scispace - formally typeset
Search or ask a question
Journal ArticleDOI

Can Governments Control Mass Layoffs by Employers? Economic Freedoms vs Labour Rights in Case C-201/15 AGET Iraklis

01 Jan 2017-European Constitutional Law Review (Cambridge University Press)-Vol. 13, Iss: 4, pp 724-743
TL;DR: The AGET Iraklis case as mentioned in this paper revisits the Viking/Laval case law and sheds new light on the uneasy relationship between labour law and the EU's fundamental economic freedoms.
Abstract: The AGET Iraklis case (C-201/15) revisits the Viking/Laval case law and sheds new light on the uneasy relationship between labour law and the EU’s fundamental economic freedoms. This article examines three sets of issues: the balance between the economic and the social in AGET Iraklis; the interplay between freedom to conduct a business (Article 16 of the EU Charter) and labour rights; and the Economic and Monetary Union dimension of the Court’s ruling in AGET Iraklis. The article makes three key claims. First, it is argued that the Court’s ruling marks a step towards a reconciliation between EU free movement law and labour law. Second, it is argued that Article 16 of the EU Charter of Fundamental Rights can be more ‘dangerous’ to labour rights when EU secondary law is interpreted in the light of that provision (such as in Alemo-Herron). In cases where both EU free movement law and Article 16 are engaged, the latter may not be equally influential. Third, it is noted that the margin of appreciation left to the domestic authorities might lead to further deregulation of the national labour law concerned, as Greece is subject to an economic adjustment programme.
Citations
More filters
Journal ArticleDOI
TL;DR: Gap between the EU's normative commitments to socio-economic justice and the practical workings of its integration project is identified in this article, where the authors highlight the potential for strengthening the social EU by recourse to the Charter of Fundamental Rights of the European Union.
Abstract: Gap between the EU’s normative commitments to socio-economic justice and the practical workings of its integration project -- Potential for strengthening the social EU by recourse to the Charter of Fundamental Rights of the European Union – Charter normatively commits EU to a constitutionally conditioned Internal Market – Charter curbs property rights and entrepreneurial freedom specifically for the sake of social rights guarantees – Constructive response to legitimacy dilemmas emerging from cases such as Laval, Viking and AGET Iraklis – Reinstating socially embedded constitutionalism at EU levels as an alternative to relegating social integration to national levels

26 citations

Journal ArticleDOI
TL;DR: An assessment of the European Pillar of Social Rights by reference to its constitutional significance is given in this paper, with a focus on the potential to significantly improve the social output of the EU by addressing the displacement of the Social Policy Title of previous years.
Abstract: An assessment of the ‘European Pillar of Social Rights’ by reference to its constitutional significance – Potential to significantly improve the social output of the EU by addressing the displacement of the Social Policy Title of previous years – Incapacity to redress the constitutional imbalance between ‘the market’ and ‘the social’ in the EU legal order – Continuing displacement of the (national and European) legislator in the internal market and economic governance

23 citations

Posted Content
TL;DR: In this paper, the Court of Justice has argued that the non-discriminatory measures which impede market access are more mythical than real, and that the measures which affect all market actors equally do not, as a matter of economic fact, impede the market access.
Abstract: There has been much discussion of the proper scope of the European Treaty articles on free movement. Central to this discussion has been a debate about the best concept around which to build free movement law, and in this debate "discrimination" has been opposed to "market access." It is, however, the central thesis of this paper that the opposition is largely false. In general, measures which affect all market actors equally do not, as a matter of economic fact, impede market access. The non-discriminatory measures which impede market access, which some have felt it so important to bring within the Treaty, are therefore more mythical than real. This argument is made with reference to competition law and theory concerning barriers to market entry.A secondary thesis of this paper is that the Court of Justice appears to understand this. While its choice of language when interpreting the free movement articles is variable and sometimes inconsistent, and does not make entirely clear what it believes the scope of these articles to be, the types of measures that it has found to be outside the Treaty are those which impose an equal burden on all products and actors in the relevant market, while the types of measures which it has found to be within the Treaty are those which impose greater burdens on a selection of products or actors in the relevant market. Whether a measure is fully equal in its market effects or in some sense selective appears to be the crucial factor in categorizing it as a restriction on cross-border trade or not.

15 citations

Journal ArticleDOI
TL;DR: In this paper, a critical-contextual analysis of case law of the European Court of Justice on employers' contractual freedom is presented, focusing on the relationship between freedom to conduct a business and labour law.
Abstract: Critical-contextual analysis of case law of the European Court of Justice on employers’ contractual freedom – Fundamental right to be immunised against the alleged disproportional protection enjoyed by employees – Progressive ideological overthrow of the original constitutional assumptions of the founding treaties – Prominent example of ‘displacement of social Europe’ – Court of Justice’s case law on the relationship between freedom to conduct a business and labour law – Neoliberal understanding of the freedom of enterprise – Alternative interpretation of Article 16 of the EU Charter of Fundamental Rights

9 citations

Journal ArticleDOI
TL;DR: TUI v Erzberger as mentioned in this paper is a landmark decision on the normative meaning and scope of the fundamental freedoms of the right to freedom of speech and freedom of association in Germany.
Abstract: TUI v Erzberger is a landmark decision on the normative meaning and scope of the fundamental freedoms. Mr Erzberger complained that the territoriality principle as the linking factor of German supe...

1 citations

References
More filters
Book
06 Sep 2016
TL;DR: Muller argues that at populism's core is a rejection of pluralism and proposes a number of concrete strategies for how liberal democrats should best deal with populists as discussed by the authors.
Abstract: 'This lucid guide is essential reading' Guardian From Donald Trump to Recep Erdogan, populists are on the rise across the globe. But what exactly is populism? Should everyone who criticizes Wall Street or Washington be called a populist? What precisely is the difference between right-wing and left-wing populism? Does populism bring government closer to the people or is it a threat to democracy? Who are "the people" anyway and who can speak in their name? These questions have never been more pressing. In this provocative book, Jan-Werner Muller argues that at populism's core is a rejection of pluralism. Populists will always claim that they and they alone represent the people and their true interests. Contrary to conventional wisdom, populists can govern on the basis of their claim to exclusive moral representation of the people: if populists have enough power, they will end up creating an authoritarian state that excludes all those not considered part of the proper "people". Proposing a number of concrete strategies for how liberal democrats should best deal with populists, Muller shows how to counter their claims to speak exclusively for "the silent majority". *Updated with a new afterword*

1,073 citations

Book ChapterDOI
TL;DR: The distinction between formal and substantive meanings of the rule of law has been discussed in this article, where it is shown that one of the principal advocates of the formal notion of law, Raz, is also a leading exponent of legal positivism.
Abstract: The central theme of the article is the distinction between formal and substantive meanings of the rule of law. Formal conceptions of the rule of law do not however seek to pass judgment upon the actual content of the law itself. Dicey's conception of the rule of law is well known and it has been subjected to analysis from all of the diverse directions. Dicey's formulation is concerned primarily with forma] access to the courts, riot with the nature of the rules which individuals will find when they get there. Unger's contention is that this legitimating function performed by the rule of law was always really a sham. It is not fortuitous or surprising that one of the principal advocates of the formal conception of the rule of law, Raz, is also a leading exponent of legal positivism. Trevor Allan also adopts an explicitly substantive conception of the rule of law.

210 citations

Journal ArticleDOI
TL;DR: The judgments of the European Court of Justice of December 2008 in Viking and Laval on the compatibility of national collective labour law with European prerogatives have caused quite a heated critical debate.
Abstract: The judgments of the European Court of Justice (ECJ) of December 2008 in Viking and Laval on the compatibility of national collective labour law with European prerogatives have caused quite a heated critical debate This article seeks to put this debate in constitutional perspectives In its first part, it reconstructs in legal categories what Fritz W Scharpf has characterised as a decoupling of economic integration from the various welfare traditions of the Member States European constitutionalism, it is submitted, is bound to respond to this problematique The second part develops a perspective within which such a response can be found That perspective is a supranational European conflict of laws which seeks to realise what the draft Constitutional Treaty had called the ‘motto of the union’: unitas in pluralitate Within that framework, the third part analyses two seemingly contradictory trends, namely, first, albeit very briefly, the turn to ‘soft’ modes of governance in the realm of social policy and then, in much greater detail, the ECJ's ‘hard’ interpretations of the supremacy of European freedoms and its strict interpretation of pertinent secondary legislation The conflict‐of‐laws approach would suggest a greater respect for national autonomy, in particular, in view of the limited EU competences in the field of labour law

120 citations

Book
01 Dec 2014
TL;DR: The Charter of Fundamental Rights of the European Union (Charter as mentioned in this paper ) is a legal document that enforces the key political, social and economic rights of EU citizens and residents in EU law.
Abstract: The Charter of Fundamental Rights of the European Union enshrines the key political, social and economic rights of EU citizens and residents in EU law. In its present form it was approved in 2000 by the European Parliament, the Council of Ministers and the European Commission. However its legal status remained uncertain until the entry into force of the Treaty of Lisbon in December 2009. The Charter obliges the EU to act and legislate consistently with the Charter, and enables the EU's courts to strike down EU legislation which contravenes it. The Charter applies to EU Member States when they are implementing EU law but does not extend the competences of the EU beyond the competences given to it in the treaties. This Commentary on the Charter, the first in English, written by experts from several EU Member States, provides an authoritative but succinct statement of how the Charter impacts upon EU, domestic and international law. Following the conventional article-by-article approach, each commentator offers an expert view of how each article is either already being interpreted in the courts, or is likely to be interpreted. Each commentary is referenced to the case law and is augmented with extensive references to further reading. Six cross-cutting introductory chapters explain the Charter's institutional anchorage, its relationship to the Fundamental Rights Agency, its interaction with other parts of international human rights law, the enforcement mechanisms, extraterritorial scope, and the all-important 'Explanations'.

98 citations

Journal ArticleDOI
TL;DR: In this paper, the authors analyzed the judgements of the European Court of Justice (ECJ) in cases C-438/05 International Transport Workers' Federation and Finnish Seamen's Union v Viking Line (Judgement 11 December 2007) and Case C-341/05 Laval v Svenska Byggnadsarbetareforbundet (Judgment 18 December 2007).
Abstract: This article analyses the judgements of the European Court of Justice (ECJ) in Case C-438/05 International Transport Workers' Federation and Finnish Seamen's Union v Viking Line (Judgement 11 December 2007) and Case C-341/05 Laval v Svenska Byggnadsarbetareforbundet (Judgement 18 December 2007). In these cases, the ECJ held that where industrial action infringes an employer's free movement rights under Article 43 EC (freedom of establishment) and Article 49 EC (freedom to provide services), respectively, these Treaty provisions can have horizontal direct effect against the unions organizing the action. Unions may defend themselves against these claims by asserting a right to strike (which the Court recognized as a fundamental right within Community law) but only where they are acting proportionately in the exercise of that right. The article explores the key elements of the ECJ's decisions on direct effect, fundamental rights and proportionality, and draws out some of the implications of these cases for English law. © 2008 Industrial Law Society; all rights reserved.

91 citations