Enforcing Employment Discrimination Law - Potential Transplants from Italy to Britain and Vice Versa?

While substantive EU non-discrimination law has been harmonized in great detail, the enforcement regime for EU non-discrimination law consists merely of a few isolated elements. Thus, the pursuit of unity through harmonization in substantive EU law is accompanied by considerable regulatory autonomy for Member States in securing the efficiency of those laws, reflecting the diversity of national enforcement regimes, and resulting in twenty-seven different national models for enforcing discrimination law in labour markets. This article pursues two connected arguments through a comparison of rules for enforcing non-discrimination law in labour markets in Britain and Italy. First, it argues that enforcing non-discrimination law in labour markets is best achieved when responsive governance, repressive regulation and mainstreaming equality law are combined. Second, the article submits that diversity of national legal orders within the EU is not necessarily detrimental, as it offers opportunities for mutual learning across legal systems.The notion of mutual learning across systems is proposed in order to analyse the transnational migration of legal ideas within the EU. Such migration has been criticized in debates about the ‘transplantation’ of legal concepts or legal irritation through foreign legal ideas, in particular by comparative labour lawyers. However, EU harmonization policies in the field of non-discrimination law aim to impact on national labour laws. The article develops the notion of mutual learning across legal systems in order to establish conditions for transnational migration of legal ideas, and demonstrates the viability of these concepts by applying them to the field of non-discrimination law

The German Federal Constitutional Court's Ruling on Outright Monetary Transactions (OMT) - Another Step Towards National Closure?

The German Federal Constitutional Court (FCC) ruling of 14 January 2014 deserves a thorough evaluation on several accounts: It is the first ever reference by the FCC to the Court of Justice of the European Union (CJEU), it represents a continuation of FCC case law aimed at restricting the impact of European Union law as interpreted by the Court of Justices of the European Union (CJEU) on German law as well as questioning Germany’s participation in an ever closer European Union, and it has the potential to dictate the future course of the EU’s Economic and Monetary Union (EMU).

This case note discusses three aspects of this decision. First, it considers the aims of challenging the youngest measures to contain the euro currency crisis before the FCC, focusing on the question in how far the claims are based on national closure as opposed to an ever closer union of the peoples of Europe. Secondly it analyzes in how far the aims the claims pursue are reflected in the FCC’s response. Thirdly, it considers the substantive relevance of this reference, highlighting the surprisingly vague consequences the FCC envisages should the CJEU not re-interpret the OMT decision as the FCC suggests, and illuminating the strategic aims of the reference without deference. In conclusion, it sketches the remaining scope for the EU to engage in or at least facilitate transnational solidarity.

Article 23: Equality between women and men

This analysis of Article 23 CFREU (Charter of Fundamental Rights for the European Union) argues that this provision can promote a more progressive understanding of gender equality then promoted by the European Court of Justice, in that it requires actual change in gender relations. It also finds shortcomings in that the EU conceptualises gender equality by relating women to men, thus falling short of providing a basis for women's rights.

ECJ Fundamental Rights Jurisprudence between Member States' Prerogatives and Citizens' Autonomy

This chapter provides an analysis of the European Court of Justice's Fundamental Rights Jurisprudence, focused on the potential of Member States to maintain any positive regulatory role in supporting citizens' autonomy on the one hand, and on the impact of the Court's case law on citizens' opportunities to actually enjoy human rights within societies (substantive autonomy). It first sketches the notion of autonomy which is proposed as base of fundamental rights protection and promotion within a social reality characterized by not democratically legitimated dominance based on wealth and economic power. It proceeds to contextualize ECJ case law on fundamental rights. This section starts with a quantitative appetizer, which will formalize some assumptions and test them on a total of 150 cases before the European judiciary. The paper then offers a more conceptual recount around fundamental rights to equality and non-discrimination on the one hand and around fundamental rights of workers to actively shape employment and labor relations on the other hand. In conclusion some suggestions are made of how ECJ fundamental rights doctrine could develop more positively in order to moderate diverging interests of different parts of the citizenry in protecting fundamental rights.

Second Equal Treatment Act for the commercial sector

This book analyses one of the first pieces of legislation promoted by Angela Merkel, who started her political career as a minister for women's equality under Helmut Kohl. The name of the Act, Second Equal Treatment Act, allured to the Equal Treatment Act of the 1950s which implemented the barest minimum requirements to make the German constitution's demand to guarantee equal rights for women more than a hollow formula. However, this Act, while abolishing blatant discrimination of women through statute in fields such as family law, did nothing to further substantive equality. In 1990, when Germany was reunited, women from Eastern Germany had a first hand experience what the absence of such furtherance meant under capitalism. Used to being at nor risk to fall into poverty just because they divorced, or decided to become a mother without male protection, to being in full employment and not at the mercy of payments by their husbands, women from Eastern Germany were dismissed in large numbers, and found themselves sent back to the kitchen. The first minister for women affairs from their ranks made the "2nd Equality Act", but this act did little more than the minimum required by the EEC legislation. Again, substantive equality was not addressed through German Federal legislation. This was left to some of the German states - whose competences were limited to the public services. Most of those states which did create positive action measures for women employed in the public services were governed not by Christian Democrats - but this was the theme of another book.

Deliberative Perfectionism: Why We Can and Should Talk about the Good

In contemporary political theory, perfectionists believe that the state should promote substantive conceptions of the good through its legislation. Supporters of neutrality, instead, claim that the state should refrain from doing so. In this article I analyse perfectionism in relation to Jürgen Habermas’ theory of discourse and deliberative politics (1996) and critique Habermas’ distinction between ‘ethical’ and ‘moral’ discourses (1984, 1990). By relating Habermas’ theory to George Sher’s account of perfectionism (1997), I argue that we can establish the meta-ethical grounds for a model of deliberation encompassing ethical matters (that is, questions concerning the good life) not confined to the limits of specific communities. I conclude by arguing that ethical deliberation is not only feasible but also desirable. Given the fact of ethical pluralism, and in order to show respect towards their fellow citizens, political perfectionists ought to be ready to show how their ethical claims (which they want to see translated into state policy) relate to deeper meta-ethical human goals on which we can ideally find a consensus through deliberation.

European Union Non-Discrimination Law: Comparative Perspectives on Multidimensional Equality Law

EU equality law is multidimensional in being based on different rationales and concepts. Consequently, the concept of discrimination has become fragmented, with different instruments envisaging different scopes of protection. This raises questions as to the ability of EU law to address the situation of persons excluded on a number of grounds. This edited collection addresses the increasing complexity of European Equality Law from jurisprudential, sociological and political science perspectives. Internationally renowned researchers from Scandinavian, Continental and Central European countries and Britain analyse consequences of multiplying discrimination grounds within EU equality law, considering its multidimensionality and intersectionality. The contributors to the volume theorise the move from formal to substantive equality law and its interrelation to new forms of governance, demonstrating the specific combination of non-discrimination law with welfare state models which reveal the global implications of the European Union. The book will be of interest to academics and policy makers all over the world, in particular to those researching and studying law, political sciences and sociology with an interest in human rights, non discrimination law, contract and employment law or European studies.

Emotions and voting in EU referendums

There is an emerging scholarship on the emotional bases of political opinion and behaviour and, in particular, the contrasting implications of two distinct negative emotions - anger and anxiety. I apply the insights in this literature to the previously unresearched realm of the emotional bases of voting in EU referendums. I hypothesise that anxious voters rely on substantive EU issues and angry voters rely on second-order factors relating to domestic politics (partisanship and satisfaction with government). Focusing on the case of Irish voting in the Fiscal Compact referendum, and using data from a representative sample of voters, I find support for the hypotheses and discuss the implications of the findings for our understanding of the emotional conditionality of EU referendum voting. 

Beyond Attribution: Responsibility of Armed Non-State Actors for Reparations in Northern Ireland, Colombia and Uganda

This chapter explores the responsibility of armed non-state actors for reparations to victims. Traditionally international law has focused on the responsibility of the state, and more recently the responsibility of convicted individuals before the International Criminal Court, to provide reparations for international crimes. Yet despite the prevalence of internal armed conflict over the past few decades, there responsibility of armed groups for reparations has been neglected in international law. Although there is a tentative emerging basis for armed groups to provide reparations under international law, such developments have not yet crystallized into hard law. However, when considering the more substantive practice of states in Northern Ireland, Colombia and Uganda, a greater effort can be discerned in ensuring that such organizations are responsible for reparations. This paper finds that not only can armed non-state actors be held collectively responsible for reparations, but due to the growing number of internal armed conflict they can play an important role in ensuring the effectiveness of reparations in remedying victims’ harm. Yet, finding armed groups responsible for reparations is no panacea for accountability, due to the nature of armed conflicts, responsibility may not be distinct, but overlapping and joint, and such groups may face difficulties in meeting their obligations, thus requiring a holistic approach and subsidiary role for the state.

Faith-based Non-Governmental Organizations in the Public Square

This chapter has both a methodological and a substantive aim. First, I suggest, using the role and function of NGOs in religiously related legal disputes as a paradigm example, the distinction between institutional, doctrinal, and theoretical approaches to the study of the relationship between religion and law is sometimes unhelpful, creating a barrier preventing us from understanding the phenomenon that we are examining. Instead, I suggest, a more integrated understanding, drawing on each of these approaches and seeing how they relate to each other, may well be more illuminating. The second aim of this chapter is to suggest, in a preliminary way, that the phenomenon of faith-based organizations should be more integrated than in the past into doctrinal and theoretical debates in the area of law and religion, in particular the problem of how liberal society is to engage with organized religion where there is a fundamental dispute as to who represents that religion, or as to what the basic tenets of that religion are.

Using Comparative Reasoning in Human Rights Adjudication:The Court of Justice of the European Union and the European Court of Human Rights Compared

This article examines the relationship between the methods that the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) use to decide disputes that involve ‘human’ or ‘fundamental’ rights claims, and the substantive outcomes that result from the use of these particular methods. It has a limited aim: in attempting to understand the interrelationship between human rights methodology and human rights outcomes, it considers primarily the use of ‘comparative reasoning’ in ‘human’ and ‘fundamental’ rights claims by these courts. It is not primarily concerned with examining the extent to which the use of comparative reasoning is based on an appropriate methodology or whether there is a persuasive normative theory underpinning the use of comparative reasoning. The issues considered in this chapter do some of the groundwork, however, that is necessary in order to address these methodological and normative questions.

Asynchrony in key Holocene chronologies: Evidence from Irish bog pines

The Greenland Ice Core Chronology 2005 (GICC05) and the radiocarbon calibration curve (IntCal) are the foremost time scales used in paleoclimatic and paleoenvironmental studies of the most recent 10 k.y. Due to varying and often insufficient dating resolution, opportunities to test the synchrony of these two influential chronologies are rare. Here we present evidence for a phase of major pine recruitment on Irish bogs at ca. 8160 yr B.P. Dendrochronological dating of subfossil trees from three sites reveals synchronicity in germination across the study area, indicative of a regional forcing. The concurrent colonization of pine on peatland is interpreted in terms of drier surface conditions and provides the first substantive proxy data in support of a significant hydroclimatic change in the north of Ireland accompanying the 8.2 ka climate cooling event. The date of pine establishment does not overlap with the GICC05 age range for the event, and possible lags between responses are unlikely to explain the full difference. In light of recent studies highlighting a possible offset in GICC05 and IntCal dates, the Irish pine record supports the notion of ice core dates being too early during the period of study. If the suggested discrepancy in timing is an artifact of chronological error, it is likely to have affected interpretations of previous proxy comparisons and alignments.

Sporting Justice: An Arbitrator's Perspective

Drawing on my experience of a number of sports dispute resolution tribunals in the UK and Ireland (such as Sports Resolutions UK; Just Sport Ireland; the Football Association of Ireland’s Disciplinary Panel and the Gaelic Athletic Association’s Dispute Resolution Authority) I intend to use this paper to review the legal arguments typically made in sports-related arbitrations. These points of interest can be summarised as a series of three questions: the fairness question; the liability question; the penalty question.

In answer to the fairness question, the aim is to give a brief outline on best practice in establishing a "fair" sports disciplinary tribunal. The answer, I believe, is always twofold in nature: first, and to paraphrase Lord Steyn in R v Secretary of State For The Home Department, Ex Parte Daly [2001] UKHL 26 at [28] "in law, context is everything" – translated into the present matter, this means that in sports disciplinary cases, the more serious the charges against the individual (in terms of reputational damage, economic impact and/or length of sanction); the more tightly wrapped the procedural safeguards surrounding any subsequent disciplinary hearing must be. A fair disciplinary system will be discussed in the context of the principles laid down in Article 8 of the World Anti-Doping Code which, in effect, acts as sport’s Article 6 of the ECHR on a right to a fair trial.

Following on from the above, in the 60 or so sports arbitrations that I have heard, there are two further points of interest. First, the claim before the arbitral panel will often be framed in an argument that, for various reasons of substantive and procedural irregularity, the sanction imposed on the appellant should be quashed ("the liability"). Second, and in alternative, that the sanction imposed was wholly disproportionate ("the penalty").

The liability issue usually breaks down into two further questions. First, what is the nature of the legal duty upon a sports body in exercising its disciplinary remit? Second, to what extent does a de novo hearing on appeal cure any apparent defects in a hearing of first instance? The first issue often results in an arbitral panel debating the contra preferentum approach to the interpretation of a contested rule i.e., the sports body’s rules in question are so ambiguous that they should be interpreted in a manner to the detriment of the rule maker and in favour of the appellant. On the second matter, it now appears to be a general principle of sports law, administrative law and even human rights law that even if a violation of the principles of natural justice takes place at the first instance stage of a disciplinary process, they may be cured on de novo appeal. Authority for this approach can be found at the Court of Arbitration for Sport and in particular in CAS 2009/A/1920 FK Pobeda, Aleksandar Zabrcanec, Nikolce Zdraveski v UEFA at para 87.

The question on proportionality asks what, aside from precedent found within the decisions of the sports body in question, are the general legal principles against which a sanction by a sports disciplinary body can be benchmarked in order to ascertain whether it is disproportionate in length or even irrational in nature?

On the matter of (dis)proportionality of sanction, the debate is usually guided by the authority in Bradley v the Jockey Club [2004] EWHC 2164 (QB) and affirmed at [2005] EWCA Civ 1056. The Bradley principles on proportionality of sports-specific sanctions, recently cited with approval at the Court of Arbitration for Sport, will be examined in this presentation.

Finally, an interesting application of many of the above principles (and others such as the appropriate standard of proof in sports disciplinary procedures) can be made to recent match-fixing or corruption related hearings held by the British Horse Racing Authority, the integrity units of snooker and tennis, and at the Court of Arbitration for Sport.

Gender and Politics in Northern Ireland: the representation gap revisited

This article examines the nature of gender politics in Northern Ireland since the 1998 Good Friday/Belfast Agreement. Taking gender justice as a normative democratic framework, the article argues that despite the promise of women's equal participation in public and political life written into the Agreement, parties have delivered varied responses to integrating women, women's interests and perspectives into politics and policy platforms. This contrasts with general patterns supporting women's increased participation in social and political life. The article discusses women's descriptive and substantive representation through electoral outcomes and party manifestos, using the demands of successive women's manifestos as a benchmark. It concludes that while parties have given less recognition and inclusion to women than one might have expected in a new political context, the push for democratic accountability will ensure that gender politics will continue to have a place on the political agenda for some time to come.

Knowledge stocks, knowledge flows and innovation: Evidence from matched patents and innovation panel data

Successful innovation depends on knowledge – technological, strategic and market related. In this paper we explore the role and interaction of firms’ existing knowledge stocks and current knowledge flows in shaping innovation success. The paper contributes to our understanding of the determinants of firms’ innovation outputs and provides new information on the relationship between knowledge stocks, as measured by patents, and innovation output indicators. Our analysis uses innovation panel data relating to plants’ internal knowledge creation, external knowledge search and innovation outputs. Firm-level patent data is matched with this plant-level innovation panel data to provide a measure of firms’ knowledge stock. Two substantive conclusions follow. First, existing knowledge stocks have weak negative rather than positive impacts on firms’ innovation outputs, reflecting potential core-rigidities or negative path dependencies rather than the accumulation of competitive advantages. Second, knowledge flows derived from internal investment and external search dominate the effect of existing knowledge stocks on innovation performance. Both results emphasize the importance of firms’ knowledge search strategies. Our results also re-emphasize the potential issues which arise when using patents as a measure of innovation.