16 resultados para Lex
em Archive of European Integration
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No abstract.
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This contribution starts with the examination of the recent Italian Law on Apprenticeship (Decree n° 167 of 2011) in the light of the European regulation, namely that one coming from EU. Then, the European regulations of Apprenticeship - that is to say the regulations in some EU Member States - are analysed. Those rules shows some unexpected similarities among the different legal systems, which suggest the proposal of a new EU Directive that could regulate some issues of Apprenticeship.
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'Common places', as argued in this paper, may at times fulfil a persuasive function. This is the case of messages enshrined in Europe 2020. In the aftermath of an unprecedented economic and financial crisis they may sound like common places. European institutions have given precedence to measures on financial and budgetary stability, thus marginalising social and employment policies. The only promising developments, the 'new places' in labour law, must be searched in the new synergies among employment and cohesion policies. National and subnational levels of decison-making should be favoured in order to attain the delivery of new partnership agreements, supported by European structural funds.
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The paper analyzes the ECJ case law on fixed-term work, with specific regard to non-regression clause, measures to prevent abuses and the principle of non-discrimination. In particular, the Author points out that the principle of non-discrimination is to be regarded as being the core of the fixed-term work regulation; in this respect, especially in more recent judgments, the Court seems to maximize the scope of such principle.
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The essay explores the evolution of comparative law and the contribution of its more recent methodological results on the process of European social integration through law. The analysis of the comparative method in general glides on a discipline, such a as labour law, traditionally linked to the "nomos" of the nation state and looks at the process of its own supranationalization through the lens which is the comparative method; a method used mainly by the juridical format (national and supranational courts). The analysis focuses on the fixed term contract and on the vexing question of collective social fundamental rights vis a vis fundamental economic freedoms in the EU where national constitutional traditions and supranational principals risk collision due also to the comparative method.
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In the face of what looks like a real impasse of the the line of European constitutionalism, partly due to an orientation of the Court of Justice which tends to favor the protection of economic freedoms over the protection of social rights, two opposing trends occurr. The first amounts to a new "constitutional patriotism"; the second entrusts the protection of fundamental social rights no longer to a single Chart or to a single court but to a multi-level system of protection. A dialogue between the European courts that truly valorizes fundamental rights, however, might be hindered by what someone has seen as a resurgence of the dualist theories, evident in an ECJ’s decision as Kadi.
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On the floor of the Global Wage Report 2012/2013 by ILO, entitled Wages and equitable growth, the A. thinks that the wage regulation has to take into account competitiveness without compressing global aggregate demand. Therefore, International and European rules are necessary to avoid the spiral towards the wages dampen, which is bad for the economic development. The rules in action at the different levels are inadequate. The A. proposes an interpretation of Article 153 and Article 155 TFEU that is more suitable for a European regulation promoting better minimum wages and more coherent with the current legal framework of the right to pay, which can be considered, even if partially, as a social right.
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This paper explores the limits and potentials of European citizenship as a transnational form of social integration, taking as comparison Marshall's classical analysis of the historical development of social rights in the context of the national Welfare State. It is submitted that this potential is currently frustrated by the prevailing negative-integration dimension in which the interplay between Union citizenship and national systems of Welfare State takes place. This negative dimension pervades the entire case law of the Court of Justice on Union citizenship, even becoming dominant – after the famous Viking and Laval judgements – in the ways in which the judges in Luxembourg have built, and limited, what in Marshall’s terms might be called the European collective dimension of “industrial citizenship”. The new architecture of the economic and monetary governance of the Union, based as it is on an unprecedented effort towards a creeping constitutionalisation of a neo-liberal politics of austerity and welfare retrenchment, is destined to strengthen the de-structuring pressures on the industrial-relation and social protection systems of the member States. The conclusions sum-up the main critical arguments and make some suggestions for an alternative path for re-politicising the social question in Europe.
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The relationship between employer and worker is not only obligatory but above all, as Sinzheimer said, a ‘relationship of power’. In the Digital Age this statement is confirmed by the massive introduction of ICT in most of the companies that increase, in practice, employer’s supervisory powers. This is a worrying issue for two reasons: on one hand, ICT emerge as a new way to weaken the effectiveness of fundamental rights and the right to dignity of workers; and, on the other hand, Spanish legal system does not offer appropriate solutions to ensure that efficacy. Moreover, in a scenario characterized by a hybridization of legal systems models –in which traditional hard law methods are combined with soft law and self regulation instruments–, the role of our case law has become very important in this issue. Nevertheless, despite the increase of judicialization undergone, solutions offered by Courts are so different that do not give enough legal certainty. Facing this situation, I suggest a methodological approach –using Alchourron and Bulygin’s normative systems theory and Alexy’s fundamental rights theory– which can open new spaces of decision to legal operators in order to solve properly these problems. This proposal can allow setting a policy that guarantees fundamental rights of workers, deepening their human freedom in companies from the Esping-Andersen’s de-commodification perspective. With this purpose, I examine electronic communications in the company as a case study.
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The current debate taking place in continental Europe on the need to reform labour law to reduce the duality between labour market insiders and outsiders, thus giving new employment opportunities to young people seems to be, at its best, a consequence of the crisis, or at its worst, an excuse. The considerable emphasis placed on the power of legislation to reduce youth unemployment prevents real labour market problems from being clearly identified, thus reducing the scope to adopt more effective measures. Action is certainly required to help young people during the current crisis, yet interventions should not be exclusively directed towards increased flexibility and deregulation. This paper questions the “thaumaturgic power” wrongly attributed to legislative interventions and put forward a more holistic approach to solve the problem of youth employment, by focusing on the education systems, school-to-work transition and industrial relations. As a comparative analysis demonstrates, in order to effectively tackle the issue of youth employment, it is not enough to reform labour law. High quality education systems, apprenticeship schemes, efficient placement and employment services, cooperative industrial relations and flexible wage determination mechanisms are the key to success when it comes to youth employment, not only in times of recession.
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The paper analyzes the evolution of the concept of flexicurity in the european context. In this perspective, flexicurity is expressed through the language of the policies, showing an inherent weakness in influencing national reform processes. The essay compare also with the possibility of a re-reading of flexicurity policies, in the light of the theory of capabilities developed by Amartya Sen.
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In the Viking and Laval judgments and more recently in the Comm. v. Germany ruling, the Court of Justice applied the proportionality test to collective rights, setting a series of restrictions to the exercise of the right to strike and the right to collective bargaining. The way the ECJ balances the economic freedoms and the social rights is indeed very different from that of the Italian Constitutional Court. Unlike the European Union Treaties, the Italian Constitution recognizes an important role to the right to take collective action which has to be connected with article 3, paragraph 2, consequently the right of strike is more protected than the exercise of economic freedoms.
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After advocating flexibilization of non-standard work contracts for many years, some European and international institutions and several policy makers now indicate the standard employment relationship and its regulation as a cause of segmentation between the labour market of "guaranteed" insiders, employed under permanent contracts with effective protection against unfair dismissal, and the market of the “not-guaranteed” outsiders, working with non-standard contracts. Reforms of employment legislation are therefore being promoted and approved in different countries, allegedly aiming to balance the legal protection afforded to standard and non-standard workers. This article firstly argues that this approach is flawed as it oversimplifies reasons of segmentation as it concentrates on an “insiders-outsiders” discourse that cannot easily be transplanted in continental Europe. After reviewing current legislative changes in Italy, Spain and Portugal, it is then argued that lawmakers are focused on “deregulation” rather than “balancing protection” when approving recent reforms. Finally, the mainstream approach to segmentation and some of its derivative proposals, such as calls to introduce a “single permanent contract”, are called into question, as they seem to neglect the essential role of job protection in underpinning the effectiveness of fundamental and constitutional rights at the workplace.
