Zoekresultaat: 124 artikelen

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Article

Access_open The Common Law Remedy of Habeas Corpus Through the Prism of a Twelve-Point Construct

Tijdschrift Erasmus Law Review, Aflevering 2 2021
Trefwoorden Habeas corpus, common law, detainee, Consitution, liberty
Auteurs Chuks Okpaluba en Anthony Nwafor
SamenvattingAuteursinformatie

    Long before the coming of the Bill of Rights in written Constitutions, the common law has had the greatest regard for the personal liberty of the individual. In order to safeguard that liberty, the remedy of habeas corpus was always available to persons deprived of their liberty unlawfully. This ancient writ has been incorporated into the modern Constitution as a fundamental right and enforceable as other rights protected by virtue of their entrenchment in those Constitutions. This article aims to bring together the various understanding of habeas corpus at common law and the principles governing the writ in common law jurisdictions. The discussion is approached through a twelve-point construct thus providing a brief conspectus of the subject matter, such that one could have a better understanding of the subject as applied in most common law jurisdictions.


Chuks Okpaluba
Chuks Okpaluba, LLB LLM (London), PhD (West Indies), is a Research Fellow at the Free State Centre for Human Rights, University of the Free State, South Africa. Email: okpaluba@mweb.co.za.

Anthony Nwafor
Anthony O. Nwafor, LLB, LLM, (Nigeria), PhD (UniJos), BL, is Professor at the School of Law, University of Venda, South Africa. Email: Anthony.Nwafor@univen.ac.za.
Artikel

Sustainability sells?

Over de toekomstige duurzaamheidsregelgeving voor de financiële sector en de impact op de relatie met de cliënt

Tijdschrift Maandblad voor Vermogensrecht, Aflevering 11 2020
Trefwoorden taxonomie, duurzaamheid, klimaat, financiëlemarktdeelnemer, zorgplicht
Auteurs Mr. drs. S.A.M. Vermeulen en Mr. F.W.J. van der Eerden
SamenvattingAuteursinformatie

    In dit artikel geven de auteurs een overzicht van de toekomstige (informatie)verplichtingen voor financiële ondernemingen in het kader van duurzaamheid, met name op basis van de Taxonomie- en Transparantieverordening. Ook gaan zij in op de mogelijke civielrechtelijke impact daarvan op de verhouding met retailbeleggers die ‘duurzame’ financiële producten afnemen.


Mr. drs. S.A.M. Vermeulen
Mr. drs. S.A.M. Vermeulen is advocaat bij NautaDutilh in Amsterdam.

Mr. F.W.J. van der Eerden
Mr. F.W.J. van der Eerden is advocaat bij NautaDutilh in Amsterdam.
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.
Article

Access_open South African Mandatory Offers Regime: Assessing Minorities’ Leverage to Seek Recourse and Equal Treatment in Takeover Bids

Tijdschrift Erasmus Law Review, Aflevering 2 2020
Trefwoorden company takeovers, mandatory offers, minority shareholders, equal treatment, acquisition procedure
Auteurs Paul Nkoane
SamenvattingAuteursinformatie

    A firm intention announcement must be made when the offeror is able and willing to acquire securities, and when a mandatory offer must be made. When the firm intention announcement is implemented, some sort of a contract is created. This rule has helped to determine the particular time the offeror should be liable to minorities. The question of when the offeror should bear the obligation to implement mandatory offers in aborted takeovers is thus no more problematic. Previously, the courts wrestled with this issue, but delivered what appears to be unsatisfactory decisions. This article will discuss the effect of a firm intention announcement and the responsibility that attends the making of that announcement. It intends to illustrate the extent of liability the offeror must bear in the event of a lapsed takeover, before and after the making of the firm intention announcement. The article examines the manner in which takeover rules can be enforced, and whether the current measures afford minorities proper protection. This brings to light the issue of equal treatment in takeovers and the fallacy thereof. A minor appraisal of the takeover rules in two jurisdictions in Europe (the United Kingdom and the Netherlands) is conducted to assess how equal treatment for minorities is promoted. Due to the difficulty minorities may experience in enforcing equal treatment in company takeovers, the article advocates for the alteration of the current South African takeover procedure for the promotion of minorities’ interests and for establishing rules that provide the offeror adequate information.


Paul Nkoane
Paul Nkoane is a lecturer at the College of Law of the University of South Africa in Pretoria.

    The Greek Supreme Court, in a case about the transfer of a business and the obligation on the transferee to continue employing the transferred employees, underlined the importance of a thorough and genuine control on all factors to be taken into consideration in order to conclude on the existence of a transfer of undertaking or not: the business transferred must retain an autonomous economic identity, in the sense that the functional link between the different factors transferred is retained, thus allowing the new entity to use them in order to exercise an economic activity identical or similar to the previous one.


Effie Mitsopoulou
Effie Mitsopoulou is an attorney-at-law at Effie Mitsopoulou Law Office.

    Within the context of a transfer of undertaking in an asset reliant group of companies, the court should not just focus on whether the assets have been transferred between the two separate group companies, but also on whether one group company had actual control over the operation of the other group company.


Zef Even
Zef Even is a partner at SteensmaEven, Rotterdam, professor at Erasmus School of Law and editor-in-chief of EELC.

Eva Poutsma
Eva Poutsma is an attorney-at-law at SteensmaEven, Rotterdam.
Landmark Rulings

ECJ 26 March 2020, case C-344/18 (ISS Facility Services), Transfer of undertakings, transfer, employment terms

ISS Facility Services NV – v – Sonia Govaerts and Atalian NV (formerly Euroclean NV), Belgian case

Tijdschrift European Employment Law Cases, Aflevering 2 2020
Trefwoorden Transfer of undertakings, Employment terms, Transfer
Samenvatting

    In case of a transfer of undertaking involving multiple transferees, the rights and obligations arising from an employment contract may be divided between various transferees, if this is possible. If not (or if it is to the detriment of the employee), the transferees would be regarded as being responsible for any consequent termination under Article 4 of Directive 2001/23, even if this were to be initiated by the worker.

Case Reports

2020/38 Supreme Court rules on the principle of continuity of civil service law in connection with a transfer of undertaking (FI)

Tijdschrift European Employment Law Cases, Aflevering 3 2020
Trefwoorden Transfer of Undertakings, Employees Who Transfer, Dismissal/Severance Payment
Auteurs Janne Nurminen
SamenvattingAuteursinformatie

    The Finnish Supreme Court has overturned a Court of Appeal decision regarding a transfer of a municipal civil servant to a company during the privatization of a public utility company. The Supreme Court held that an employment relationship had not been established between the transferee and the unlawfully dismissed municipal civil servant despite the principle of continuity of civil service law. The concrete actions of the transferee had an important role in defining that no employment relationship had been constituted between the dismissed municipal civil servant and the private company.


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

ECJ 9 September 2020, Joined Cases C-674/18 and C-675/18 (TMD Friction), Transfer of Undertakings, Employment Terms, Insolvency

EM – v – TMD Friction GmbH (C-674/18) and FL – v – TMD Friction EsCo GmbH (C-675/18), German cases

Tijdschrift European Employment Law Cases, Aflevering 3 2020
Trefwoorden Transfer of Undertakings, Insolvency
Samenvatting

    Member States can decide that rules on transfer of undertaking do not apply to supplementary occupational pension scheme accruals pre-transfer, if the transfer has been carried out by an insolvency administrator after the opening of insolvency proceedings.

    The Irish Workplace Relations Commission has found that the termination of a franchise arrangement between a post office and a retail partner and a subsequent arrangement with another retail partner constituted a transfer of undertaking.


Orla O’Leary
Orla O’Leary is a Senior Associate at Mason Hayes & Curran LLP

    The UK Employment Tribunals and England and Wales Court of Appeal (case [2018] EWCA Civ 2748) have ruled that any Uber driver who has the Uber App switched on, is in the territory where he/she is authorised to work, and is able and willing to accept assignments, is working for Uber under a worker contract. The UK courts disregarded some of the provisions of Uber’s driver agreement. They had been entitled to do so because the relevant provisions of the driver agreement did not reflect the reality of the bargain made between the parties. The fact that Uber interviews and recruits drivers, controls the key information, requires drivers to accept trips, sets the route, fixes the fare, imposes numerous conditions on drivers, determines remuneration, amends the driver’s terms unilaterally, and handles complaints by passengers, makes it a transportation or passenger carrier, not an information and electronic technology provider. Therefore the UK courts resolved the central issue of for whom (Uber) and under a contract with whom (Uber), drivers perform their services. Uber is a modern business phenomenon. Regardless of its special position in business, Uber is obliged to follow the rules according to which work is neither a commodity nor an online technology.


Andrzej Świątkowski
Andrzej Marian Świątkowski is a professor at Jesuit University Ignatianum in Krakow. ((ORCID: 0000-0003-1753-7810))
Pending Cases

Case C-237/20, Transfer of Undertakings, Insolvency

Federatie Nederlandse Vakbeweging – v – Heiploeg Seafood International BV, Heitrans International BV, reference lodged by the Hoge Raad der Nederlanden (The Netherlands) on 4 June 2020

Tijdschrift European Employment Law Cases, Aflevering 3 2020
Trefwoorden Transfer of Undertakings, Insolvency
Article

Access_open Basel IV Postponed: A Chance to Regulate Shadow Banking?

Tijdschrift Erasmus Law Review, Aflevering 2 2020
Trefwoorden Basel Accords, EU Law, shadow banking, financial stability, prudential regulation
Auteurs Katarzyna Parchimowicz en Ross Spence
SamenvattingAuteursinformatie

    In the aftermath of the 2007 global financial crisis, regulators have agreed a substantial tightening of prudential regulation for banks operating in the traditional banking sector (TBS). The TBS is stringently regulated under the Basel Accords to moderate financial stability and to minimise risk to government and taxpayers. While prudential regulation is important from a financial stability perspective, the flipside is that the Basel Accords only apply to the TBS, they do not regulate the shadow banking sector (SBS). While it is not disputed that the SBS provides numerous benefits given the net credit growth of the economy since the global financial crisis has come from the SBS rather than traditional banking channels, the SBS also poses many risks. Therefore, the fact that the SBS is not subject to prudential regulation is a cause of serious systemic concern. The introduction of Basel IV, which compliments Basel III, seeks to complete the Basel framework on prudential banking regulation. On the example of this set of standards and its potential negative consequences for the TBS, this paper aims to visualise the incentives for TBS institutions to move some of their activities into the SBS, and thus stress the need for more comprehensive regulation of the SBS. Current coronavirus crisis forced Basel Committee to postpone implementation of the Basel IV rules – this could be perceived as a chance to complete the financial regulatory framework and address the SBS as well.


Katarzyna Parchimowicz
LLM. Finance (Frankfurt), PhD candidate at the University of Wrocław, Poland, Young Researcher at the European Banking Institute, Frankfurt, Germany – katarzyna.parchimowicz@uwr.edu.pl.

Ross Spence
EURO-CEFG PhD Fellow at Leiden University Law School, Young Researcher at the European Banking Institute and Research Associate at the Amsterdam Centre for Law and Economics – r.spence@law.leidenuniv.nl.

    In a surprise decision, with potentially wide-ranging ramifications, an Employment Tribunal (ET) has found that ‘workers’ as well as traditional ‘employees’ are covered by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).


Colin Leckey
Colin Leckey is a Partner at Lewis Silkin LLP.
Rulings

ECJ 26 March 2020, Case C-344/18 (ISS Facility Services), Transfer of undertakings, transfer, employment terms

ISS Facility Services NV – v – Sonia Govaerts and Atalian NV (formerly Euroclean NV), Belgian case

Tijdschrift European Employment Law Cases, Aflevering 1 2020
Trefwoorden Transfer of undertakings, Employment terms, Transfer
Samenvatting

    In case of a transfer of undertaking involving multiple transferees, the rights and obligations arising from an employment contract may be divided between various transferees, if this is possible. If not (or if it is to the detriment of the employee), the transferees would be regarded as being responsible for any consequent termination under Article 4 of Directive 2001/23, even if this were to be initiated by the worker.

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

    Relying on the prohibition of age discrimination stemming from Directive 2000/78, the Brussels Labour Tribunal, in a judgment of 28 November 2019, ruled that an age limit of 25 for the recruitment of air traffic controllers constituted direct discrimination. Its decision was grounded on the fact that even if there are objective reasons related to air traffic safety which may justify setting an age limit for applicants, the employer must adduce concrete evidence based on scientific facts.


Gautier Busschaert
Gautier Busschaert is an attorney-at-law at Van Olmen & Wynant, Brussels.
Rulings

ECJ 27 February 2020, case C-298/18 (Grafe and Pohle), Transfer of Undertakings

Reiner Grafe and Jürgen Pohle – v – Südbrandenburger Nahverkehrs GmbH and OSL Bus GmbH, German case

Tijdschrift European Employment Law Cases, Aflevering 1 2020
Trefwoorden Transfer of undertakings
Samenvatting

    In the context of a takeover of an activity which requires substantial operating resources, not transferring the substantial operating resources cannot necessarily preclude the classification as a transfer of an undertaking, since other factual circumstances make it possible to establish that the identity of the economic entity has been retained.

Article

Access_open Access and Reuse of Machine-Generated Data for Scientific Research

Tijdschrift Erasmus Law Review, Aflevering 2 2019
Trefwoorden machine-generated data, Internet of Things, scientific research, personal data, GDPR
Auteurs Alexandra Giannopoulou
SamenvattingAuteursinformatie

    Data driven innovation holds the potential in transforming current business and knowledge discovery models. For this reason, data sharing has become one of the central points of interest for the European Commission towards the creation of a Digital Single Market. The value of automatically generated data, which are collected by Internet-connected objects (IoT), is increasing: from smart houses to wearables, machine-generated data hold significant potential for growth, learning, and problem solving. Facilitating researchers in order to provide access to these types of data implies not only the articulation of existing legal obstacles and of proposed legal solutions but also the understanding of the incentives that motivate the sharing of the data in question. What are the legal tools that researchers can use to gain access and reuse rights in the context of their research?


Alexandra Giannopoulou
Institute for Information Law (IViR) – University of Amsterdam.
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