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University of Milan
Department of Social and Political Sciences
massimo.pallini@unimi.it
Without break ?
EXAMS
• 21 Multiple choice tests (1 point)
• 3 open question (0 – 3 point)
• Presentation in class (0 – 5 points)
Aims
- identify legal sources of employment relationship at international, European
and national level and understand how they interact among them;
- identify what and how individual and collective contract regulate employment
relationship and waive the law;
- acknowledge possibilities and rigidities labour law provides in organizing,
managing and downsizing personal in medium-large size companies;
- acknowledge how labour law determines directly or indirectly labour cost
within a national system
- compare differences of national labour laws and assess regulative advantages
and disadvantages.
1.2. The institutional
framework and the legal
sources in European and
International systems
Massimo Pallini
Università di Milano
Dipartimento di studi del lavoro
massimo.pallini@unimi.it
The European Union
The European Coal and Steel Community (1951)
The European Atomic Energy Community (1957)
The European Economic Community (1957)
3 pillars
I. Community pillar (incorporating the ECT)
II. Common Foreign and Security Policy
III. Police and Judicial Co-operation and Criminal
matter
Artiche 5 Treaty on EU
The European Parliament, the Council, the Commission, the Court of
Justice and the Court of Auditors shall exercise their powers under the
conditions and for the purposes provided for, on the one hand, by the,
provisions of the Treaties establishing the European Communities
Other EC Funds:
- European Agricultural Guidance and Guarantee Fund
- European Regional Development Fund
- European Fund against the risk of trading globalization
2. Sources and effects of the European Law
• Primary or community law:
- legal norms contained directly in the Treaties
- legally binding direct effect in MSs legal system
*
• Secondary law:
- legal norms derive from the decisions taken by European institutions using
the powers the Treaties have conferred upon them
Massimo Pallini
University of Milan
The instrumental aim of the ECT social provisions
to reach the economic objectives
• Spaak and Ohlin report (1956) any EC competence
in social and labour law and full sovereignty of the MSs
• Only non-inflationary economic growth and a
competitive market can guarantee good and secure
conditions of employment
Article 2 ECT
The Community shall have as its task, by establishing a common market
and an economic and monetary union and by implementing common
policies or activities referred to in Articles 3 and 4, to promote throughout
the Community a harmonious, balanced and sustainable development of
economic activities, a high level of employment and of social
protection, equality between men and women, sustainable and non-
inflationary growth, a high degree of competitiveness and convergence
of economic performance, a high level of protection and improvement of
the quality of the environment, the raising of the standard of living and
quality of life, and economic and social cohesion and solidarity among
Member States. (emendement of Treaty of Amsterdam 1997)
Fundamental freedoms and rights
of the person as an individual
Article 6 TEU
The Union is founded on the principles of liberty, democracy,
respect for human rights and fundamental freedoms, and the
rule of law, principles which are common to the Member States.
but
The provisions of the Charter shall not extend in any way the
competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be
interpreted in accordance with the general provisions in Title VII of
the Charter governing its interpretation and application and with
due regard to the explanations referred to in the Charter
Treaty of Lisbon has only planned, but not
statued the accession to ECHR
* * *
pay
There isn’t any legislative competence on right of association
art. 137 § 5 EC (now art. 153 TFEU) right to strike
right to impose
lock-outs
TITLE VIII - EMPLOYMENT
(arts.125-130 ECT added by the Treaty of Amsterdam 1998)
now arts. 145-150 TFEU
Plant level
Multilevel bargaining
The different efficacy of collective agreements
Contractual efficacy (Scandinavian Countries, Italy) binding only on the
parties to the collective bargaining and their respective members
No efficacy (UK): without any legal binding efficacy for employees unless
they have accepted it by their individual employment contract
Facoltative phase
On the occasion of such consultation, management and labour
may inform the Commission of their wish to initiate the
process provided for in art.155 autonomous bargaining
The duration of the procedure shall not exceed 9 months, unless
the management and labour and the Commission decide jointly
to extend it.
art. 155 TFEU (ex 139 ECT)
the dialogue at Community level may lead to contractual relations,
including agreements.
Agreements concluded at Community level need to be
implemented in MS’s legal system:
A) Contractual implementation
in accordance with the procedures and practices specific to
management and labour and the Member States
or
B) Istitutional implementation
in matters covered by art.153, at the joint request of the signatory
parties, by a Council decision on a proposal from the
Commission.
The Council shall act by qualified majority, except where the
agreement in question contains one or more provisions relating to
one of the areas for which unanimity is required pursuant to
Article 153. In that case, it shall act unanimously.
The actors of the social dialogue
*
The unsolved problem of the selective criteria
Massimo Pallini
Università di Milano
The purpose of establishing
one open-competitive market
art. 3 lett. g ECT:
One of the most important EC purposes is establishing “…
a system ensuring that competition in the internal
market is not distorted”
art. 4 ECT
The way to reach this objective is “… the adoption of
an economic policy which is based on the close
coordination of Member States‘ economic
policies, on the internal market and on the definition
of common objectives, and conducted in accordance
with the principle of an open market economy
with free competition”.
The Member States have a direct
obligation of fulfilling a national open-
competitive market too
Art.10 ECT
positive obligation: Member States shall take all
appropriate measures, whether general or particular,
to ensure fulfilment of the obligations arising out of this
Treaty or resulting from action taken by the institutions
of the Community. They shall facilitate the
achievement of the Community's tasks.
negative obligation: They shall abstain from any
measure which could jeopardize the attainment of the
objectives of this Treaty.
FREE MOVEMENT OF GOODS
for long time (until 2000) the CJ has been enforcing this
principle just for cross-borders services, not for national
services
The principle of free competition
are prohibited
Those agreements or pratices which:
No absolute exemption
In favour of them Member States must neither enact nor maintain
in force any measure contrary to the rules of free-
competition
Relative exemption
Undertakings entrusted with the operation of services of
general economic interest are subjected to the rules on
competition, in so far as the application of such rules does not
obstruct the performance, in law or in fact, of the particular
tasks assigned to them.
Check of proportionality of the restrictive effects
The development of trade must not be affected to such an extent
as would be contrary to the interests of the Community.
The Commission ensures the application of the provisions of
this principle addressing appropriate directives or decisions to
MSs
The transformation of the competition rules
from private law in public law
by ECJ jurisprudence
“Every citizen of the Union shall have the right to move and
reside freely within the territory of the Member States, subject to
the limitations and conditions laid down in this Treaty and by
the measures adopted to give it effect” (art.18 EUT).
Free movement of workers
- Right to settle
- Right to work
- Right to attend general educational and vocational courses
Regulation CE 593/2008
3. The fact that the parties have chosen a foreign law, whether or not
accompanied by the choice of a foreign tribunal, shall not, where
all the other elements relevant to the situation at the time of the
choice are connected with one country only, prejudice the
application of rules of the law of that country which cannot be
derogated from by contract, hereinafter called "mandatory
rules".
Art. 8 (ex 6)
Individual employment contracts
1. Notwithstanding the provisions of Article 3, in a contract of
employment a choice of law made by the parties shall not have
the result of depriving the employee of the protection afforded
to him by the mandatory rules of the law which would be
applicable under paragraph 2 in the absence of choice.
2. Notwithstanding the provisions of Article 4, a contract of
employment shall, in the absence of choice in accordance with
Article 3, be governed:
(a) by the law of the country in which or from which the employee
habitually carries out his work in performance of the contract,
even if he is temporarily employed in another country ; or
(b) if the employee does not habitually carry out his work in any one
country, by the law of the country in which the place of
business through which he was engaged is situated;
(c) … unless it appears from the circumstances as a whole that the
contract is more closely connected with another country, in
which case the contract shall be governed by the law of that
country.
Art. 9 (ex 7)
Overriding mandatory rules
1. Overriding mandatory provisions are provisions the
respect for which is regarded as crucial by a country
for safeguarding its public interests, such as its
political, social or economic organisation, to such an
extent that they are applicable to any situation falling
within their scope, irrespective of the law otherwise
applicable to the contract under this Regulation.
• LAVAL C 341-2005
• Luxembourg C 319-06
• VIKING C 438-2005
• Ruffert C 346-06
• IKRALIS C 201/15
• Bundesdruckerei GmbH C 549/13
• RegioPost GmbH C 115/14
Equal treatment of men and women
art. 3 co. 2 (as amended by Treaty of Amsterdam)
• Protection of women
as regards pregnancy and maternity
Burden of proof
Directive 97/80 reverses the proof provided the
plaintiff establishes the fact from which it may
be presumed that there has been direct or
indirect discrimination
night time means any period of not less than 7 hours, as defined by
national law, and which must include in any case the period
between midnight and 5 a. m.;
Daily breaks
where the working day is longer than six hours, every
worker is entitled to a rest break, the details of which,
including duration and the terms on which it is granted,
shall be laid down in collective agreements or
agreements between the two sides of industry or, failing
that, by national legislation
Maximum Weekly Working time
the period of weekly working time is limited by means of laws,
regulations or administrative provisions or by collective
agreements or agreements between the two sides of industry;
the average working time for each seven-day period,
including overtime, does not exceed 48 hours. The reference
period cannot exceed four months
Who is a worker ?
regular labour market
registered employment contracts regulated by law
Workers' training
Member States shall take the necessary measures to ensure that
each worker receives sufficient training appropriate to the
particular characteristics of the job, account being taken of his
qualifications and experience.
Obligations of Member States
Use of workers' services and medical surveillance of workers
Member States have the option of prohibiting fixed term and
temporary workers from being used for certain work as defined in
national legislation, which would be particularly dangerous to their
safety or health, and in particular for certain work which requires
special medical surveillance, as defined in national legislation.
Where Member States do not avail themselves of this option, they
must take the necessary measures to ensure that those workers who
are used for work which requires special medical surveillance, as
defined in national legislation, are provided with appropriate special
medical surveillance.
Collective Redundancies
Legal basis: art. 115 TFEU (ex 94 TCE)
Protection of employees
in the event of the insolvency of their employer
Transfer of undertakings
Legal basis: art. 115 TFEU (ex 94 TCE)
Directive 1994/45/CE
Directive 2009/38/CE
adopted on the basis of art. 2 of the Protocol
on Social Policy annexed to the Treaty
establishing the European Community
The purpose:
to improve the right to information and to
consultation of employees in Community-scale
undertakings and Community-scale groups of
undertakings.
Massimo Pallini
University of Milan
In 2008 the Treaty of Lisbon has incorporated the
Charter of Nice in the Treaty on functioning of EU
but
The provisions of the Charter shall not extend in any way the
competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be
interpreted in accordance with the general provisions in Title VII of
the Charter governing its interpretation and application and with
due regard to the explanations referred to in the Charter
Treaty of Lisbon has only planned, but not
statued the accession to ECHR
Article 10
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion. This right
includes freedom to change religion or belief and freedom, either alone or in
community with others and in public or in private, to manifest religion or belief, in
worship, teaching, practice and observance.
2. Every citizen of the Union has the freedom to seek employment, to work, to
exercise the right of establishment and to provide services in any Member State.
3. Nationals of third countries who are authorised to work in the territories of the
Member States are entitled to working conditions equivalent to those of citizens of
the Union.
Article 16
Freedom to conduct a business
Article 30
Protection in the event of unjustified dismissal
2. To reconcile family and professional life, everyone shall have the right to
protection from dismissal for a reason connected with maternity and the
right to paid maternity leave and to parental leave following the birth or
adoption of a child.
Article 34
Social security and social assistance
1. The Union recognises and respects the entitlement to social security benefits and
social services providing protection in cases such as maternity, illness, industrial
accidents, dependency or old age, and in the case of loss of employment, in
accordance with the rules laid down by Union law and national laws and
practices.
2. Everyone residing and moving legally within the European Union is entitled to
social security benefits and social advantages in accordance with Union law and
national laws and practices.
3. In order to combat social exclusion and poverty, the Union recognises and
respects the right to social and housing assistance so as to ensure a decent
existence for all those who lack sufficient resources, in accordance with the rules
laid down by Union law and national laws and practices.
Article 45
Freedom of movement and of residence
1. Every citizen of the Union has the right to move and reside freely within
the territory of the Member States.
1. The provisions of this Charter are addressed to the institutions, bodies, offices
and agencies of the Union with due regard for the principle of subsidiarity and to
the Member States only when they are implementing Union law. They shall
therefore respect the rights, observe the principles and promote the application
thereof in accordance with their respective powers and respecting the limits of
the powers of the Union as conferred on it in the Treaties.
2. The Charter does not extend the field of application of Union law beyond the
powers of the Union or establish any new power or task for the Union, or modify
powers and tasks as defined in the Treaties.
Article 52
Scope and interpretation of rights and
principles
1. Any limitation on the exercise of the rights and freedoms recognised by
this Charter must be provided for by law and respect the essence of those
rights and freedoms. Subject to the principle of proportionality,
limitations may be made only if they are necessary and genuinely meet
objectives of general interest recognised by the Union or the need to
protect the rights and freedoms of others.
6. Full account shall be taken of national laws and practices as specified in this
Charter.
Massimo Pallini
University of Milan
Convention for the Protection of Human
Rights and Fundamental Freedoms
signed at Rome, on 1950 november 4th
The Court shall consist of a number of judges equal to that of the High
Contracting Parties.
The judges aree elected by the Parliamentary Assembly with respect to each High
Contracting Party by a majority of votes cast from a list of three candidates
nominated by the High Contracting Party.
The judges are elected for a period of 9 years. They may not be re-elected.
No judge may be dismissed from office unless the other judges decide by a
majority of two-thirds that that judge has ceased to fulfil the required conditions.
European Court of Human Rights
The Court may receive applications from any High Contracting Party and from
any person, non-governmental organisation or group of individuals claiming to
be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the protocols thereto. The High Contracting Parties
undertake not to hinder in any way the effective exercise of this right.
The Court may only deal with the matter after all domestic remedies have
been exhausted, according to the generally recognised rules of international
law, and within a period of six months from the date on which the final
decision was taken.
Just satisfaction: If the Court finds that there has been a violation of the
Convention or the protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.
Binding force and execution of judgments of
European Court of
:
Human Rights
The High Contracting Parties undertake to abide by the final judgment of the Court
in any case to which they are parties.
If the Court finds a violation of an High Contracting Party, it shall refer the case to
the Committee of Ministers for consideration of the measures to be taken. If the Court
finds no violation in fulfilling its judgements, it shall refer the case to the Committee
of Ministers, which shall close its examination of the case.
Article 4
Prohibition of slavery and forced labour
1. No one shall be held in slavery or servitude.
3. For the purpose of this article the term "forced or compulsory labour" shall not
include:
a) any work required to be done in the ordinary course of detention imposed
according to the provisions of Article 5 of this Convention or during
conditional release from such detention;
b) any service of a military character or, in case of conscientious objectors in
countries where they are recognised, service exacted instead of compulsory
military service;
c) any service exacted in case of an emergency or calamity threatening the
life or well-being of the community;
d) any work or service which forms part of normal civic obligations.
Article 9
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief and freedom, either
alone or in community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the judiciary
Article 11
Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions
for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such
as are prescribed by law and are necessary in a democratic society in the
interests of national security or public safety, for the prevention of disorder or
crime, for the protection of health or morals or for the protection of the rights
and freedoms of others. This article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of the armed forces, of
the police or of the administration of the State.
Article 14
Prohibition of discrimination
the employer must take the measures necessary for the safety and
health protection of workers, including prevention of occupational
risks and provision of information and training, as well as provision
of the necessary organization and means.
Risk groups
Particularly sensitive risk groups must be protected against the
dangers which specifically affect them.
Ruling to read by next Wednesday
Recommendations
This article, nevertheless, deliberately does not specify which sanctions may be applied,
and, in praxis, it works as an efficacious threat mechanism against Member States.
Thus, it was never concretely applied by the ILO, and remains an open tool. Scholars
argue that, hypothetically, Article 33 may include not only the end of technical
assistance and international cooperation, but also sanctions of other international
bodies, such as the end of loans from the World Bank and the International Monetary
Fund, and monetary and trade sanctions on the World Trade Organization system.
Social clauses in multilateral
or bilateral trade agreements