije Universiteit Amsterdam. Hij is lid en voorzitter van de redactie geweest en is op dit moment lid van de redactieraad.
Annotatie

One train! (but different working conditions)

CJEU 19 December 2019, C-16/18, ECLI:EU:C:2019:1110 (Michael Dobersberger v Magistrat der Stadt Wien)

Tijdschrift Arbeidsrechtelijke Annotaties, Aflevering 3 2020
Trefwoorden Posting of workers, International train, Transport sector, Subcontracting, Short-term posting
Auteurs Marco Rocca
SamenvattingAuteursinformatie

    The Dobersberger decision of the Court of Justice of the European Union deals with the legal situation of posted workers on an international train. These workers, employed by a Hungarian company and based in Hungary, operate on a train connecting Budapest with Salzburg and Munich. The Court concludes against their inclusion under the Posting of Workers Directive, considering their connection to the Austrian territory as too limited. This decision is based on a selective representation of the facts and sits difficultly with the letter of the law and the intention of the legislator.


Marco Rocca
Dr. M. Rocca is werkzaam als CNRS Researcher aan de University of Strasbourg, UMR 7354 DRES, France, https://marcorocca.wordpress.com, mrocca@unistra.fr.


Andreea Suciu
Andreea Suciu is Managing Partner at Suciu | The Employment Law Firm in Bucharest, Romania.

Teodora Manaila
Teodora Manaila is a Senior Associate at Suciu | The Employment Law Firm in Bucharest, Romania.

    Phase 5 of a mediation process aims at the participants’ reaching an agreement that is complete, fair, feasible and enforceable. Its legal nature is primarily dependent on the wishes of the parties. It can comprise legally non-binding statements, agreements on the parameters of future contracts, and even legally binding declarations of intent concerning contested claims.
    It can be considered a settlement contract if it contractually settles a conflict between parties, or contractually determines an uncertain legal relationship by dint of mutual relenting. Depending on the circumstances, it may also be classified as a precontract, a procedural agreement, a contract of remission, or a contract sui generis.
    German law does not provide a special order of enforcement for mediation settlements. Though such an order (section 796d ZPO) was part of one of the drafts for the German Mediation Act and its accompanying changes of the law, it was abandoned during the legislative procedure. An agreement can be enforced based on: a settlement in court, an arbitral settlement, a lawyers’ settlement, a recorded instrument, or an arbitral verdict.


Judith Wollstädter
Judith Wollstädter is a jurist and holds master degrees in management of theatres and orchestras as well as mediation. After serving in the capacity of directrix of administration in several different theatres and orchestras, as of 2020, she has taken a position as a research assistant to Prof. Dr. Katharina Gräfin von Schlieffen at the University of Hagen, Germany, where she supervises Mediation Studies and the Master programme in Mediation.

Irawan Sewandono
Irawan Sewandono is universitair docent staats- en bestuursrecht aan de Open Universiteit.
Case Law

2020/1 EELC’s review of the year 2019

Tijdschrift European Employment Law Cases, Aflevering 1 2020
Auteurs Ruben Houweling, Daiva Petrylaitė, Peter Schöffmann e.a.
Samenvatting

    Various of our academic board analysed employment law cases from last year. However, first, we start with some general remarks.


Ruben Houweling

Daiva Petrylaitė

Peter Schöffmann

Attila Kun

Francesca Maffei

Jean-Philippe Lhernould

Niklas Bruun

Jan-Pieter Vos

Luca Ratti

Anthony Kerr

Petr Hůrka

Michal Vrajík
Inleiding

De Omgevingswet: nieuw ruimtelijk recht(?)

Tijdschrift Recht der Werkelijkheid, Aflevering 2 2019
Trefwoorden Environment and Planning Act, Administrative Law reform, Spatial Planning, Prefigurative Law, Outsourced Law
Auteurs Dr. mr. Tobias Arnoldussen en dr. mr. Danielle Chevalier
SamenvattingAuteursinformatie

    The Environment and Planning Act (EPA), which will enter into force in 2021, has been called the most influential legislative reform in the Netherlands since World War II. This article forms the introduction to a special issue devoted to the EPA, in which scholars from various disciplines reflect on the societal and legal ramifications of this new act. The authors introduce the different articles but also offer their perspective on the emergence of this new field of research. Socio-legal research into such a vast new regulatory field benefits from the application of multiple perspectives and different research methods. Conspicuously, the authors of the various articles differ on how to assess the new regulation of Dutch spatial planning. Some are pessimistic, others strike a more optimistic note. In this introduction two more perspectives on the law are offered. The perspective of prefigurative law (Davina Cooper) embodies the more optimistic view, whilst the perspective of outsourced law (Pauline Westerman) sides with the pessimists.


Dr. mr. Tobias Arnoldussen
Tobias Arnoldussen is universitair docent Rechtstheorie aan de Universiteit van Tilburg en verbonden aan het department ‘public law and governance’.

dr. mr. Danielle Chevalier
Danielle Chevalier is universitair docent Recht en Samenleving aan de Universiteit Leiden en verbonden aan het Van Vollenhoven Instituut voor Recht, Bestuur en Samenleving.
Recensies en signalementen

Uitbesteed, het recht uitgekleed

Tijdschrift Recht der Werkelijkheid, Aflevering 3 2019
Auteurs Dr. Rob Schwitters
Auteursinformatie

Dr. Rob Schwitters
Rob Schwitters is universitair Hoofddocent Rechtssociologie aan de UvA.
Case Reports

2019/21 Supreme Court rules on liability distribution between transferor and transferee (FI)

Tijdschrift European Employment Law Cases, Aflevering 2 2019
Trefwoorden Transfer of Undertakings, Dismissal/Severance Payment
Auteurs Janne Nurminen
SamenvattingAuteursinformatie

    A municipal federation took back a nursing home operation it had previously outsourced to a contractor. The Finnish Supreme Court held that a transfer of undertaking had taken place and the municipal federation (transferee) was liable to pay the employee compensation for the unlawful termination of the employment contract. Further, the Supreme Court held that the employee had also without a justifiable reason directed the claim for compensation towards the employer company (transferor/the old contractor) and for that reason was liable to pay the legal costs of the employer company.


Janne Nurminen
Janne Nurminen is a Senior Associate with Roschier, Attorneys Ltd in Helsinki, www.roschier.com.

    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).

    A privately operated public bus service was transferred back to the municipality. This constituted the transfer of an undertaking even though the municipality did not buy the buses from the bus operator.


Christian K. Clasen
Christian K. Clasen is a partner at Norrbom Vinding, Copenhagen.
ECJ Court Watch

ECJ 20 July 2017, case C-416/16 (Piscarreta Ricardo), Transfer of undertaking

Luís Manuel Piscarreta Ricardo – v – Portimão Urbis EM SA and Others, Portuguese case

Tijdschrift European Employment Law Cases, Aflevering 3 2017
Trefwoorden Transfer of undertakings
Samenvatting

    The Acquired Rights Directive applies in a situation in which a municipal body was wound up and its activities transferred in part to another municipality and in part to a different body, and an employee on long term leave, whose employment contract was suspended and was therefore not working at the time, was still covered by the concept of ‘employee’ within the meaning of the Directive.

Article

Access_open Post-BEPS Tax Advisory and Tax Structuring from a Tax Practitioner’s View

Tijdschrift Erasmus Law Review, Aflevering 1 2017
Trefwoorden BEPS, value creation, tax structuring, international taxation
Auteurs Paul Lankhorst en Harmen van Dam
SamenvattingAuteursinformatie

    The international tax landscape is changing and it is changing fast. The political perception is that taxation of multinational enterprises is not aligned with the ‘economic activity’ that produces their profits (i.e. not aligned with ‘value creation’). The perception links ‘value creation’ with ‘employees and sales’.
    In the BEPS Project of the OECD, the OECD attempts to combat base erosion and profit shifting and to align taxation with value creation. In this article, the authors discuss the impact they expect BEPS to have on tax advisory and tax planning. The focus goes to BEPS Actions 7, 8-10 and 13.
    By maintaining the separate entity approach under BEPS for the taxation of multinationals, has the OECD been forced to ‘stretch’ existing rules beyond their limits? Will the created uncertainty lead to a shift from ‘aggressive tax planning’ by multinationals to ‘aggressive tax collection’ by tax administrations? Will the role of tax advisory change from advising on the lowest possible effective tax rate to a broader advice including risk appetite and public expectations?


Paul Lankhorst
Paul Lankhorst, MSc LLM, is tax adviser at Loyens & Loeff.

Harmen van Dam
Harmen van Dam, LLM, is tax partner at Loyens & Loeff.
Artikel

Social theory and the significance of free will in our system of criminal justice

Tijdschrift Recht der Werkelijkheid, Aflevering 3 2016
Trefwoorden free will, determinism, communicative action, legitimacy, social theory
Auteurs Dr. Rob Schwitters
SamenvattingAuteursinformatie

    Free will is a key assumption of our system of criminal justice. However, the assumption of a free will is questioned by the rapidly growing empirical findings of the neuro and the brain sciences. These indicate that human behavior is driven by subconscious forces beyond the free will. In this text I aim to indicate how social theory might contribute to this debate. This text is an attempt to demonstrate that social theory does not automatically side with the deterministic attacks on free will. The denial of the free will is to a great extent based on a flawed interpretation of free will, in which it is seen as a capacity of separate individuals. I will suggest that it is the sociological realization that free will is embedded in intersubjective relations that helps to clarify which value is at stake when we deny free will. Free will presumes social practices and social relations that facilitate moral and political discourse. As long as we see human actors as capable to evaluate these practices and contexts in moral and political terms, we cannot deny them a free will. My argumentation will build on the theories of Peter Strawson, Anthony Giddens and Jürgen Habermas.


Dr. Rob Schwitters
Rob Schwitters is Associate Professor of Sociology of Law and connected to the Paul Scholten Centre at the University of Amsterdam. He publishes on tort law, responsibility and liability, the welfare state and compliance.
Case Reports

2016/44 Is there a genuine remedy for the employer’s failure to consult? (HU)

Tijdschrift European Employment Law Cases, Aflevering 3 2016
Trefwoorden Employee representatives/collective bargaining, obligation to consult
Auteurs Gabriella Ormai en Peter Ban
SamenvattingAuteursinformatie

    During negotiations for a collective bargaining agreement, the employer stopped consulting the employee representatives because a sectorial collective bargaining agreement had entered into force that also applied to the employer. After this, the trade union requested an appointment with the employer on a specific date and proposed an agenda for the meeting, including consultation on the impact of the sectorial collective bargaining agreement on the employees. The employer refused to meet on the requested date. The trade union challenged this via the Labour Court. The first and second instance courts turned down the trade union’s claim and confirmed the employer had acted lawfully. The Curia (the Supreme Court) established that the employer had breached its obligation to consult – an obligation deriving from the Labour Code which implemented Directive 2002/14 establishing a general framework for informing and consulting employees – but at the same time it refused to order the employer to proceed with the consultations, leaving the trade union without an effective remedy.


Gabriella Ormai

Peter Ban
Gabriella Ormai is the managing partner of the Budapest office, Peter Ban is a senior counsel of CMS Cameron McKenna LLP, www.cms-cmck.com.

    The Supreme Court in this case establishes conditions to be met in order for the member of a Board of Directors to qualify as a self-employed “entrepreneur”. In light of these conditions, Directors must be considered to have the status of “individual contractor”, obligating them to pay increased social security contributions.


Marcin Wujczyk Ph.D.
Marcin Wujczyk, Ph.D., is a partner with Ksiazek & Bigaj in Krakow, www.ksiazeklegal.pl.

    The paper offers a legal theoretical analysis of the disciplinary character of the contemporary practice of legal scholarship. It is assumed that the challenges of interdisciplinary engagement are particularly revealing about the nature of legal scholarship. The paper argues for an understanding of legal scholarship that revolves around cultivating doctrinal knowledge about law. Legal scholarship is characterised as a normative and interpretive discipline that offers an internalist and non-instrumentalist perspective on law. The paper also argues that interdisciplinary engagement is sometimes necessary for legal scholars because some concepts and ideas built into the doctrinal structures of law cannot be made fully intelligible by way of pure normative legal analysis. This point is developed with the help of an epistemological clarification of doctrinal knowledge and anchored in an account of the practice of legal scholarship. The paper explores the implications of this account by way of analysing three paradigms of interdisciplinary engagement that respond to distinctive challenges facing legal scholarship: (1) understanding better the extra-legal origins of legal ideas, (2) managing discursive encounters that can generate frictions between disciplinary perspectives, and (3) building the knowledge base to handle challenge of validating policy initiatives that aim at changing the law. In different ways, all three challenges may require legal scholars to build competence in other disciplines. The third paradigm has particular relevance for understanding the methodological profile of legal scholarship. Legal scholarship is the only discipline with specific focus on how the social environment affects the doctrinal structures of law.


Matyas Bodig
Dr Matyas Bodig is Senior lecturer at the University of Aberdeen School of Law, Aberdeen, UK.
Article

Access_open Expounding the Place of Legal Doctrinal Methods in Legal-Interdisciplinary Research

Experiences with Studying the Practice of Independent Accountability Mechanisms at Multilateral Development Banks

Tijdschrift Erasmus Law Review, Aflevering 3 2015
Auteurs Andria Naudé Fourie
SamenvattingAuteursinformatie

    There is a distinct place for legal doctrinal methods in legal-interdisciplinary research methodologies, but there is value to be had in expounding that place – in developing a deeper understanding, for instance, of what legal doctrinal analysis has to offer, wherein lies its limitations, and how it could work in concert with methods and theories from disciplinary areas other than law. This article offers such perspectives, based on experiences with an ‘advanced’ legal-interdisciplinary methodology, which facilitates a long-term study of the growing body of practice generated by citizen-driven, independent accountability mechanisms (IAMs) that are institutionally affiliated with multilateral development banks. The article demonstrates how legal doctrinal methods have contributed towards the design and development of a multipurpose IAM-practice database. This database constitutes the analytical platform of the research project and also facilitates the integration of various types of research questions, methods and theories.


Andria Naudé Fourie
Research Associate, Erasmus University Rotterdam, School of Law.
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