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Effective Enforcement of EC Labour Law : Series in Employment and Social Policy - Jonas Malmberg

Effective Enforcement of EC Labour Law

Series in Employment and Social Policy

Hardcover

Published: 1st July 2008
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Effective Enforcement of EC Labour Law deals with the rules designed to enforce EC labour law directives in the workplace. Directives normally do not provide any specific rules on procedures and sanctions according to which the substantive rules of the directives are to be enforced. Instead, domestic rules shall apply. However, the European Court of Justice has developed some principles of enforcement that limit the autonomy of the Member States. The aim of this book is to analyse the meaning of the principle of effective enforcement developed by the Court in three areas of labour law: - working time in the context of EU health and safety law; - the restructuring of enterprises through collective redundancies and transfers of undertakings; and, - equality of opportunity between women and men.

Prefacep. 5
Abbreviationsp. 15
Presentations of the authorsp. 16
Forewordp. 17
Introductionp. 27
Introducing the projectp. 27
The legal backgroundp. 27
Questions addressed by studyp. 29
Substantive rules--subjective rights--rules of conductp. 30
The different meanings of enforcementp. 32
Requirements for the full effectiveness of rights deriving from Community lawp. 33
Remedies for breaches of EC law (by the Member States acting as law maker)p. 35
A unitary system of remedies for different functions of effective enforcementp. 38
Why a comparative method?p. 40
Explicit or implicit references to national lawp. 40
When is the comparative method used by the ECJ?p. 40
Rationale for drawing inspiration from the national law of the Member Statesp. 42
Minimalist or evaluative approachp. 42
Development of the principle of effective enforcementp. 43
Introductionp. 43
The absence of a Community procedural law codep. 44
Minimum requirements of enforcementp. 45
A more intrusive regime?p. 48
The principle of effectivenessp. 49
The principle of proportionalityp. 50
The fundamental principle of effective judicial protectionp. 51
A move towards a regime of effective judicial process?p. 53
A return to minimalismp. 55
Revival of the more intrusive approach?p. 56
Conclusionp. 57
Strategies for shaping and enforcing labour lawp. 59
Introductionp. 59
Strategies for shaping labour lawp. 59
Three enforcement processesp. 63
The industrial relations processp. 64
The administrative processp. 65
Judicial processp. 65
EC law on equal treatment, restructuring of enterprises and working timep. 66
Introductionp. 66
Equal treatmentp. 67
Restructuring of enterprisesp. 70
Collective redundancyp. 70
Transfer of undertakingp. 72
Working Timep. 74
Industrial relations processesp. 77
Introductionp. 77
Chances for enforcement through negotiationsp. 77
Negotiation, bargaining and consultationp. 78
Three types of negotiationsp. 80
Negotiations about the regulation of labour and employment relationsp. 81
Negotiations to influence managerial decisionsp. 82
Negotiations about the application of rulesp. 82
Support for negotiations in European lawp. 82
The status of collective bargaining in EC lawp. 82
Support in the concerned directivesp. 84
Working timep. 84
Restructuringp. 85
Equal treatmentp. 86
The Information and Consultation Directivep. 86
Support for negotiations in national labour lawp. 87
Starting negotiationsp. 88
Workers' representativesp. 88
Employersp. 88
Individual workersp. 89
Informationp. 90
General informationp. 91
Specific informationp. 92
Confidentialityp. 93
Concluding remarks about informationp. 94
Recognition and duty to negotiatep. 94
Freedom to negotiatep. 94
Duty to negotiate in generalp. 95
Duty to negotiate about restructuringp. 97
Negotiations over working timep. 99
Negotiations about equal treatmentp. 100
Negotiations about the application of rulesp. 101
Industrial action as a means of enforcementp. 102
Conclusions concerning negotiations and industrial action as a means of enforcementp. 104
Differences between working time, restructuring and equal treatmentp. 104
Representativityp. 106
Regulation restricts negotiationp. 107
Extension of EC support for negotiationsp. 107
Administrative processesp. 109
Introductionp. 109
The complementary function of administrative processesp. 110
The need for administrative processesp. 111
The changing role of public authorities with regard to working time regulationsp. 115
The enforcement of working time regulation as an integrated part of health and safety legislationp. 115
From state regulation of working time to negotiated regulationp. 121
The supporting role of administrative authorities in restructuringp. 124
The advisory role of equality agenciesp. 130
Concluding remarksp. 133
Judicial processesp. 137
Taking the initiative in judicial enforcementp. 137
Introductionp. 137
Questions to be addressedp. 137
Labour courtsp. 138
Overview of this chapterp. 140
Requirements of European lawp. 140
Access to an independent and impartial tribunal according to Article 6 of the ECHRp. 140
Competent court according to the regulation on jurisdiction and enforcement of judgementsp. 142
The principle of effective judicial protection in EU lawp. 143
EU Treaty and EU Charter of Fundamental Rightsp. 143
ECJ case lawp. 144
Special requirements flowing from the relevant directivesp. 147
National law on locus standip. 148
Locus standi for individualsp. 148
Employment contractsp. 149
Collective agreementsp. 152
Statutory provisionsp. 153
Locus standi for trade unions and other collective actorsp. 153
Trade unionsp. 153
Works councils and other actorsp. 157
Conclusionsp. 159
Interim decision making powerp. 159
Introductionp. 159
Priority of interpretation and burden of litigationp. 161
General rulesp. 161
Disputes concerning the principle of equal payp. 162
Disputes over working timep. 162
Introductionp. 162
Enforcement by administrative bodiesp. 163
Enforcement of trade unions or works councilsp. 165
Enforcement by individual employeesp. 166
Disputes over the employer's duty to inform and consultp. 169
Disputes over dismissalsp. 170
Concluding remarksp. 172
Interim measures in litigationp. 174
Introductionp. 174
The case law of the ECJp. 176
Interim measures in labour law casesp. 178
Introductionp. 178
Disputes concerning duty to inform and consultp. 179
Excursus: Interim procedures in Italian labour lawp. 181
Disputes concerning payment and other pecuniary claimsp. 182
Disputes concerning the employee's duty to perform workp. 184
Disputes concerning the validity of dismissalsp. 184
Concluding remarksp. 189
Aspects of judicial procedures--time limits, burden of proof, ex officio application of EC lawp. 190
Introductionp. 190
Time limitsp. 191
Time limits for bringing actionp. 191
When does the limitation period begin to run?p. 194
Time limits on the retroactivity of the claimp. 198
Burden of proofp. 204
Evidential rules built from equal treatment directivesp. 206
Evidential rules built from the 91/533/EEC Directivep. 209
Ex officio application of Community Lawp. 213
The power of national courts to apply Community Law of their own motion and their duty to do sop. 213
Procedural rules hindering the ex officio application of Community Law by national courtsp. 216
Effective sanctionsp. 223
Introductionp. 223
Requirements of European Law with regard to judicial sanctionsp. 224
Positively regulated requirementsp. 224
Requirements developed by the ECJp. 225
Adequate compensation with deterrent effectp. 226
Full compensationp. 227
Fault as a preconditionp. 228
A view to the future--debates concerning EC regulation of the outcome of the judicial enforcement processp. 229
Nullity/reinstatementp. 230
Working timep. 231
Restructuringp. 232
Dismissalsp. 233
Rights of employees' representatives to information and consultationp. 237
Equal treatmentp. 239
Damagesp. 242
Working timep. 243
Restructuringp. 244
Dismissalsp. 244
Employees' representatives rights to information and consultationp. 246
Equal treatmentp. 248
Interestp. 251
Claims for performance and injunctionsp. 253
Working timep. 254
Restructuringp. 255
Equal treatmentp. 256
Conclusionsp. 257
Effective Enforcement of EC Labour Law in Polandp. 263
Introductionp. 263
Industrial relations processesp. 263
Starting negotiationsp. 264
Recognition and duty to negotiatep. 265
Industrial action as a means for enforcement of EC labour regulationsp. 268
Can the industrial relations process be regarded as an effective means of enforcing EC labour law in Poland?p. 268
National practices for implementation of directives by means of collective agreementsp. 271
Sources of labour lawp. 272
Two types of collective agreementsp. 274
Conclusionp. 277
Administrative processp. 277
The complementary function of the administrative processp. 277
The role of labour inspectors with regard to the Working Time Directivep. 278
The role of administrative authorities in restructuringp. 280
Equal employment issues and public agenciesp. 280
Concluding remarksp. 281
Judicial processesp. 281
Taking the initiative for judicial enforcementp. 281
Interim decision-making powerp. 282
Priority of interpretation and burden of litigationp. 282
Disputes concerning the principle of equal payp. 282
Disputes over working timep. 283
Enforcement by trade unionsp. 283
Disputes over the employer's duty to inform and consultp. 284
Employment protectionp. 284
Interim measures in litigationp. 285
Introductionp. 285
Interim measures in labour casesp. 285
Disputes concerning payment and other pecuniary claimsp. 285
Disputes concerning duty to inform and consultp. 285
Disputes concerning employee's duty to perform workp. 286
Outcomes of the enforcement processp. 287
Outcomes within the industrial relations and administrative processesp. 288
Outcomes within the judicial processp. 288
Absolute nullityp. 288
Relevant nullityp. 288
Compensation claimsp. 290
Working timep. 290
Restructuringp. 290
Equal treatmentp. 290
Conclusionsp. 290
Four lessonsp. 291
Comparative labour law and European Community labour law--an inseparable couplep. 291
Effective Judicial Protection and State Liability in the Enforcement of EC Labour Law: Connection and Coexistencep. 296
Connectionp. 296
Coexistencep. 298
Some principles for the legal regulation of judicial sanctions in EC directives on labour lawp. 301
Different types of regulationsp. 301
Difficulties regarding choice of categoryp. 302
Some principles guiding choice of regulationp. 303
The complementary functions of different kinds of enforcement processesp. 307
Industrial relations and administrative and judicial enforcement processesp. 307
Macro and micro perspectives on enforcementp. 308
Different focuses on national and European labour lawp. 308
Concluding remarksp. 311
Referencesp. 315
Indexp. 327
Table of Contents provided by Ingram. All Rights Reserved.

ISBN: 9789041121608
ISBN-10: 9041121609
Series: Series in Employment and Social Policy
Audience: Professional
Format: Hardcover
Language: English
Number Of Pages: 376
Published: 1st July 2008
Publisher: Kluwer Law International
Country of Publication: NL
Dimensions (cm): 24.1 x 17.1  x 3.2
Weight (kg): 0.77